NEW JERSEY DIVIION OF CHILD PROTECTION AND PERMANENCY v. D.H.

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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NOT FOR PUBLICATION WITHOUT THE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.

D.H.,

Defendant-Appellant.

IN THE MATTER OF C.H., a Minor.

December 16, 2014

 

Submitted November 12, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-076-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Toni Ann Russo, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H., (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, D.H., appeals from a November 28, 2012 Family Part order finding that she abused or neglected her eleven-year-old son, C.H., in violation of N.J.S.A. 9:6-8.21c(2). Following our review, we conclude the record contains sufficient admissible and credible evidence to support the court's findings. Accordingly, we affirm.

I.

On October 5, 2012, the Division of Child Protection and Permanency ("the Division") filed a verified complaint and order to show cause seeking custody of C.H. The complaint sought to remove C.H. from defendant "due to unstable housing and the mother's mental health issues." The Division alleged that defendant "created or allowed to be created a substantial or ongoing risk of physical injury to the children by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of a function of a bodily organ." See N.J.S.A. 9:6-8.21c(2). The complaint alleged no other grounds for finding abuse or neglect. Neither the complaint nor a later amended complaint included any allegations that defendant was not feeding C.H. properly. The trial court granted temporary legal and physical custody of C.H. to the Division.

On November 28, 2012, the trial court held a fact-finding hearing. The Division produced testimony from Sally Castellano, a Division case worker. The parties admitted into evidence various documents from the Division's case file, including an October 4, 2012 letter from C.H.'s guidance counselor.1 We discern the following facts from the testimonial and documentary evidence adduced at the fact-finding hearing.

C.H. was born in the spring of 2001. C.H.'s father ("Dad") lives in Ohio. Defendant's mother ("Grandma") resides in New Jersey. Defendant has been committed twice for psychotic episodes. She has a history of periodically not taking her psychotropic medication as prescribed, as documented in reports or referrals received by the Division on September 15, 1997, June 26, 2000, July 21, 2012, and September 25, 2012. Defendant is unemployed, and relies on approximately $550 per month in food stamps and child support from Dad.

In addition to frequent referrals, the Division substantiated one prior allegation of abuse or neglect against defendant. On June 11, 2004, police observed defendant having sex outside, while C.H. was awake inside a nearby car. Police found marijuana on defendant, and arrested her for possession of a controlled dangerous substance ("CDS") and endangering the welfare of a child. The record does not indicate the outcome of the criminal charges.

The events that lead to the order under review began on or around July 25, 2012, when C.H. was eleven. Defendant broke up with her boyfriend ("James")2 and moved out of his house. Defendant and C.H. had lived with James for approximately one year. After they left, James intercepted the two at defendant's storage locker, where he took defendant's car keys and refused to return them. Defendant chased James, and he restrained her. Defendant fought back, biting James, and he eventually released her. C.H. witnessed the entire incident, but was not himself physically threatened during the fight.

James called the police, alleging that defendant had assaulted him. He also filed a report with the Division, alleging defendant was not taking her medication and was instead self-medicating by abusing Xanax and marijuana. James further reported that defendant belittled and verbally abused C.H., moved frequently, and failed to provide sufficient supervision.

After moving out, defendant and C.H. stayed with various friends and family, eventually settling for several months with one particular friend ("Jenn"). Around September 25, 2012, defendant became involved in a verbal altercation with Jenn, and Jenn kicked defendant and C.H. out of her house. Jenn reported defendant to the Division, alleging she was manic, abusing marijuana, acting sexually promiscuous, and threatening to have someone shoot Jenn's house. Defendant and C.H. slept in a car that night. The following day they moved in with a man ("Charlie"), whom defendant had recently met. Charlie lived in an apartment in Toms River with his brother and cousin.

As a result of the reports, Castellano spoke to Dad, Grandma, and defendant's sister on September 26, 2012. They all indicated that defendant was manic and abusing marijuana. Grandma further alleged that C.H. had begun biting himself.

Castellano also met with defendant and C.H. She observed that C.H. would wring his hands, which were dry and cracked, and repeated words under his breath, but denied biting his hands. He also denied the allegations against defendant. Defendant denied being bipolar, alleging she had been mistakenly diagnosed, and instead suffered from seasonal affective disorder and premenstrual dysphoric disorder. She had not seen her therapist for three weeks, and was following her own self-prescribed medication schedule. Defendant generally denied the allegations against her, and denied having a sexual relationship with Charlie.

