NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.L.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF C.L., a minor.

_______________________________

October 9, 2013

Submitted October 2, 2013 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-172-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michael A. Toya, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.L. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

Defendant T.L. appeals from the Family Part's September 28, 2010 order, following a fact-finding hearing, determining defendant neglected her child, C.L. (Chad)1 by having him live in "deplorable home conditions" that "placed [him] in a situation of severe environmental neglect." Defendant challenges the trial court's finding that this conduct constituted neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services2 met its burden of proving neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by the trial judge in his oral opinion of September 28, 2010.

The following proofs were introduced at the fact-finding hearing. In the early morning hours of May 24, 2010, Division investigator Elmira Esen responded to a referral concerning Chad. The Roxbury Township Police Department reported that Chad, then age sixteen, had run away from home and was refusing to return. Esen went to the police station and spoke with Chad. Chad explained he ran away because his older brother, K.L., was mistreating him and had hit him in the chest, back, and arms. He stated he was afraid to return home. Esen explained that, in order to assess the situation, she needed to go to Chad's home and speak to his mother and brother. Chad agreed to accompany Esen to his home.

It was 3:00 a.m. when they arrived. Defendant told Chad to go upstairs and go to sleep and he did so. After entering the home, Esen was overcome by a "heavy" odor of urine and feces. The odor was so strong that she had trouble breathing. There were flies throughout the house. Esen observed broken furniture "all over."

Esen spoke to defendant in the kitchen. The kitchen table was on its side and there was no place to sit because all the chairs were broken. Esen saw two large dogs in the living room and, therefore, she could only "peek" into that room. Due to the condition of the downstairs area, Esen determined "it's hazardous for the child to stay there."

Esen asked to see Chad's room and T.L. led her upstairs to where Chad was sleeping. The room smelled of urine and was heavily cluttered with broken furniture, boxes, clothing, trash, and garbage. Chad was sleeping on a bare, stained, and discolored mattress on the floor. His pillow, which had no pillow case, was also covered with stains. There was no box spring. The mattress was surrounded on all sides by debris. Upon awakening, Chad told Esen "this is his bedroom." On the other side of the hallway, Esen saw defendant's bedroom and observed it was "in a worse condition than" Chad's room.

Esen concluded "the child cannot sleep in that house and with that odor and the flies in the house." She therefore removed Chad from the home and he was placed at a youth shelter.

Esen took four photographs of Chad's room, which were introduced in evidence. The photographs corroborated Esen's testimony about the condition of the room. Esen did not take photographs of any other area of the house.

Defendant testified that the room in which Chad was sleeping actually belonged to his older brother, J.L., who had recently moved out of the house. Defendant claimed Chad had moved his mattress into J.L.'s room earlier in the day because he had an argument with his other brother, K.L., who still lived at home.

Based upon the evidence presented, the trial judge found the Division had established that Chad "was subjected to environmental neglect." The judge found Esen's testimony concerning the conditions found in the home "quite credible" and fully supported by the photographs she took. In so ruling, the judge stated, "One can only look - - need look at the shirtless [Chad] upon a mattress that I wouldn't let a dog sleep on. It's just - - it's deplorable." While the judge noted that Esen had not photographed other areas of the house, he found "[h]er ability to investigate the total house was made impossible by the presence of two big dogs which further corroborates the smell of feces and urine."

Following further proceedings, the litigation was terminated on February 23, 2012 because Chad had reached the age of majority. This appeal, which is limited to the September 28, 2010 order finding environmental neglect, followed.

On appeal, defendant challenges the judge's finding that she subjected Chad to environmental neglect. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial 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 if we had 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., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)) (internal quotation marks omitted). "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).

In pertinent part, N.J.S.A. 9:6-8.21(c) defines an "abused or neglected child" as:

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 through 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

A court does not have to wait until a child is actually harmed before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3537, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. M.C. III, supra, 201 N.J. at 344.

In determining a case of abuse or neglect, the court must base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the trial judge's finding that defendant subjected her child to environmental neglect by permitting him to live in deplorable conditions. Defendant's actions plainly placed the child at a serious risk of harm. We therefore perceive no basis for disturbing the judge's ruling.

Contrary to defendant's contention, Esen did not need to document the condition of the entire home with photographs to support a finding of environmental neglect. The judge found Esen's testimony that the entire house smelled of urine and feces, that there was an infestation of flies, and that everywhere she looked she saw broken furniture and trash to be "quite credible." We defer to that credibility determination. F.M., supra, 211 N.J. at 448-49. Moreover, the judge specifically found it was "impossible" for Esen to take additional photographs due to the presence of two large dogs in the downstairs area.

Defendant's remaining argument, that the room Chad was sleeping in was actually his brother's room, also lacks merit. Esen testified that, when she asked to see Chad's room, defendant took her to the room where Chad was sleeping. Chad also stated that was his room. The judge found Esen's account credible, thereby implicitly rejecting defendant's contrary testimony. In addition, even if Chad had only moved into the room that morning, the fact remains that the room in which defendant permitted him to sleep was strewn with trash, garbage, and broken furniture, as were all the other areas of the home where Chad lived. This was a clear case of environmental neglect.

1 A fictitious name is used to protect the privacy of the child and for ease of reference.

2 Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency (the "Division"). L. 2012, c. 16.