NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.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NOT FOR PUBLICATION WITHOUT THE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.

D.C.,

Defendant-Appellant.

________________________________

IN THE MATTER OF T.P., J.P.,

T.W., T.W. and T.W.,

Minors.

________________________________

October 14, 2014

Submitted September 23, 2014 Decided

Before Judges Reisner, Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0380-11.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta Fermin, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.P., T.W., T.W. and T.W. (David Valentin, Assistant Deputy Public Defender, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.P (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.C. appeals from a March 5, 2012 fact finding order, determining that she abused or neglected her children within the meaning of Title 9. N.J.S.A. 9:6-8.21(c)(4)(b).1 Having reviewed the record, we conclude that the Family Part judge's decision was supported by sufficient credible evidence and is consistent with applicable law. R. 2:11-3(e)(1)(A). Therefore, we affirm.

I

We summarize the most pertinent evidence introduced at the fact finding hearing.2 According to Tanisha Strickland, a case worker for the Division of Child Protection and Permanency (Division), in February 2011, defendant agreed with the Division that her children would stay at the home of L.S., on 17th Avenue, and would not be left unsupervised in defendant's third-floor apartment on Springfield Avenue. However, on June 1, 2011, the Division received a referral that the children were living in a filthy apartment and were left unsupervised.

Division case workers went to the Springfield Avenue building and found "two children, ages three and four, on the third floor, unsupervised." The apartment smelled of urine and cat feces. One of the bedrooms was strewn with "clothing, garbage debris and spoiled food," and there was no working bathtub in the apartment. The two children told the workers that their eleven-year-old brother, T., was supposed to be watching them but that he was in another apartment.

The Division case workers went to the second floor apartment and found the door closed and music "playing loudly." On gaining entry, they found T. and the adult tenant, A.G., who was defendant's cousin. A.G. told them that she was not responsible for "watching" the children and "didn't want to get involved." The case workers were unable to reach defendant for two hours. When defendant finally returned home, she and the children were taken to L.S.'s home on 17th Avenue.

However, when Strickland visited the children at L.S.'s home the next day, they appeared inadequately dressed, and appeared to have ringworm. L.S. told her that the children had ringworm on their heads and that defendant had not given her the medication needed to treat it. Defendant later admitted that the children had ringworm and that she had not provided their medication to L.S. Based on that information, the Division removed the children on an emergency basis on June 3, 2011.

On that same day, Strickland returned to the Springfield Avenue apartment looking for two additional children, who were not at L.S.'s home. On entering the third floor apartment, she found numerous wires lying all over the living room hallway, and a bedroom strewn with garbage. In the bathroom, she found plywood on the floor where the bathtub was "supposed to be," as well as food particles, cans, and empty fast food containers on the floor. Strickland recalled that when she had inspected the apartment several months earlier, in February 2011, it had been clean and neat, although it had no bathtub. However, at that time, defendant had agreed that the children would live with A.G. in the second floor apartment, because the third floor apartment was not appropriate for children to occupy. Strickland also instructed defendant that the children "were not supposed to be unsupervised upstairs in that apartment."

In later testimony, Strickland further explained the events that led to the emergency removal of the children. She testified that, in addition to finding that the youngest children had ringworm, she discovered that two of defendant's other children were missing. L.S. told Strickland that they were supposed to have come to her house after school, but she feared they were staying unsupervised at the Springfield Avenue apartment. When Strickland went there, A.G. told her the children were at the park. After Strickland searched three local parks and could not find the two missing children, she and her supervisor decided that the Division should take emergency custody of all of defendant's children. According to Strickland the two children were "missing for a couple of days." Finally, in response to a court order, defendant revealed that they were staying with one of her cousins.

Defendant testified that in February 2011, she and four of her children were living with her cousin A.G. on the second floor of the Springfield Avenue house. She was waiting for the landlord to fix up the third floor apartment so that they could move into it. A fifth child was living with her aunt, L.S. By March, she had moved her furniture into the third floor apartment and was sleeping there with her children, using her bed and an inflatable mattress. According to defendant, she and A.G. used the second and third floor apartments as though they were part of one house, leaving the apartment doors "open or unlocked." She testified that they used the bathroom in A.G.'s apartment. Defendant testified that when Strickland visited the house in May 2011, defendant told her that she and the children were sleeping on the third floor and using the bathroom on the second floor, and Strickland did not object. However, defendant admitted that the Division had refused to buy beds for the children until the apartment had a complete, functioning bathroom with a tub.

Defendant explained that she usually brought the two youngest children to work with her. However, on June 1, she dropped them off at the Springfield Avenue house at around 5:30 p.m. and went back to work. She "knew" that A.G. and two older children were there. T. and the other older sibling were playing a video game in A.G.'s apartment, and defendant did not want the older and younger children fighting over the video game. Therefore, she told T. to turn on the television on the third floor and leave the two youngest children up there to play a different game on that television. Defendant testified that she told A.G. that the younger children were on the third floor, A.G. agreed to watch them, and T. was supposed to go "back and forth up there" to check on them.

According to defendant, the Division workers could not reach her right away that evening, because her cell phone was not working. She testified that when she arrived at the Springfield Avenue house, her aunt L.S. was there and volunteered to take the children to her house for that night because defendant seemed distressed. Defendant denied that L.S. took the children because the Division was concerned about their living conditions at the Springfield Avenue apartment.

