NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF M.B.,

Minor.

_____________________________________

June 18, 2014

Submitted May 12, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-68-12.

Joseph E. Krakora, Public Defender, attorney for appellant(Michele C. Buckley, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

J.B. appeals from an order entered by the Family Part on February 9, 2012, finding that she abused or neglected her minor child, M.B. We affirm.

On October 7, 2011, at around midnight, the Rochelle Park police reported to the Division of Child Protection and Permanency (Division) that J.B. and her two-year-old child, M.B., were in the lobby of a local hotel, and apparently had no place to go. The Division's worker investigated the referral, and attempted to provide J.B. with assistance. The following day, after additional efforts to find housing for J.B. and the child were unsuccessful, the Division removed the child from J.B.'s custody and care.

On October 12, 2011, the Division filed a verified complaint and order to show cause, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, seeking the custody, care and supervision of the child. That day, the court granted the Division's application for temporary relief, finding that the child's emergency removal was required because the child's life, health and safety were in imminent danger. On November 17, 2011, the court entered an order providing that the child would remain in the Division's custody, care and supervision.

In February 2012, the court conducted a fact-finding hearing to determine whether J.B. had abused or neglected M.B. At the hearing, the Division presented testimony from Division supervisors Lydia Tatekawa and Heidi Cruz, as well as one of the Division worker's, Lourdes Nunez.

The testimony of the Division's witnesses established that on Thursday, October 7, 2011, J.B. had gone to the hotel with M.B. after the utilities in her apartment in Paterson had been turned off. J.B. had funds to stay one night. The police arranged for J.B. to remain in the hotel on Friday, October 8, 2011. The Division's witnesses indicated that the child was not properly clothed or supervised, and J.B. did not have appropriate food for the child in the hotel.

J.B. testified that she went to the hotel in Rochelle Park because the lights in her apartment had been "cut off" on October 6, 2011. J.B. claimed that she had only been one month in arrears in paying for her utilities. She said she only had money for one night's stay in the hotel, and then planned to call family members. J.B. further testified that there had been a misunderstanding about how long she could remain at the hotel. J.B. said she thought that the Division's workers had arranged for her to remain at the hotel for several days, and she would have time to go to the welfare office to arrange for payment of her utility bill. On cross-examination, J.B. said she was not notified that her utilities were going to be cut off. She also admitted to being late in her rent payments, but claimed she had not been evicted.

On February 9, 2012, the judge placed his decision on the record. The judge noted that J.B.'s utilities had been turned off on Thursday, October 6, 2011. J.B. had testified that she was only one month in arrears in paying for her utilities before they were shut off. The judge found that this testimony was not credible.

The judge also pointed out that J.B. had testified that the persons in the welfare office had instructed her to come in with her utility bill and they would assist her. However, J.B. did not go to the welfare office as instructed and instead checked into a hotel for the night.

The judge noted that it was a holiday weekend and the welfare office would be closed until Tuesday. The judge found that J.B. put her child at risk of homelessness because she did not have sufficient funds to remain in the hotel.

The judge additionally found that J.B. failed to provide the child with appropriate food. Tatekawa had testified that J.B. only had a few food items in the hotel, which included donuts and cookies. J.B. also did not have diapers for the child, even though she had a Family First food card with available funds that would have allowed her to secure appropriate items for the child. J.B. claimed that she did not know where to shop, but the judge noted that J.B. had provided no evidence indicating that she tried to locate a place where she could shop. The judge found J.B.'s testimony on this point to be incredible.

The judge also pointed out that, when Tatekawa returned to the hotel from the store with appropriate food and supplies at around 1:30 a.m., M.B. had not been put to sleep. The child was jumping on the bed. Tatekawa had to tell J.B. to heat up the milk so that the child could eat something. The judge found that all of this conduct placed M.B. at risk of harm.

In addition, the judge noted that, later in the day on October 8th, J.B. told Nunez that she had an aunt in Hackensack. J.B. claimed her aunt said she and M.B. could stay with her. Nunez brought J.B. to her aunt's home and her aunt told J.B. that she could not stay there. The judge found that J.B.'s statement that she had a prior housing arrangement was not credible.

