NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.W. AND R.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2829-06T42829-06T4

A-2832-06T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.W. AND R.L.,

Defendants-Appellants,

IN THE MATTER OF A.L.,

R.L., D.L., AND D.L.,

Minors.

 

Submitted December 11, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-220-06.

Yvonne Smith Segars, Public Defender, attorney for appellant, R.L. in Docket No. A-2829-06T4 (Bernado W. Henry, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, A.W. in Docket No. A-2832-06T4 (Donna M. Gayle, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Patrick DeAlmeida, Assistant Attorney General, of counsel; Nicole Sara Piccoli, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors, A.L., R.L., D.L. and D.L. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant father, R.L., and defendant mother, A.W., are the biological parents of A.L., a female, born on January 26, 1995; R.L., a male, born on June 4, 1996; D.L., a male, born on June 5, 1999; and D.L., a male, born on May 19, 2004. Defendants appeal from a September 5, 2006 order of the Family Part, following a factfinding hearing, that they abused or neglected their children. A final order was entered on November 9, 2006, dismissing the complaint. We reverse the abuse and neglect order.

At the hearing, the Division of Youth and Family Services (the Division) offered the testimony of one witness, Michael Eatman-Muhammad, a Division social worker. He testified that the Division was informed on February 27, 2006 that defendants and their children had been living in a Howard Johnson motel room in New Brunswick, and on March 1, 2006, the family was visited by another Division employee, Brandi Miles.

Because at the time of the factfinding hearing Miles was no longer employed by the Division, the Division offered the testimony of her supervisor, Eatman-Muhammad. Eatman-Muhammad had never visited the motel room. Nevertheless, even though he did not have first-hand knowledge of the family's living conditions, the judge permitted him to testify based on his review of the contact sheets that Miles had completed, the pictures of the motel room that Miles had taken, and his review of the complaint the Division had filed against defendants. Although an objection to his testimony was raised at trial, and the Law Guardian has raised the admissibility of the evidence on appeal, we do not address the evidentiary issue because we have determined to address the abuse and neglect finding substantively.

Eatman-Muhammad testified that Miles told him that the motel room floor was covered with debris and clothing, and that cats were present in the room. According to Miles, the children lacked physical hygiene; their clothing, hair, face, and skin were not clean.

Miles had taken Polaroid photographs of the motel room. Eatman-Muhammad testified that the pictures depicted debris on the floor; beds without sheets and with objects on them; books, toys, paper, and an open diaper on the floor; and an electric heater on an end table. A photograph of the bathroom showed piles of dishes in the sink, a cat on top of the counter, and spots on the floor, which Miles told Eatman-Muhammad were feces. These photographs were admitted into evidence. Eatman-Muhammad also testified that Miles observed the youngest child running, playing, and pulling things from boxes, and that the child wore no shoes or socks and that his shirt was dirty. He also testified that two cats lived in the motel room.

Eatman-Muhammad admitted that the children's school officials did not report the children as having improper hygiene or inadequate or dirty clothing. He also admitted that the Division had not received referrals from physicians or other medical personnel indicating that the children had been living in unhealthy conditions. Eatman-Muhammad testified that Miles reported, after a second trip to the motel room after the children had been removed, that the room had been cleaned.

A.W. testified that the family moved to the Howard Johnson motel in August 2005 because they had made a down payment of $4300 on a property; but, because the tenants would not move out, they could not move in. A.W. had never received complaints from the children's school about their cleanliness, although one of their sons had "behavioral issues," and was having a difficult time understanding the teacher in class. He had been diagnosed with learning disabilities, and the school had received an Individualized Education Plan (IEP) for him.

A.W. also testified that on March 1, 2006, she was in the process of both completing taxes and doing laundry. She said her youngest son, D.L., who was one year old at the time, had just knocked over paperwork when Miles entered the room. She testified that she did her own laundry because her daughter, A.L., was allergic to the detergent used by the motel, and the beds were stripped because she was in the process of doing laundry. She was doing laundry the day Miles arrived because the previous day she and R.L. had been busy moving items they kept in storage. The cats typically lived in the bathroom with the door closed, but they escaped from the bathroom when the case worker arrived. She testified that she cleaned the bathroom "once to twice a day." She acknowledged that the sink in the bathroom was used to wash dishes.

