NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1095-05T41095-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.W.,

Defendant-Appellant.

IN THE MATTER OF K.B.,

A Minor.

_________________________________

 

Submitted April 24, 2006 - Decided June 2, 2006

Before Judges Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. FG-19-13-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, designated counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jaime E. Quigley, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor, K.B. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is an abuse and neglect case. E.W. is the biological mother of two sons, R.B. and W.B., and a daughter, K.B., born April 19, 1987, August 7, 1989, and September 10, 1988, respectively (collectively, the children). E.W. appeals from that portion of the order of the Family Part entered on February 14, 2005, determining her neglect as to K.B. We reverse and remand for further proceedings.

On July 26, 2004, plaintiff, New Jersey Division of Youth and Family Services (DYFS), filed its complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, seeking to transfer the custody, care, and supervision of the children from E.W. A fact-finding hearing was conducted on January 28, 2005, and January 31, 2005, to determine whether the children were abused or neglected as defined in N.J.S.A. 9:6-8.21c. At the conclusion of the hearing, the judge rendered an oral decision determining that E.W. had neglected the children, pursuant to the standards set forth in N.J.S.A. 9:6-8.21c(4)(b), by failing "to meet the supervisory[] and emotional needs of her children which required [DYFS] intervention and services." A confirming order was entered on February 14, 2005. On August 29, 2005, DYFS filed a complaint seeking to terminate E.W.'s parental rights as to K.B. only. An order to show cause for guardianship of K.B. was entered on that date, which included a provision that "this order dismisses the minor, [K.B.], from the proceeding[,] FN-19-15-05." On December 19, 2005, E.W. filed her notice of appeal from that portion of the order of February 14, 2005, determining abuse and neglect as to K.B. only.

All three children have special needs. R.B. has been diagnosed with oppositional defiance disorder and is bipolar. K.B. was diagnosed with attention deficit disorder/attention deficit hyperactivity disorder, and is classified as "emotionally disturbed." W.B. has been diagnosed with psychological, neurological, and psychiatric disorders. At the time of the fact-finding hearing, K.B. was sixteen years old, R.B. was seventeen, and W.B. was fifteen.

Before J.W.'s death, E.W. and the children did not have a permanent home; but afterwards, E.W. used some of the money she had received from J.W.'s death to purchase the home where the family now resides. The home has two bedrooms, and is small and somewhat "cluttered." Initially, R.B. and W.B. shared a room, K.B. had her own room, and E.W. slept on the couch. Later, after K.B. was removed from the home, W.B. and R.B. each had their own rooms, and E.W. continued to sleep on the couch. E.W. works in "private duty nursing care," supplementing her income with public assistance. As a result of ongoing conflicts between the children, E.W. periodically stays at home.

While DYFS has been involved with the family "on and off since 1987," the family's recent history bears significance. E.W., a victim of domestic violence by her now incarcerated husband, was unable to control the numerous physical and verbal confrontations among the children and herself. On January 2, 2003, E.W. contacted DYFS requesting that R.B. and K.B. be removed from the family home because they had been abusing E.W. "physically and verbally[,] and she was ready" to strike back. DYFS generated a safety plan wherein E.W. agreed to call FIS; Family Crisis Intervention Unit (FCIU) for a host home; or the police to take R.B. or K.B. to the Newton Mental Health Clinic "for a crisis assessment and possible hospitalization," if she continued to have issues regarding their behavior. On October 10, 2003, E.W. again contacted DYFS to report that she and K.B. had gotten into a fight, and when K.B. started punching her, she reached out and struck K.B. in the arm.

On January 10, 2004, K.B. was caught in her mother's bedroom with a twenty-one year old male. When W.B. confronted her, she attacked him with a hammer. As a result of the incident, K.B. was removed from the family home by FCIU. During the five-month placement, K.B. initially stayed in a detention center, and was later placed with a host home on February 18, 2004. On February 17, 2004, K.B. submitted to a mental health evaluation. According to a court report from the Director of the Juvenile Detention Center where K.B. had been placed, K.B. had a problem with alcohol abuse. After April 22, 2004, DYFS began procedures to place K.B. back in E.W.'s home, including FPS to ease K.B.'s transition. K.B. returned to the family home in June 2004, although "it was [not] an easy transition for [K.B.] to go back into the home" because "there was still a lot of hostility" and "a lot of conflict between all family members." FPS continued for six weeks, and FIS was provided and continued after K.B.'s return.

