DIVISION OF YOUTH AND FAMILY SERVICES v. K.H. and L.S IN THE MATTER OF E.H Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4967-10T3

A-4970-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.H. and L.S.,

Defendants-Appellants.

_________________________________

IN THE MATTER OFE.H.

Minor.

_________________________________

April 16, 2012

Submitted March 20, 2012 - Decided

Before Judges Reisner and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FN-21-105-09.

Joseph E. Krakora, Public Defender, attorney for appellants (Anthony J. Vecchio, Designated Counsel for K.H in A-4967-10, on the brief; Brian W. Donnelly, Designated Counsel for L.S in A-4970-10, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General; Kenneth M. Cabot, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.H.(Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants K.H. (father) and L.S. (paternal grandmother) appeal from a May 20, 2009 order finding that they "neglected" K.H. s fifteen-year-old daughter E.H. The finding was based on their refusal to permit the Division of Youth and Family Services (DYFS or Division) to remove E.H. from their home and place her in a residential facility. We reverse the order on appeal and remand for entry of an order vacating the May 20 order and removing defendants names from the Central Registry.

I

The child, E.H., had a long psychiatric history, which included fabricating claims of abuse, and cutting herself. Her mother was deceased and in 2006, she was placed with her father and his mother at the grandmother s house. By all accounts, she was very difficult to care for. Beginning in March 2008, DYFS had been trying to convince the grandmother and the father to allow the child to be placed in a specialized residential facility, but they had refused. The child was removed from defendants' home on July 22, 2008, on an emergent basis (DODD removal), after she first claimed that the grandmother abused her and then asserted that she was afraid to stay at the grandmother s house.

At the hearing on July 24, 2008, following the DODD removal, the grandmother denied either hitting the child or subjecting her to emotional abuse. The grandmother also testified that she was now willing to have the child placed in a residential facility. The judge expressed his understanding that the child was "out of control" and the grandmother could not handle her any more. A residential placement was not then available, however, DYFS had placed the child in foster care. The DYFS attorney urged the court to make a finding of abuse of some kind so that the Division could continue its custody of the child. The judge found there was an insufficient basis to credit the reports of physical abuse, but he credited testimony from the caseworker that she had personally seen and heard the grandmother yelling at the child, calling her a "slob" and a liar and telling her that nobody wanted her. At this hearing, no legally competent evidence was presented that the father committed any abuse or neglect and the judge made no findings concerning the father.

By the next hearing, which was held before a second judge on September 3, 2008, the DYFS attorney reported to the court that the child had been placed at the Hunterdon Youth Shelter and then at Plaid House,1 where she was "doing wonderfully." The child did not want visits with her father or grandmother and they had "stated that they do not want visits." The grandmother s attorney agreed that the grandmother would forgo visits at that point and would agree that visitation should be at the child s option.

At a case management conference on December 17, 2008, the child was reportedly still doing well at Plaid House. The grandmother s attorney indicated that the grandmother was not anxious to visit with the child, because she felt that every time she had contact with the child, the child falsely accused her of verbal abuse. The attorney also told the judge that the grandmother was "not really looking to have [the child] come back to stay with her."

The fact finding hearing began on May 20, 2009. At that point, the child was sixteen. The Division s attorney candidly stated to the judge that the agency was not alleging abuse or neglect based on claims of physical or emotional abuse. Rather, she conceded that the "sole theory" on which the agency was proceeding was "that the defendants refuse to comply with the recommendations of the Care Management Organization (CMO) and the therapist working with the family to put [the child] in residential treatment." She and the Law Guardian asserted that the child s expressed fear and repeated emotional crises were symptoms of her need for placement. They also based their case on the fact that the grandmother and father did not want the child to return to their home, and the child did not want to return. The agency claimed that constituted "abandonment."

DYFS case worker Shaquelle Newton testified that on July 21, 2008, the Division received a report from the child s school that the child was complaining that her grandmother hit her with a coat hanger and her father was threatening her. The agency later determined that those allegations were not credible, and was aware that the child had a history of "mak[ing] up stories." However, after having the child examined by a psychologist, the agency determined that she needed to be in a residential placement. After the grandparent and father refused to allow the placement, the agency took custody of the child.

