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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-06390-11T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

N.C.,

Defendant-Appellant,

and

D.C.,

Defendant,

and

B.N. and M.V.,

Defendants-Respondents.

_________________________________

IN THE MATTER OF A.N. AND L.V.,

Minors.

_________________________________

October 23, 2014

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-145-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent B.N. (Robert H. McGuigan, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent M.V. (John A. 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 and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.N. and L.V. (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

N.C. appeals from a March 28, 2012 fact-finding order substantiating her for the abuse or neglect of her children, L.V. (Lois1) and A.N. (Andrew), within the meaning of N.J.S.A. 9:6-8.21(c), by providing them with inadequate housing and education.2 N.C. also argues that, although the Division of Child Protection and Permanency (Division) did not assume custody of the children, the court should have held a dispositional hearing prior to terminating the litigation and awarding primary residential custody to the children's respective biological fathers, respondents B.N. and M.V., under a non-dissolution docket number, FD-16-169-06, on July 17, 2012.3 The Law Guardian joins the Division in urging us to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm both orders.

At the end of March, the Division filed a second verified complaint and order to show cause against N.C., seeking the care and supervision of her two children, Lois and Andrew, pursuant to N.J.S.A. 30:4C-12 to -14 and N.J.S.A. 9:6-8.21 to -8.73. The Division alleged that N.C. abused or neglected her children by engaging in domestic violence and drug abuse in front of the children, and through failing to provide the children with stable housing or education. In court the following day, the Division sought care and supervision only of Andrew, age fourteen, and Lois, age nine. N.C. had allowed both children to live with Lois' father and paternal grandparents since December of the prior year. Andrew's father cooperated with this arrangement, seeing the children "whenever he want[ed] to." Although all four parents and N.C.'s then-husband, D.C., were named in the complaint, the Division's concerns focused on N.C. and D.C.

Months later, a lengthy fact-finding hearing was conducted. Division supervisor Vicki Nevard testified to receiving referrals beginning in March 2010 concerning N.C. testing positive for cocaine and domestic violence between N.C. and D.C. These referrals were deemed unfounded by the Division because of the lack of proof as to any harm to the children. In December 2010 N.C. was evicted and began living in a hotel. N.C. told the Division that she received approximately $35,000 a year through disability and child support. At the time of the eviction, N.C. owed $5600 in back rent and $2500 on her electric bill despite the money she was receiving. Although the children went to live with their grandparents in December 2010, they would sometimes stay at the hotel with their mother and miss school. Psychological evaluations of the family were admitted into evidence.

Andrew testified in camera and reported witnessing domestic violence between his mother and her husband such that he was afraid for his safety and that of his sister. When the violent arguments occurred at home, the children would lock themselves in their room or call Lois' grandfather to pick them up. On one occasion he called the police, but N.C. denied to the police that the violence had occurred, which made Andrew feel betrayed.

Lois' grandfather also testified, confirming Andrew's account. Andrew's father's wife also testified confirming incidents of domestic violence between N.C. and D.C.

The Division case worker, Anna Cebula, testified that N.C. had admitted to using marijuana when pregnant with Lois. N.C. had explained a positive cocaine test by saying that it could have come from a cocaine-laced cigarette.

Judge Sohail Mohammed found by a preponderance of the evidence that N.C. had abused or neglected Andrew and Lois through housing instability and educational neglect. The judge found that N.C. had the financial means to provide the children with stable housing utilizing her disability and child support payments, but failed to do so, in contravention of N.J.S.A. 9:6-8.21(c)(4)(a). Judge Mohammed found that N.C. was receiving $1825 a month in disability as well as child support. The judge dismissed the allegations against D.C. as he was not the father of either child and did not have the responsibility to house or educate them. D.C. was later dismissed from the case.

In July the litigation was dismissed by another judge (the second judge). After listening to the parents and the children's preferences,4 the second judge entered an order in the non-dissolution case docket awarding residential custody of the two children to their biological fathers.

On appeal, N.C. raises the following issues

I. THE TRIAL.J.DGE ERRED IN MAKING A FINDING OF ABUSE AND NEGLECT AS TO HOUSING INSTABILITY AND EDUCATIONAL NEGLECT BECAUSE THERE WAS INSUFFICIENCY OF EVIDENCE TO SUPPORT SUCH FINDINGS.

II. THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL REPORTS INTO EVIDENCE AT THE CLOSE OF THE FACT FINDING TRIAL BECAUSE THEY WERE NOT RELEVANT UNDER N.J.R.E. 401.

III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT.

IV. THE TRIAL COURT'S FAILURE TO PROVIDE A DISPOSITIONAL HEARING PRIOR TO DISRUPTING THE STATUS QUO ANTE RIGHTS OF THE CUSTODIAL PARENT WAS IN VIOLATION OF DUE PROCESS.

