NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

J.C.,

Defendant-Appellant,

and

R.G.,

Defendant.

_______________________________________

IN THE MATTER OF L.G., a minor.

_______________________________________

October 10, 2014

Submitted October 1, 2014 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-111-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

John J. Hoffman, Acting 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 minor L.G. (Janet L. Fayter, Designated Counsel, on the brief).

PER CURIAM

Defendant J.C. (Jane)1 appeals the Family Part's June 21, 2012 order finding that she had abandoned and neglected her daughter L.G. (Lisa). We affirm in part and reverse in part.

I.

We discern the following facts and procedural history from the record on appeal.

Lisa was born in September 2011 in Florida, where her parents, Jane and R.G. (Ron), were living at the time. When Jane and Ron moved to New Jersey a few months later, they rented a room on a weekly basis at a motel in Parsippany. A few weeks later, Jane's mother, A.C. (Anne), moved into a separate, but adjacent room at the same motel.

On January 14, 2012, Jane and Ron left Lisa with Anne and drove to a liquor store in Fairview. A security guard noticed Jane put a bottle in her purse. He attempted to stop her from leaving the store. Witnessing the confrontation, Ron entered the store and grabbed the security guard. A struggle ensued, after which Jane and Ron fled the scene, leaving Jane's purse behind. Jane was arrested at the motel later that evening. Ron was arrested shortly thereafter. When Ron was arrested, he left Lisa in Anne's care.

In the early morning of January 15, plaintiff Division of Youth and Family Services2 (Division) received a telephone call from the Fairview Police Department. A police sergeant told the screening worker that the child's parents had been arrested the day before for shoplifting and assaulting the security guard. He related that the child was currently at a motel with her maternal grandmother, that she would care for the child, and that diapers and baby food were observed in the room. The sergeant also informed the screening worker that the parents were being held in the Bergen County Jail pending the setting of bail or other conditions for their release.

Two members of the Division's special response unit visited Anne at the motel later that morning. They reported seeing Lisa dressed in a white sleeper, asleep on a queen bed. The room contained a bouncy seat, a car seat, clothes in bags and bins, and a portable playpen that could also be used a crib. Their report described the room as "not very clean" and cluttered with clothing bins, baby items, and other items strewn around the room. The room was not equipped with a microwave or anything else for heating the baby's formula.

Anne told the workers that Jane and Ron had been living in the motel for approximately three months. She moved into the motel to help Jane and Ron, even though she had financial difficulties of her own. She told the workers that she received $500 a week from unemployment, and that her room cost $288 a week.

After the arrest, Anne brought her property into Jane and Ron's room with the help of the police. The rent for their room was paid through January 17. She was concerned because she would not receive her unemployment check until the day the rent was due. She told the workers she did not have the money to care for the child. She thought she could afford the room for the week, but would not be able to pay for food for herself and Lisa. She told the workers she had only one container of milk, four diapers, and needed more formula. Anne did not know the name of Lisa's pediatrician. She also told them she thought Lisa was in need of some immunizations.

After consulting with their supervisor, the workers returned and told Anne that they would be taking Lisa because she did not have the financial means to support her. Anne responded that she understood and added that the room was "no place for a baby." She told the workers that she could not afford to care for Lisa on a long-term basis. Lisa was transported to a medical facility for a medical evaluation and then placed in a temporary foster home.

Another caseworker contacted the Bergen County Jail and learned that Jane was charged with robbery, and was being held on $20,000 bail. Ron was charged with robbery and driving without a license, and was being held on similar bail.

The caseworker met with Jane at the jail that afternoon to serve her with the emergency removal papers. Jane told the worker that her mother was caring for her daughter, and she did not understand why the child had to be removed. The worker responded that the Division did not believe that Anne was financially able to care for Lisa. Jane became very emotional and responded that she made the wrong decision to shoplift. Jane claimed that she had the money to meet all of her daughter's needs, but that she stole because she needed fifty dollars to finish paying for the next two weeks at the motel. Jane identified the medical clinic she used for Lisa and told the worker that Lisa was scheduled for shots that week. The worker also met with Ron.

