NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.W.

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NOT FOR PUBLICATION WITHOUT THE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.

F.W.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF P.C. and

S.W.,

Minors.

_________________________________

January 13, 2015

Submitted: January 6, 2015 Decided

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FN-17-90-12.

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 (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

Defendant F.W. is the legal guardian of her daughter S.M.'s two children, P.C. and S.W. Defendant appeals from the Family Part's October 23, 2012 order, following the entry of default and a fact-finding hearing, determining that defendant abused or neglected the children by leaving them at a family member's home after a party and then disappearing for four months. Defendant challenges the trial judge's finding that this conduct constituted abuse or neglect under N.J.S.A. 9:6-8.21(c)(4), and she asserts she did not receive proper notice of the proceedings. The Law Guardian supports the judge's finding that the Division of Child Protection and Permanency (the Division) met its burden of proving abuse or neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by Judge David E. Krell in his oral opinion of October 23, 2012.

I.

The Division has been involved with defendant and her family since 1996, when S.M. was a juvenile. S.M. gave birth to P.C. in October 1999, and S.W. was born in May 2003. After the Division substantiated a report that S.M. physically abused the children, defendant was awarded physical and legal custody of the children in August 2004. Despite a court order prohibiting S.M. from having unsupervised contact with the children, defendant returned the children to S.M. in 2006. At that time, S.M. was living in North Carolina. The Division obtained an order for custody and, after defendant complied with services, the children were returned to defendant's care later that year.

The Division continued to provide services to defendant. In November 2009, defendant tested positive for cocaine, and the Division again obtained legal custody of the children. In April 2010, the litigation was terminated and defendant resumed custody of the two children. In December 2011, defendant told a Division caseworker that she recently relapsed by using crack cocaine, although she denied being an addict. In March 2012, defendant "balked at taking a drug screen" and claimed she had not used cocaine for two years.

On June 25, 2012, defendant's other daughter, L.W., called the Division to report that defendant brought the children to L.W.'s home on June 12 for a graduation party for one of L.W.'s children. Defendant then left the children at L.W.'s home without explanation and never returned to retrieve them. L.W. told the caseworker that, a few weeks before the party, defendant left the children home alone in her apartment for two days without food, and the children had to call L.W. for assistance. L.W. reported that defendant was using crack cocaine, and had been doing so for some time.

L.W. was not able to care for the children on her own and, therefore, she sought the Division's assistance. Based upon this report, the Division effectuated an emergency Dodd1 removal of the children from defendant's care on June 25, 2012, and placed them with L.W. The Division also made arrangements for L.W. to receive financial assistance, including clothing vouchers, for the children.

On that same date, a caseworker twice went to defendant's apartment to attempt to locate her. Defendant was not home and the caseworker left a card on the door of the apartment with contact information. The caseworker also obtained defendant's cell phone number from L.W., but defendant did not answer the phone when the caseworker called.

The caseworker returned to defendant's home two days later, but defendant did not answer the door. The card the caseworker had placed on the door was still there. The landlord confirmed that defendant was still a resident of the apartment complex, but had not been seen "for the past couple of weeks[.]" A maintenance worker permitted the caseworker to enter the apartment to retrieve clothes for the children. Defendant was not in the apartment.

On June 28, 2012, the Division filed a complaint for care and custody and appeared in court to obtain approval for the emergency removal as required by N.J.S.A. 9:6-8. Defendant did not appear. The caseworker testified that defendant left the children with L.W. and that no one had "been able to get into contact with" defendant since that time. The judge found that removal of the children from defendant's care was necessary because she had "abandoned the children by leaving them with a family member and she has made no additional contact with the children or family members and there remains an on-going concern with [defendant's] substance abuse history and concerns of active drug use."

Prior to the next court date on July 24, 2012, the caseworker twice returned to defendant's home, but she was not there. Each time, the caseworker left another card urging defendant to get in touch with the Division. Defendant did not appear at the July 24, 2012 hearing and the Division's attorney advised the court that "[n]o[] one knows where she is." The judge ordered that the children remain in the Division's custody, directed the Division to begin searches for the children's fathers, and made arrangements to serve S.M. with the complaint.2

The caseworker continued to regularly visit defendant's apartment to attempt to locate her. However, defendant was never at home. The caseworker contacted the local police, but they reported "that they had not had any contact with" defendant.

The matter returned to court on September 13, 2012, and the court scheduled a fact-finding hearing for October 23, 2012. Defendant did not appear at that hearing. At the beginning of the hearing, Judge Krell stated that "the record should reflect that [defendant] has never filed an Answer, has never appeared in the proceedings. So, essentially, we're proceeding as a default." In addition to recounting the history of this matter as discussed above, the caseworker testified that the Division substantiated defendant for abuse or neglect of the children because "she had dropped the children off with no plans to return, no supplies for them to stay where they were, no information as to when she would be coming back."

