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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1161-11T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.W.

Defendant-Appellant.

_______________________________

IN THE MATTER OF A.W., a minor.

_______________________________

October 18, 2012

 

Submitted October 3, 2012 - Decided

 

Before Judges Nugent and Haas.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-261-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly A. Allen, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

 

 

 

PER CURIAM

Defendant H.W. appeals from the Family Part's May 3, 2010 order, following a fact-finding hearing, determining she abused and neglected her four-year old child because defendant and the child were found by police in a stolen car that was parked on a city street. She challenges the trial court's finding that this conduct constituted abuse and neglect under Title Nine. She also challenges the court's September 22, 2011 order terminating the Title 9 litigation. We reverse.

I.

One child born to defendant, a girl A.W. (fictitiously Alice), on November 22, 2005, is involved in this appeal.1 The Division of Youth and Family Services2 (the Division) removed Alice from defendant's care on February 18, 2010, after defendant was arrested because she had been found in a car that had been reported stolen. On February 22, 2010, the Division filed a verified complaint and order to show cause against defendant for abuse and neglect of Alice under Docket No. FN-07-261-10, which is the subject matter of this appeal. The only allegations raised against defendant in the complaint concerned the fact that Alice had been with her at the time she was arrested.

Defendant was released from jail prior to the March 17, 2010 return date of the order to show cause. On that date, she appeared with counsel and asked that Alice be returned to her care. Defendant testified that she had moved from New Jersey to Florida in May 2009. She had a Florida driver's license. She testified that she had returned to New Jersey on February 18, 2010, the date she was arrested. A Division representative testified defendant had had one prior arrest for trespassing and she had previously been treated for depression. The trial judge ordered that Alice remain in the Division's care and custody and that the child continue to reside with defendant's sister, with whom she had been living since the date of defendant's arrest. Defendant was permitted to have supervised parenting time with Alice and, following an April 16, 2010 compliance hearing, services began to be arranged for the family.

On May 3, 2010, a fact-finding hearing was held concerning the Division's allegation that defendant had abused and neglected Alice. The Division developed the following proofs at the hearing.

 

Detective John Bocchino of the East Orange Police Department testified he was on patrol on the evening of February 18, 2010. At approximately 7:30 p.m. he performed a random plate check on a car that was parked in front of a furniture store. Bocchino testified the car was not "illegally parked" at that time, because defendant "was still in it." However, he checked the plate "because no cars are supposed to be there." The check revealed that the car was a rental vehicle and that the rental agency had reported it stolen in July 2009. As Bocchino was checking the plate, the driver of the car, later identified as defendant, moved it into a rear parking lot.

Bocchino approached the car and found defendant and Alice together in the front seat. He testified Alice was not in a safety seat. Bocchino said "[t]here was too many clothes and stuff in the back seat" to see if there was a child seat in that area of the car.

Defendant told Bocchino that she lived in Florida, and she eventually produced a driver's license from that state. Defendant acknowledged she did not own the car and that she had rented it. She told Bocchino she had been trying to find the rental agency so she could return it. Bocchino testified "the car was filled with clothes, a bunch of - - the whole backseat was filled." Bocchino testified defendant "seemed kind of out of it." He did a background check for warrants and found she had another pending charge out of East Orange.3 After Alice left with another officer, Bocchino arrested defendant for receiving stolen property and took her to the police station. Defendant provided him with her sister's contact information so that the sister could come to the station to care for Alice. Bocchino then reported the matter to the Division.

Monique Williams, a Division investigator, also testified at the May 3, 2010 hearing. She testified from a report that had been primarily prepared by another investigator from the Division's Special Response Unit (SPRU), who had gone to the police station to speak to defendant on February 18, 2010. Thus, Williams' testimony was largely hearsay.

The investigator reported that defendant was not cooperative following her arrest. She told the investigator she did not have a place to stay in New Jersey. Defendant stated she had been living in Florida and had returned to New Jersey that day. She asserted she had rented the car for a friend, but the friend had brought it to her in Florida rather than returning it. Defendant had come to New Jersey to return it.

The investigator reported that defendant did not seem to appreciate what was happening and she could not understand why the Division was involved in the situation. A medical examination of Alice revealed that she was in good health, with no medical concerns noted at that time.

The investigator also spoke to defendant's sister, who had already arrived at the station to take custody of Alice. The sister told the investigator that defendant had given up her apartment in New Jersey to move to Florida to take care of their mother, who was ill. Defendant's sister also reported that defendant had previously been treated for mental illness in California. Defendant told the investigator she had been prescribed medications in the past, but she was not currently taking any. Williams confirmed at the fact-finding hearing, however, that the Division had not substantiated neglect based upon defendant's mental health issues at that time. Rather, according to Williams, the Division was asserting that defendant had neglected Alice "[d]ue to [defendant] driving a stolen Enterprise Rent-A-Car with her child in the car, and being that she was arrested at that time - - the [D]ivision was notified by the East Orange Police Department - - and that was neglectful."

