NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY v. J.R.

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NOT FOR PUBLICATION WITHOUT THE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 DIVISON OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF J.L. and X.L.,

Minors.

_________________________________

August 13, 2015

Submitted March 18, 2015 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-214-13.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joshua Rabinowitz, 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 J.R. appeals from the March 8, 2013 order entered by the Family Part finding she abused and neglected her two sons, J.L., born in 2007, and X.L., born in 2010, within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).1 After conducting the fact-finding hearing required under N.J.S.A. 9:6-8.44, the trial judge found that on an unspecified date in October 2012, "[J.R.]'s untreated anger management issues [led] her [to break] the glass closet door in the home while the child [J.L.] was present in the home [and this] placed the child [J.L.] at risk of harm." The court did not make any findings with respect to defendant's youngest child X.L., who was not in the home at the time. The Family Part judge made this finding based on the testimony of a caseworker from the Division of Child Permanency and Protection (Division). After reviewing the record before us, and mindful of our standard of review, we are compelled to reverse.

Defendant was known to the Division at the time this case began. On September 25, 2012, the Division responded to, among other things, claims of domestic violence involving defendant and her mother. At the time, J.R. admitted to smoking marijuana on a daily basis and that she was neither on medication nor seeing a mental health specialist to address her previously diagnosed Bipolar disorder.

The boys were five and two years old at the time. The Division concluded that the allegations that J.R. abused and neglected her children were unsubstantiated and unfounded. However, as a cautionary measure, the Division decided to keep the case open to provide J.R. with assistance in treating any mental health problems that may have arisen. On September 26, 2012, the day after the referral visit, defendant agreed to submit to a voluntary urine analysis and tested positive for marijuana.

On October 10, 2012, at approximately 10:30 p.m., while defendant and five-year-old J.L. slept, two-year-old X.L. walked out of the home, crossed the street, and walked into a nearby supermarket. A staff person found the child wandering around the store barefoot and in his pajamas. The Hoboken Police Department responded, transported the child to a nearby hospital, and contacted the Division. Police also canvased the neighborhood where the supermarket is located to ask if anyone knew the child. A local resident recognized the child and brought the police officers to defendant's residence. The officers woke defendant up; she had been sleeping with J.L. and was completely unaware that X.L. had managed to walk out of the house. The investigation confirmed that the bedroom where X.L. slept had a lock on the door within the child's reach. No criminal or Division charges were filed against J.R. in connection with this incident.

On November 5, 2012, the Division received an anonymous referral from a person who claimed to be J.R.'s neighbor alleging J.R. was "constantly yelling" obscenities at her children and her mother and threatening to kill her mother and "burn this place down." The caseworker who investigated spoke with J.L., who told the caseworker that recently, his mother was "going coo-coo and hitting [his grandmother]." The caseworker found that a large glass closet door had been shattered in the home, and took photographs to document the incident. She confirmed defendant had struck the glass door with a bat in a moment of anger and frustration with her mother. Defendant's mother stated she was not in the house at the time, but unfortunately, J.L. was somewhere in the home when defendant struck the closet door. At the caseworker's request, the child went to his grandmother's room and retrieved the bat. On November 8, 2012, the Division executed an emergent Dodd removal2 of both boys.

In the permanency order entered on November 4, 2013, almost a year after the Division first assumed control over the boys through the emergent Dodd removal, the court found, "[i]t is not and will not be safe to return the children home in the foreseeable future because [J.R.] has not complied with all services and has not addressed her mental health and substance abuse issues."3 The permanency plan called for the termination of J.R.'s parental rights followed by adoption of the children by their paternal grandmother. The court formally terminated the Title 9 action on December 9, 2013, after the Division filed the complaint for termination of parental rights.

Although the Division's verified complaint alleged a variety of different grounds in support of its claim that defendant abused and neglected her two sons, the trial court found the Division failed to satisfy its burden of proof on all but one of these grounds. As the following verbatim account of the trial judge's analysis shows, the judge concluded defendant committed an act of abuse and neglect based on a solitary act, to wit, smashing a glass closet door located in her bedroom with a bat while the oldest of the two boys was somewhere in the house. It is undisputed that the younger boy, X.L., was not in the house when this occurred. It is also undisputed that defendant's inappropriate expression of anger and frustration was connected with a tumultuous relationship she has with her mother. Stated differently, this act by defendant was not connected in any way to her role as a parent.

The trial judge made the following specific findings at the conclusion of the March 8, 2013 fact-finding hearing

Okay. Let me go through them individually, as well as totality, because I don't think you can just say lump all together without going through each one.

[T]he Division is seeking a finding of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b), which states that abuse and neglect is shown where a parent has placed a child in a substantial risk of harm.

To make a finding of neglect by a parent, the . . . [c]ourt must [conduct] a fact-sensitive inquiry during the Fact-Finding Hearing - - and I'm quoting from [N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2011)] - - and the . . . Judge's determination that a child has been abused or neglected must be based on a preponderance of the evidence standard, and only based upon competent material and relevant evidence and "[h]arm cannot be presumed in the absence of evidence of its existence or potential existence." And that's quoting from [N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004)].

 
Now, here, we have a whole lot of allegations the Division is trying to prove, in the totality, to prove that the mother neglected, or placed her child at risk for neglect or abuse. One of the things they're relying on and I'm going to go through them separately - - the substance abuse.

The mother did admit to using marijuana. She said she smoked a blunt at night while the children were in the care of the grandmother. She did say that it . . . calmed her down. But that's not direct proof that that was a substitute for taking medication, that may have been prescribed to her at one point when she was a child - - a juvenile.

