NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.G.

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NOT FOR PUBLICATION WITHOUT THE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.

M.G.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF V.R.,

a Minor.

__________________________________

SubmittedMay 11, 2015 Decided June 8, 2015

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-351-04.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor V.R., joins in the brief of respondent.

PER CURIAM

After a fact-finding hearing, the Family Part concluded that defendant M.G. ("the mother") had abused or neglected her teenage daughter V.R. ("Valerie")1 and her two younger sons ("Michael" and "Mitch"), within the meaning of N.J.S.A. 9:6-8.21(c)(4). For the reasons that follow, we reverse the court's determination.

We summarize the pertinent facts adduced at the fact-finding hearing conducted over three intermittent days in 2009.2 The mother has four children: an older son born in 1992 (who is not a subject of this case), her daughter Valerie, who was born in 1995, and her two younger sons, Michael and Mitch, who were respectively born in 1997 and 1999. The mother has a history of mental health issues, including anxiety disorder and depression. The father of Valerie, Michael, and Mitch had issues of drug and alcohol abuse. Eventually he and the mother separated.

The Division of Youth and Family Services ("the Division")3 has been involved with the family periodically for many years. In 2000, all four children were removed from the mother's household. Valerie, Michael, and Mitch remained in an out-of-home placement until they were reunified with the mother in 2004. The oldest son was not returned until 2007.

In 2008, the older son sexually abused Valerie, leading to her hospitalization. The older son also made his two younger brothers touch one another's genitalia.

When Valerie was hospitalized, she revealed that her father had sexually assaulted her when she was five years old. Valerie alleged that she had told her mother about the assault three years later, but that the mother did not report the incident to the police and instead cursed at the father about it. Although no one was prosecuted for these alleged offenses, Valerie received in-home therapy from a sexual abuse counselor.

In November 2008, the mother attempted suicide. She was treated at a hospital and released. The mother was prescribed medication and was permitted to continue taking care of the three younger children in her residence.

The mother developed a relationship with another man (G. T.), who was her fiancé by the time of the events in 2009 that precipitated the Division's allegations of abuse and neglect.4

Valerie became attracted to her mother's fiancé and exhibited sexualized behavior towards him. The fiancé rebuffed Valerie's advances, and there is no claim or evidence that he ever had sexual contact with her. Nevertheless, in recognition of Valerie's past sexual experiences, the Division and a clinician advised the mother to refrain from allowing her fiancé into her residence while Valerie was residing there.

Desirous of having an intimate relationship with her fiancé, the mother disagreed with the Division's recommended ban of him from her premises. Instead, she permitted him to sleep over at her residence with certain precautions. In particular, the fiancé would typically arrive at the residence late at night and leave the following morning. He would sleep in the mother's bedroom and the two of them would keep the bedroom door locked, thereby preventing Valerie's entry. Because the Division was dissatisfied with these measures, the mother became angry and rejected homemaker services that the Division had offered.

In February 2009, the Division received a referral that Valerie, who was then thirteen years old, had been admitted to a local hospital thirty days earlier and had claimed she had been raped by her father eight years earlier when she was five years old. The Division also then became aware of the mother's November 2008 suicide attempt.

The Division decided to conduct an emergency "Dodd"5 removal of Valerie, Michael, and Mitch from the mother's care on February 26, 2009. Valerie was placed in a residential treatment center, and the boys were placed with relatives. Eventually, after the mother received services from the Division under the court's supervision, the sons were restored to her care the following year.

The Division filed a complaint in the Family Part charging the mother with abuse or neglect under N.J.S.A. 9:6-8.21(c). The Division's central contention was that the mother had endangered Valerie by disregarding the recommended ban and permitting her fiancé to sleep over at the residence. As to the two sons, the Division contended that the mother had endangered them by not taking prescribed medication for her mental health, and by engaging in emotional outbursts.

The Division presented testimony from two case workers at the fact-finding hearing. It also substantially relied on documentary exhibits admitted into evidence, including medical records. The mother testified in her own defense. No expert or other witnesses testified. Upon the completion of the fact-finding hearing, the trial judge immediately issued an oral opinion on December 1, 2009, concluding that the Division had proven by a preponderance of the evidence the mother's abuse or neglect as to the three children.

Notably, the judge did find the mother's testimony "essentially credible" with respect to the circumstances relating to Valerie and her fiancé's overnight stays. The judge also recognized that the mother had "a right to her own life." Nevertheless, the judge faulted the mother for "refusing the instructions from the clinician and [the Division] not to let [the fiancé] into the house, or at least not at night, [and thereby] exposing [Valerie] to more of this very inappropriate [sexual] behavior, which is dangerous for [Valerie's] well being."

