DIVISION OF YOUTH AND FAMILY SERVICES v. M.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4915-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.J.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF D.J.,

Minor.

_______________________________________

April 30, 2012

 

Submitted March 13, 2012 - Decided

 

Before Judges Baxter and Maven.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-197-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.J., the mother of D.J., appeals from the Family Part orders of June 3, 2010, finding M.J. abused and neglected D.J., and February 2, 2011, accepting the permanency plan for termination of parental rights followed by adoption. Defendant contends: (1) the verified complaint failed to set forth adequate facts to support an allegation of abuse and neglect; (2) the removal of the child was in error; (3) the Division failed to show any substantial risk of harm or actual injury to D.J.; (4) the court considered inadmissible evidence such that the finding of abuse and neglect was unsupported by credible evidence; and (5) the permanency hearing was too informal. We reject defendant's arguments and affirm the finding of abuse and neglect.

These are the facts adduced from the record. Nineteen-year-old M.J. and her thirty-eight-day-old daughter D.J. lived with M.J. s mother, Donna,1 and M.J.'s two younger brothers. On February 13, 2010, at 12:30 a.m., New Brunswick Police Officer James Hoover and his partner, Patrolman William Oels, responded to a disturbance call reporting a loud argument at Donna's apartment. When the police officers arrived, they did not observe an argument; however, Donna confirmed that she and M.J. had been arguing. The officers smelled a strong odor of gas flowing from the kitchen stove, but neither M.J. nor Donna could explain why or how the gas had been turned on. Donna was told to extinguish her cigarette and turn off the stove. The police advised the two women to be more careful, and to call the police again if they had any more problems. Officer Hoover observed M.J. holding D.J., and noted that the baby was alert and conscious.

After the officers left, the women resumed their argument. When it appeared that the argument might become physical, to avoid dropping the child during the fight, M.J. placed D.J. on a three-foot-high pile of laundry that was on the floor in the hallway. Neither M.J. nor Donna noticed when D.J. fell off the laundry pile to the floor, hit her head, and was rendered unconscious. After M.J. saw D.J. on the floor, breathing but unresponsive, M.J. attempted to rouse the baby for twenty minutes before calling 9-1-1 about the child. At approximately 2:00 a.m., the same police officers returned to the apartment in response to defendant's 9-1-1 call. Officer Hoover and paramedics tried, without success, to revive the child at the apartment. Paramedics transported M.J. and D.J. to Robert Wood Johnson Hospital where the child eventually regained consciousness while in the emergency room.

Officers Hoover and Oels went to the hospital to observe M.J. while awaiting further instruction as to whether to treat the case as an investigation of an injured baby, or a case of an unresponsive child with a potential suspect, M.J. While at the hospital, M.J. became angry and verbally abusive toward the police officers, and disruptive to the nurses in the pediatric emergency room. M.J. was arrested and taken into custody for disorderly conduct, aggravated assault on a police officer, and resisting arrest.

The Division of Youth and Family Services (Division) received a referral from the police department regarding the circumstances involving this unresponsive child. Toshia Gresham, a Special Response Unit Officer, and Nicole Smith, the Child Protective Investigator, conducted the initial investigation. Medical tests demonstrated that the child did not suffer any physical injuries as a result of the fall. Smith interviewed M.J. in the jail and noted that "she had some child-like behavior." In addition to providing her version of the incident, M.J. informed Smith that she suffered from anger management problems, was bi-polar but was presently compliant with taking her medication, Haldol. M.J. admitted that she attempted suicide when she was eighteen years old by sitting in the street but denied being currently suicidal. M.J. explained that she was unemployed and received Supplemental Security Income (SSI), and stated her mother handled all of her finances. M.J. claimed that she was the primary caregiver for D.J., but, when she became overwhelmed, she would let her mother watch D.J. while she went for a walk. Next, Smith spoke to Donna at their apartment and noted that the home was not hazardous. Donna reported to Smith that M.J. was not taking her medication.

As a result of the investigation, the Division substantiated the allegation of abuse and neglect due to M.J.'s placing the child on a pile of laundry, resulting in the infant's falling to the floor, becoming unconscious and unresponsive, and needing medical attention.

After four days in the hospital, the child was ready to be discharged. The Division filed an order to show cause and verified complaint on February 19, 2010, seeking custody, care and supervision pursuant to a Dodd2 removal hearing. Diane Robustellini,3 the Division intake caseworker, served M.J. with a copy of the complaint in the jail.

