DIVISION OF YOUTH AND FAMILY SERVICES v. H.B IN THE MATTER OF C.B and V.B minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0434-10T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF C.B. and V.B.,

minors.

_________________________________________________

December 21, 2011

Submitted November 9, 2011 - Decided

Before Judges Messano and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-0119-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.B. and V.B. (Nancy E. Scott, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following a fact-finding hearing, the Family Part judge concluded that defendant H.B. "was neglectful and placed [her] children at risk due to her lack of intervention and supervision given the history of violence in the home." The Title Nine litigation was ultimately terminated eight months later as a result of defendant's "cooperat[ion] with . . . and compli[ance] with services" provided by the Division of Youth and Family Services (DYFS or the Division), thereby eliminating "any concerns of abuse or neglect."

Defendant now appeals and raises the following issue for our consideration:

THE FINDING OF ABUSE AND NEGLECT AGAINST [DEFENDANT] WAS NOT SUPPORTED BY COMPETENT MATERIAL AND RELEVANT EVIDENCE

We have considered this argument in light of the record and applicable legal standards. We reverse.

I.

On January 8, 2009, defendant's son, Charles, arrived at school with "bruises on his face and body."1 Charles told "the school resource officer that his brother, [Ronald], beat him up" the prior evening while defendant was at work. Ronald was 18 years old at the time, Charles was 16, and their sister, Vicky, was 14. All three children were attending school, residing at home with defendant, and present in the home when the incident occurred.

The Parsippany-Troy Hills Police Department was contacted and referred the matter to the Division on January 16. Maria Perez, a Division case worker, visited the family home later that evening to investigate the report. Ronald told Perez that Charles came home on the evening of January 7 "in a bad mood." When Ronald tried to calm his brother down and touched him on the shoulder, Charles "retaliated by kicking him in the chest," and "hit him with a [piece of] plywood on the forehead." Ronald struck Charles in self-defense. Ronald was subsequently arrested for simple assault and had a municipal court appearance scheduled for February.

Defendant was belligerent, declined to be interviewed, called Charles, who was not home, "and told him that DYFS was in the home to pick him up." After the call, defendant told the caseworker that Charles would not be coming home, and the Division could "have fun" looking for him.

Perez told defendant that either Ronald would have to leave the home, or Charles and Vicky would be placed in protective custody while the Division investigated "the violence between the children" and the family's "history with the police." Defendant refused to ask Ronald to leave, and provided the Division with contact information for her adult daughter who was willing to take custody of Vicky, but not Charles. Defendant reported that she had scheduled a psychological evaluation of Charles, but he did not attend and "she [wa]s not able to physically pick him up and take him to counseling." Defendant noted that she had previously asked the Division for assistance with no success.

Perez effected an emergency removal of Vicky. In the process of transporting Vicky to her older sister's home, she told Perez that Ronald had also hit her -- "'not hard, we play fight.'" Vicky did not witness the incident on January 7, but told the caseworker that her brothers often hit her mother.

Charles was located, and Perez notified defendant that he would be taken to the Morristown Youth Shelter. Defendant "stated that she understood and . . . perhaps now [Charles] could get help," adding that "her son's main issues [we]re anger and not listening to authority figures." During his first day at the shelter, Charles became enraged and used profanity when told he could not smoke and needed to relinquish his iPod and cell phone to shelter personnel. Charles left the shelter twice that day without authorization.

On January 21, 2009, the Division filed a verified complaint against defendant, seeking an order granting care, custody, and supervision of Charles and Vicky. At the hearing that day, the Family Part judge noted an extensive history of domestic disturbances, police involvement, and Division referrals. The judge granted DYFS custody and care of the two children, noting the January 7 incident "[wa]s perhaps more problematic than it would be in isolation."

The police reports considered by the judge indicated that during 2005, the police responded on four separate occasions to investigate claims that defendant and the children had been fighting with one another. Several of those calls for assistance were made by defendant.

In 2006, defendant called the police to respond to incidents involving Ronald on two occasions: once, when he threw a flashlight damaging a wall; and again when he and Charles were fighting. Defendant told the police that "she felt she could not control her son [Ronald] and . . . had similar problems in the past with her children." Defendant "stated that her family [wa]s seeing a family therapist."