K.B. was removed from the family home a second time on July 6, 2004, due to a physical and verbal altercation between K.B. and E.W. K.B. was placed in a host home pursuant to a fifteen-day informed consent executed by E.W. Thereafter, DYFS asked E.W. to sign a six-month informed consent, but E.W. refused. On July 26, 2004, DYFS filed its complaint under N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, and by order to show cause entered that date, DYFS was granted care, custody and supervision of the children. K.B. remained in the host home until August 2, 2004, at which time she was placed in the home of Ms. A., a former family friend, where she presently resides. Before her placement, K.B. had physically assaulted both R.B. and W.B.; and on one occasion when E.W. was not at home, R.B. defended himself by hitting K.B. with a wooden boat oar.

In September 2004, the FIS provided for E.W., R.B., and W.B. was terminated because E.W. was "unable to engage in therapy" and she was "hostil[e]" and "angry." E.W. indicated that she did not want to participate in FIS because "there [were] no issues going on[;] [K.B.] was not in the home[;] [t]he issues had been because [K.B.] was in the home[;] . . . [and] [R.B.] and [W.B.] were doing fine and there was no reason that they needed family therapy."

In late September or early October 2004, when R.B. was seventeen years old, a letter was sent to R.B. by his school referencing his absenteeism. When questioned as to R.B.'s school attendance, E.W. indicated that he did not attend because "she could not get him up in the morning." E.W. had asked the police and friends for assistance with R.B.'s attending school, and R.B. continued to attend until he was informed that he no longer needed E.W.'s permission to withdraw. R.B. withdrew from school, and began working. E.W. had problems with R.B. attending school since the ninth grade.

Around the same time, W.B. started "acting out" at school and was suspended twice. When DYFS contacted E.W., she informed DYFS that she had discussed W.B.'s behavior with him. In November 2004, DYFS attempted to reinstate FIS "to maintain family stabilization" and "prevent further placement," because W.B. had become "hostile" and "aggressive." In January 2005, FIS was terminated because E.W. was again "unable to engage in therapy," and she was blaming K.B. for the family's problems. R.B. and W.B. lived with E.W. for the relevant periods of time, with one exception when R.B. was placed with a host home, but when "nothing changed," he was returned to the family home.

A fact-finding hearing was held on January 28, 2005, and January 31, 2005, during which DYFS presented three caseworkers, and E.W. testified. Angela DeMillio, a Family Service Specialist with DYFS, testified that she was assigned to the case in April 2004. DeMillio stated that K.B. was not considered for residential placement, because "[s]he does [not] fit the criteria," i.e., children that are recommended for residential placement usually have psychiatric issues. She testified that K.B. had stabilized after being removed from the family home in July 2004; and since K.B. has been with Ms. A., she has been attending school regularly and there have been no negative school progress reports. DeMillio indicated that during one of the home visits, she had witnessed E.W. speaking "inappropriately" in reference to K.B. in the presence of W.B. and R.B., e.g., regarding K.B.'s trip to Hawaii with the A. family, and the alleged act of K.B. killing the family dog.

DeMillio admitted that neither W.B. nor R.B. had received individual counseling, although they were on the waiting list; and the boys were clean and appropriately dressed for school. She acknowledged that in her various assessments and evaluations of K.B., K.B. had admitted consuming alcoholic beverages and smoking marijuana; before her placement with Ms. A., K.B. was failing in school; on occasion, K.B. had initiated physical violence with her family members; and K.B. had a history of truancy and juvenile delinquency.