The testimony of the caseworker was that she was self-medicating. I don't think the mother said she was self-medicating with the knowledge that, instead of taking the prescribed medication, she was using the marijuana.

The children weren't - - she was not caring for the children. The children were being cared for by her mother. So, under the A.L.[4] analysis, I don't find that the fact she used marijuana, even once a day at night in the backyard, that the Division has proven this fact, because of the rest of the testimony.

Now, as far as the untreated mental health, we do have the records, and they are admissible. And I note that the mother said that she was diagnosed as [B]ipolar as a teenager, but she's not diagnosed as Bipolar under these medical records. She diagnosed [sic] with [d]epression, and she's diagnosed with a personality disorder - - Borderline Personality Disorder.

[T]he mother admittedly stated that she has problems with her mother. She believes her mother is trying to control her. She believes that her mother tried to remove her from her environment where she was happy.

I don't see anything in the medical records or the testimony, other than the fact that she said when she was sixteen she . . . was diagnosed with Bipolar Disorder, which she is not diagnosed with at this point - - to state that she was aware that she had mental illness, yet she did not go to any treatment, or take any medication.

There's nothing here that says she was supposed to be taking X, Y and Z medication, or she was supposed to be enrolled in an outpatient program. But . . . that issue I don't find the Division has met [its] burden under the mental health.

 
The other issue about - - now, I know the Division is trying to lump it all together to show the totality of the circumstances. The other issue would be that she left the children for five days. She . . . admitted she left the children for five days. However, there was no risk to the children, since the grandmother was not going to leave them alone. Certainly, this added more fuel to their terrible relationship.

Now, the anger management. She's admitted this many times. She has an anger management problem. She knew she had anger management problems that caused her to conflicts [sic] with her mother, but that she chose to live with her mother.

I do find that that placed, at least [J.L.], under a risk of harm on the date where, because she was angry at her mother - - her mother wasn't even in the house - - she picked up a bat, she broke the mirror, and [J.L.] corroborated this testimony. He was home. He was someplace in that home. He was able to - - he said he was in the home, he described how it happened. The mother admitted she did it with a bat. He retrieved the bat.

I find that that - - her anger, coupled with that act, when her mother wasn't even in the home, placed [J.L.] at a risk for harm. Certainly with that backdrop, she could have taken - - the child could have been standing behind her - - she may not have even realized it, or he could have said something, and that could have provoked her.

Based on that fact, I do find that for that instance she has placed her child at risk for harm.

None of the other instances, however, I find that that was a risk of harm. Okay.

[(Emphasis added).]

Defendant argues the trial court erred in finding the Division established defendant abused and neglected her two sons within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Defendant claims the Division did not present sufficient evidence showing defendant placed her children in imminent danger and failed to exercise a minimum degree of care in providing the children with proper supervision. Defendant also argues she was denied due process of law because the Division did not notify her before the start of the fact-finding hearing that it intended to establish abuse and neglect based only on the single incident of her breaking the glass closet door in her bedroom.

The Division argues we should uphold the trial court's finding because it presented competent evidence that J.R. failed to exercise a minimum degree of care and placed J.L. in imminent danger of harm when she broke the glass door of the closet while she was responsible for supervising her son.

We are bound to uphold the trial court's factual findings provided they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, as the Supreme Court recently reaffirmed, "by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [P]art fact-finding.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).

Defendant's isolated incident of breaking a glass closet door while her five-year-old son was somewhere in the house is indisputably ill-advised and indicative of the need for intervention by the Division in the form of anger management services. That being said, however, the Division failed to present any evidence showing defendant's act impaired J.L. or placed him in imminent danger of being impaired. The trial judge's statement that defendant "placed her child at risk for harm" is not supported by the evidence.

In New Jersey Division of Child Protection & Permanency v. Y.N., 220 N.J. 165 (2014), the Supreme Court recently held that when the Division seeks to establish abuse and neglect of a child under N.J.S.A. 9:6-8.21(c)(4)(b), it must prove, by a preponderance of the competent evidence, that "the child was impaired or in imminent danger of becoming impaired because the parent (1) failed to exercise a minimum degree of care and (2) unreasonably inflicted or allowed to be inflicted harm, or created a substantial risk of inflicting harm, on the child." Y.N., supra, 220 N.J. at 180.

The Court further emphasized that the statute requires the court find parental fault in the form of failing to exercise a "minimum degree of care," which the Court reaffirmed requires the Division to prove the parent's conduct was "'grossly negligent or reckless.'" Ibid. (emphasis added) (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011)). Here, J.L. was not in the room when defendant smashed the closet door. His younger brother X.L. was not even in the house. Under the undisputed facts, as the trial judge herself found them to be, defendant's act did not, through gross negligence or reckless conduct, place her two sons in imminent danger of becoming impaired.

Reversed.

1 The Division also named the children's biological father, A.L., as a defendant in this Title 9 action. He is not part of this appeal.

2 A Dodd removal refers to an emergency removal of a child by the Division from the person who has legal custody and acts as the child's primary caretaker. The removal is executed without a court order due to the emergent nature of the circumstances. Named after the author of the legislation, Senate President Frank J. "Pat" Dodd in 1974, the Act, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

3 The court also found the children's father A.L. had not complied with Division-sponsored services.

4 We presume the judge was referring to N.J. Dep't of Children & Families v. A.L., 213 N.J. 1 (2013).