On September 28, 2012, defendant left a voicemail for Castellano stating that Charlie had kicked defendant and C.H. out of his apartment the previous night. Charlie's family refused to let defendant, a woman Charlie had only recently met, stay at their apartment. Defendant's voicemail further stated that she was staying with a friend in "North Jersey," and lacked the money to buy gas to drive C.H. to school. Later investigation revealed that defendant and C.H. spent a few nights in a friend's finished basement in Atlantic City, and eventually moved back in with Charlie.

On October 2, 2012, Castellano spoke to defendant's therapist. The therapist told her that since breaking up with James, defendant "was not complying with her mental health treatment[,] had missed a couple appointments with her psychiatrist[, and] had reported . . . she wasn't taking her medication because she was feeling stable." She added that during a session on the previous day, October 1, 2012, defendant's behavior had been inappropriately happy in spite of her ongoing housing crisis.

Also on October 2, 2012, Castellano spoke to C.H.'s guidance counselor. The counselor told her that defendant and C.H. were homeless, and that C.H. appeared to be worried about defendant. C.H. had reported to the counselor that he was afraid to get defendant in trouble, but that on multiple occasions he asked for food and complained of hunger. The counselor also reported that C.H.'s hygiene had sometimes been inappropriate.

On October 3, 2012, Castellano visited the guidance counselor at C.H.'s school in Lanoka Harbor. The counselor generally repeated the same information as the previous day, adding that C.H. had reported sleeping in the car on the night of October 1, 2012. She later provided Castellano with a letter reiterating her account ("Guidance Counselor Letter"), which was received in evidence at the hearing on November 28, 2012, without objection. C.H.'s alleged claims of hunger and sleeping in the car on the night of October 1, 2012, were never corroborated beyond the counselor's hearsay recitation.

The guidance counselor then called C.H. into the room. He told Castellano that he and his mother were recently kicked out from where they were living and they had slept in his mother's car for one night.3 C.H. further confirmed that they had been kicked out of Charlie's apartment during the prior week. C.H. stated that since then, they had been alternating between friends' houses, and that they had returned to Charlie's apartment the previous night. He reiterated his fear of getting his mother in trouble, and added that he had missed school one day because his mother was sleeping and he did not want to wake her.

Castellano attempted to call defendant, but her cell phone number had been disconnected. Castellano chose to wait at the bus stop where defendant was to pick up C.H. The bus dropped C.H. off at the stop between 2:40 and 2:50 p.m. Castellano met C.H. at the bus stop and the two proceeded to a parking lot two or three blocks away, where defendant was to pick up C.H. The parking lot was an open lot with some parked cars, but no other people.

While waiting, C.H. stated that once in the previous week defendant picked him up between 3:18 p.m. and 3:28 p.m., and that he had worried about where she was. C.H. further stated he had no phone number or address for his mother or her friends. At 3:30 p.m., C.H. indicated he was afraid about where his mom was, and Castellano took him into Division custody. They left the lot at approximately 3:35 p.m.

Castellano and C.H. returned to the Division office, where Castellano called Grandma. Grandma reiterated her concerns over defendant's health, stating that she believed defendant was not taking her medication. She added that defendant had been getting into altercations with her friends, and that she believed defendant was entering a manic stage. She offered to house C.H. temporarily, and the Division accepted her offer.

Castellano also called Dad. He indicated C.H. would be safe with Grandma, and stated he would travel to New Jersey in a few days to petition the court for custody.

Defendant called the Division at approximately 4:00 p.m., and left a voicemail. Castellano promptly returned her call, and the two spoke. Defendant indicated she had felt ill and overslept, causing her to arrive at the parking lot at 3:40 p.m. She admitted she was not taking her medication as prescribed, explaining that she felt mentally stable, and, therefore, did not need the medication. Defendant also said she had seen a new psychiatrist who found that defendant did not need medication.

At the conclusion of the fact-finding hearing, the judge found defendant "creat[ed] or allow[ed] to be created a substantial or ongoing risk [of] physical injury to the child by other than accidental means which would be likely to cause death or serious or protracted disfigurement[,] or protracted loss or impairment of the function of any bodily organ." See N.J.S.A. 9:6-8.21c(2). The judge relied upon the length of time C.H. waited at the parking lot; C.H.'s age, lack of stable housing, reports of hunger, and inability to contact defendant; as well as defendant's non-compliance with her prescribed mental health treatment.