A.W. further testified that she told Miles that she and R.L. could clean the room in two hours, but that Miles "just laughed at [her] and walked out." Nevertheless, she cleaned the room within the next two hours. At the hearing, she introduced pictures of the cleaned room, taken on March 1, 2006.

R.L. testified that while living in the motel, he stored business items, personal items, and some of the children's belongings in two units of a storage facility. On February 28, 2006, the day before Miles arrived, he and A.W. had moved the contents of one unit into the other, and they had brought three boxes of paperwork and other belongings that he and A.W. needed to complete their taxes back to the motel room. Some of these papers were the ones D.L. knocked over.

R.L. further testified that they paid $2100 per month for the motel room. They could not get an apartment in the area because they could not afford the security deposit. They had bad credit, which influenced their decision to live in the motel room.

The court, in its factfinding order, stated:

Following the Fact Finding Hearing, the court hereby determines by . . . a preponderance of evidence . . . that the defendants abused or neglected the child(ren) in that . . . [R.L. and A.W.] allowed their hotel room for them and their four children to be in deplorable condition which placed the children at risk for abuse [and] neglect.

The court reasoned that "the birth parents are guilty in a sense of abuse and neglect in that they failed to properly clean their apartment and to make the living conditions, albeit imposed by poverty, clean." He also criticized their decision to have two cats living with a family of six in one motel room. He said there was "no management of sanitary conditions or health concerns."

Nevertheless, the judge also observed that the children missed their parents, they were well-behaved, and defendants "have done a marvelous job with [their] children." He said, however, that he would not reinstate them with defendants while defendants were living in a single motel room.

A.W. had testified that defendants wished to move to Virginia. The judge stated that if defendants wished to move there, he would order an interstate evaluation of their new home.

Defendants, as well as the Law Guardian, challenge the court's determination that defendants abused and neglected the children. In reviewing the trial court's decision, our function is limited. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nonetheless, though we typically defer to a trial court's findings of fact, we owe no deference to "[a] trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); 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).

Abuse and neglect proceedings are governed by N.J.S.A. 9:6-1 to -8.106. In rendering findings of abuse and neglect, "[t]he judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made. . . . These factual findings must be supported by evidence admitted during the hearing." J.Y., supra, 352 N.J. Super. at 265 (citing N.J.S.A. 9:6-8.50).

The legislature has defined "abused or neglected child," in relevant part, as:

(4) . . . 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 . . . to exercise a minimum degree of care (a) 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 . . . .

[N.J.S.A. 9:6-8.21c(4).]

Any determination that a child is abused or neglected must be based on a preponderance of the evidence and based only on "competent, material and relevant evidence." N.J.S.A. 9:6-8.46b; J.Y., supra, 352 N.J. Super. at 262. To meet the standard, a court must, at minimum, make a finding that:

(1) the child has a physical, mental or emotional condition that is either impaired or in imminent danger of being impaired; (2) such impairment is or would be the result of the parent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical or surgical care, and (3) even though financially able to do so or, through offered aid, is able to do so.

[Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd sub nom., Doe v. Downey, 74 N.J. 196 (1977).]

"Whether a parent or guardian has failed to exercise the minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation;" courts are to make this determination on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 111 (Ch. Div. 2006).

"[T]he focus of proceedings under Title 9 is not the culpability of parents' conduct but rather the protection of children from acts or conditions which threaten their welfare." State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991). In Doe, supra, 146 N.J. Super. at 430, the record showed that the child suffered, or was in imminent danger of suffering, some mental or emotional impairment. This included testimony from psychiatrists and others who observed the child. Id. at 427-28. The record also included testimony that several times the child was living in "filthy" conditions; that her clothes were "dirty;" that she was "thin," "sickly," and generally in "poor health;" that she did not have her own bed; and that she was observed playing with cockroaches. Id. at 426-27.

