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

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NOT FOR PUBLICATION WITHOUT THE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.

H.F.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF I.F.-A.,

Minor.

_________________________________________________________

May 12, 2015

Submitted April 14, 2015 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-122-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Janet L. Fayter, Designated Counsel, on the brief).

PER CURIAM

In this appeal, we consider whether a four-year-old child's observance of a scene in a department store during which the child's mother, defendant H.F., engaged in a verbal dispute with a clerk that escalated to her making threats, which required police intervention and defendant's arrest could support a finding of abuse or neglect, N.J.S.A. 9:6-8.21(c)(4). Although the judge made findings regarding defendant's conduct that command our deference, the scant evidence on the impact of this conduct on the child's emotional well-being was insufficient to support the judge's conclusion the child was at imminent risk of harm. We, therefore, reverse.

A few days after the August 30, 2012 event briefly described above, the Division commenced this action and an immediate hearing took place on the propriety of the Division's removal of the child from defendant's care. The judge found removal was appropriate, but she also ordered the return of the child to defendant's custody subject to supervision by the child's maternal grandmother. Evaluations were later conducted, and a fact-finding hearing took place on April 18 and 19, 2013. At the hearing's conclusion, the judge made findings and, after further compliance hearings, the action was dismissed, giving rise to this appeal, in which defendant argues

I. THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF ABUSE AND NEGLECT.[1]

II. THE TRIAL COURT ERRED IN FAILING TO EXERCISE ITS DISCRETION TO DISMISS THE TITLE NINE ACTION AND CONTINUE THE MATTER UNDER TITLE THIRTY, THUS DENYING [DEFENDANT] DUE PROCESS.

We find insufficient merit in Point II to warrant further discussion. R. 2:11-3(e)(1)(E). Defendant has not persuaded us that we should second-guess the manner in which the Division proceeded or the judge's decision to refrain from compelling an alternative approach as permitted by N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, cert. denied, __ U.S. __, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). We, thus, turn to the sufficiency of the judge's findings in light of the arguments posed in Point I.

Although controversies based on N.J.S.A. 9:6-8.21(c)(4) have generally been referred to as "quite fact sensitive," N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 253 (App. Div. 2012), the judge's findings as to defendant's conduct are well-established by the evidence, which included a video of the events captured by the department store's cameras.

The judge provided multiple descriptions of the events of August 30, 2012, as she reviewed the evidence and expressed her views of the credibility of each witness. The judge found that the episode arose from defendant's discussion with a Kmart clerk regarding her attempt to return a DVD; this discussion quickly escalated when defendant "threaten[ed] to shoot up a bunch of people." She "created such a scene in the store" that police were called. The child, who had stood nearby during these events, was described by the judge as "upset and crying."

The judge further found that police arrived and when an officer "tried to take [the child,] they slammed [defendant] to the ground." Because "[defendant] was not wearing any undergarments, [she] yelled rape to get attention because her dress had ridden up"; she also yelled "[g]et off me, you f-ing pigs" to the officers. The judge also found that during this episode, defendant asserted that "she could say whatever she wanted in front of her child." By the same token, the judge recognized that, because the child was upset, defendant "trie[d] to comfort her child; tell[ing] him that she loves him." When the child was taken away from the scene by an officer, defendant "yell[ed] after [him], 'don't let anyone touch your penis,' and 'they are not your friends.'" Defendant was informed of her Miranda2 rights and removed from the store. Her arrest generated an emergency removal of the child from defendant's care.

As we have noted, what it is that defendant did in the department store cannot be seriously questioned. In fact, defendant does not appear to argue there was insufficient evidence about what occurred or that the judge was mistaken in her description of defendant's regrettable conduct on August 30, 2012. Instead, defendant concerns herself mostly with the findings to which we also focus our attention the impact of her conduct on the child. Although there is no question that the facts established the child was very upset in the store on August 30, 2012, as the events were occurring, the Division was required to demonstrate more than that.