On January 18, the Division filed a verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, seeking custody of Lisa because of her "parents' (a) unfitness to be entrusted with [her] care and education . . . and/or; (b) failure to provide [her] with proper protection, maintenance and education, and/or; (c) failure to ensure [her] health and safety . . . and/or (d) endangering [her] welfare." The Family Part judge issued an order to show cause (OTSC) temporarily placing Lisa in the Division's custody. The judge found that Lisa's removal was necessary because of "imminent danger to [her] life, safety or health." A return date on the OTSC was set for February 2. The Division subsequently alleged that Jane and Ron had abandoned Lisa.

Ron did not appear at the hearing on February 2, because no writ had been issued to bring him to the courthouse. Jane, who was no longer incarcerated, did not appear because she went to the wrong location. Eventually, the judge was able to reach Jane telephonically and conducted the hearing by telephone.

Jane had earlier complied with the Division's substance abuse evaluation, but had tested positive for opiates. The judge directed Jane to come to the courthouse for a drug test that day. She did so, and again tested positive. The Judge adjourned the matter to February 22. Lisa was moved to a new foster home the following day.

On February 22, neither parent was present for the status conference. Although a writ had been issued, Ron had been transferred to a different facility in the interim. The Division's deputy attorney general (DAG) informed the judge that Jane had tested positive for opiates on January 27, January 31, and February 16. She had not provided the Division with proof of a prescription for an opiate. Although Jane was visiting Lisa, she was usually late. The DAG informed the judge that the Division was exploring placement with Lisa's godmother. The case was adjourned to March 15.

On March 15, both parents appeared for the case management conference. The DAG reported that Jane continued to test positive for opiates, providing different explanations but no prescription. Jane was also non-compliant with visitation on a number of occasions. Jane had completed a substance abuse evaluation, and was recommended for an intensive outpatient program. However, she did not follow up with the treatment facility. Ron failed to attend his substance abuse assessment after rescheduling his first appointment. Both parents were ordered to undergo psychological evaluations.

Following the removal, Lisa was examined and prescribed a helmet to correct a flat head. The Division continued to explore Lisa's placement with her godmother and others. The judge ordered continued visitation and investigation into the living situations of both parents. At the conclusion of the conference, the judge entered an order requiring the parents to sign medical releases and requiring Jane to provide proof that her positive drug tests were caused by prescription medication. A fact-finding hearing was scheduled for May.

On May 17, the judge conducted a fact-finding hearing to determine whether Lisa had been abused or neglected by her parents. The Division presented the testimony of Maria Perez, one of the workers assigned to the case. Because she had not been personally involved at the time of the removal, she testified on the basis of the contents of the Division's reports, including those of the workers who visited the motel and effectuated the removal.

Perez testified concerning Anne's and Jane's statements to the caseworkers who spoke to them on January 15, as outlined above. Jane's attorney objected to Perez's testimony to statements made to the caseworkers, characterizing it as hearsay. The judge overruled the objections.

When asked why the Division determined that Jane and Ron did not have an adequate plan for Lisa's care, Perez responded that they had left the motel to commit a crime, leaving only one container of formula and four diapers for Anne to care for the child, knowing that she was financially unstable. Perez asserted that an abandonment would not have occurred if the parents had left Anne sufficient funds to care for the child or if Anne had had sufficient funds of her own.

The case supervisor, Nicole Neal, then testified for the Law Guardian. She confirmed that Lisa received shots at birth, but had not received any since then. She testified that Lisa had been scheduled to see a doctor on November 30, 2011, but did not appear. Neal also described Lisa's treatment for a flattened head following her placement in the foster home. The treatment required her to wear a helmet for twenty-three hours of the day.

Jane testified on her own behalf. She described how she, Ron, and Lisa came to be living in the motel in the early part of January 2012. She acknowledged being arrested on January 14. That day, she left her daughter in the care of her mother with the intention of returning. Her mother had watched the child before. Jane returned that day, but was subsequently arrested at the motel. When she was arrested, she left Lisa in Ron's care, but he was arrested shortly after she was.