The judge further noted that when Cruz arrived at the hotel later in the day, she found the child walking around in a diaper and sneakers. J.B. apparently had washed clothes that M.B. had been wearing. Cruz told J.B. it was too cold for the child to be dressed in that manner, and J.B. put one of her own tank tops on the child. The judge found that J.B. had other clothes for the child in her backpack but "chose not to use them and to keep the child inappropriately dressed."

The judge found that M.B. was an abused or neglected child, as those terms are defined in N.J.S.A. 9:6-8.21(c)(4), because J.B.: failed to use available resources to maintain appropriate housing; did not immediately seek welfare's assistance in having her utilities turned back on; decided to leave Paterson, where social service agencies were available to her; failed to secure appropriate food and necessities for the child, even though she had available resources to do so; did not adequately supervise the child; failed to properly clothe the two-year-old infant even though she had clothes for the child; and did not provide appropriate information about family resources to the Division's representatives.

The judge noted that there were no signs of physical abuse, such as scars or marks, and the child appeared well when the Division's workers saw her. The judge determined, however, that J.B. had placed the child at risk of harm and this was sufficient. The judge accordingly entered an order dated February 9, 2012, finding that J.B. had abused or neglected the child.

Thereafter, the court conducted compliance review hearings and ordered that M.B. would remain in the Division's custody and J.B. would continue to receive services. On January 3, 2013, the court dismissed the litigation, after M.B. was returned to J.B.'s custody. The court found that the conditions requiring M.B.'s removal had been remediated. This appeal followed.

J.B. argues that the Division failed to establish by a preponderance of evidence that she abused or neglected M.B. She contends that her decision to stay in the hotel with M.B. after the electricity in her apartment was turned off was a reasonable and responsible decision. She asserts that the child was well cared for and was never at risk of harm.

The scope of our review of the trial judge's factual findings is limited. We must defer to the judge's findings if they are supported by adequate, substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A 9:6-8.21(c)(4) defines an "[a]bused or neglected child" as one:

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

[Ibid.]

A parent has failed to "exercise a minimum degree of care" for a child if his or her actions are "grossly or wantonly negligent." G.S. v. Dep't of Human Servs., 157 N.J.161, 178 (1999). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid.(citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

Furthermore, an individual's reckless disregard for the consequences of his or her actions may rise to the level of wanton or willful conduct. Ibid.Moreover, "[s]o long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant." Ibid.See alsoMcLaughlin, supra, 56 N.J.at 305.

Accordingly, our Supreme Court has stated that a parent or 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 (citing In the Matter of Sellnow v. Perales, 551 N.Y.S.2d 428, 429 (N.Y. App. Div. 1990)).

We are convinced that there is sufficient credible evidence in the record to support the judge's determination that J.B. abused or neglected her child. The record supports the judge's finding that J.B. failed to exercise a minimum degree of care by failing to provide the child with adequate food, clothing and shelter and by failing to adequately supervise the child. As the judge explained, J.B.'s acts or omissions created a risk of harm to the child.

The record shows that J.B. failed to act immediately to secure assistance when her utilities were cut off. She moved to a hotel in Rochelle Park without sufficient funds to remain there more than one night. She left Paterson with the child, even though social services agencies were available in that city and could have assisted her with funds to purchase appropriate food and necessities for the two-year-old child. J.B. also was less than forthright with the Division when the Division was endeavoring to assist her find a place to stay. The judge properly determined that such actions rose to the level of abuse or neglect.

We note additionally that under N.J.S.A. 9:6-8.21(c), a child is abused or neglected if the child's "physical, mental or emotional condition has been impaired or is in imminent danger of being impaired" as a result of the parent's failure to "exercise a minimum degree of care." Our Supreme Court has said that, "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Div. of Children and Families v. A.L., 213 N.J. 1, 23 (2013).

Here, the evidence showed that the child was in imminent danger of harm resulting from homelessness, a lack of adequate food and a lack of proper attire. This was not due to a lack of resources. As the trial court determined, the child was at risk of harm. In view of the child's age, the risk was substantial.