DIVISION OF YOUTH AND FAMILY SERVICES v. K.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4175-05T44175-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.C.,

Defendant-Appellant.

IN THE MATTER OF

J.B. and K.B., Minors.

 
___________________________________________________

Submitted October 25, 2006 - Decided November 17, 2006

Before Judges Cuff, Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FN-01-72-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, Division of Youth and Family Services (Sharon L. Piccioni, Deputy Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors J.B. and K.B., (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.C. appeals from an order granting care and custody of her ten-year-old son J.B. and six-year-old daughter K.B. to the Division of Youth and Family Services (Division).

The order removing the children from defendant's custody was based on a finding that defendant had failed to provide them with adequate shelter. The court found such failure presented an imminent threat to their physical condition, thereby constituting abuse and neglect as defined in N.J.S.A. 9:6-8.21c(4)(a).

On appeal, defendant argues:

I. THE DIVISION FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT K.C. ABUSED AND NEGLECTED HER CHILDREN AS SET FORTH IN N.J.S.A. 9:6-8.21c(4)(a).

Because we find that the trial court's findings of fact and conclusions of law were supported by competent and reliable evidence in the record, we affirm. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 175 (App. Div. 2005).

I.

On September 25, 2005, the Division received a referral alleging that defendant had hit her daughter, K.B., while they were in the waiting room of a hospital in Camden. In response to the referral, Shakira Lovelace, a Division caseworker, went to defendant's home to investigate. Although defendant would not let Lovelace into the home, Lovelace testified that she observed K.B., unclothed, in the home, but without any marks or bruises on her body.

The Division received another referral on September 29, 2005. In response, on three different days, Lovelace went to defendant's home, but defendant was not there on any of these three occasions. As a result, Lovelace requested that the Department of Human Services police search Atlantic City in an attempt to locate defendant. When defendant finally contacted her on October 5, 2005, Lovelace, several times, attempted to arrange a time when she could visit defendant and the children. Each time Lovelace was unsuccessful, until, finally, on October 28, 2005, defendant came to court for a previously scheduled hearing regarding an order to show cause. By that point, yet another referral had been received by the Division concerning the unfavorable conditions in the home.

Although the order entered as a result of the October 28, 2005 hearing reflects that the court did indeed take testimony, we have not been provided with a transcript of that hearing. It is clear, nonetheless, from the order entered that the court directed the Division to investigate the home. Defendant allowed Lovelace inside the home later that day. Lovelace's testimony at the fact-finding hearing conducted on February 24, 2006 describes what she saw:

[W]hen you walk in the house, to the right there's a foyer, there's a room that [K.C.] told me she uses as a laundry room. The laundry room had wet clothes hanging from the curtain rods in the ceiling. There were crates and bags piled up to about the ceiling and there [were] clothes everywhere and roaches infested in the clothes and bags.

You walk down the hallway and to the right is the kitchen. Inside the kitchen there were dirty dishes all over the counter and sink, there was molded food in the refrigerator, there was black mold in the refrigerator, all of the food in the freezer was freezer burn and was [inedible]. There were canned goods in the cabinets but there were roaches all throughout the cabinets in boxes of cereal and everything had roaches on it.

. . . .

Q Okay, and what was on the dishes [on the kitchen counter]?

A Caked up food, old dry food.

Q Okay. The mold that was in the refrigerator, that was inside the refrigerator?

A Yes. There was black mold [on] the walls of the refrigerator inside.

. . . .

To the left there's a stairwell leading upstairs and along the stairwell there was trash all over the floor, there was garbage bags full of clothes and stuffed animals and trash [lining] the stairs.

When you get to the second floor, there's one bedroom directly ahead of you which had a bucket of urine in the middle of the floor. There are two bunk beds in that room. Both were not made with sheets or blankets. Both had piles of bags of toys, stuffed animals and clothes [on them]. There [were] also crates and bags in that room to the side past the bed that were piled up to as high as the ceiling.

. . . .

Q And didn't you report as a result of [the bags piled on the beds], that there was nowhere for the children to sit or sleep?

A. Yes.

. . . .

The bathroom is directly across from the room and it's to your left.

. . . .

Q And was there a toilet bowl in the bathroom?

A Yes.

Q Was there any water in the toilet bowl?

A No.

Q Okay. Could the toilet bowl flush?

A Not that I know of.

Q Was there urine and feces in the bowl that you observed?

A There was smeared feces around the bowl and there was urine in the bucket.

Q Okay. Now, did the house smell of urine and feces?

A Yes, it did.

After completing her inspection, Lovelace stepped outside of the home so that she could call her supervisor, at which time defendant and the children disappeared. The efforts of the Human Services police to help Lovelace locate defendant and the children were unsuccessful. Three days later, on October 31, a housing authority maintenance supervisor unlocked the door and allowed Lovelace and the Human Services police to reenter the home. It was in the same "deplorable" condition as on October 28.