Newton testified that when she went to the grandmother s house on July 22, 2008 to interview the child, she was only able to speak to the child alone briefly. The grandmother insisted on coming into the room and trying to correct the child s statements to Newton. When the child went outside, Newton also heard the father curse at the child and yell at her to come back in the house. Newton testified that the child seemed intimidated, and stated that she was afraid to stay with her grandmother and her father. Newton testified that, prior to July 2008, the Division had been trying for several months to convince the grandmother and the father that the child needed a residential placement. They were resistant. The grandmother told Newton that she thought she could handle the child and she did not want the child to feel abandoned. At a May 28, 2008 visit, the grandmother told Newton that not all of the experts were recommending a residential placement for the child. However, Newton related that the child had been "in crisis" eleven times in less than two years. Newton and "the service providers" believed that the grandmother and the father could not "control [the child] or keep her safe."

On cross-examination, Newton admitted that on July 22, 2008, she spoke with the child s individual therapist, Gisselle, who told her she was "wavering" on whether residential placement was needed. Gisselle believed the child might be exaggerating her fears, and Gisselle had observed progress in the relationship between the child and the grandmother. However, Newton pressed Gisselle to make a firm decision one way or the other, and Gisselle indicated that she was leaning toward residential placement. The family s therapist opined to DYFS that the father, who had significant developmental disabilities, was not capable of raising the child. According to Newton, since the child was removed from her home, the grandmother had refused to "participate in any evaluations" and therefore it would not be possible for the agency to work toward reunification of the family, even if the child were psychologically ready for that step.

The grandmother testified that the child was first placed in her care in February 2006, after being released from the hospital. The child had been hospitalized "for cutting her arms." She admitted that various professionals had discussed residential placement with her, but she "wanted [the child] to know I wanted to love her, that she didn t have in her own house before that." The grandmother also previously believed that she could care for the child. However, by the time of the hearing, she had changed her mind. She testified that she wanted to retain legal custody of the child, but admitted that she could not handle physical custody. She admitted that "I don t feel I can help her right now." She explained that she had refused to undergo a risk assessment because "I don t feel I m guilty of anything . . . and I feel it s against my constitutional rights. . . . It s bad enough they took my granddaughter away from me."

The agency did not present testimony from any of the experts who had recommended the child s residential placement. Nor did it present testimony from Gisselle, the therapist who had expressed some doubt about whether residential placement was needed in July 2008.

In a brief oral opinion, the trial judge indicated her understanding that she needed to make a finding of abuse or neglect in order for the court to have continuing jurisdiction over the child and for the Division to "remain involved in this family." After stating that view, the judge found that "neglect" had occurred. As background, she reviewed the child s difficult history, including possible prior sexual abuse by another family member, and her history of compulsive lying and cutting herself. She also considered that the Crisis unit had been involved with the family eleven times and "the grandma and the dad could not control [the child]." She considered that experts had recommended, since March 2008, that the child be placed in residential treatment "that this child needed." But the grandmother and the father refused. "It resulted in her having to be removed [from the home] for her own safety, for her own emotional psychological well being because the family would not agree to it."

The judge credited the grandmother s testimony that she refused to accept the residential placement because she loved the child and wanted to provide her with the loving home she had never had before. "But," the judge found, "her judgment was clouded" and she could not see that the child needed residential placement. On that basis, the judge found neglect.

At a subsequent permanency hearing, the attorneys noted that the child was having difficulties in her residential placement, probably needed a higher level placement, and wanted to visit with her family. The grandmother agreed that the child needed "long-term specialized care." The father agreed as well. All parties agreed that long-term residential care was the appropriate permanency plan for the child. By the end of the case, on May 4, 2011, the child had turned eighteen, was out of her residential placement, was living with a maternal aunt, appeared to be doing well, and no longer wanted services from DYFS. Accordingly, the Title 9 case was dismissed.

II

Our review of the trial judge s factual findings is limited, and we owe particular deference to the "the family courts' special jurisdiction and expertise." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Unless the court's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting Snyder Realty, Inc. v. BMW of N. Amer., Inc., 223 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). However, our deference does not extend to the family court's decision where it is based on an incorrect determination of the applicable law. See, e.g., Gotlib. v. Gotlib, 399 N.J. Super. 295, 308-10 (App. Div. 2008); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (trial judge misapplied concept of corroborating evidence). In particular, our deference is not due "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and implications to be drawn therefrom." Matter of Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (quoting Snyder Realty, Inc., supra, 223 N.J. Super. at 69).

In this case, we cannot defer to the trial court s decision because it is not supported by the factual record and is "wide of the mark" as a matter of law. M.M., supra, 189 N.J. at 279. In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b), defines an abused or neglected child as:

[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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . ; 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)(4)(b); see also N.J.A.C.

