NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1159-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant,

and

G.A.,

Defendant.

_______________________________

IN THE MATTER OF A.A., H.A.

AND M.A.,

Minors.

________________________________

December 4, 2012

Submitted November 27, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0212-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.A., H.A. and M.A. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

In this appeal arising under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, defendant J.B. appeals from a June 21, 2010 Family Part order finding her guilty of abuse and neglect of her children A.A. and H.A., after a fact-finding hearing.1 She also challenges the alleged failure of the Family Part to hold a dispositional hearing in the case.

We affirm the finding of abuse and neglect. Because the Title Nine litigation has been terminated and the Division of Child Protection and Permanency (Division)2 has filed a complaint for termination of J.B.'s parental rights, we decline to address her arguments concerning the alleged lack of a dispositional hearing in the Title Nine case. In the context of this Title Nine appeal, the issue is moot. Any issues concerning the adequacy of visitation may be addressed in the context of the guardianship proceeding. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).

I

We briefly review the evidence produced at the fact-finding hearing on June 14, 2010. According to the State's witnesses, on February 3, 2010, defendant and her landlord had a dispute that resulted in the police being called. When the police arrived, they found that defendant's apartment was filthy.

Officer Thomas Miller observed "a lot of debris, garbage, dirty, soiled diapers on the floor, [open] food containers in the kitchen, [and] a lot of flies." Miller also saw small plastic utensils of the type children would use. He testified that the smell of urine in the apartment was so strong that he "couldn't take it anymore" and had to leave the premises. Defendant told the police that she had two children. Although no children were in the apartment at the time, the police called the Division because there was evidence that the children had recently been in the apartment.

Officer Michael F. Dimick testified that he also observed dirty diapers all over the kitchen floor. In one of the bedrooms, he found children's toys scattered about and more dirty diapers on the floor. There was a strong smell of urine in that bedroom as well, and he observed what appeared to be human feces smeared on one of the bedroom windows and on the walls. He also saw flies in the kitchen and bedrooms.

Municipal health inspector Michael Yoscary testified that the police called him to the scene on February 3, 2010. He observed "filthy conditions" in the apartment, including flies, which were "kind of an unusual thing" to find "in February." In two of the bedrooms, he found a child's bed, a crib, and toys as well as dirty diapers. Yoscary also saw what appeared to be excrement smeared on a bedroom window.

Division intake worker Jacklyn Perez testified that she was called to defendant's apartment on February 3 due to concerns about "environmental neglect, the home condition, and that the children lived in the home." She found "sippy cups" and "children's utensils" in the sink. In one of the bedrooms she found a child's "play yard," a "toddler bed," toys, and dirty diapers on the floor. Perez also noticed "[m]ore than 50" flies and the smell of urine in that bedroom, a plastic bin with jagged, broken edges, and bags of garbage. She saw what appeared to be writing with crayons on the wall of the children's bedroom, and what she described as "brown streaks" on the window.

Defendant told Perez that she had two young children, who had been living temporarily with their paternal grandmother for the past two weeks. However, defendant also told Perez that she had "brought the children to the home briefly either to change or to pick up things." There is no dispute that, at the time, A.A. was four years old, and H.A. was three.

The children's father, G.A., testified that he had been living in the apartment until December 2009. He stated that when he lived there, the apartment was in "better" condition than that described by the previous witnesses. G.A. confirmed that defendant had unsupervised visits with the children and would pick them up at his mother's house or at a library. He did not know whether she brought them to her apartment.

Defendant did not testify, offer any justification for the horrendous condition of the apartment, or provide any rebuttal evidence concerning the amount of time the children spent there.

In a written opinion issued on June 21, 2010, Judge James J. Guida found as fact that the apartment was filthy, smelled of urine, was infested with flies even though it was mid-winter, and was otherwise "in deplorable condition" and "not habitable." The judge acknowledged that dirty conditions attributable to poverty did not establish neglect. See Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd o.b., 74 N.J. 196 (1977). But he found no evidence that the condition of the apartment was a product of defendant's financial situation. Rather, he found that the uninhabitable condition was due to her failure to care for and maintain the apartment. He reasoned that J.B. could be found guilty of child abuse or neglect if she allowed the children to reside in the uninhabitable apartment, or if she exposed them to its horrendous conditions for "any significant period of time."

The judge then focused on the length of time for which the children had been exposed to those conditions. He found that the children were not residing with defendant at the time, but that she picked them up from a library or grandparent's house for visitation. Based on the testimony as well as photographs of the apartment, the judge found that the children had spent "an extended period of time" in the apartment. Among other things, he considered the presence of multiple dirty diapers, sippy cups and children's utensils in the sink, open small containers of applesauce, crayon writing on the wall, and a playpen. He found that by exposing the children to the unsanitary conditions of the apartment for an extended time, defendant "inadequately provid[ed] food, clothing or shelter to the children, which placed them at a substantial risk of harm" pursuant to N.J.S.A. 9:6-8.21c(4).

II

Title 9 defines abuse or neglect as follows:

"Abused or neglected child" means . . . (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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care . . . .

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

The Division must prove abuse or neglect by "a preponderance of the evidence," and "only competent, material and relevant evidence" is admissible in a fact-finding hearing. N.J.S.A. 9:6-8.46b; N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (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." Id. at 35. Proof of a parent's intent to harm or endanger a child is not required. Id. at 34. The court "need not wait to act" until a child is actually injured by a parent's neglectful conduct. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App Div. 2004), certif. denied, 182 N.J. 426 (2005) (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)).

In reviewing Judge Guida's decision, we are bound by his factual findings if they are supported by substantial credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

The factual findings which undergird a judgment in such a case should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and should be upheld whenever they are "supported by adequate, substantial and credible evidence."

[Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).]

In her Point I, defendant presents the following contention3:

The Trial Court Misapplied the Appropriate Legal Standards And the Division Failed to Present Adequate Proofs to Support a Finding that J.B. Neglected The Children.

Based on our reading of the record, in light of the applicable standard of review, we cannot agree. Contrary to defendant's argument, Judge Guida's factual findings are supported by sufficient credible evidence. Even if the children were not actually living with defendant, there was ample circumstantial evidence to support an inference that they spent extended amounts of time there. We also agree with the judge that keeping a three-year-old and a four-year-old in an uninhabitable fly-infested apartment, strewn with dirty diapers and other filth, posed an "imminent danger" to their physical health. See N.J.S.A. 9:6-8.21c(4)(a).

Affirmed.

1 Following a permanency hearing on August 4, 2011, the Division filed a complaint seeking termination of J.B.'s parental rights, with a plan for eventual adoption by the paternal grandparents. By order dated September 22, 2011, the Family Part terminated the Title Nine litigation and ordered J.B. to show cause why her parental rights should not be terminated. That order included a third child, M.A., who was born after the fact-finding hearing at issue in this case.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 As previously noted, we decline to address defendant's Point II, concerning the trial court's alleged failure to hold a dispositional hearing.