At the initial hearing, M.J. was not yet represented by counsel and, because criminal charges were pending from the hospital incident, the judge advised her not to testify. Robustellini testified regarding the Division's investigation reports and her interviews with M.J. and Donna. Robustellini testified that the substantiated allegation of abuse and neglect and the verified complaint were based on M.J.'s placement of the child on a pile of laundry, which resulted in the infant's fall and need for medical attention. Robustellini further stated that the Division sought the Dodd removal because M.J. was still incarcerated and Donna could not be considered a suitable placement because of her prior history with the Division.4 On the next hearing date, the court ordered psychological and psychiatric evaluations of M.J. to evaluate her mental health and anger management problems, and her volatile relationship with Donna, as they related to any potential risk to the child.

On June 2 and 3, 2010, the judge conducted a fact-finding hearing, see N.J.S.A. 9:6-8.44, to determine whether M.J. abused and neglected D.J. The Division and Law Guardian presented the testimony of Division caseworkers Gresham, Smith, Robustellini, and Leger, who testified to their investigation of the incident, the history of the Division's contact with M.J. and the ongoing permanency review. In addition to the testimony of its own personnel, the Division presented the testimony of Officer Hoover who recounted the police involvement with M.J. and Donna on the morning of February 13, 2010 and on other occasions. M.J. testified on her own behalf regarding her mental health and anger control problems, which included fourteen prior hospitalizations, and described her habit of managing her anger by taking walks to calm down. She explained that she depended on her mother to control her finances and dispense her medication. M.J. also discussed the extent to which she cared for her baby as well as her reliance on her mother and neighbors to provide food, diapers and other necessities.

At the conclusion of the hearing on June 3, 2010, the court determined that M.J. abused and neglected D.J. On February 2, 2011, the court held a permanency hearing at which the judge accepted the Division's plan to terminate M.J.'s parental rights followed by adoption of D.J. by her current caregiver. The Title 95 litigation was terminated on May 4, 2011. This appeal followed.6

I.

On appeal, defendant asserts, among other things, that there was insufficient credible evidence to support a finding of abuse and neglect. The Division argues that D.J. is an abused and neglected child because M.J. failed to exercise a minimum degree of care when she placed the baby on the pile of laundry.

In this appeal of a non-jury case, we must determine "whether the findings made [by the trial court] could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility."N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). We will "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted). See alsoCesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.").

"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We pause briefly to point out that we review judgments, not decisions, and may affirm on any ground. Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004) ("Although we affirm for different reasons, a judgment will be affirmed on appeal if it is correct, even though 'it was predicated upon an incorrect basis.'") (quoting Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968)). Accordingly, we turn to the standards governing the adjudication of abuse and neglect.

In an abuse and neglect case, the safety of children is the paramount concern. N.J.S.A. 9:6-8.8. An "abused or neglected child" is defined in part as:

a child less than 18 years of age whose . . . (4) . . . 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 though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .

 
[N.J.S.A. 9:6-8.21(c)(4).]

 

Pursuant to N.J.S.A. 9:6-8.46(b), "[i]n a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." See also, N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (The State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm."), (internal citation omitted), certif. denied, 182 N.J. 426 (2005). The trial judge "must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (citing N.J.S.A. 9:6-8.50).

In this case, the judge considered the testimony of defendant, the Division workers, and the police officer. The facts surrounding the February 13, 2010 incident are undisputed. M.J. conceded that she and her mother argued and fought frequently and that on the night in question, defendant put the baby on the pile of laundry so that the baby would not get injured during the fight. It is also undisputed that M.J. had continuing mental health problems including a bi-polar condition, depression and anger control issues that required medication. The testimony of the case workers and the observations by the court made apparent that M.J. exhibited childlike behavior and lacked life skills.

The Division offered into evidence medical records from the Princeton House and the University of Medicine and Dentistry of New Jersey (UMDNJ), which documented hospitalizations and treatment following defendant's two suicide attempts. The records from Princeton House were not admitted, but Robustellini was allowed to testify about M.J.'s disclosures of her mental health and anger control history. The UMDNJ records that contained M.J.'s mental health history, including fourteen prior hospitalizations and medication regimen, were admitted in evidence.

Officer Hoover's testimony described the volatile mother-daughter relationship, and his personal knowledge of M.J.'s mental illness and the problems it had caused. In addition to responding to their home twice on the night of the incident, he also responded to a call in November 2010 regarding M.J.'s suicide attempt, at which time he persuaded M.J. to admit herself to the Princeton House for observation. He also testified regarding his general knowledge of police radio calls concerning disturbances at M.J.'s home.

Although the judge ordered the Division to provide psychological and psychiatric evaluations of M.J., the Division did not present any expert testimony concerning the extent to which defendant's mental health problems and the volatile relationship between M.J. and her mother presented a substantial risk of harm to D.J.