The purpose of a fact-finding hearing is not to assign guilt to a parent but to determine by a preponderance of the evidence whether the children at issue are "abused or neglected" as defined in Title Nine. N.J.S.A. 9:6-8.44, 46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013). "The Family Part possesses special expertise in the field of domestic relations and thus appellate courts should accord deference to Family Part factfindings." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citation and internal quotation marks omitted).

"The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (internal citation omitted). An appellate court must determine whether there is substantial credible evidence in the record to support the trial court's factual and credibility findings. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Only competent, material, and relevant evidence may be admitted at a hearing. N.J.S.A. 9:6-8.46(b).

I

Judge Mohammed dismissed the allegations of domestic violence and drug use, reasoning that insufficient evidence was presented of harm to the children. The judge found educational neglect and a failure to provide housing for non-financial reasons. N.C. argues that insufficient evidence was presented proving that the children were harmed by the many absences from school or the constant moving from residence to residence.

Title Nine provides the following definition of abuse or neglect

"Abused or neglected child" means a child less than 18 years of age . . . (4) . . . 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 (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[.]

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

In this State, parents are required to ensure that their children either regularly attend the public schools of the district in which they reside or receive instruction equivalent to that provided in the public schools. N.J.S.A. 18A:38-25. Attendance is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 641 (2003). A parent who fails to comply with the attendance requirements "shall be deemed a disorderly person[.]" N.J.S.A. 18A:38-31. "The reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) concerns parental encouragement to truancy of a school age child, or other interference with normal educative processes." Doe v. Downey, 74 N.J. 196, 199 (1977) (per curiam) (citation omitted).

We affirm the finding of neglect substantially for the sound reasons expressed by Judge Mohammed in his oral opinion of March 28, 2012. We add only the following comments. Judge Mohammed found that between September and March Andrew had ten unexcused absences and Lois had eighteen. The sheer number of absences from school the children amassed doubtlessly interfered with "normal educative processes" because school attendance is crucial to an education. And there was no reason for the children to be absent, even if their living situation was nomadic; N.C. kept the children out of school when they could have and should have been in attendance.

Housing issues that stem from poverty do not alone constitute abuse and neglect. N.J. Div. of Child Prot. & Permanency v. L.W., 435 N.J. Super. 189, 196-97 (App. Div. 2014). Judge Mohammed found based on N.C.'s testimony that she received at least $2500 a month, enough money to fund stable housing for her children. Instead they moved repeatedly, at least thirteen times according to Andrew's testimony, necessitating many new school placements. At the time of trial N.C. was planning another move, this time to Pennsylvania. As Judge Mohammed found, N.C.'s repeated moves to locations where she was at times unable to provide a place for the children to live combined with her "encouragement to truancy" constituted neglect.

II

N.C. argues on appeal that the psychological reports did not tend to prove or disprove the neglect allegations against her. She argues that the reports of the fathers were so positive that they put N.C. in a negative light by contrast, unfairly prejudicing her and perhaps influencing the judge to find neglect as a means to give the fathers residential custody. Because Judge Mohammed did not rely on the psychological reports introduced at trial in his fact-finding decision, we find this issue lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III

N.C. argues that the second judge abused his discretion by denying N.C.'s request for an adjournment to obtain her own psychological evaluation. At the time the request for an adjournment was made, the case was sixteen months old and N.C. had been told three months prior to her request that she was free to obtain her own expert. We review the decision to grant or deny an adjournment for abuse of discretion, State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971), which occurs when "a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citation omitted). The second judge acted well within his discretion when he refused a further adjournment in this protracted litigation.

IV

Finally, N.C. argues that the second judge should have scheduled a dispositional hearing. N.C. relies on New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2008), to support her argument. A dispositional hearing following a fact-finding hearing, however, is not required in all cases. N.J. Dept. of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 39-42 (2013).

The Division never sought custody and N.C. had already arranged to have her children live elsewhere before litigation began, which is markedly different from what occurred in G.M. N.C. had not presented any evidence that she had stable housing by the end of this litigation, even though she had over a year to do so. In fact, she said she was planning on moving again.

Similar to the situation in I.S., N.C. knew for quite some time that the custody matter was going to be decided and she had an opportunity to gather whatever evidence necessary to support her position.

Affirmed.

1 We use fictitious names for the children to preserve their confidentiality.

2 The order was rendered ripe for appeal as of right after the court entered a final order terminating the litigation on July 17, 2012.

3 The order under this docket number was not provided to us by the parties, nor was it listed on the notice of appeal. We obtained the order, which, as indicated in some of the parties' briefs, awards joint legal custody of each child to that child's biological parents, with primary residential custody awarded to the father.

4 The children testified in camera.