After defendant was released from jail, all charges against her were dismissed. When she left jail, she moved into a shelter. She continued to contact the Division seeking the return of her child. By the time of the fact-finding hearing, defendant's sister had returned the child to the Division, which had placed her with a foster family.

On the basis of this record, the trial judge found the Division had demonstrated that defendant abused and neglected her child. The judge stated:

The issue here today is whether [defendant] has placed her child [Alice] at a substantial risk of harm. That's really what's being alleged. There's no - - none of the other things that might be alleged. And this is defined in N.J.S.A. 9:6-8.21(c). And we're really looking at whether the child's physical, mental or emotional condition has been impaired or is in imminent danger of being . . . impaired as a result of the failure of the parent or guardian to exercise a minimum degree of care.

 

I think one of the keys to me here is that, according to the police officer, this car was reported stolen in July of 2009. So, it's not like somebody had a . . . rented car that was a couple of days overdue. According to the written report of Ms. Williams, who testified, . . . [defendant] explained that she had rented the car in June of 2009 for a friend, but the friend brought it down to Florida to her because he said he couldn't turn it in, and that she had been driving the car since December 2009.

 

The judge continued:

 

I find that driving [for] several months a car that is stolen, with your child in it, certainly puts the child at substantial risk of being - - of an arrest taking place and - - as happened, but as she stated, it happened where family members happen to live.

I . . . also find that, because this placed the child at substantial risk and harm, this child is an abused or neglected child within the meaning of [N.J.S.A. 9:6-8.21.]

 

I also find one of the other things that place the child at substantial risk of harm is the instability of the mother. She was not able to give any place where she lived in New Jersey. The court report seemed to indicate it was 10:30 at night, and she was illegally parked . . . on Main Street, and she did not give her sister's address as a place that she lived, and there's no explanation anywhere that she lived with her sister, and apparently she went from jail to a homeless shelter. That, in itself, does not bar placement, but it certainly indicates the instability that the family was in at the time of this event.

 

The judge concluded that defendant had abused and neglected Alice, with the following comments:

So, I find that these actions of the mother - - the actions which, according to the caseworkers who are dealing with them, [she] to this day, fails to see that there's any problem with riding around in a stolen car, subjecting your child to imminent arrest and it wouldn't have - - be any harm to the child, to me indicates that the . . . mother is going to need some parenting classes and understanding of the trauma that this could cause to a child.

 

So, I . . . find that the child was an abused and neglected child, I find this Court shall continue to have jurisdiction in this matter, and we should go to the disposition.

 

This ruling was memorialized in an order of the same date.

A dispositional order of the same date was entered, continuing custody of Alice with the Division with weekly supervised visits by defendant, and directing defendant to comply with psychological evaluations and recommendations.

Among other proceedings, a permanency hearing was held and order entered on August 1, 2011, directing the Division to file a guardianship complaint because Alice had been in placement for seventeen months and defendant had been unable "to remedy the issues that led to the [Division's] involvement." Shortly thereafter, the Division filed a guardianship complaint (FG-07-115-12) seeking to terminate defendant's parental rights to Alice. On September 22, 2011, an order was entered terminating the FN litigation.

On May 3, 2012, defendant filed an amended notice of appeal4 of both the finding of abuse and neglect of May 3, 2010, and the August 1, 2011 order approving the Division's permanency plan.

Following trial, the trial court terminated defendant's parental rights to Alice by order of June 19, 2012. Defendant filed a notice of appeal of that order on or about August 6, 2012, which is pending before this court under Docket No. A-6050-11T2.

 

II.

We first address and reject defendant's arguments concerning the propriety of the August 1, 2011 order that approved the Division's permanency plan for Alice. She asserts there was insufficient evidence in the record to support the Division's plan to terminate her parental rights.

However, a permanency order, like the one issued in this matter, does not modify the rights or privileges of a parent. No parental rights are impinged simply by virtue of the fact that the trial court approves a permanency plan. Rather, the hearings and concomitant orders are statutorily mandated, N.J.S.A. 30:4C-11.4 and N.J.S.A. 30:4C-15.2, and intended to ensure that a child's need for permanency is timely considered as the case proceeds. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 265 (App. Div. 2009), certif. denied, 201 N.J. 103 (2010).

In this case, the effect of the issuance of the August 1, 2011 permanency order was to move the matter onto the termination of parental rights litigation track. In the guardianship trial that followed, the Division had the burden of proving by clear and convincing evidence that Alice's best interests required termination of defendant's parental rights. Defendant had the opportunity to challenge the Division's plan in the guardianship proceeding. Therefore, we will not disturb the trial court's August 1, 2011 order.

