NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

B.S.,

Defendant-Appellant.

__________________________

IN THE MATTER OF S.S, Q.S.,

T.S., and Q.S., minors.

________________________________________________________________

November 10, 2016

Argued November 1, 2016 Decided

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-138-13.

Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the brief).

Steven J. Klein, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Klein, on the brief).

James J. Gross, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Gross, on the brief).

PER CURIAM

Defendant B.S. appeals from the Family Part's order finding that she abused or neglected her four children T.S., Q.S., S.S. and Qu.S.1 by failing to provide them with adequate shelter contrary to N.J.S.A. 9:6-8.21(c)(4)(a).2 We reverse.

This family had a significant history with the Division of Child Protection and Permanency (the Division). On September 19, 2012, the Division received a referral alleging defendant was "in the process of getting locked out of her home" and as of the previous day, had made housing arrangements for only two of her children.

The family's case manager, Mary Washington, went to the management office of defendant's apartment to try to ameliorate the situation. Washington explained that defendant had four children and asked if they would "reconsider their position" and whether "there was anything [the Division] could do." She was told that "there was absolutely nothing [the Division] could do to help [defendant] and that [defendant] would have to vacate [the] apartment."

When Washington asked the reason for defendant's eviction, she was advised that in August of that year, defendant's children "stuffed some toys" in the toilet and defendant "had let the toilet run for three to four hours before [she] called [management]." When management arrived, they found "feces through the house from the toilet" and "all over the floor," and "fresh feces in the closet" which defendant "apparently . . . let the children" use as the bathroom. Washington recounted that the management successfully petitioned the court to evict defendant for being an "undesirable tenant," and defendant was ordered to vacate the apartment by August 31, 2012. The court denied defendant an extension on September 18.3

Although defendant was four months behind in her rent, management denied that unpaid rent was the reason for the eviction. Management declined to accept any funds the Division could have provided to allow defendant to remain in the apartment.

In his statement of reasons, the trial judge acknowledged that when Washington visited B.S.'s apartment, the children "were properly clothed, they appeared to be well fed, and there weren't really any real issues . . . she didn't see any problems in [B.S.'s] apartment." The issue regarding the apartment was that B.S. was "in the process . . . of possibly being evicted . . . ." The trial judge found the eviction a dispositive fact, stating, "Regardless of whatever the reason was, that's really not that - - that relevant. What is relevant is that for whatever reason, [B.S. was] in the process of being evicted." Once again, he stated, "Whatever the reason . . . is not really of any moment to me." He also acknowledged that B.S. had a plan to place two of her children and that the Division found "a proper place to live" for her other two children. Based upon these findings, the trial judge concluded the Division had proven by a preponderance of the evidence that "there was a significant issue with the shelter" and satisfied its burden under N.J.S.A. 9:6-8.21(c)(4)(a).

In her appeal, B.S. presents the following arguments

POINT I

THE ABUSE/NEGLECT FINDING AGAINST B.S. IN THIS CASE SHOULD BE REVERSED, BECAUSE DCPP DID NOT PROVE THAT ANY OF B.S.'s CHILDREN SUFFERED IMPAIRMENT OF ANY PHYSICAL, MENTAL, OR EMOTIONAL CONDITION OR IMMINENT RISK OF SUCH IMPAIRMENT AND BECAUSE POVERTY AND HOMELESSNESS, STANDING ALONE, DO NOT MEET THE DEFINITION OF CHILD ABUSE/NEGLECT UNDER N.J.S.A. 9:6-8.21(c).

A. ONLY TWO OF B.S.'s FOUR CHILDREN WERE AT RISK OF HOMELESSNESS WHEN DCPP BROUGHT ITS CHILD ABUSE/NEGLECT ACTION AGAINST B.S.; A PRESUMPTION THAT B.S. WOULD NOT HAVE FOUND TEMPORARY ACCOMODATIONS FOR THEM IS IMPROPER UNDER NEW JERSEY LAW; AND POVERTY IS NOT A BASIS FOR A FINDING OF CHILD ABUSE/NEGLECT.