In 2007, the police responded to thirteen separate altercations among family members, including fights between the boys that sometimes resulted in injury. On several occasions, Ronald assaulted defendant by pushing her, holding her on the ground, spitting on her, hitting her with a chair, spraying Lysol on her face, and biting her on her wrist. Other reports indicated that Charles had "pushed [defendant] into a wall," and "broke[n] items in [the] residence during an argument with [defendant]." In one incident, Ronald accused defendant of "kick[ing] him in the chest and hit[ting] him in the head." Defendant told the police "that she can't control her kids and she wish[ed] they would all just leave." The police observed "the entire family . . . cursing at one another and saying negative comments."

The conduct continued in 2008, when police responded to five separate incidents, one of which occurred when Ronald struck defendant and grabbed the steering wheel of the car as she drove. Fighting between the two boys continued, and defendant told police "that she [wa]s at her wit['s] end" and "did not know what to do with [them] anymore." Less than a month before the January 7, 2009 altercation, police responded to "a report of a juvenile out of control" when Charles "became verbally abusive" towards defendant.

The Division's involvement with the family began in 1999 and included twelve previous referrals determined to be either unfounded or unsubstantiated. In 2000, after the first referral, DYFS closed its file because "the family [wa]s engaged in therapy and [wa]s cooperating with services from Family Preservation Services."

In 2004, when the Division received a report that Charles "had violent outbursts on a regular basis[,]. . . would become physical with [defendant], and had left bruises on her two (2) days earlier," the Division "linked" defendant "to Family Intervention Services (FIS)," in an effort to "provide services."

In 2005, Ronald "stabbed [Charles] in the hand with a fork." The Division again referred the family "to Family Based Strategies and [FIS]." The Division monitored the family throughout the year as defendant availed herself of the services provided and ultimately concluded that the family "appeared to have achieved an acceptable degree of stabilization."

In early 2006, the Division confirmed that the family "continued to be engaged in services such as home individual and family counseling" through "Family Based Strategies [and] Caring Partners of Morris and Sussex," "intensive" family services from "Care Manageable Organization," "and parenting skills for [defendant] through Family Based Strategies." However, by April, the Division noted that defendant had "not [been] cooperating with the need to have her children engaged in counseling and services."

On May 18, 2006, the Division sought and was awarded care and supervision of the children. On November 6, the litigation was dismissed "as it was found that the family [wa]s no longer in crisis and [defendant] w[ould] not cooperate with the requested psychological evaluations." The Division monitored the family over the next few months and terminated its involvement on April 27, 2007. There were no further referrals until the January 16, referral.

At the removal hearing, defense counsel noted that defendant had been trying to have Charles admitted to Hope House, which "offer[ed] individual therapy to adolescents and to families." In granting the Division's request, the judge ordered defendant to undergo substance abuse and psychological evaluations and to comply with treatment recommendations. Vicky had been returned to defendant's custody approximately a week after the removal. At a case management conference the following month, the court learned that defendant had not been psychologically evaluated and ordered that she comply and that Charles be returned to defendant's custody only upon implementation of in-home FIS services. Charles returned home the following week when in-home services were in place.

By July 2, 2009, Charles and Vicky had been evaluated, but FIS was no longer involved with the family because of noncompliance. Neither defendant nor Ronald had attended a psychological evaluation. The judge noted "that a lot of the concern[s] about . . . violence are as a result of the strain the single parent family is under and probably a lot of the noncompliance is related to that too." He expressed "mixed feelings" about making "a finding of neglect against a parent in this situation," noting it "seem[ed] a little harsh." Because of the "tremendous strain on the household . . . show[ing] up in the anger issues and also in the noncompliance," the judge decided not to "insist on all the services that have been identified previously." He scheduled a fact-finding hearing that commenced on October 28 before a second Family Part judge.2 Perez testified regarding her investigation following the January 16 referral. The police reports and DYFS reports were admitted in evidence. The judge also decided that he would conduct an in camera interview of Charles in the presence of the Law Guardian.

The in camera interview occurred on November 9; however, at a subsequent hearing on December 17, defense counsel advised the judge that transcripts of the interview could not be prepared because of audibility problems. Defense counsel sought to call Charles as a witness, but noted he was sick with the flu and could not come to court. The judge noted, "the defense does have the right to call this witness," and, given Charles' illness, he was "not quite sure how we can go forward today." The Deputy Attorney General and the Law Guardian objected, suggesting that the judge rely upon his notes from the interview. The judge responded that he did not "have [any] notes regarding the actual meeting."

The Law Guardian, however, recounted the substance of the interview. Specifically, Charles acknowledged that the police had been called to his home multiple times, but "felt his mother [wa]s a good mother and . . . work[ed] hard to provide for him and for his siblings. . . . That she ha[d] done her level best to provide for them."