10:129-1.3 (elaborating on definition of "abused

or neglected child").]

In a Title 9 action, "it is well established that DYFS must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46b). Evidence may include "any writing, record or photograph . . . made as a memorandum or record . . . relating to a child in an abuse or neglect proceeding," so long as it meets the admissibility requirements set forth in N.J.S.A. 9:6-8.46(a)(3). P.W.R., supra, 205 N.J. at 32. DYFS is allowed to submit into evidence reports by its personnel and professional consultants, pursuant to N.J.R.E. 803(c)(6) and 801(d). Ibid. In entering an order finding abuse and neglect, the trial court "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and clearly identify "all documentary exhibits considered by the court" in reaching its decision. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

In this case, the Division abandoned its claims of emotional or physical abuse and proceeded solely on its neglect claim, based on the guardians refusal to consent to residential placement. A parent is guilty of abuse or neglect where he or she "fails to exercise a minimum degree of care when the parent 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." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). The Court defined "minimum degree of care" as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. In turn, "willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Thus, the State must prove "more than ordinary negligence." Id. at 178.

In determining whether neglect has occurred, the trial court must look at the totality of the evidence, and should not "ignore the difficult home environment present in [a] family's circumstances." P.W.R., supra, 205 N.J. at 39. The court should evaluate a defendant's conduct within the context of the circumstances and problems facing the family. Ibid. Bearing in mind the very serious consequence to the parental figure of a finding of abuse and neglect, including having his or her name included on the Central Registry, the court should also consider whether the parent or guardian is likely to pose a danger in the future, to this child or to other children. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

Based on our own review of this record, we are persuaded that the grandmother s opposition to residential placement for her granddaughter was based on a good faith, if mistaken, view of what was in the child s best interests. Her reasons for opposing the placement included what she understood to be the lack of unanimity on the part of the child s therapists concerning the need for the placement, her desire to continue providing the child with the loving home she had never had in the past, and her fear that allowing the child to be put in an institution would make her feel abandoned. Absent more evidence than the agency presented here, the grandmother s conduct simply does not rise to the level of gross negligence which is required for a finding of abuse or neglect. See P.W.R. supra, 205 N.J. at 39. And the trial judge did not find otherwise. Specifically, she did not make the finding of gross negligence which the law requires. There was even less evidence with respect to the father, who, by all accounts was developmentally disabled. The judge made no findings that he even clearly understood the child s diagnosis or the need for the residential placement, or that he was guilty of gross negligence.

The second judge s decision, like that of the first judge who heard this matter, stemmed from the mistaken view that the court needed to find abuse or neglect in order to permit the Division to exercise continued custody of the child, and to permit the child s placement in a residential facility. That view was erroneous. If the court found, as the first judge clearly did, that the grandmother and the father were overwhelmed by the child s serious severe emotional and conduct problems, such that, through no fault of their own they were simply unfit at that time to act as her parents, the court had jurisdiction under Title 30 to intervene and order an out-of-home placement for the child. See N.J. Div. of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 58 (App. Div. 2011), certif. granted (2012) (stating, "a Family Part judge, conducting an abuse or neglect fact-finding hearing, may, without a finding of abuse or neglect, enter an order continuing the Division's care, supervision, and custody of a child, based upon its determination that the court's continued assistance is required pursuant to Title 9, N.J.S.A. 9:6-8.21 to -8.73, or based upon the 'best interests' analysis under Title 30, N.J.S.A. 30:4C-11 to -14"); see also N.J.S.A. 30:4C-12.

It was not necessary to find that these apparently well-intentioned but overwhelmed individuals were guilty of child abuse or neglect in order to achieve that result for the child. Moreover, by the time of the first hearing before the first judge, following the DODD removal, the grandmother expressed her consent to the child s residential placement and the father s attorney expressed no opposition. In that context, continuing with the fact finding hearing served little purpose beyond making the grandmother and the father more reluctant to accept services from the Division. Further, at the fact finding hearing, the grandmother continued to express her unequivocal consent to the residential placement.

We in no way fault the Division for removing the child on an emergent basis, given the information the agency had at the time of the removal. However, what occurred thereafter was a miscarriage of justice, based on an erroneous view of the law. The finding of neglect against both defendants was not supported by the record. Accordingly, we reverse the May 20, 2009 order, and we remand this case to the Family Part for the limited purposes of promptly entering an order vacating the May 20, 2009 order and ordering that both defendants names be removed from the Central Registry.

1 This facility is also called "Platt House" in the record.