As to the two boys and the mother's emotional problems, the judge found the mother's testimony was not credible, insofar as she had denied being prescribed medication for her mental health. The judge instead credited documentary evidence from a treating clinician stating that the mother had, in fact, been prescribed such medication and that she had refused them because she was concerned about gaining weight. The judge also expressed concern about the mother's emotional outbursts and her prior suicide attempt. The judge concluded that the mother's failures to take the medications placed the boys at substantial risk of harm, recognizing the danger to them if the mother attempted suicide again.

The mother now appeals. Substantively, she contends that the trial court's findings of abuse or neglect under Title Nine fail to satisfy the required legal standards and also are not sufficiently supported by the record evidence. In addition, the mother raises a procedural claim that the court violated her due process rights by allowing the Division to establish its proofs at trial largely through hearsay documents.

In opposing these contentions, the Division argues that the record amply supports the court's findings of abuse or neglect under the statutory criteria. The Division also denies any undue reliance on hearsay proof or a deprivation of due process.

The Law Guardian for the minors has submitted a two-and-a-half-page letter6 on appeal, advising us that Valerie has reached the age of majority and is still receiving services from the Division. The Law Guardian further reports that the mother has resided in Florida with her husband, Michael, and Mitch since 2010 and that she has only "very limited contact" with Valerie. Given these circumstances, the Law Guardian asserts none of thechildren will be affected by the outcome of this appeal. The Law Guardian presents no argument or case law in opposition to the mother's appeal, other than to state in conclusory fashion that "[t]he Division's position at fact-finding was ultimately supported by the court's finding of abuse [or] neglect and said finding should not be disturbed."

The applicable statute that concerns us here, N.J.S.A. 9:6-8.21(c), 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 . . . (b) 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[.]

[(Emphasis added).]

A parent or guardian's failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). Proof of mere negligence is not enough. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "Conduct is considered willful or wanton [within the meaning of Title Nine] if done with the knowledge that injury is likely to, or probably will, result." Ibid. "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

The Division and the court need not wait until a child is actually harmed before taking action. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012); In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect"). Instead, a child can be abused or neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added). The Title Nine analysis is fact-sensitive, and the court must consider the totality of the circumstances. P.W.R., supra, 205 N.J. at 33.

When applying these statutory criteria, our scope of review in abuse or neglect cases hinges upon the specific nature of the points raised on appeal. To the extent the appellate issues concern a trial court's findings of fact or credibility determinations, we accord substantial deference. Specifically, we must defer to the factual findings of the Family Part if they are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). By contrast, "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citations and internal quotation marks omitted); see also N.J. Div. of Youth and Family Servs. v. S.I., 437 N.J. Super. 142, 152-58 (App. Div. 2014) (applying this standard and reversing the trial court's finding of abuse or neglect based on generalized concerns about teen suicide).

As a major contention on appeal here, the mother asserts that the trial court's oral opinion is insufficient to justify the entry of final judgment in the Division's favor because the judge made no finding that the children were either actually harmed, or that they were in "imminent danger" of being harmed, as required by N.J.S.A. 9:6-8.21(c)(4). The Division's brief does not directly respond to this specific contention, but instead argues that the evidence in the record adequately supports a conclusion of either harm or imminent harm. The Law Guardian offers no comment on this discrete issue.

Although the trial judge, in both his oral decision and written order, criticizes the mother's behavior in several respects based upon the evidence, he does not make an explicit finding that the children were actually harmed, or that they were in "imminent danger" of being harmed by their mother. As to Valerie, the judge found that the mother "was exposing [her] to more harm and inappropriate sexual activity and that was not good for [Valerie]. And it did rise to the level of abuse and neglect."

As to the sons, the judge likewise made certain criticisms of the mother, which he linked to evidence in the record. Again, however, the judge made no explicit finding of actual harm or imminent harm. The judge did find that the boys had been exposed to a "substantial risk" in the wake of the mother's prior suicide attempt, because of the mother's subsequent failure to take her prescribed medication.

Viewing the judge's rulings in an indulgent light, it appears that the judge did convey a finding that the mother had exposed all three of the children to a substantial risk of harm. But the judge stopped short of finding, at least expressly, that the potential for such harm was "imminent," as required by the statute. This omission is critical. We will not insert into the judge's findings this important, time-sensitive element the Legislature mandated in the statute. This omission alone is a sufficient basis for appellate relief.

Although we have considered whether to remand this case to the trial judge for an amplification of his reasons to clarify whether he found that the mother's conduct placed the children at "imminent risk" of harm, we decline to do so for several reasons. For one thing, almost six years have passed since these fact-finding hearings from 2009. We doubt that any judge would readily recall such an old case well even if aided by trial notes that may have been made and retained in sufficient detail to enable significant clarification or amplification.

In addition, as the Law Guardian's letter points out, Valerie is now emancipated and the mother has been long reunited with the sons and is caring for the boys with her husband for the past five years in Florida. There does not seem much that would be gained at this late juncture by reopening the case in the trial court.