The judge then indicated he was "satisfied that [the Law Guardian's] notes . . . refreshed [his] recollection sufficiently as to the meeting with the child." The judge also indicated that he would review the tape of the October 28 proceeding to ascertain whether he had definitively ruled on defendant's request to call Charles as a witness, ordering the in camera interview in lieu thereof. The judge entered an order continuing the fact-finding hearing and ordering defendant to execute necessary documents for the provision of in-home services.

Apparently without further hearing, on December 31, 2009, the judge entered the order under review. In a written statement of reasons attached to the order, the judge briefly recounted the extensive involvement of the police and the Division over the years. He further noted:

Defense elicited testimony from . . . Perez indicating that there were no Division referrals in the 2 years prior to the removal, raising a question as to whether [defendant] had reason to believe anything would happen if she left her teenaged children alone. However, the Division referenced numerous police reports indicating violence in the home during the same period, including serious incidents of fighting . . . .

The Court also considered [Charles'] in camera testimony. [Charles] . . . feels his mother is a good mother who works hard to provide for him and his siblings. [Charles] acknowledged that the police were called to the . . . home a significant number of times, but averred that he and his brother were the ones who had the bad fights. While this may be true, the Court is more concerned over the lack of intervention and supervision by [defendant] given the history of violence in the home, as the previous non-compliance with Division-offered services has clearly contributed to the police being called to the home more than 30 times. In the time since the removal, some 11 months, [defendant] has also failed to have her counsel review release forms related to treatment and services for the children.

[T]he Court finds that the Division has established by a preponderance of the evidence, that the Defendant was neglectful and placed the children at risk.

This appeal followed.

II.

It is well recognized that appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quotations omitted). And, when the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).

"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (citations omitted). "The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" Ibid. (quoting N.J.S.A. 9:6-8.8). "The legislative history of Title 9, precedent and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." M.C. III, supra, 201 N.J. at 344 (quoting G.S. v. Dept. of Human Servs., 157 N.J. 161, 176 (1999)). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.

In pertinent part, Title Nine defines an "'abused' or 'neglected child'" as one under the age of 18 whose parent:

(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) . . .; (4) or 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 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 . . . .

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

At the fact-finding hearing, the Division was required to prove by a preponderance of the evidence that Charles and Vicky were abused or neglected children within the statutory definition. A.R., supra, 419 N.J. Super. at 543. "Whether a child is 'abused or neglected' is quite frequently 'fact sensitive.'" Id. at 544 (quoting P.W.R., supra, 205 N.J. at 33). We have said it is the "risk of harm, not just past injury or acts, [that is] relevant to determining whether a child is an abused or neglected child." I.H.C., supra, 415 N.J. Super. at 575.

D.Y.F.S. never specified the specific sub-section of N.J.S.A. 9:6-8.21(c) it claimed had been violated, and the judge failed to specifically indicate which sub-section he applied. See N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617 (App. Div. 2010) (noting in the context of a stipulated finding of abuse and neglect, the Division should specify so that the judge may find "which specific provision of N.J.S.A. 9:6-8.21(c) is expected to be proven by way of [the] defendant's stipulated facts"). Defendant posits her argument solely as to sub-section (c)(4)(b) -- she did not "fail[] . . . to exercise a minimum degree of care . . . in providing the child[ren] with proper supervision." In particular, she contends that, given the age of her children and the fact that she was at work, the judge erred in finding she committed neglect because "there is no cautionary act [she] could have performed to prevent" the January 7 incident.

DYFS counters by citing in its brief sub-sections (c)(1), (2) and (4)(b) of N.J.S.A. 9:6-8.21(c) without any specificity. The Division contends that given "the lengthy history of violence in the home," defendant should "have expected there [would] be a problem if she left her minor children with their adult brother."

We see no basis upon which a finding of abuse or neglect could be made under sub-sections (c)(1) or (2). Defendant did not "inflict[] or allow[] to be inflicted upon" Charles and Vicky "physical injury . . . which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ." N.J.S.A. 9:6-8.21(c)(1). The bruises Charles suffered in the fight with Ronald apparently did not require medical attention, and DYFS did not respond to the situation until more than a week after the altercation when the matter was referred to the Division by the police. For the same reason, defendant did not "create[] or allow[] to be created a substantial or ongoing risk of physical injury" to Charles or Vicky "which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ." N.J.S.A. 9:6-8.21(c)(2).

