NEW JERSEY DIVIION OF CHILD PROTECTION AND PERMANENCY v. A.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

A.B.

Defendant-Appellant,

and

C.V. and J.V.,

Defendants.

_______________________________

IN THE MATTER OF J.N., a Minor.

________________________________________

March 11, 2014

Submitted February 12, 2014 Decided

Before Judges Waugh, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-1-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Ryan T. Clark, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ann Avram Huber, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondent (Cory H. Cassar, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.B. appeals from a December 18, 2012 order of the Family Part finding that she abused and neglected a child in her custody, J.N. (Jack),1 in violation of N.J.S.A. 9:6-8.21c. Because we agree that there is substantial credible evidence in the record to support the trial judge's finding of abuse and neglect, we affirm.

A.B. is a Liberian national who immigrated to this country as a refugee in 2003. She brought with her several children she claimed as her dependents, including Jack, then six-years-old.2 At some point, A.B. transferred care of Jack to her aunt. The Division removed Jack from the aunt's care in 2008, when it substantiated abuse allegations against her. Jack has a history of nocturnal enuresis. The aunt reportedly stripped the boy regularly, sprayed him with bleach or other disinfectants, and scrubbed him down in an attempt to rid him of the associated smell. She also made him sleep in a small, closet-like room on a mattress on the floor. The aunt claimed that she had removed the bed after it was ruined as a result of Jack's enuresis.

During that litigation, A.B. claimed that Jack was her son. A blood test demanded by the Division, however, proved her claim to be false. Notwithstanding, the Division returned physical and legal custody of Jack to A.B. at the conclusion of the case in 2010.

In July 2011, A.B. called the police claiming that Jack, then fourteen, had threatened her with a knife. A.B., who was then pregnant, advised the Division that she did not want Jack to return to her home. Jack denied that he had accosted A.B. He maintained that A.B. was just trying to get rid of him. Because the Division could not place Jack in a program, A.B. instead accepted services, and the case was closed.

In June 2012, the Division received a report from one of Jack's teachers that he was being forced to sleep in a basement without heat on "a cushion and sheets." The teacher reported that Jack is confined to the basement because "he wets the bed and stinks up the whole house."

The Division found Jack at the home of A.B.'s parents, with whom he had gone to live after the alleged knife incident. The worker noted that he was dressed in clean clothes and made good eye contact, but that he spoke with a slight stutter. Jack told the worker he had been forced to sleep on the floor in the basement "for almost a year" and, that it was quite bad in the winter as the basement "had no heat." Jack admitted a bed-wetting problem, and told the worker that even though he bathes regularly, A.B.'s parents claim that he "smells."

The case worker then discussed the situation with A.B.'s

parents, and A.B., who happened to be visiting with her baby. A.B.'s mother reported she "liked" Jack, and that they only recently moved him to the basement because he destroyed several mattresses and two couches as a result of his incontinence. A.B.'s father corroborated his wife's account of Jack's living situation. He added that Jack was only confined to the basement at bedtime, but was otherwise allowed upstairs.

A.B. recounted Jack's past behavioral problems, including the knife incident. She claimed that Jack was much improved after having gone to live with her parents. According to A.B., Jack had "been sleeping in the basement on a mattress due to the peeing and smelling up the house." The basement did have heat in the winter. Jack slept on "a mattress and quilt." And he failed to keep his living area or bathroom clean. A.B. further agreed with her parents that Jack had not been physically disciplined.

After talking with A.B. and her parents, the worker toured the home, noting six bedrooms, some of which were empty. The Division worker described the basement where Jack slept as follows:

The basement has a bathroom that was not clean. The floor needed to be mopped and the toilet cleaned. It was filled with storage items such as chairs, garbage

bags . . . . It appears that [Jack] was sleeping in the hallway area of the basement area. . . . Worker asked [A.B.'s mother] where the mattress was and she went into the broken closet and pulled out a large piece of foam (what you would find in a pillow)[.] She stated that he sleeps [on] this because he pees all the time. Worker pointed out that it was not a mattress, it was filthy and that it was not suitable for a child or anyone to sleep on. She pulled out a dirty old bedspread and stated that he also has covers. Worker told her that it was not suitable for a dog to rest on. At this point [Jack] stated that it was also cold in the basement. Worker noted that it was almost 100 degrees outside and the basement was cold. [Jack] stated that he has no heat in the winter and that all he had was a sheet and nothing else to sleep on. [A.B. and her mother] then started yelling at [Jack] telling him that he did have heat and that he was an ungrateful child. [A.B.'s mother] held up [a] dirty blanket and said you have this to sleep on.

After Jack's complaints to the worker, both A.B. and her mother stated that they no longer wanted Jack and that the Division could "[t]ake him right now." When the worker asked what had changed their minds, they told the worker that Jack was an ungrateful liar who needed to leave. The worker told them that she would look for a placement for Jack, but in the meantime they would have to move him to a bedroom.

When the worker returned three days later to serve the removal papers, she found that Jack's former squalid sleeping conditions had been augmented by "a dirty mattress that someone had placed in the basement [which] did not have any sheets or covers." Although it was three o'clock in the afternoon, Jack was asleep in his clothes on the mattress.

During the removal hearing, the Division worker who visited the home testified to her conversations with A.B. and her parents and to conditions in the home. The worker also clarified that the foam pad on which Jack had been sleeping was only about three inches thick and just large enough for him to lie in a fetal position. The worker also indicated that although the basement was partially finished, the floor on which the foam rested was cement. The worker admitted on cross-examination she had been told that Jack had been taken for treatment, and that he possessed a medical device to help with his enuresis. The judge found that the sleeping arrangements were unacceptable, and awarded care and custody of Jack to the Division.