Jane testified she had no concerns about leaving Lisa with her mother. She asserted that Anne had about a week's worth of diapers and two cans of powder-based formula that would have lasted about a week. She testified that Ron was paying for their room and contributing to the cost of her mother's room. According to Jane, Anne received over six hundred dollars a week in unemployment. She testified that, following her release on bail, she had been arrested and was currently incarcerated on a charge of bank robbery.

Ron also testified on his own behalf. He explained that he and Jane had moved to New Jersey because he had a job waiting for him as a cook at a local restaurant. His plan was to move close to work and find an apartment with financial help from his father. The motel where he, Jane, and Lisa stayed offered studio apartments at a weekly rate. Anne moved in to a room in the motel a few weeks after they did.

According to Ron, they left Lisa with Anne approximately six or seven times while they both had rooms at the motel. He did not think he needed to get someone else to take care of Lisa when he was arrested, because he thought Anne could take care of her. He testified that Anne had sufficient food and diapers. Ron also testified that Jane was in the process of applying for public assistance. He asserted that Lisa was up to date on her immunizations. On cross-examination, Ron again asserted that Anne had plenty of supplies to take care of Lisa, despite the caseworkers' contrary assertions.

The judge issued a written decision on June 18. She found "by a preponderance of the evidence that [Jane and Ron] abandoned their child and neglected their responsibility as [Lisa's] parents by creating a situation in which . . . the child was placed in substantial risk of imminent harm." Concerning abandonment, the judge found that both Jane and Ron "willfully abandoned [Lisa] when they went to shoplift." In particular, the judge found they "knowingly disregarded the risks associated with participating in an illegal activity, and the effects it would have in regards to their ability to care for their child."

Concerning neglect, the judge found Jane and Ron failed to exercise a minimum degree of care because they did not plan ahead for Lisa's care in the event of their arrest and incarceration for shoplifting. The judge described Anne as an inadequate caregiver, who had only a few hours of food and supplies to meet Lisa's needs. The parents also failed to exercise a minimum degree of care by deciding to commit a crime instead of obtaining "temporary assistance or WIC assistance" to meet their financial needs. In sum, the judge concluded that Jane and Ron's decisions "put [Lisa's] physical, mental, or emotional condition at imminent risk of being impaired."

On January 14, 2013, following further judicial proceedings, another Family Part judge approved the Division's plan for termination of parental rights to be followed by adoption. The Division filed its guardianship complaint on February 22. On March 21, the judge signed an order terminating the FN litigation because the guardianship complaint had been filed. This appeal followed.3

II.

On appeal, Jane argues that the judge's finding of abandonment is not supported by record, that the judge erred in relying on the Division's records with respect to the events surrounding the removal, and that she also erred in relying on the immunization evidence because medical neglect was not charged in the complaint.

A.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "'where thefocus of thedispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is

to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A. 9:6-8.8(a).]

The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).

Title Nine provides that an abused or neglected child includes one who "has been willfully abandoned by [her] parent or guardian." N.J.S.A. 9:6-8.21(c)(5). Abandonment is further defined by N.J.S.A. 9:6-1, which states

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 the child so that a 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 the child so that a 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.

"'The statutory notion of abandonment . . . import[s] any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" Lavigne v. Family & Children's Soc'y of Elizabeth, 11 N.J. 473, 480 (1953) (quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)). Similarly, in the context of a termination of parental rights case, "[a]bandonment requires a finding that parents, although physically and financially able to care for their children, willfully forsook their parental responsibilities. The concept of abandonment entails a willful surrender or intentional abdication of parental rights or duties." In re Guardianship of K.L.F., 129 N.J. 32, 39 (1992) (citations omitted).

Title Nine also provides that an abused or neglected child includes one

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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.

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

The language in N.J.S.A.9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." Dep't of Children & Families v. T.B., 207 N.J.294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J.161, 177-79 (1999)); see alsoN.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Such conduct can include failure to take a "cautionary act." T.B., supra, 207 N.J.at 306-07. Simple negligence, however, does not qualify as abuse or neglect. Ibid.