The Division did not see or hear from defendant again until November 15, 2005, when defendant appeared in court for a further hearing. At that hearing, the court authorized the Division to remove the children and place them in foster care. Division protocol required that the children be examined by a physician and medically cleared before the foster placement could begin. When the children were examined by a doctor on November 15, they were not found to be malnourished and other than K.B. having a urinary tract infection, the physician made no findings of any medical problems. The children were medically cleared that night and were placed in foster care where they remained until December 20, 2005, at which time they were transferred to the custody of a family friend, R.H., in South Carolina. They have remained there ever since.

At the fact-finding hearing on February 24, 2006, Judge Baker noted that although he had heard evidence regarding K.C. having taken K.B. off medication that had been prescribed to control hyperactivity, and although he had heard evidence that K.C. had slapped K.B., he intended to disregard that evidence in making his findings. The court stated, "I can . . . make a finding that in fact these children have been abused by accepting the uncontradicted testimony of Ms. Lovelace concerning the condition of the house."

N.J.S.A. 9:6-8.21c(4) states in pertinent part that an "[a]bused or neglected child" is a child under the age of eighteen:

whose physical, mental or emotional condition has been impaired or is in imminent danger of being impaired as a result of the failure of his parent . . . 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 . . . .

Title 9, the statutory scheme of which N.J.S.A. 9:6-8.21 is a part, "responds to the terrible reality that not all children are safe with their families by providing for the removal of abused and neglected children and for appropriate protective orders when necessary to ensure their safety." State v. P.Z., 152 N.J. 86, 99 (1997). Though the law governing the Division reflects a strong societal bent in favor of the integrity of the natural family and clearly favors keeping children with their natural parents, the abused child's interest is paramount. Ibid.

Applying the standard set forth in N.J.S.A. 9:6-8.21c(4), Judge Baker made the following findings of fact and conclusions of law:

This was not a condition as a result of poverty. This was a condition as a result of [intentional neglect]. You do not have to be rich, you don't have to earn a lot of money to keep a clean house and this was not just a dirty house. A dirty house probably would not rise to the level of abuse and neglect. This was a disgusting, deplorable, filthy, dangerous condition. A bucket of urine in a bedroom. . . . You don't have to be rich to empty out a bucket of urine or to tell the landlord to fix the toilet. There's been no testimony whatsoever indicating that that ever was attempted. You don't have to be rich to clean the toilet bowl, to remove the smell and smear of feces. You don't have to be rich to clean your residence, to clean your refrigerator and remove the mold and to make sure that roaches are not in close proximity to your children.

[It's] not a condition of poverty; [rather], it's a condition of just not caring how your children are being raised and what they are being exposed to. Food not only with mold but black mold that a six-year-old could get a hold of in this Court's view clearly the standard is preponderance of the evidence but quite frankly this evidence was clear and convincing that the condition of this house placed these children in imminent danger of becoming impaired.

As a result of K.C.'s failure to exercise a minimum degree of care in supplying the child [sic] with adequate shelter, clothing, food, the fact that this child or these children checked out medically so that they could be placed was sheerly an act of luck. This was a disaster waiting to happen as a result of the[se] condition[s]. [A] mother who would allow her children to live [in these conditions] is absolutely beyond understanding.

. . . .

Roaches infested in the clothes, crates and bags everywhere, dirty dishes, molded food in the refrigerator, black mold with roaches in the cabinets in all of the boxes specifically observed by Ms. Lovelace, trash on the floor, garbage bags on the floor, no appropriate place for these children to live.

There is no question . . . that the manner in which . . . she forced these children to live is clearly a case of abuse and neglect; therefore a judgment will be entered against [K.C.] that she has abused and neglected these children.

Defendant claims on appeal that the Division did not meet its burden of proof in establishing that she abused and neglected her children. Defendant argues that although the testimony of Lovelace supports a finding that her home was unclean, the record does not contain any evidence that these conditions placed the children at risk. She further argues that the record was devoid of any evidence to suggest that she had neglected the children's education in any way, or that she had neglected their medical needs, and that the broken toilet and refrigerator are "more a result of the unfortunate poverty [she] found herself in than a result of her neglect in caring for her children."

Finally, she argues that however unclean the home was, the Division's proofs failed to satisfy the second prong of the applicable statutory standard because the Division had presented no evidence that the children's physical or emotional health had been, or was in imminent danger of becoming, impaired.

In support of her argument that the proofs did not demonstrate "abuse and neglect" under Title 9, K.C. points to our decision in Doe v. G.D., 146 N.J. Super. 419 (App. Div. 1976), aff'd on other grounds sub nom., Doe v. Downey, 74 N.J. 196 (1977). In Doe, we concluded that a finding of substandard living conditions is, standing alone, insufficient to support a finding of abuse and neglect. Id. at 431. There, we described the child's condition as "filthy dirty," "extremely thin," and "sickly," and found that she was observed playing with cockroaches. Id. at 427. The trial court in Doe further found the substandard dirty and inadequate sleeping conditions to be unacceptable. Id. at 428. In reversing the finding of abuse and neglect, we concluded that inadequate sleeping conditions were mere incidents of poverty and did not justify removal of a child from the home. Id. at 431. There, we held that were such findings deemed to be sufficient, there would be "mass transfers of children from ghettos and disadvantaged areas into more luxurious living accommodations, [resulting in a] destruction of the natural parental bond." Ibid.