In his oral opinion, Judge Krell found that "[t]he act by [defendant] of essentially abandoning these children, fits the definition of abuse [or] neglect . . . ." The judge explained

Title IX defines an abused or neglected child as a child whose physical, mental, or emotional condition has been impaired, or is in imminent danger of being impaired as a result of the failure of the parent or custodial party to exercise a minimum degree of care.

In this case, certainly, leaving the children alone for two days without food or water -- or, food or supplies, and then, shortly thereafter abandoning the children again without any food or supplies or letting the person who was taking care of the children know [their] whereabouts or how it could be able or how to deal with the problem is, clearly, a failure to exercise a minimum degree of care as an abandonment situation.

On January 8, 2013, the judge conducted a compliance review. By that time, defendant had returned and an attorney was appointed to represent her. Defendant's attorney advised the court that defendant was interested in regaining custody of the children, and Judge Krell permitted her to have supervised visits with them. At the end of the hearing, the following colloquy occurred between defendant's attorney and the judge

[DEFENDANT'S ATTORNEY]: Your Honor, the [only other] question I have is, is the fact finding was heard in this case without [defendant] being present. And, without her being noticed. . . . And, at that time she didn't have counsel.

I ask the Court to reconsider holding a fact finding --

THE COURT: You'd have to file a formal Notice of Motion on notice to counsel, so they can be heard on that claim.

[DEFENDANT'S ATTORNEY]: Okay.

THE COURT: It can't be just raised at a hearing like this.

[DEFENDANT'S ATTORNEY]: That's fine. Thank you.

However, defendant never filed a motion to vacate the default. The court held a compliance review on March 27, 2013, but defendant did not appear and her attorney did not know why. Defendant had missed a scheduled psychological examination and an intake for a substance abuse evaluation. Defendant appeared at the next proceeding on May 1, 2013,3 and her attorney reported that defendant had participated in her psychological examination. During the examination, defendant attempted to explain her abandonment of the children by telling the psychologist

"I reacted badly" and did not wish to participate in another Division process. She then proceeded to castigate a previous Division worker, stating, "I was mad, I had been put through the wringer." Consequently, she did not attend Court appearances and did not make herself available to her current Caseworker . . . . From her perspective, this explanation purportedly provides a rationale for her remaining, for all intents and purposes, out of the children's lives, on an abrupt basis, from June 2012 through February 2013.

The matter was then transferred to a different judge and, after two more hearings, custody of the children was returned to defendant and the litigation was terminated on August 21, 2013. Defendant never filed a motion to vacate the default or the court's finding that she abused or neglected the children by abandoning them. This appeal followed.

II.

On appeal, defendant challenges the judge's finding that she abused or neglected the children. She also asserts she was never served with the Division's complaint seeking custody and that the court should not have proceeded to enter a default against her at the fact-finding hearing. Defendant also contends an attorney should have been appointed to represent her at that hearing, even though she had not entered an appearance. We disagree.

Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) 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 . . . 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").

In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).

In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.

Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the trial judge's finding that defendant abused or neglected the children by leaving them with L.W. without explanation. Defendant did not provide L.W. with any money, food, or clothing for the children. L.W. did not have the financial resources to care for children on her own. In addition, defendant earlier left the children alone in her apartment for two days without food. Contrary to defendant's contention, there is nothing in the record to support her contention that she always intended to return to care for the children. Instead, the record amply demonstrates that she simply disappeared from the children's lives and failed to contact them, L.W., or the Division for months thereafter. Defendant's reckless disregard for the children's safety placed them at risk of serious harm and constituted abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4). We therefore perceive no basis for disturbing the judge's ruling.

We also reject defendant's contention that the judge erred by entering a default against her. Beginning on the day of the emergency removal of the children, the Division made repeated attempts to contact defendant concerning the litigation. During defendant's prolonged absence, the caseworker called defendant, went to her apartment, spoke to the landlord, and contacted the local police. Defendant never responded or appeared in the litigation. Under these circumstances, the court's entry of default was plainly appropriate. See N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 168-69 (App. Div. 2012) (A failure to appear at trial is a "straightforward example[] of when default is properly entered").

Although defendant asserts the judge should have appointed an attorney to represent her at the fact-finding hearing, she cites to no statute or case law that supports her position. Had defendant not abandoned the children and gone missing, she would have had the opportunity to request the appointment of an attorney through the Office of the Public Defender. N.J.S.A. 9:6-8.43a. Indeed, when she finally made an appearance in the litigation, an attorney was promptly assigned to represent her. Significantly, neither defendant nor her attorney ever made a formal motion to vacate the default. Thus, defendant's contention on this point lacks merit.

Affirmed.

1 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

2 At that time, S.M. was incarcerated in North Carolina on an assault charge.

3 By that date, the matter had been transferred to another judge.