More importantly, our own independent review of the factual record persuades us that the mother's conduct, while rightly subject to criticism in several respects, was not so severe to amount, as a matter of law, to the "gross negligence" the Division is required to prove under the statute. See T.B., supra, 207 N.J. at 306.

Although the mother might have protected Valerie to an even greater extent by heeding the Division's advice and disallowing her fiancé from staying overnight at the residence, her failure to abide by such an extreme constraint did not demonstrably place the daughter imminently at a more substantial risk of harm. The Division's concern about harm stems from Valerie's own sexual experiences with other men, not with the fiancé who, by all indications, had repelled her inappropriate overtures. It is unrefuted that the mother and her fiancé kept the bedroom door locked when he slept there. We are unpersuaded that Valerie was placed at "imminent risk" in that situation.

As the trial judge himself appreciated, the mother had a degree of entitlement to engage in her own adult relationship. We recognize her door-locking measures were not foolproof and Valerie theoretically might have accosted the fiancé when he walked into or out of the bedroom. Even so, we cannot conclude that the mother's approach to her daughter's safety under the circumstances was either "grossly negligent" or "reckless." See T.B., supra, 207 N.J. at 306.

We reach the same conclusion as to the mother's failure to take her prescribed medications. Although we take very seriously the well-established principle that a court need not wait for a child to be actually harmed by parental inattention or neglect, see F.M., supra, 211 N.J. at 449, the mother's reluctance to take her medications here has not been shown on this record to rise to the level of gross negligence or recklessness. The trial judge's oral opinion and written order cited to no expert proof attesting that the mother's failure to adhere to her medication regimen actually harmed the children, or that such failure placed them in "imminent" danger during the time period in question.

To be sure, we do not overlook or minimize the mother's prior suicide attempt. Nor do we overlook the overall importance of her obtaining mental health treatment. Fortunately, the mother has since stabilized herself, and she has parented the boys with her new husband since 2010 without further apparent governmental involvement. We do not fault the Division for undertaking a Dodd emergency removal when it did so in February 2009, after the mother had expressed her anger in opposition to the Division's admonition that she not allow her fiancé to stay at the residence overnight.

That said, we do not regard this mother's failure to take her prescribed medications, in and of itself, as sufficient proof of her parental irresponsibility here to rise to the level of "grossly negligent" or "reckless" conduct in violation of the statute. As it was, the failure-to-medicate aspect of the case was only a secondary focus of the Division's proofs and arguments at trial. We are not persuaded that the Division's proofs of alleged neglect as to the sons are any stronger than those we have already found wanting with respect to the daughter.

We also bear in mind the "significant and longstanding adverse consequences" that can result from a parent's placement on the child abuse registry. N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 179 (2014); N.J. Dep't of Children and Families, N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013). The mother's permanent placement on the registry appears to be an unduly harsh response to her decision to allow her fiancé to sleep with her in a locked bedroom and her lapse in taking her prescribed medication. We decline in these circumstances to uphold the trial court's conclusion of abuse or neglect, and the consequential placement of the mother on the registry.

In light of our substantive disposition, we need not address the mother's procedural arguments, except to observe in passing that the Division's case at trial was heavily reliant upon hearsay documents. The records generally appear to be documents that are admissible under the special evidentiary exception for Division cases codified at N.J.S.A. 9:6-8.46(a)(3).

We do note that had the Division chosen in lieu of such heavy reliance on paper submissions to present testimony from an expert witness in court, its overall claims of abuse or neglect may well have been strengthened. Live expert testimony would have been particularly warranted here to provide opinions on complex subjects such as the clinical significance of the mother's lapse in taking her medications and the probability of suicide. See N.J.R.E. 808 (disallowing complex disputed opinions presented through hearsay documents); N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174-75 (App. Div. 2012) (applying Rule 808 to Division litigation). Since no expert was presented, the Division's case was even more tenuous. Although we discern no due process violation, the Division's excessive reliance on hearsay proof is consistent with our determination that the Division failed to meet its evidentiary burden.

The trial court's finding of abuse or neglect is reversed. The Division shall remove defendant's name from the Child Abuse Registry within thirty days of this opinion.

1 We use fictitious names for the three children.

2 We point out that the protracted delay of more than five years since the time that the fact-finding was conducted largely stems from the fact that the trial court held numerous compliance review and permanency hearings between 2009 and 2013, culminating in an order finally terminating litigation in November 2013. Defendant filed a timely appeal from that final judgment.

3 As the caption of this case reflects, the Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16.

4 By the time of the fact-finding hearing, the mother and G.T. had married. We shall refer to G.T. as "the fiancé," reflecting his status at the time of the events in question.

5 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82 (the Dodd Act). N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

6 Because the letter has no point headings or legal citations, we do not consider it a letter brief. See R. 2:6-2(b).