We also reject the Law Guardian's contention that the current appeal is moot because the FN litigation was terminated when the FG litigation began. We recognized in A.P., that the Legislature expressly provided for a right of appeal from Title Nine cases and noted the "continuing adverse consequences for a parent who has been found to have abused and neglected his or her child" under N.J.S.A. 9:6-8.21. Supra, 408 N.J. Super. at 262 (internal quotation marks and citation omitted). These consequences include the "inclusion of the parent's name in the DYFS Central Registry, see N.J.S.A. 9:6-8.11, which may prevent the parent from obtaining certain types of employment and have other adverse effects." Ibid.

Accordingly, defendant is entitled to judicial review of the abuse and neglect fact-finding hearing and decision on the merits in this appeal. Our determination is based solely on a snapshot of the case as presented on the record on May 3, 2010.

Defendant has appealed the order terminating her parental rights. Her guardianship appeal will be based on the trial court's record as of June 19, 2012. That appeal will abide review and determination by the Appellate Division in an opinion at a later date.

 

III.

We now turn to the present appeal, which involves defendant's challenge to the trial judge's finding that she abused and neglected her child. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. However, we may disturb the judge's factual findings if they go "so wide of the mark as to be clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). See also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 269 (2007).

Defendant argues the court erred in finding abuse or neglect under the circumstances of this case. Williams conceded

the removal of Alice was premised solely upon defendant being arrested while in a parked car that had been reported stolen by the rental car company. According to defendant, the evidence presented at trial did not demonstrate this conduct rose to the level of "gross negligence" or "recklessness" to substantiate a finding of abuse or neglect. We agree.

Abuse and neglect cases fall under Title Nine, which places the safety of children as the paramount concern. N.J.S.A. 9:6-8.8, and -8.21 to -8.73; P.W.R., supra, 205 N.J. at 31. The statute defines, in pertinent part, an abused or neglected child as:

(4) [] 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; (5) or a child who has been willfully abandoned by his [or her] parent or guardian, as herein defined[.]

 

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

 

A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").

In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). In V.T. we recognized that "the elements of proof are synergistically related. Each proven act of neglect has some affect on the [child]. One act may be substantial or the sum of many acts may be substantial." Ibid. (alteration in original) (internal quotation marks and citation omitted). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).

At the fact-finding hearing, the Division relied upon the testimony of Bocchino and Williams. Bocchino testified that defendant was generally cooperative and provided him with a Florida's driver's license indicating she lived in that state. When she was placed under arrest, defendant provided Bocchino with her sister's contact information so Alice would be cared for while defendant was incarcerated. Defendant's sister immediately came to the police station and was there before the Division's investigator arrived.

Williams testified almost entirely from another investigator's report. Defendant's sister was not called to testify and, whatever concerns the Division may have had at that time about defendant's ongoing mental health, Williams confirmed that neglect had not been substantiated on that basis. The Division presented no evidence that defendant knew the car had been reported as stolen by the rental car agency or that she knew there was a warrant pending for the trespass charge. Alice was found to be in good health, with no apparent health concerns.

In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.

This standard aims to subject a parent to liability "for injuries produced by the parent's failure to protect the child." Id. at 179. The Court noted the focus is on the harm to the child, giving the following example: "if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well-being or harm." Id. at 180-81. Thus, a parent or guardian "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.

This standard of "minimum degree of care" has been analyzed in several recent cases. In New Jersey Division of Youth and Family Services v. J.L., we emphasized that the focus is on a parent's awareness of the dangers inherent in a situation. 410 N.J. Super. 159, 168-69 (App. Div. 2009). In J.L., a mother allowed her two young children to walk to their condominium, which did not require them to cross any streets, while she watched from a park with an unobstructed view of the home. Id. at 161. When the children believed they were locked inside, they called 9-1-1. Id. at 162. The mother returned home within half an hour. Ibid. We reversed the trial court's finding of abuse or neglect, concluding the mother's conduct, albeit inattentive, did not rise to the level of willful or wanton misconduct to constitute a failure to exercise a minimum degree of care. Id. at 168-69.

On the other hand, we found that placing a ten-month-old child on a twin bed, with no rails, next to a radiator, which resulted in the child receiving third-degree burns, did constitute wanton or willful misconduct to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011). We emphasized the fact that the father placed blankets around the bed to presumably create a buffer, demonstrated he "recognized the inherent danger" to his child, and thus his actions amounted to gross negligence. Id. at 546.