Michelle Natoli, a clinician in the family stabilization program for FIS, testified that she was assigned to the case in June 2004, to provide intervention and stabilization services to the family upon K.B.'s return home. She was unable to set any goals with the family because during "every session . . . there was a crisis that had to be addressed . . . . So it was difficult to then discuss goals when we were addressing whatever issue had happened." During an in-home session, Natoli observed that W.B. was "the quieter one," while R.B. and K.B. were "more vocal," and there was "a lot of name calling and swearing back and forth." She also noted that the relationship between K.B. and E.W. was "volatile" and "[t]here was a lot . . . of anger from both of them towards each other. There was name calling, there was swearing." Natoli observed E.W.'s failure to enforce punishment when R.B. and K.B. disobeyed the "use of computer" rules.

Kristen Fischer, another family stabilization caseworker, testified that she was assigned to E.W.'s family in November 2004, to provide services to stabilize the family, and to "prevent the removal of [W.B.] and [R.B.] from the home." Fischer stated that E.W. "agreed to services" and "participated in sessions." "She was open and forthcoming with information," although E.W. was resistant to setting goals and determining treatment. Fischer observed that W.B. and R.B. were "often disrespectful" to E.W. Despite E.W.'s requests that K.B. be present at the FIS home visits, Fischer did not involve K.B. in the sessions because "there was too much instability and anger being placed and directed towards her." As a result of E.W.'s refusal to participate without K.B.'s presence, services were terminated.

E.W. testified as follows. The children had attended individual counseling throughout childhood. R.B. and W.B. attended counseling at Newton Memorial Hospital for four to five years. K.B.'s counseling started at Newton in 2001 and ended "two years ago" in 2003, although E.W. had attempted to re-enroll her prior to her placement. During those two years, K.B. received counseling through various mental health providers, and presently receives individual counseling. E.W. welcomed the in-home services as necessary for the children, and confirmed that both FIS and FPS were provided during the past year or two. E.W. followed the instructions provided by the different FIS caseworkers, and the children generally adhered to the FIS plans, concerning chores, household duties, and cooperation, although sometimes "they would give [E.W.] a hard time[]." As to the altercations between herself and K.B., E.W. indicated that they derived from K.B.'s "viper tongue." E.W. denied stating that the services for boundary setting and discipline were not necessary for R.B. and W.B.

Although E.W. kept alcohol in the home for social events, she was not aware that K.B. had been drinking alcohol from the age of thirteen. Upon discovering alcohol missing from a few bottles in 2003, E.W. confronted the children, and K.B. confessed to drinking the alcohol. As a result, E.W. requested that DYFS provide drug and alcohol rehabilitation treatment for K.B., as "promised," but no such treatment was provided.

E.W. never requested a residential placement for K.B., but she was informed instead that if K.B. continued to act out, the "next step would have been the residential placement." As to the allegation that K.B. killed the dog statement, E.W. stated that both boys had witnessed K.B. kick the dog, and had been present when the dog was euthanized. When K.B. became physically abusive with the boys, she would "scold" her, break up the fight, and "place [the children] in[] separate rooms." E.W. indicated that she has no problem with K.B. and W.B. visiting each other, and that she had attempted to talk to K.B. on numerous occasions about drug and alcohol use as well as casual sex. E.W. admitted to being frustrated because she believed that the placement was a means of reunification, but "no one has made that effort to help . . . . I worry about my daughter."

In rendering his decision, the judge focused on the last portion of the statute defining an "abused or neglected child:"

[A] child whose . . . mental or emotional condition has been impaired or is in imminent danger of becoming impaired as [a] result of the failure of his [or her] parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . education . . . , or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21c(4) (emphasis added).]

The judge determined that E.W. was not neglectful in terms of providing a proper education to R.B. and W.B., finding her attempts to encourage their attendance at school reasonable. He also found E.W. had not "inflict[ed] harm of a physical nature" upon the children. The judge then framed the issue as whether E.W. had caused "emotional harm" to the children by failing to provide proper supervision or guardianship "by any other acts of a similarly serious nature requiring the aid of the court." N.J.S.A. 9:6-8.21c(4)(b). Contrary to the judge's feelings that he "was not quite comfortable with this catchall term, acts of a similarly serious nature, to place a neglect finding on the record," he did so, while stating:

But I do see at least [R.B.] and [K.B.] as they have grown older, to be out of control. And certainly when they are in the same home together, they have proven this . . . .