Defendant testified that she had no idea why the Division wanted to take away her children on June 3. She testified that two of the children went to A.G.'s house, told A.G. they were going to the park, and then disappeared. She denied hiding the children; she asserted that L.S. hid them.

On cross-examination, defendant admitted that the two younger children had ringworm on their heads, and that she did not provide L.S. with the children's medication.

In a twenty-page oral opinion, Judge Katz found that Strickland was a credible witness, for reasons he explained in detail. He did not find defendant's testimony credible. He found her testimony to be "confusing and contradictory." He did not believe her explanation that the Division told her that she and her children could sleep in the third floor apartment and use the bathroom in the second floor apartment. He also did not believe her explanation that her cell phone was not working when the Division was trying to reach her on the night of June 1.

The judge found that in February 2011, Division case workers told defendant that the children could not live in the third floor apartment, and defendant agreed that the children would live with L.S. Judge Katz found that on June 1, 2011, when the Division case workers went to the third floor apartment, they found "two children ages three and four. . . on the third floor unsupervised." He also found that there were four cats in the apartment, which smelled of urine, and there were clothes and spoiled food in one of the bedrooms.

The judge found that the eleven-year-old brother, who was supposed to be watching the younger children, was in the second floor apartment. He found that the door to that apartment was closed and loud music was playing. The adult, A.G., told the Division that she "isn't watching the kids, but . . . she could if she needed to or had to, but she wasn't charged with watching the kids." And, he found it took two hours before the Division could reach defendant.

The judge did not credit defendant's testimony that the children only went back to L.S.'s house on June 1 because defendant was stressed and L.S. volunteered to take the children for one night. Instead, he found that the children returned to L.S.'s house, because the Division had previously told defendant that was an appropriate place for them to stay, as opposed to the third-floor apartment on Springfield Avenue. Although this was not a temporary, overnight arrangement, defendant did not give L.S. the children's medicine, so that L.S. could treat their ringworm.

The judge found that Strickland acted appropriately in entering the third floor apartment on June 3, when the two older children were missing and she was searching for them. At that point, she observed that the apartment was still in an unlivable condition.

Judge Katz concluded that on June 1, 2011, defendant abused or neglected the children by leaving them alone and unsupervised, in an apartment that was not fit for their occupancy. He found that those events were not the result of poverty, because defendant was working at the time. He also found that defendant was well aware that the third floor was an "inappropriate venue for the children," because it had inadequate bathroom facilities, and reeked of urine, spoiled food and cat feces. He also found that the children had ringworm, and that defendant brought them to L.S.'s house "without their medicine."

The judge stated that, "the crux of the ruling, is the fact the children were left alone upstairs in an inappropriate apartment, but without supervision, young children. The closest supervisor was a floor below behind a locked door with loud music playing, and he was only 11 years old." The judge found that, although an adult was present in the second floor apartment, no one had asked her to watch the children and she took no responsibility for them. He found that defendant failed to exercise a minimum degree of care for the children and "that leaving a three-and four-year-old child alone is . . . either grossly negligent or wantonly negligent, with [a] conscious indifference to the consequences. . . . It doesn't take much to understand that anything can happen to these children in that type of circumstance." He also found that defendant failed to provide the children with adequate medical care for their ringworm.

II

On this appeal, we do not write on a clean slate. We are bound to accept the trial judge's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We owe particular deference to the judge's credibility determinations and his expertise in family-related issues. Id. at 448; Cesare v. Cesare, 154 N.J. 394, 413 (1998). In light of those standards, we find no basis to disturb Judge Katz's findings of fact, and those findings amply support his legal conclusions.

Defendant raises the following points for our consideration

POINT I

THE FACTS ADDUCED AT TRIAL DID NOT CONSTITUTE ABUSE & NEGLECT OF THE MINOR CHILDREN.

POINT II

THE COURT ERRED BY PERMITTING THE CASE WORKER TO TESTIFY ABOUT THE MEDICAL CONDITION OF RINGWORM.

POINT III

THE COURT ERRED BY ADMITTING INADMISSIBLE HEARSAY EVIDENCE AT THE TIME OF TRIAL.

POINT IV

THE COURT COMMITTED CUMULATIVE ERRORS NECESSITATING REVERSAL.

The record does not support any of those arguments, and they are without sufficient merit to warrant discussion beyond the following brief comments. R. 2:11-3(e)(1)(E). Defendant argues that the evidence did not support a finding of abuse or neglect. However, defendant's arguments are based on her version of the facts, which the judge did not find credible.

We agree with Judge Katz that leaving a three-year-old and a four-year-old unsupervised in an apartment constitutes gross negligence and is a form of abuse or neglect. N.J.S.A. 9:6-8.21(c); see N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 307-08 (2011); G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181-82 (1999). Judge Katz did not credit defendant's explanation of this incident. However, even accepting defendant's version of events, she knowingly allowed the eleven-year-old to leave the two younger children in the third floor apartment alone, while he played video games in the downstairs apartment. Further, based on Judge Katz's factual findings, defendant knew the apartment was not fit for the children's habitation and had agreed with the Division that she would not let them occupy the apartment, but she did so anyway.

Affirmed.

1 The order was rendered ripe for appeal as of right after the court entered a final order terminating the litigation on May 24, 2013.

2 The hearing began before Judge Verna Leath on July 26, 2011. However, the case was then reassigned to Judge David B. Katz. Instead of starting the hearing over from the beginning, with the parties' consent Judge Katz listened to the CourtSmart recording of the July 26 hearing before continuing with the hearing on October 12, 2011.