B. NO FINDING OF CHILD ABUSE OR NEGLECT UNDER N.J.S.A. 9:6-8.21(c) AGAINST B.S. IS LEGALLY PROPER IN REGARD TO ANY OF HER FOUR CHILDREN, BECAUSE DCPP DID NOT PROVE THAT ANY OF THEM WERE IMPAIRED OR AT IMMINENT RISK OF IMPAIRMENT BECAUSE OF B.S.'s LACK OF SUFFICIENT INCOME TO PROVIDE HOUSING AND BECAUSE DCPP DID NOT OFFER B.S. FINANCIAL OR OTHER RESOURCES THAT WOULD HAVE ENABLED HER TO OBTAIN THE HOUSING HER CHILDREN NEEDED.

POINT II

REVERSAL OF THE DECEMBER 20, 2012, ABUSE/NEGLECT JUDGMENT AGAINST B.S. WILL CLEAR HER RECORD OF ALL N.J.S.A. 9:6-8.21(c) FINDINGS AGAINST HER AND RESULT IN REMOVAL OF B.S.'S NAME FROM THE DCPP CHILD ABUSE/NEGLECT REGISTRY, BECAUSE THE DETERMINATIONS RELATING TO MENTAL HEALTH AND SUBSTANCE ABUSE MADE BY THE TRIAL COURT AT B.S.'S JULY 24, 2014, PERMANENCY HEARING WERE NOT FINDINGS MADE PURSUANT TO AN ABUSE/NEGLECT FACT FINDING TRIAL ON COMPETENT EVIDENCE.

POINT III

EVEN THOUGH B.S. HAS NOW SURRENDERED HER PARENTAL RIGHTS TO HER CHILDREN TO DCPP, THIS APPEAL IS NOT MOOT, BECAUSE B.S.'S NAME WILL REMAIN ON THE DCPP CHILD ABUSE/NEGLECT REGISTRY IF THE CHILD ABUSE/NEGLECT JUDGMENT AGAINST HER IS NOT REVERSED.

Our review of a Family Part judge's fact-findings is "strictly limited." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). Recognizing the family court's "special jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394, 413 (1998), we will not disturb those findings if supported by "substantial credible evidence in the record." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). No deference is owed to the court's legal conclusions, which are reviewed de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

N.J.S.A. 9:6-8.21(c)(4)(a) states, in pertinent part, that a child is abused or neglected if the child's

physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate . . .shelter . . . though financially able to do so or though offered financial or other reasonable means to do so.

Because there was no "actual impairment to the child" here, "the focus shifts to whether there is a threat of harm." Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015). In this regard, a court can make a finding of abuse or neglect "based on proof of imminent danger and a substantial risk of harm." Ibid. (quoting Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013)).

We must consider a parent's financial circumstances in determining whether the failure to provide shelter amounts to abuse and neglect. The statute explicitly states it is the failure to "supply[] the child with adequate . . . shelter . . . though financially able to do so or though offered financial or other reasonable means to do so" that constitutes abuse and neglect. N.J.S.A. 9:6-8.21(c)(4)(a) (emphasis added); see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 35 (2011) ("[A] failure to provide for a child's needs, when a parent is capable of doing so, can support actionable neglect where a child's condition has been demonstrated to be impaired or in imminent danger of being impaired.") (emphasis added).

Therefore, contrary to the trial judge's statement, the fact of eviction alone was insufficient to support a finding of abuse and neglect; the reason that B.S. faced eviction was highly relevant to the determination whether her children were abused and neglected as defined in the statute. To satisfy the criteria of the statute, it was necessary to show that B.S. was financially able to provide suitable shelter for her children. No finding was made or evidence presented to support that conclusion.

In addition, there was no finding that the children were in imminent danger of harm. In fact, the trial judge observed that B.S. made arrangements for two of her children and the Division found suitable housing for the other two children. As to other aspects of their welfare, the record reflects there were no concerns. The children were well-fed and properly clothed.

Therefore, we conclude that the finding of abuse and neglect here was not supported by necessary findings or adequate proof in the record.

Reversed.

1 We use initials to protect the privacy of the children.

2 After filing an appeal that challenged both the finding of abuse and neglect and an order that terminated her parental rights, defendant executed a voluntary identified surrender of her parental rights as to all four children. As a result, her appeal from the permanency order is moot.

3 No documents from the eviction proceedings have been provided in the record.