Last year, our Supreme Court held that a mother leaving her four-year-old son in her home when she thought her mother, the boy's grandmother, was home, did not amount to a failure to exercise a minimum degree of care to constitute abuse or neglect. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 310 (2011). The mother's belief that the grandmother was home was based on her car in the driveway and her routine of being home at that time on Sunday evenings, the night of the incident. Id. at 297. Unbeknownst to the mother, however, the grandmother had taken an impromptu trip to New York with her husband. Ibid. The Court found that although the mother's failure to ensure her child was supervised was negligent, such behavior did not rise to the level of "gross negligence" to constitute failure of a minimum degree of care. Id. at 309-10.

Most recently, we held that the mere fact that a parent appeared inebriated is not necessarily determinative of whether that parent was providing a minimum degree of care. N.J. Div. of Youth & Family Servs. v. S.N.W., ___ N.J. Super. ___ (App. Div. 2012). As a result, we vacated an order that had been based solely on a determination that the parent had abused or neglected her twenty-month old and five-month old children by appearing inebriated. (Id. at 16-17). We concluded that the trial judge failed to determine the parent's degree of culpability, particularly in light of uncertainty about whether the parent had exceeded the prescribed amount of medication she was then taking and whether that circumstance prevented her from being able to provide a minimum degree of care. (Id. at 15).

We are not satisfied there was competent, credible evidence in the record to support the trial court's fact-finding that the fact that defendant had been driving for several months in a rental car that had been reported as stolen placed her child at a substantial risk of harm. There was no evidence that defendant knew that the car had been reported stolen. Although not mentioned by the judge, there is also nothing in the record to indicate that defendant knew there was an outstanding warrant on her prior trespassing arrest. The child was safe and secure with defendant at the time Bocchino ran her license plate and approached the vehicle.

Contrary to the judge's finding that the incident occurred "at 10:30 at night," Bocchino testified that it happened earlier in the evening at 7:30 p.m. Bocchino also made it clear, contrary to the judge's finding, that the car was not "illegally parked" when he first saw it; defendant was still in the car at the time Bocchino arrived and it was just in a place where "no cars are supposed to be." The stolen car allegation and the trespass warrant were both resolved prior to the fact-finding hearing.

We are mindful that a court need not wait for actual harm to find abuse and neglect; however, no evidence was presented that Alice was at serious risk of harm. As the Court stated in

T.B., supra, "[t]he parent's conduct must be evaluated in context based on the risks posed by the situation." Supra, 207 N.J. at 309. The mere possibility that some act could have been taken or done to avoid a harm or risk of harm to a child does not constitute a Title Nine violation. Ibid.

Pursuant to N.J.S.A. 9:6-8.21(c), a child can be abused or neglected if a parent fails to supply the child with adequate shelter. However, it is only when "a child's condition has been demonstrated to be impaired or in imminent danger of being impaired," that such a failure to provide for the child's needs will be found to support a finding of neglect. P.W.R., supra, 205 N.J. at 35. See also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 550-51, 562 (1994) (noting a finding of neglect was proper when the parents failed to provide basic needs such as food, clothing and shelter to their children, although they were physically and financially capable of doing so). Poverty alone is not a basis on which to make a finding of abuse and neglect. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff d, 74 N.J. 196 (1977). See also In re Guardianship of J.E.D., 217 N.J. Super. 1, 13 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988).

Although the judge found defendant did not give the police or the Division any information concerning where she was living

in New Jersey, the import of that finding is weakened by the fact that defendant produced a Florida driver's license, with a Florida address, and she advised Bocchino she had just arrived in New Jersey that day. It may have been, as defendant allegedly told the Division's investigator, she did not have a place to stay in this state. At the same time, it was equally possible she would have found suitable quarters later in the evening, perhaps with her sister who lived nearby. Indeed, as soon as defendant learned she was going to be arrested, she was able to immediately arrange for her sister to take custody of Alice. The child, therefore, was always supervised and, as Williams testified, the child was found to be in good health.

The Law Guardian argues that we should find that defendant's failure to have a child safety seat in the car constitutes abuse and neglect. The problem with that argument, however, is that we do not defer to the evidence in the record, but to the judge's findings. Here, Bocchino testified he did not search the car to see if there was a safety seat in the back of the car, and the judge made no finding concerning the absence of a safety seat for Alice. The Division did not raise this as a basis for its claim that defendant had abused or neglected her child. Therefore, we reject the Law Guardian's argument.

Based on the lack of evidence, we are satisfied the Division failed to carry its burden of proving by a preponderance of the credible evidence that defendant abused or neglected her child by being arrested at a time when the child with her, where defendant was immediately able to arrange for a family member to take custody of, and care for, the child.

R

eversed.

1 Although defendant was married at the time of Alice's birth, she alleged that her husband was not the child's father. She alleged that the natural father was deceased.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 This was the trespassing charge discussed at the prior hearing.

4 The original notice of appeal, filed on November 3, 2011, had only concerned the August 1, 2011 order.