In finding that M.J. abused and neglected her child, the judge determined that returning custody of D.J. to M.J. would place the child at risk of harm. The judge reasoned:7

This court clearly finds that to return [D.J.] at this time to [M.J.] and her mom, [Donna], would place the child at risk of harm. I accept that [M.J.] and her mom, [Donna], have a violent relationship, which deals with arguing and being kicked out of the house, which deals with involuntary admissions into the hospital.

 

The mom is in charge of her money from SSI and yet, for whatever reason when she needed diapers and food, the mom arranges for it and she doesn't know where the money comes from. When she needs bail to come out of jail, she doesn't get bailed out with her own money.

 

. . . .

 

It is clear that [D.J.] cannot be left to [M.J.'s] care alone, that if she were to take the child out of the house for the overnights when she goes out, she and the child would both be at risk of harm, because she has no source of income, because she has no independent housing, because she doesn't know where her medication is or how she's taking it or how much to take it, because she's not sure of the amount of hours that the feedings come, when.

 

She's capable of helping with this child but not capable at this time of independent care. So returning the child to this family would place the child at risk of harm, and that's the end of the question, the question is this an abuse and neglectful mother.

 

I find that it is. I find it through no intent of her own. I do not find placing a child on a pile of laundry is so abusive and so set that the child would roll off this laundry. This court finds that many parents put their children in inappropriate spots without believing they're going to cause harm. She took the better course of two situations, which was holding the baby while she was fighting her mom or putting it down. She put the baby down.

 

She only had a moment to make that decision. Could she have put the baby in a safer place than the floor or the pile of laundry? Yeah, she could have put the baby back in the crib. But 20/20 hindsight and moments at that are difficult to decide, and if that were the only thing facing this court, as I said the day I heard it, it would not be abuse and neglect.

 

However, she has a significant mental health issue, which causes 14 admissions to the hospital, involuntary admissions. She has an anger problem, which causes disputes with her mom and disputes with her boyfriend and makes her walk away from her child so she can get a grip of where she's going.

 

All of that is a situation which is neglectful of the child. This child needs 24-hour care that can be given at all times. The mother was unable to provide that on this situation and therefore she's responsible of abuse and neglect.

 

. . . .

 

However, the totality of the circumstances before and after this incident convinced this court that this is a situation of abuse and neglect and that this is a family in need of services and that I have to continue custody because, at this point in time, it would be placing the child at risk of harm to return it immediately to the mother.

 

[Emphasis added]

The fact-finding order states:

[M.J.] and her mother have a domestic violence relationship, resulting in arguments, [M.J.] being kicked out of the house, and having had 14 involuntary hospital commitment[s] over the past 5 years. [M.J.] does not have independent housing or an independent means of income. [M.J.] has an anger management problem. She is not capable of independent care of the child. The specific incident which resulted in the child becoming unconscious and requiring hospital treatment when she fell off a pile of laundry was a product of the aforementioned issues.

 

Defendant contends that in the absence of expert testimony, the Division failed to prove that M.J.'s mental illness or the alleged domestic violence contributed to the risk of harm to the child. We disagree with defendant that the court's findings, made in reliance on the witnesses' testimony on those matters, are "so wide of the mark that a mistake must have been made." 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) (internal quotations and citation omitted).

The court considered the testimony of the witnesses and defendant to establish the existence of M.J.'s mental illness; the prior referral to the Division at the time of her attempted suicide three months earlier; M.J.'s lack of life skills, which manifested itself in almost total dependency on her mother, Donna; and the ongoing volatile relationship with her mother. The Division argues that "[t]he convergence of these issues contributed to M.J.'s failure to exercise a minimum degree of care in providing [D.J.] with proper supervision and culminated in [D.J.'s] physical injury." Accepting that view, the court reasoned that "the totality of the circumstances before and after this incident convinced this court that this is a situation of abuse and neglect."

A court may view a precipitating incident in the context of the surrounding circumstances, for "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the children. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 201 (Cty. Ct. 1981). Keeping in mind that the focus in Title 9 actions is the risk of harm to the child, "we evaluate a claim of abuse by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children[.]'" Dep't of Children and Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)), certif. dismissed, 208 N.J. 355 (2011). These factors must be placed in the proper context. We do not view M.J.'s mental illness, anger control problems and volatile home environment as inconsequential. All of these factors were present and contributed to the precipitating incident involving D.J. on February 13.

