DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.B.

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NOT FOR PUBLICATION WITHOUT THE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.

D.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF D.B.,

A Minor.

__________________________________

May 23, 2016

Before Judges Haas and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-625-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Leviston N. Brisolla, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.B.1 appeals from an August 29, 2014 Family Part order,2 following a fact-finding hearing, determining that plaintiff New Jersey Division of Child Protection and Permanency (the Division) established by a preponderance of the evidence that defendant neglected her son Daniel by permitting the child to miss thirty-four days of school during the second grade. We affirm.

We derive the following facts from the record. Daniel was born in 2005. In September 2013, Daniel entered the second grade. In February 2014, Daniel's school contacted the Division to report that Daniel had excessive absences from school, and had also been late to school on a number of occasions. The child was failing his classes and was in danger of being retained in the second grade for the 2014-2015 school year.

Defendant admitted that she had trouble getting Daniel up in the morning to go to school, but disputed the number of absences the school reported to the Division. The Division offered services to defendant, including parenting classes, to assist her in addressing Daniel's school attendance problems. However, defendant declined these services.

During the school year, Daniel was absent thirty-four days and tardy another fifty-five days. Although he was promoted to the third grade at the end of the year, Daniel did poorly in a number of subjects, and was suspended on two occasions for behavioral issues. In his report cards, Daniel's teachers noted the child's struggles to complete assignments and the link between his absences from school and his poor grades.

In a thorough oral opinion, Judge Kathleen M. Delaney carefully reviewed the evidence and concluded that defendant committed educational neglect. After noting the child's extremely high number of absences and late arrivals, the judge found that defendant failed to ensure that Daniel attended school, or to offer any reasonable explanation for this neglect. The judge stated

[A]t some point in time, there has to be some initiative taken by [defendant]. And she didn't. And she did not ensure that this child was at school, and it clearly affected him academically, as was reported in the comments [on the report cards] at the end of the school year. Still problems. Still a lot of problems. Let alone, he's an emotionally disturbed child. More attention should have been paid by [defendant] to be sure that he was doing what he had to do in school, getting to school, and getting to school on time.

The judge also explained the harm Daniel suffered as a result of defendant's educational neglect

I do find that [defendant] failed to exercise the care that was required for this child's education, and put him in danger of not getting the education he needs, especially for a child who has behavioral issues . . . to the point of being suspended twice, just in . . . second grade.

And my concern also is for a child who has an [Individualized Education Program]. There's even more necessity that he gets to school on time, goes to school every day, missing almost seven weeks of school is not acceptable. And in my opinion, [defendant] neglected this child's education, let alone the [fifty-five] days he was late. And I don't know how late he was. But even five minutes puts you behind the eight ball to start your day . . . and especially for an emotionally disturbed child. The surroundings need to be just right. And [defendant] did not ensure that.

This appeal followed.

On appeal, defendant argues that the judge's decision was not supported by the record. We disagree.

Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to "the family courts' special jurisdiction and expertise[.]" Id. at 413. Unless the judge's factual findings are "so wide of the mark that a mistake must have been made[,]" they should not be disturbed, even if we would not have made the same decision had we heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

Through the admission of "competent, material[,] and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) defines an "abused or neglected child" as

a child less than [eighteen] years of age . . . 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 . . . education . . . though financially able to do so or though offered financial or other reasonable means to do so[.]

In New Jersey, parents are required to ensure that their children either regularly attend the public schools of the district in which they reside or receive instruction equivalent to that provided in the public schools. N.J.S.A. 18A:38-25. Attendance is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 641 (2003). A parent who fails to comply with the attendance requirements "shall be deemed to be a disorderly person[.]" N.J.S.A. 18A:38-31. "The reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) concerns parental encouragement to truancy of a school age child, or other interference with normal educative processes." Doe v. Downey, 74 N.J. 196, 199 (1977) (quoting Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196 (1977)).

Applying these standards, we affirm the finding of educational neglect substantially for the sound reasons expressed by Judge Delaney in her oral opinion. The judge's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. We add only the following brief comments.

Defendant asserts that the Division failed to demonstrate that she was aware that Daniel's absences would harm him, or that the absences actually caused him any harm. Judge Delaney rejected this argument, as do we. School personnel and the Division advised defendant of the absences and the adverse impact they were having on Daniel's ability to keep up in school. However, defendant rejected the Division's offer of services to help her address her parenting issues, and the child's absences continued. Thus, defendant was fully aware of the ramifications of her neglect.

The record also fully supports the judge's finding that Daniel suffered palpable harm as the result of defendant's neglect. He did poorly in several classes, and was in danger of having to repeat the second grade. Even if this were not the case, however, a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b)). That is clearly the case here because defendant's decision to permit Daniel to miss thirty-four days of school and be tardy on another fifty-five days surely placed the child at serious risk of suffering an educational deficit.

Affirmed.

1 We use initials and fictitious names to preserve the confidentiality of the child.

2 This order became appealable as of right after the trial court entered a final order terminating litigation on October 24, 2014.