DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.C.

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NOT FOR PUBLICATION WITHOUT THE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.

S.C.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF R.C.,

Formerly a minor.

_________________________________

December 4, 2015

Submitted October 7, 2015 Decided

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-121-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Mary Potter, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.C. (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant S.C. ("Sally")1 appeals an order finding she abused and neglected her daughter, R.C. ("Raquel"). After reviewing the record and applicable legal principles, we conclude that a finding of abuse and neglect cannot be sustained and, accordingly, we reverse.

I.

We derive the facts from the record. Sally is the mother of three children. Raquel is the oldest and there are two younger children, currently ages fourteen and seven, who have continuously lived with Sally. Raquel's father abandoned Sally when Sally was pregnant with Raquel and he returned to El Salvador approximately seventeen years ago.2

The finding of abuse and neglect arose out of events that took place in 2012. At that time, Raquel was sixteen years old and had her own daughter, T.C. ("Tracy"), who was approximately eighteen months old. For several years before 2012, and particularly after Raquel became pregnant with her own child, Sally and Raquel had a contentious relationship. In July 2012, Sally and Raquel got into an argument, which escalated into a physical altercation during which Sally and Raquel slapped each other. The following day, Sally had the police remove Raquel and her granddaughter from the home. Raquel and her child then went to stay with Raquel's maternal uncle.

The Division of Child Protection and Permanency ("Division")3 became involved on July 25, 2012, when the Union City Police Department reported that Raquel and her child had been kicked out of the uncle's home and they had no place to stay. Division workers met with Sally concerning the situation. Sally reported that she was afraid of Raquel attacking her and initially told the workers that she did not want Raquel back in her home. Division workers then offered home-making services and informed Sally that those services were for her own safety. During that same discussion, Sally agreed to allow Raquel and her granddaughter back into her home, but refused the Division's offer of home-making and counseling services.

The Division then executed an emergent removal of Raquel from the custody of Sally. Following a psychiatric evaluation at a hospital, the Division placed Raquel in a foster home. The Division also removed Tracy from Raquel's custody, but placed Tracy with Raquel in the same foster home. At the time of the emergent removal, the Division also learned that Raquel was two-months pregnant with a second child.

An order to show cause hearing was conducted by the Family Part on July 30, 2012. The court approved Raquel's removal and granted custody of Raquel to the Division. A hearing on the return of the order to show cause was conducted in September 2012, and the court continued Raquel's placement with the Division. Thereafter, the Division tried to find a relative placement for Raquel and her child, but ultimately all potential relative placements were ruled out by the Division. Consequently, Raquel and her child remained in a non-relative foster home.

On January 8, 2013, the Family Part conducted a one-day fact-finding hearing. The Division submitted documentary evidence and called two caseworkers to testify. Sally was present with counsel, but elected not to testify and called no witnesses. The Law Guardian appeared on behalf of Raquel. The judge focused on the facts concerning the removal of Raquel in July 2012. The judge observed that the facts were basically "uncontroverted" and that the Division was presenting "an issue of a legal interpretation of whether there was abuse and - - or neglect." The judge then found

[I]t's uncontroverted that [Sally] was willing to let [Raquel] in the home on her own terms, and was not willing to agree to any services offered or required by the Division. And the Division's specific claim, or members of the Division specifically spoke with [Sally] about home-makers and explained that therapists would be to monitor safety issues because [Sally] had said she was afraid of her sixteen-year-old daughter.

Based on those undisputed facts, the judge found that Sally had abused or neglected Raquel by (1) refusing to allow Raquel and her child to return home; (2) refusing services offered by the Division; and (3) not offering the Division an alternative placement plan for Raquel.

Thereafter, the Family Part approved a permanency plan under which Raquel, who was then seventeen years old and the mother of two children, would transition to an "independent living" situation. The Title Nine litigation was terminated in March 2014, just after Raquel turned eighteen years of age.

II.

Sally now appeals the fact-finding order contending: (1) Raquel was not abused or neglected because Sally was willing to take Raquel and Tracy back into her home, and Sally simply refused to accept the services offered by the Division; and (2) the family judge did not find that Sally abandoned Raquel and we should not make such a finding on this appeal.

Our scope of review of a trial court's findings of fact in an abuse or neglect case is limited. Family courts have special expertise with issues involving the welfare of children; therefore, we should accord deference to family courts' fact-finding and credibility determinations. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011).

However, "[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) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Thus, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010)(quoting Manalapan Reality, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

The adjudication of abuse or neglect is governed by Title Nine, which is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.8); see also N.J.S.A. 9:6-8.21 to -8.73 (governing protection of abused and neglected children). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4) 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, as herein defined, to exercise a minimum degree of care . . . 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 . . . .

Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "analyzed in light of the dangers and risks associated with the situation." N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181). Title Nine prohibits conduct that is "grossly or wantonly negligent, but not necessarily intentional." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 381 (App. Div. 2014)(quoting G.S., supra, 157 N.J. at 178). The standard "implies that a person has acted with reckless disregard for the safety of others." N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014)(quoting G.S., supra, 157 N.J. at 179).

A court considering whether a parent or guardian's conduct meets the statutory standard must analyze all facts and 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). The court must then decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 69 (App. Div. 2014).

During the fact-finding hearing, the Division bears the burden and must present proofs to establish abuse or neglect as defined in the statute. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). Specifically, the Division must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child. S.I., supra, 437 N.J. Super. at 153 (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005)).

Analyzed under these standards, the Division did not prove that Sally's conduct rose to the requisite level of grossly negligent or recklessness to constitute abuse or neglect within the meaning of Title Nine. As the family judge recognized, the material facts were undisputed and the issue was the application of those facts to the law.

Sally did not refuse to allow Raquel and Raquel's child to come back to her home. Instead, Sally declined services offered by the Division which, significantly, were offered for Sally's protection. The facts of this case do not support a finding that Sally was subjecting Raquel to abuse or neglect by declining such services. The Division did not offer any evidence to establish that without services, Raquel was in danger of an immediate impairment to her physical, mental, or emotional condition.

Before us, the Division argues that the services were offered for the protection of Raquel. The record, however, does not support that contention. Indeed, the family judge expressly found that the Division workers had explained to Sally that the services were offered "to monitor safety issues because [Sally] had said she was afraid of her sixteen-year-old daughter." We do not countenance Sally's refusal of services from the Division. Her decision declining such services could be viewed as a mistake; however, that decision cannot be said to raise to the level of gross or wanton negligence.

Viewed in the totality of the circumstances, the evidence at the fact-finding hearing also did not establish that Sally failed to exercise a minimum degree of care for Raquel. It was undisputed that Sally did give Division workers names of relatives who might be available to house Raquel and her child. While Sally also informed the workers that she did not think those relatives would take Raquel and her child, there was no showing at the hearing that the Division gave Sally a reasonable opportunity to find an alternative placement. Instead, the Division chose to immediately remove Raquel. Moreover, Raquel was apparently willing to go to a foster home and did not seek to return to Sally's home. Sally, therefore, was not faced with a situation where Raquel had no place to stay. Consequently, on this record, the Division did not establish a probability that Raquel was in present or future danger of harm.

Reversed.

1 To protect privacy interests and for ease of reading, we use fictitious names for the mother and children.

2 The father was named in the Title Nine action, but he never appeared. No findings were made concerning the father.

3 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. P.L. 2012, c.16.