NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.H.,

Defendant-Appellant,

and

J.R.,

Defendant-Respondent.

_____________________________________

IN THE MATTER OF M.H.,

a minor.

_____________________________________

October 31, 2014

Submitted September 9, 2014 Decided

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-203-11.

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

Joseph E. Krakora, Public Defender, attorney for respondent J.R. (John Salois, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.H. (Katherine J. Bierwas, Designated Counsel, on the brief).

PER CURIAM

In this appeal, we consider, among other things, whether defendant, A.H. abused or neglected her eight-year old child when, overcome by her mental health issues, she left the child at a Division of Youth and Family Service's (Division) office and dropped off the child's clothing at his school. Because we conclude that this conduct does not constitute a willful abandonment of the child, we reverse.

Title Nine controls the adjudication of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The well-being of the child is the paramount concern. N.J.S.A. 9:6-8.8; see G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999) ("Title Nine's primary concern is the protection of children, not the culpability of parental conduct."). Under N.J.S.A. 9:6-8.21(c)(5), the definition of an "[a]bused or neglected child" includes "a child who has been willfully abandoned by his parents or guardian." "Abandonment" is defined as follows

Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.

[N.J.S.A. 9:6-1.]

A.H. and J.R. are the biological parents to M.H. During the first eight years of his life, M.H. resided with A.H., who had sole custody. Since December 2010, after the Division first became involved with the family, M.H. has resided with J.R. and his paternal grandmother.

On December 21, 2010, the Division received a referral from the assistant principal of M.H.'s school expressing concerns that the child was being physically abused.1 Other concerns were raised relative to A.H.'s participation in her son's educational planning and her disruptive conduct at a school meeting. Subsequent thereto, A.H. refused to allow a Division case manager to enter her home to conduct a routine safety assessment of the residence.

On December 30, 2010, the case manager received a telephone message from A.H. who described herself as "upset and frazzled." A.H. stated she wanted to drop off M.H. at the Division's office. The case manager returned A.H.'s call and advised her he could not meet with her that afternoon and not to drop off M.H. At approximately 3 o'clock, the case manager was informed that someone dropped off a child in front of the Division's office and left. The case manager located the child, M.H., in the reception area. M.H. was crying and shaking. M.H. had a piece of paper pinned to him with his father's name and telephone number. M.H., who is asthmatic, did not have his nebulizer or any personal belongings with him.

A case worker attempted to contact A.H. by telephone. After four attempts, he was able to contact A.H., who advised the case worker she would not be returning to retrieve her child. A.H.'s expressed intention was that J.R. would assume custody of M.H. The case worker explained to A.H. that she would be facing allegations of abandonment. A.H. responded that the Division could take M.H. and he could be their "problem." She then terminated the phone call.

Subsequent to this phone conversation, J.R. was contacted. He agreed to come to the Division's office. While at the office, J.R. committed to caring for his son. J.R. stated that A.H. had recently made it difficult for him to see M.H. prior to being transported to his father's home.

Later that evening, A.H. was contacted by a supervisor from the Division who told her that the Division needed to retrieve M.H.'s asthma nebulizer and drop off removal paperwork. A.H. said that J.R. would have to retrieve the nebulizer at a later date because she was not at home.

In March 2011, the court conducted a four-day fact-finding hearing. After considering the proofs, the judge concluded that the Division had established A.H.'s neglect by a preponderance of the evidence. In an oral opinion, memorialized in two corresponding orders, the judge determined that A.H. neglected M.H. by dropping him off at the Division's office rather than exercising an alternate means of seeking assistance from the father. Despite noting that A.H.'s conduct was not grounded in an ill motive, the court determined the Division had established by a preponderance of the evidence that A.H. did willfully abandon M.H.

The Court does not find that there is - - there is any - - any decisional support to support that would prevent this Court from finding on its face that the child is an abused and neglected child as defined in the statute, and that the mother by not exercising an alternate means of seeking assistance from the defendant father is - - is sufficient for the Court to find that the Division did establish by

. . .

A preponderance of the evidence that [M.H.] was - - is an abused and abandoned child.

The court also determined that A.H.'s act of abandonment was a "singular incident" and "atypical" for A.H.

A.H. argues that the Family Part judge improperly determined she abused and neglected M.H. She avers that the court's finding of abandonment was against the weight of the evidence, contrary to court rules, case law and statutes, specifically, N.J.S.A. 9:6-8.21(c)(4)-(5).

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Based on our examination of the record, we are not convinced that the trial court's finding of abandonment predicated upon this "singular incident" was supported by sufficient, credible evidence.

It was not disputed that A.H. advised the Division she was proceeding to the local office to drop off M.H. She engaged in this conduct after being told that the Division would not accept M.H. and she should make an appointment with the Division case worker. A.H. claimed she dropped off M.H. in order to involve J.R. in a more active parenting role. A.H.'s conduct was consistent with her stated reason by pinning the note to M.H. with J.R.'s contact information.

We are in agreement with the trial judge's finding that A.H.'s conduct of December 30, 2010 was not only a "singular incident" but "atypical" (of A.H's parenting). For eight years, and under difficult circumstances, A.H. was the custodial parent of M.H. However, by December 2010, she was self-described as "frazzled and upset" as a result of her parenting role. The record reflects that, in addition to A.H.'s own fragile, emotional and mental health status, M.H. also suffered from emotional problems. Just prior to the December incident, M.H. was suspended from school based upon disruptive conduct. Certainly it would have been preferable for A.H. to have contacted J.R. about her desire to engage him in a more active parenting role rather than "drop off" M.H. at the Division. Nonetheless, a parent's "conduct must be evaluated in context based on the risks posed by the situation." Dep't of Children and Families, Div. of Youth and Families Services v. T.B., 207 N.J. 294, 309 (2011). Although a parent of greater fortitude would have chosen a different course, we are not convinced that A.H. subjected M.H. to a significant risk of harm such as to constitute abandonment or abuse or neglect within the intendment of the statute or case law. Further, A.H.'s conduct, when evaluated in context, does not support a finding that she intended to willfully forsake M.H. The record supports that A.H.'s conduct was motivated in large part by her concern for her ability to care for M.H. Her "atypical" conduct in dropping off M.H., while demonstrating a lack of judgment or planning, does not equate with parental unfitness nor does it constitute abandonment.

In light of our determination, the suspended judgment is vacated. A.H.'s name shall be removed from the Division's Central Registry.

Finally, we are cognizant that by holding the judgment finding abuse and neglect was in error, all findings and orders relating to custody subsequent to the judgment are vacated. Notwithstanding, we cannot ignore the "beaten path" of judicial proceedings that resulted in the court's determination, after the dispositional hearing, that physical custody of M.H. should remain with his father. Nor can we ignore, in the syllogistic sense, that the basis for the court's determination of custody, i.e., abuse and neglect by A.H., has now been set aside. We are guided in the reconciliation of the dichotomous options to return custody to A.H. or continue custody with J.R. by consideration of the "best interest" of M.H. M.H. has resided with J.R. for almost four years. In his decision, the trial judge had no reservation with M.H. remaining in J.R.'s custody given the then two-year history of J.R.'s parenting and given consideration of a psychologist's report relative to the parenting capabilities of A.H. and J.R. From our extensive review of the record, we conclude it is in M.H.'s best interest that the judge's custody determination remain in effect. We note that "a judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances[.]" Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958); See also Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). Future proceedings, if any, seeking to modify the custodial status may be addressed under the existing FD docket. We need not address the other issues raised on appeal.

Reversed. We do not retain jurisdiction.

1 Following an investigation, the Division determined the allegations to be unfounded.