Defendant argues that the court should not have considered these factors without competent expert testimony to correlate them to the risk of harm to the child. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008). In I.Y.A., the custodial parent's mental health issues and the care of her children resulted in a finding of abuse and neglect and transfer of custody to the children's father. We remanded the case for a new fact-finding hearing, in part, because the Division presented no expert testimony and proffered no expert medical report with respect to I.Y.A.'s diagnosis, or "its potential impact on her ability to parent the children." Id. at 93 (quoting J.Y., supra, 352 N.J. Super. at 252). The mother's mental illness became apparent when she was confronted by the investigating Division caseworker. She was involuntarily committed but the court was not provided a diagnosis. The only "evidence" on the issue was the testimony of two Division caseworkers.

In this case, M.J.'s longstanding diagnosis of a bi-polar disorder, depression, suicide ideation and attempts, and anger control problems was well established through prior referrals to the Division, police contact, properly admitted medical records and M.J.'s testimony. From this evidence we conclude the judge properly inferred that M.J. would not be capable of caring for her child and that returning D.J. to her would place the child in a substantial risk of harm. The finding of abuse and neglect is supported by the totality of the evidence produced at the hearing.

II.

The court's determination of abuse and neglect was also supported by other competent evidence independent of M.J.'s personal issues.

The court found the act of placing the child on a pile of laundry was not "so abusive" and determined that incident alone would not constitute abuse and neglect. We cannot agree with that conclusion of law. The judge did not fully consider the legal principle of "minimum degree of care," see N.J.S.A. 9:6-8.21(c)(4), as it pertains to the credible evidence in this case.

The Supreme Court has defined "'minimum degree of care' [as] conduct that is grossly or wantonly negligent, but not necessarily intentional. Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (internal citations omitted). The Court in G.S. held that "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.

Here, the undisputed facts lead us to conclude, like the trial judge, that M.J. did not intend to harm her child, but under Title 9 whether the guardian or parent intended to harm the child is irrelevant. Id. at 176. M.J. chose to place the child on the pile of clothes, which connotes a degree of contemplation and deliberation. "If a parent commits . . . an intentional act that has unintended consequences, that action is considered 'other than accidental' within the meaning of Title 9," and is characterized willful and wanton. Id. at 176.

M.J. failed to foresee or reasonably appreciate the consequences of her actions. So distracted was she during the argument with her mother, that she did not fully focus on the safety and well-being of the child when she placed the baby on the pile of laundry. The judge credits M.J. with choosing between two dangerous options - holding the baby while she was fighting with her mother or putting the baby down - but that credit is misplaced. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. There were safer options M.J. could have taken -- for example, putting the baby in her crib, or stopping the fight and walking away from her mother with the baby safely in her arms. By not choosing a safe alternative, M.J. failed to exercise a minimum degree of care.

The judge minimized the most important indicia of harm by declaring that intentionally placing the child on the pile of laundry was not abuse. We emphasize it. We are satisfied that, on this review of the circumstances surrounding the critical conduct, M.J.'s actions were willful and wanton, supporting a finding of abuse and neglect.

We reject defendant's claim and conclude it is no defense that D.J.'s injuries were not substantial. A court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." S.S., supra, 372 N.J. Super. at 24 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). There can be no doubt that had D.J. suffered more extensive injuries than being rendered unresponsive for an hour, that she would be deemed an abused and neglected child. The fact that she survived this fall apparently unscathed deserves no different result.

Given our conclusion that the record contains sufficient credible evidence to support a finding of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4), the judgment of the trial court is affirmed.8

A

ffirmed.

1 We refer to M.J.'s mother by a fictitious first name to maintain her privacy.

2 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

 

3 The Division became involved with M.J. in November 2009 after receiving a referral for a "child welfare assessment" due to M.J.'s holding a knife to her stomach and threatening suicide while seven months pregnant. M.J. recalled meeting Robustellini at the Princeton House where M.J. was admitted following this incident.

4

Robustellini reported that the Division previously removed M.J. and her two brothers from Donna. After the children were returned in 2008, there were subsequent open cases with Donna in 2008 and 2009. Without having those records with her at this hearing, Robustellini was unable to confirm the nature of those investigations.

5 Title 9, N.J.S.A. 9:6-8.21 to -8.73, governs the adjudication of abuse and neglect actions. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010).

6 After filing this appeal, M.J. executed an identified surrender of her parental rights to D.J. We will not address defendant's final claim regarding the permanency hearing, as it will have no practical effect on whether D.J. should be returned to M.J.'s care. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009).

7 We quote the judge's reasons as stated on the record, at the June 3, 2010 hearing, without correction.

8 Because we are affirming the finding of abuse and neglect we will not address the remaining claims pertaining to the fact-finding proceeding. R. 2:11-3(e)(1)(E).