At defendants' election, the proof hearing was conducted on the papers.3 After summarizing the facts in the record, the judge concluded:

They told him that he had to keep the basement clean and then if he didn't do it they weren't going to do anything about it. They would just make him sleep in the filth and the urine in a cold basement. If it was even cold when it was a hundred degrees outside, I can't imagine what it was like in the winter time with just a piece of foam and a ratty old blanket.

The psychological mistreatment of this child, the isolation, the neglect, the abuse of him psychologically is just shocking.

. . . That he's a difficult child, you know, I could understand that. But [A.B.] knew what it was like in her parents' home. It's not that -- it's not like she had asked [them] to take care of him and as far as she knew everything was fine. She knew better. She was standing there. And as soon as they were found out, as soon as the worker saw that mattress or piece of foam come out of the closet they withdrew and just threw him away. Here, take him and be gone with

him.

. . . .

All three defendants knew about it. All three defendants consented to it. All three defendants worked together to make that happen. I thought about it in terms of [A.B.] having a difficult child and what to do with a teenager [who has] urination problems and what you are supposed to do. And it could be very difficult. Taking

the child to the doctor, she went and she took -- she called UCM, she called the police, she called Mobile Response. If the child was acting out there's -- she could have taken him to a crisis [center] and even more than that, what other parents have done, they've called the Division for assistance when they couldn't do it themselves. But she didn't do any of that. Here she let him sleep like less than a dog in a freezing cold basement, isolated, alone, uncared for, unloved, unsupported. That was not one of the options.

I find that the Division has established a case of abuse and neglect as to each and every one of the three defendants here. They failed to provide for his health and safety. They're unfit to care for him in any way. They've endangered his welfare. And endangering the welfare of a child could easily result in a criminal charge.

The judge issued an order memorializing his finding by a preponderance of the evidence, and dismissing defendants from the custody litigation. This appeal followed. A.B. does not dispute the judge's findings regarding the conditions in which Jack was living with her parents. Rather, she claims there was no evidence that she was aware of those conditions, and thus no basis for the judge's finding that she abused or neglected Jack. We disagree.

Our review of the trial court's factual findings in a Title 9 abuse and neglect proceeding is limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Title 9 defines an "abused or neglected child" as including

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, as herein defined, 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.

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

InG.S. v.Departmentof Human Services, 157 N.J. 161, 178 (1999), the Court explained that "a minimum standard of care," denoted

a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton.

Willful or wanton conduct includes those actions "done with the knowledge that injury is likely to, or probably will, result." Ibid. "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court likewise held that "[b]ecause risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful." Id. at 178.

Although the Court noted that the difference between negligence and willful and wanton conduct cannot be clearly delineated in all cases,

[w]here an ordinary reasonable person would understand that situation poses dangerous risks and acts without regard for the potentially serious consequences, the law hold[s] him responsible for the injuries he causes. Thus, under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.

[Id. at 179 (internal citations omitted).]

Therefore, the court 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.

[G.S., supra, 157 N.J. at 181.]

Applying those standards, the judge found that A.B. abused or neglected Jack because she was aware of the conditions in which Jack was made to live in her parents' home and failed to take any action to alleviate them. Specifically, the judge found that A.B. was aware of Jack's sleeping conditions prior to the Division's investigation. A.B. told the Division worker that she knew Jack had "been sleeping in the basement on a mattress due to the peeing and smelling up the house." That conversation with the worker occurred prior to the worker's tour of the basement with A.B. and her mother. Moreover, A.B. did not register any shock or surprise at the conditions in her parents' basement, or that the mattress was actually a thin piece of foam barely big enough for the boy to curl up on. On the contrary, she claimed to know that the basement "had heat." Her willingness to berate Jack as an "ungrateful child" for complaining about his sleeping arrangements, further supports that she knew of and countenanced those arrangements.

Our review convinces us that A.B. has provided no basis on which we could overturn the judge's factual findings, all of which are supported by substantial credible evidence in the record. We likewise reject A.B.'s contention that the lack of any expert testimony precluded a finding that Jack suffered emotional or psychological harm. Expert testimony is only necessary when "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Where, as here, the potential for great harm is readily apparent, no expert testimony is necessary.

By allowing Jack to be relegated to sleeping on a cement floor in a cold basement in conditions the judge deemed unfit for a dog, and failing to act to remedy his predicament, A.B. was "aware of the dangers inherent in [that] situation and fail[ed] adequately to [protect]" Jack from it. G.S., supra, 157 N.J. at 181. Because the facts evinced at the fact-finding hearing provide sufficient, credible evidence to support the judge's findings that defendant abused or neglected Jack by her conduct, we affirm. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

Affirmed.

1 We refer to the child by a fictitious name in order to protect his privacy.

2 Jack's twin brother also entered the country with A.B. in 2003. Jack, now seventeen, does not know what happened to his brother. A.B. has given various accounts of his whereabouts, including that he is vacationing in Canada or Europe, and that he returned to Liberia. Their parents presumably died in Liberia before A.B. brought the children to the United States.

3 The judge commented on the record that conducting the hearing on the papers advanced defendants' interest by limiting the evidence of the conditions to which Jack was subjected, as such evidence could potentially support criminal charges.