The question is governed by N.J.S.A. 9:6-8.21(c)(4), which states that an "abused or neglected child" means a child under the age of eighteen years

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

Our Supreme Court has provided further clarity as to the reach of the phrase "minimum degree of care," by defining it as "grossly or wantonly negligent, but not necessarily intentional" conduct. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In that sense, a parent fails to exercise a minimum degree of care when "aware of the dangers inherent in a situation," the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The parent is held to what "an ordinary reasonable person would understand" in considering whether a situation "poses dangerous risks" and whether the parent acted "without regard for the potentially serious consequences." Id. at 179.

More recently, the Court reaffirmed that its "'cautionary act' language . . . is informed by" G.S.'s "grossly negligent or reckless standard," but further explained that "every failure to perform a cautionary act is not abuse or neglect"; that is, "[w]hen the failure to perform a cautionary act is merely negligent, it does not trigger" the statute. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011); see also S.N.W., supra, 428 N.J. Super. at 254. The focus on the parent's level of culpability in assessing whether a minimum degree of care has been exercised

is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.

[T.B., supra, 207 N.J. at 307.]

It is important to distinguish, however, between a "grossly negligent or reckless" act in general and one that bears some relation the actor's parenting. That is, defendant's behavior in the department store was certainly "reckless," but its nexus to her role as a parent is not so clear.

The Division's theory that the child was abused or neglected because of defendant's conduct in the department store is multifaceted; the Division argues defendant's conduct: (1) "caused actual emotional harm" to the child; (2) "placed [the child] at a substantial risk of physical injury"; and (3) constituted a "fail[ure] to exercise a minimum degree of care in behaving in a way to ensure the safety and well-being of her child." The judge neither expressly nor implicitly agreed with the second aspect of the Division's theory and, in fact, there was no evidence to suggest the child was at "substantial risk" of being physically injured. In addition, we do not discern from the judge's decision that she endorsed the third aspect; indeed, we do not view the episode described by the judge in her findings as constituting an exercise of care at all. Defendant was not directly engaged in caring for the child at the time; the child was merely present.

The only legitimate basis for a finding of abuse or neglect revolves on the Division's contention that defendant's conduct indirectly "caused actual emotional harm" to the child. Stated another way, it must be concluded that defendant acted inconsistently with N.J.S.A. 9:6-8.21(c)(4) by threatening, arguing with or acting belligerently toward one or more Kmart employees or the police officer who intervened. That conduct is relevant only in the sense that it was witnessed by the child and, even then, only to the extent it caused the child physical or emotional harm. Because the judge did not find the child was physically harmed or in danger of being physically harmed, we turn to the judge's findings regarding emotional harm.

We observe that no evidence was presented that defendant's anger management or impulsivity control issues, which were suggested by the Kmart incident and supported by the record, have ever been directed toward the child. The simple question is whether, by witnessing this one incident apparently an aberrational event the child was emotionally injured or placed in imminent risk of emotional injury then or in the future. On that particular issue, the judge made only the conclusory observation based on the nature of the scene at the store and the child's later reenactment of the event with his mother that defendant's conduct in the store "had an impact on [the child]; it affected him afterwards." We find this to be insufficient to support the order under review. To be sure, as the judge expressed in her opinion, the child was emotional during the events of August 30, 2012. But evidence of emotional scarring, which may haunt or trouble the child in the future, is lacking in this record.3 The Division's expert referred only to the child having once reenacted the event with his mother; the expert did not explain why this one later circumstance demonstrates the kind of emotional harm intended by N.J.S.A. 9:6-8.21(c)(4).

Consequently, while we defer to the judge's findings as to what occurred in the department store on August 30, 2012, and the finding that the child was quite upset as that event was occurring, N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014), we find insufficient evidence in the record to support the judge's conclusion that the mother's conduct on August 30, 2012, had a substantial impact afterwards or, even if it did, it is likely to continue to do so in the future.

Reversed.

1We have omitted the subparts to Point I for brevity's sake.

2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3To be clear, we do not suggest the child will likely soon forget this episode. He may long remember the day his mother was arrested. But this does not mean it will adversely impact the remainder of his life or is likely to be anything other than an episode that, when recalled, will cause a feeling of embarrassment or shame. We do not believe a bad memory is the type of "injury" the Legislature intended to equate with "abuse or neglect" when enacting N.J.S.A. 9:6-8.21(c)(4).