Implicit from the judge's statement of reasons, the real focus of this case was N.J.S.A. 9:6-8.21(c)(4)(b), i.e., did defendant "fail[] . . . to exercise a minimum degree of care . . . in providing" Charles and Vicky "with proper supervision . . . by unreasonably . . . allowing to be inflicted [upon them] harm, or substantial risk thereof . . . [?]" Most recently, our Supreme Court said:

The phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

[Dept. of Children & Families v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. supra, 153 N.J. at 177-78) (internal citation omitted).]

The "failure . . . to exercise a minimum degree of care at least requires grossly negligent or reckless conduct." Id. at 306 (internal quotation marks omitted).

In G.S., supra, 157 N.J. at 181-82, the Court said:

Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. We recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care, and do not attempt to describe them. We simply remind DYFS and the courts that the inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law. Ultimately, we leave it to DYFS and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child.

[Emphasis added.]

However, in T.B., supra, 207 N.J. at 306-07, the Court noted "the 'cautionary act' language in G.S. is informed by the grossly negligent or reckless standard that that case established. In other words, every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute." In T.B.,id. at 309-10, the Court determined that a mother who left her four-year-old child at home alone for two hours under the mistaken belief that the child's grandmother was present to supervise, "was plainly negligent," but "not grossly negligent or reckless," and thereby had not committed abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b).

In N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009), we concluded that a mother's conduct, allowing her two young sons, aged five and three, to walk from a playground to their visible condominium while she remained at the playground, "although arguably inattentive or even negligent," did not meet the standard of gross negligence.

In contrast, in A.R., supra, 419 N.J. Super. at 545-46, we determined that a father who placed his ten-month-old son on a bed without rails next to a radiator, left the room and closed the door was grossly negligent when the boy rolled off the bed and was burned.

Here, defendant, a single mother raising three children, was at work while her adult son and his two adolescent siblings were left alone at home. A fight erupted between Charles and Ronald. It would appear that Charles, not Ronald, instigated the fight.

The Division argues that defendant, "knowing the ongoing violence and risk it posed to [Charles] and [Vicky]," "could have removed [Ronald] from the home; . . . could have cooperated with services offered to the family; she could have arranged for a responsible adult to be present in her absence."

Ronald was an adult and attending high school. It is unclear how defendant could require him to leave the house in the first instance.

The history of DYFS involvement reveals that defendant had, in the past, availed herself of services with, at best, equivocal results in terms of meaningfully abating Charles' anger problems and the violence between the two boys. The prior litigation was ultimately dismissed on November 6, 2006, when the Division "found that the family [wa]s no longer in crisis." The following year, police responses to the family home peaked; but, in 2008, the number significantly decreased. It appears that defendant was indeed trying to address Charles' anger problems on her own by seeking counseling.

Further, there is nothing in the record to support the conclusion that it was feasible, monetarily or otherwise, to have an adult in the home whenever defendant went to work, something obviously necessary to provide for her family. Additionally, we fail to see how having an adult babysitter in the house on January 7 would have prevented the incident that gave rise to the abuse and neglect complaint.

Assuming arguendo that any of the options DYFS cites were in fact available to defendant, the issue is whether defendant's failure to ask Ronald to leave the home, or call DYFS for help, or arrange for a babysitter was gross negligence. We think it clearly was not.

We do not minimize the history of violence between the children, and between Ronald, Charles and their mother. It was persistent and significant enough to raise cautionary "red flags" throughout the proceedings. We hasten to clarify that our holding is not a criticism of either the Division or the judge.

However, within a month of the removal proceeding, Charles and Vicky, the two "abused and neglected" children, were returned to their mother's physical custody. Ronald was still in the home. The focus of the litigation thereafter was less about emergent concern for the children's health and safety, and more about their permanent well-being through the provision of services to the family under the watchful eye of the court. See N.J. Div. of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 68-69 (App. Div. 2011) (explaining the different focus and timeframes of Title 9 and Title 30 proceedings). This goal could have been accomplished without the necessity of an actual finding of abuse and neglect under N.J.S.A. 9:6-8.21(c). See N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010) (noting that "the Division may proceed under Title 30, irrespective of a finding of abuse or neglect").

Reversed.

1 We have fictionalized the first names of the children.

2 The transcripts for the October 28 and December 17, 2009 fact-finding hearings indicate the proceedings were held before the first judge. However, it is apparently undisputed that the proceedings were in fact held before the second Family Part judge, as evidenced by the orders actually entered.