There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.

As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).

Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.

 
[G.S., supra, 157 N.J. at 178-79.]

B.

We first address the issue of whether the trial judge improperly admitted and relied upon hearsay evidence in reaching her decision.

N.J.S.A. 9:6-8.46(a)(3) permits the use of Division records at a fact-finding hearing, despite the hearsay nature of such records. See also R. 5:12-4(d) (permitting the Division to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel). However, we have limited admissibility in this context to statements in such records that are prepared contemporaneously and are premised on the writer's first-hand knowledge. Div. of Youth & Family Servs. v. M.C. III, 405 N.J. Super. 24, 33 (App. Div. 2008), rev'd on other grounds, 201 N.J. 328 (2010); N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90 (App. Div. 2008); In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969) (reaching the same conclusion in a termination of parental rights context). Our reason for doing so is based upon a recognition that "[r]eports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein." In re Guardianship of Cope, supra, 106 N.J. Super. at 344.

We agree with Jane that the two screening summaries, P-1 and P-2 in evidence, contained hearsay statements by the police officer that were not admissible under N.J.S.A. 9:6-8.46(a)(3) and R. 5:12-4(d). They reported, respectively, the call from the police department advising the Division that there was an issue with respect to Lisa and a telephone call from someone in the Division's local office, who was requesting that abandonment be included in the charges against Jane and Ron, and who repeated the statements by the police officer.

However, the investigation summary, P-3 in evidence, reflects contemporaneous reports prepared by the workers who spoke with Jane and Anne. That is the type of document routinely relied upon at fact-finding hearings. We are satisfied from our review of the record that competent evidence from that document was relied upon by the judge in making her findings of fact. We are further satisfied that any consideration the judge may have given to statements in the two screening summaries was harmless.

C.

We now turn to Jane's arguments on the merits of the judge's findings with respect to abandonment and neglect.

As described above, "abandonment . . . import[s] any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child," Lavigne, supra, 11 N.J. at 480, and "a willful surrender or intentional abdication of parental rights or duties," K.L.F., supra, 129 N.J. at 39. Notwithstanding the deference we owe the trial judge, we are unable to find sufficient support in the record for her finding of abandonment. While there is a certain overlap in the language used for the two concepts, abandonment and neglect, the former requires a level of intent and longevity not found in this record. Consequently, we reverse the finding of abandonment.

With respect to neglect, however, we reach a different result. As explained above, for present purposes, neglect includes "reckless disregard for the safety of others." T.B., supra, 207 N.J.at 305-06. "So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant." G.S., supra, 157 N.J. at 178-79.

The judge's findings of fact, including her characterization of Anne as an inadequate caregiver, find ample support in the record. The judge was not required to believe Jane's and Ron's testimony, and we note that neither defendant offered testimony from Anne. Although no harm came to Lisa because of the Division's prompt intervention, there was significant potential for harm in light of Anne's precarious financial situation and the incarceration of both of Lisa's parents following their criminal activity. "[A]n ordinary reasonable person would understand that [such] a situation poses dangerous risks," yet Jane "act[ed] without regard for the potentially serious consequences." Id. at 179.

We also reject Jane's assertion that the judge erred in relying, in part, on the immunization issue. While there was no specific allegation of medical neglect, the immunization evidence supported the Division's overall position that Lisa's position was precarious at best at the time she was left with someone who was not able to take proper care of her.

For the reasons stated, we reverse the finding of abandonment and affirm the finding that Jane neglected Lisa within the meaning of N.J.S.A.9:6-8.21(c)(4).

Affirmed in part, reversed in part.

1 We use initials and pseudonyms to refer to the individuals in this case for the purpose of confidentiality and clarity.

2 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 Ron, who voluntarily surrendered his parental rights on June 6, is not a party to this appeal. The record reflects that, on August 20, the Division withdrew the guardianship complaint and reopened the present action. A third judge also issued a permanency order with the goal of Lisa's reunification with her mother within six months.