Here, Judge Baker's findings were based exclusively on the "disgusting, deplorable, filthy, [and] dangerous" living conditions in the home; therefore, his finding that the Division had established "abuse and neglect" appears to run afoul of our conclusion in Doe that when poverty causes dirty and inadequate conditions, a finding of "abuse and neglect" cannot be sustained. However, a close and careful reading of Judge Baker's detailed findings supports our conclusion that the result he reached is not prohibited by Doe. As Judge Baker aptly observed, poverty does not prevent a mother from scraping the mold from the inside of the refrigerator; it does not prevent her from removing the piles of clothing and stuffed animals from the bed so that the children could sleep there, nor does it prevent her from making the bed with sheets and a blanket. As the trial judge also correctly found, one need not be rich to "empty a bucket of urine or tell the landlord to fix the toilet" or to clean the toilet bowl so that it would no longer smell of human waste.

Judge Baker found that the conditions in the house were not the result of poverty but were instead an instance of simply "not caring how your children are being raised and what they are being exposed to." Findings by a trial judge in a non-jury trial are considered binding on appeal when supported by competent and reliable evidence in the record. H.B., supra, 375 N.J. Super. at 175. Indeed, the deference owed to a trial judge's fact-finding is enhanced in proceedings such as this because family court judges possess special expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Judge Baker's findings that here, unlike Doe, the conditions were not simply the result of poverty, but were instead the result of an apparent indifference to the potential harm that such filthy conditions could create, are entitled to our deference. Accordingly, the trial court's finding that defendant had failed to "exercise a minimum degree of care in supplying the child with adequate . . . shelter" in violation of N.J.S.A. 9:6-8.21c(4) is amply supported by the evidence in the record.

As to K.C.'s argument that the record was devoid of any evidence that she had neglected her children's education and medical needs, the statute requires only the failure to provide "adequate . . . shelter, education [or] medical . . . care." The statute, thus, requires a failure in only one of those categories, not in all three. As a result, her argument fails.

The statute requires, however, that in addition to failing to supply one's children with adequate shelter, such failure to provide adequate shelter must also place the children in "imminent danger" of having their physical or mental health "impaired." N.J.S.A. 9:6-8.21c(4). As the literal language of the statute demonstrates, a court need not wait until actual injury or harm has occurred; the imminence thereof is sufficient. Indeed, the Supreme Court noted in In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999), that the Division and the court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." The Court provided a hypothetical example of such imminent danger when it noted, in G.S. v. Department of Human Services, 157 N.J. 161 (1999), that if a parent leaves a two year old child alone in the house to go shopping, the child would be considered neglected and in imminent danger of physical harm within the meaning of Title 9 even though no actual harm had yet resulted. Id. at 181.

We find the analysis in both D.M.H. and G.S. to be instructive. Indeed, Judge Baker recognized and applied that standard when he stated, "the fact that . . . these children checked out medically . . . was sheerly an act of luck. This was a disaster waiting to happen." We discern from Judge Baker's comments a recognition of the fact that while harm had not yet ensued, it was not only inevitable, but imminent in light of the cockroaches running through the cabinets, the mold in the refrigerator and the bucket of human waste on the bedroom floor.

Judge Baker's findings are entitled to our deference in light of Cesare v. Cesare, supra. His finding that the Division proved by a preponderance of the evidence that abuse and neglect, as defined in N.J.S.A. 9:6-8.21c(4), had been established is supported by substantial credible evidence in the record. Judge Baker's findings are detailed and thorough, and his application of those facts to the law was proper. Thus, we see no reason to disturb the conclusions he reached. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Affirmed.

 

In response to the September 29 referral, Lovelace visited the home on September 30, October 3, and October 4.

According to the Verified Complaint filed by the Division, there were eleven referrals prior to the one which led the Division to file an order to show cause on October 28, 2005. Although the Verified Complaint provides extensive details about the Division's contact with K.C. and her children between 1996 and 2005, none of those eleven incidents was the subject of any testimony at the hearing that culminated in granting custody of J.B. and K.B. to the Division. Because that history is not part of the record, and was not considered by the trial court in its findings of fact and conclusions of law, we decline to consider it.

Although the majority of this testimony is from direct examination, some portions of the cross examination have been interspersed.

The transcript reads "neglect intentional." We presume that this transposition of words was the result of a transcription error.

(continued)

(continued)

15

A-4175-05T4

RECORD IMPOUNDED

November 17, 2006