I see the inability of this mother, for many reasons over time, less and less able to monitor and lead their developmental stages.

. . . .

There were a number of efforts, as has been indicated, and I am satisfied that, without going through a recital of the fact finding matching it against the documents in evidence, the 40 exhibits, that they have proven chronologically historically as to what has happened and the interactions with the family.

. . . .

So that we have [K.B.], for example, placed out of the home under [N.J.S.A. 2A:4A-20,] on one or more occasion[s] and even her conduct in return to home was monitored, hopefully, by pressure of the [c]ourt, in the presence of one of the Sussex [J]udges, and to be enforced by Sussex County Probation.

But [K.B.] had confrontations not only with her mother, but also with her brother or brothers into . . . 2004[,] and I shall not go into those specifics. But let [us] just say they were a variety of repeated acts that are well outside the most liberal definition of adolescent acting out to be committed.

. . . .

Let us further be as fair as we can, as argued by the [DYFS] attorney, that [E.W.] has not fully cooperated in counseling opportunities through the agencies that have evaluated and analyzed the situation.

. . . .

I am satisfied, that this placement of [K.B.] back in the home can only add to the levels of dynamic negativity that plays among the family as it exists. The agency witnesses who appear to testify, particularly [Ms.] Fischer, indicate that there are enough issues to be worked out among [R.B.] and [W.B.] or [W.B] and his mother. Issues that presumably would lead to a better atmosphere[,] and thus hopefully obtain the return of [K.B.] to the family residence.

I would emphasize, and perhaps I [am] getting to the dispositional aspect ahead of myself, but I have a great concern in reading the evidence before us that there is no mention, let alone awareness, of the sexual preoccupation activity past, either assaultive or voluntary upon or by [K.B.] [her]self. There [is] nothing with respect to substance abuse discussion. It was not that there was a substance abuse level that indicated anything more than abuse, but those are dangerous tools to use, especially at that age, as well as protections that might be discussed by the therapist.

So that, in and of itself, is a difficulty. I [am] satisfied that the exhibits attached to the complaint . . . do refer and make reference to historic difficulty by separate instruments, the mental health evaluation of Dr. Herman and family preservation recommendation of June [] [2004], mislabeled June 28, [2003], and Dr. Herman's detention evaluation of January [], 2004[,] are much too current to be put aside.

. . . .

I would suggest to [E.W.], respectfully, that I accept and recognize her distress and her continuing anger, but I trust that she will accept and admit, on the other hand, that from those who have seen her, and there have been an awful lot of people who she has seen, that in the sense that she herself has to have her 16 year old daughter back in the home, and this daughter, as she aptly described it[,] I thought, with a viper tongue, has to have that tongue not cut off or controlled, but that she has to deal with many, many issues, meaning [K.B.], before the return and resumption of a family picture could ever be envisioned.

. . . .

But over the next period of 75 to 90 days, I would recommend that a choice be made by [E.W.] and communicated through her Counsel to the Deputy that this finding that I make, as I indicate under the arcane language and catchall language, will result in having services provided that can be accessed and used and that there will be progress.

On February 14, 2005, an order was entered, determining that E.W. was neglectful by failing to meet the supervisory and emotional needs of the children.

On August 29, 2005, DYFS filed its complaint seeking to terminate E.W.'s parental rights as to K.B., and an order was entered dismissing K.B. from the abuse and neglect proceedings. DYFS subsequently withdrew the termination complaint, and is pursuing Kinship Legal Guardianship as to K.B. E.W. appeals the order of abuse and neglect as to K.B. only. The Law Guardian supports the decision below.

On appeal, E.W. presents the following issues for our consideration:

POINT I.

THE LOWER COURT ORDERS MUST BE REVERSED SINCE THE DIVISION DID NOT MEET ITS BURDEN OF PROOF BY A PREPONDERENCE OF THE EVIDENCE.