Nevertheless, we reversed the trial court's finding of abuse and neglect. Id. at 433. We stated, in part, that the trial judge "misconceived the nature and basis" of the proceeding; and while the judge "emphasized the unacceptability of substandard, dirty and inadequate sleeping conditions," such conditions, though "unfortunate incidents of poverty . . . do not establish child neglect or abuse." Id. at 430-31.

Here, in placing his decision on the record, the trial judge noted that "[c]redibility is not really an issue." He found by a preponderance of the evidence that defendants maintained, as illustrated by the photographs, "a filthy dirty apartment, poorly kept." He also recognized that the pictures introduced by A.W. showed that in only two hours the room could be made "perfectly clean." The court then said:

I find, by a fair preponderance of credible evidence, that the birth parents are guilty in a sense of abuse and neglect in that they failed to properly clean their apartment and to make the living conditions, albeit imposed by poverty, clean. . . . [T]here is no excuse for an absence of cleanliness.

And the choice of having two cats, in addition to four children in addition to two adults, living in one single motel room for six months I find to be incredible. . . . There is . . . no management of sanitary conditions or health concerns.

Contrary to the conclusion of the trial judge, we conclude that the conditions observed during the visit to the motel room, without more, are not sufficient to support a finding that defendants abused or neglected the children under prevailing statutory and case law. The trial judge cited to no physical, mental, or emotional impairment suffered by any of the children. N.J.S.A. 9:6-8.21c(4); Doe, supra, 146 N.J. Super. at 430. More importantly, he did not state or explain how any such physical, mental, or emotional impairment was imminent. N.J.S.A. 9:6-8.21c(4); Doe, supra, 146 N.J. Super. at 430. The Division representative testified that it received no complaints from the children's schools about poor clothing or hygiene, nor were there any referrals from physicians or other medical personnel indicating the children were living in unhealthy conditions.

It appears that the trial judge found that defendants failed to exercise a minimum degree of care in supplying the children with adequate shelter. See Doe, supra, 146 N.J. Super. at 430. This conclusion may be inferred from his statement that there was "no management of sanitary conditions or health concerns." However, there remains no indication, and the court made no finding, that the children's living conditions caused them any physical, mental, or emotional impairment, or presented imminent danger of such an impairment. Furthermore, the court acknowledged that the living conditions were "imposed by poverty," and poverty is not a basis to find abuse or neglect. Doe, supra, 146 N.J. Super. at 431 (substandard, dirty, and inadequate sleeping conditions, "while unfortunate incidents of poverty," did not amount to abuse or neglect).

Finally, the court complimented defendants on their children. The judge said:

The children miss you terribly. . . . The children are beautifully well behaved children. . . . You have done a marvelous job with your children. . . . I'd love to give them back to you . . . .

. . . .

[I]f [defendants] have a home in Virginia and they move to Virginia, I'll order an interstate evaluation of the home in Virginia and I'll let them have their kids in Virginia. I'd let them have their kids in New Jersey if they had a home.

Under the totality of the circumstances, we conclude that the evidence was insufficient to establish either that the children's mental, physical or emotional conditions had been impaired, or were in imminent danger of becoming impaired as a result of the conditions in the motel room. Consequently, the evidence did not support a finding of abuse or neglect. We therefore reverse the portion of the September 5, 2006 order in which the court determined that defendants abused or neglected the children. We remand to the trial court to take such additional action as is necessary consistent with this opinion.

 
Reversed and remanded.

Factfinding hearings must be based on competent, material and relevant evidence. N.J.S.A. 9:6-8.46b; N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

Prior to the factfinding hearing, the Division had arranged for the children to live with R.L.'s parents in Virginia. At a subsequent court proceeding on November 9, 2006, the Division proposed that the case be dismissed, given that the child services agency in Virginia permitted defendants to live with their children at the paternal grandmother's residence. In the court's final order dismissing the abuse and neglect complaint, it ordered that the "minor[s] shall remain in the legal and physical custody of [defendants A.W. and R.L.]."

(continued)

(continued)

13

A-2829-06T4

RECORD IMPOUNDED

December 31, 2007