POINT II.

THE LOWER COURT ORDERS MUST BE REVERSED SINCE THE COURT FAILED TO RENDER SPECIFIC FACTUAL FINDINGS AT THE FACT-FINDING HEARING [(]NOT PRESENTED BELOW[)].

A fact-finding hearing is defined as "a hearing to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The "'fact-finding hearing is a critical element of the abuse and neglect process.'" L.A., supra, 357 N.J. Super. at 166 (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)). "A finding of abuse or neglect has a profound impact on a family." Ibid. The hearing is required to "inquir[e] 'into the surroundings, conditions, and capacities of the persons involved in the proceedings.'" Id. at 163-64 (quoting N.J.S.A. 9:6-8.48b). A finding that a parent or guardian abused or neglected his or her child, as contemplated by N.J.S.A. 9:6-8.21, may be supported by demonstrating that the parent or guardian engaged in one of seven acts defined therein. N.J.S.A. 9:6-8.21c(4) states that an "abused or neglected child" includes:

[A] child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[(emphasis added).]

Regardless of the statutory subsection in which a parent's conduct falls, the judge "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made." J.Y., supra, 352 N.J. Super. at 265. The court's findings must be based upon "competent[,] reliable evidence." Ibid. The judge must clearly identify all documentary exhibits relied upon in reaching his or her decision. Ibid. Such detailed fact-finding is legislatively mandated. Id. at 262-63. It is also required by Court Rules.

Rule 1:7-4(a) requires that a trial court "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." A trial judge's failure to comply with this obligation 'constitutes a disservice to the litigants, attorneys[,] and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 2, 4 (App. Div. 1976)). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind.'" In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)).

Our review of the record fails to disclose a factual determination of abuse or neglect, although the order indicates that E.W.'s conduct was neglectful in terms of failing to provide supervision and emotional needs for the children. In his opinion, the judge recites the family history and physical altercations between the children, but does not state how those troubled events equate to neglect by E.W. The judge only suggests that E.W.'s conduct falls within the "other acts of a similarly serious nature" category of the statute. N.J.S.A. 9:6-8.21c(4)(b). While the judge articulated a need to provide services to stabilize and diffuse the anger and hostility that the family members have demonstrated towards each other, with the eventual aim of reunification, we conclude that the judge failed to express the facts underpinning his determination of neglect by E.W. The record is devoid of any findings of "serious" acts committed by E.W. against the children falling within the catch-all provision of the statute.

Because the judge failed to articulate his findings of neglect of K.B. by any acts or omissions of a "similarly serious nature" to that of "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment" that "require[] the aid of the court," N.J.S.A. 9:6-8.21c(4)(b), we reverse the determination of neglect of E.W. against K.B., and remand to the Family Part for further findings of fact in accordance with this opinion.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

 

E.W. is also the biological mother of J.W., born September 23, 1976, deceased at the time of the proceeding below, and J.A.W., born August 23, 1977.

R.B. and his father have the same name. R.B., Sr., did not participate in the proceedings, and is presently incarcerated in the State of New York for sexually molesting a minor.

Because the order of February 14, 2005, determining that E.W. abused or neglected the three children, is an interlocutory order, E.W.'s right to appeal did not accrue until entry of the final order dismissing K.B. from the abuse and neglect proceeding. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003).

From 2001 to 2003, the family had several resources made available to them by DYFS, including involvement with the Child Assessment Resource Team (CART). Through CART, E.W. had access to Family Preservation Services (FPS), Family Intervention Services (FIS), and Youth Advocate Program (YAP) for K.B. E.W. also had counseling afforded to her through Saint Clare's Hospital, and attended a parenting group known as "Tough Love."

Although the order of February 14, 2005, determined that E.W. neglected her three minor children, our opinion is limited to the Family Part's decision pertaining to K.B. because E.W. did not appeal from the determination of neglect of R.B. or W.B.

(continued)

(continued)

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A-1095-05T4

RECORD IMPOUNDED

June 2, 2006