The judge described how defendant's circumstances have adversely impacted C.H.

[T]here is no stable environment for this child. There has not been for a while. There is a lot of moving around. There is testimony and evidence that . . . he had slept in a car with his mother [and] testimony that [on] at least one instance he did miss school because his mother was sleeping and he was unable to wake her up.

. . . He is worried about where he will be staying each night. He worries about his mother and . . . he told Ms. Castellano that he was scared when he was alone waiting for his mother at the bus stop. . . . I note in addition that he had no contact information in order to get in touch with [his mother], which for an [eleven]-year-old child who is wondering where his mother is[,] is a great concern.

The judge specifically stated that she placed weight on the Guidance Counselor's Letter. She did not otherwise single out any single fact or exhibit, either as more significant than the rest, or as independently determinative. The court ordered the Division to place C.H. with Dad, upon receiving a favorable background check.

The trial court held a compliance review hearing on March 12, 2013, and defendant failed to appear. At the next review hearing, on May 21, 2013, defendant appeared and waived her right to a G.M. hearing.4 The court then dismissed the case, and this appeal followed.

On appeal, defendant argues that (1) the allegations of neglect as contained in the Guidance Counselor's Letter were not corroborated pursuant to N.J.S.A. 9:6-8:46a(4) and therefore cannot form the basis of the judge's finding of neglect; and (2) the Division otherwise produced insufficient evidence to support the judge's finding of neglect based upon her a failure to take her psychotropic medication, her unstable housing or her failure to pick up her son from the bus stop in a timely manner.

II.

When reviewing Family Part decisions, this court gives deference to the trial court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Findings of fact are upheld so long as they are supported by "adequate, substantial, credible evidence." Id. at 412. However, "the trial judge's 'interpretation of the law and the legal consequences that flow from established facts' are not subject to deference and are reviewed . . . by this court de novo." N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 140 (App. Div. 2014) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). See also Dep t of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 308 (2011) ("[The] determination that [a parent] was negligent but not grossly negligent is a conclusion of law to which we are not required to defer." (citation and internal quotation marks omitted)).

The Division must establish that the child was abused or neglected by a preponderance of the competent, material, and relevant evidence. N.J.S.A. 9:6-8.46b. "[W]hen determining whether a child is abused or neglected, the court must evaluate the whole picture [ ] each part cannot be separately determined." C.W., supra, 435 N.J. Super. at 146 (citation and internal quotation marks omitted).

N.J.S.A. 9:6-8.21c(2) defines an abused or neglected child as

a child . . . whose parent . . . creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ[.]

Our Supreme Court has interpreted N.J.S.A. 9:6-8.21 to require grossly negligent or reckless conduct. T.B., supra, 207 N.J. at 306. "Conduct is considered [grossly negligent] 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). While the parent or guardian need not intend to create, or even recognize, the risk of injury, the act or omission creating the risk must be intentional. Ibid.

III.

Defendant argues that the trial court erred by relying solely upon the Guidance Counselor Letter to make a finding of abuse and neglect. The letter consists primarily of the uncorroborated statements of the child. See N.J.S.A. 9:6-8.46a(4) ("previous statements made by the child . . . shall be admissible . . . provided . . . that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect."). See also N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004) (holding that due process requires the complaint provide an outline of the underlying facts and theory on which it intends to rely). Nevertheless, the reliability and weight of the letter are irrelevant here, where, as will be discussed, the remainder of the record supports the finding of abuse and neglect under the theory articulated in the Division's complaint. C.W., supra, 435 N.J. Super. at 146 (instructing the courts to consider the record in its entirety when considering abuse and neglect).

Defendant intentionally chose to not take her medication for her bipolar disorder with psychotic features. In the past, her disorder had led to at least one psychotic episode and two commitments. Defendant's condition caused altercations that alienated her friends and family. These altercations in turn led to defendant's loss of housing and support, as well as court proceedings over restraining orders that, according to defendant, occupied her time and precluded her from obtaining a job.

In the months leading up to this case, defendant's instability resulted in her and C.H. sleeping in her car at least one night, and then moving between friends' houses and apartments. Those dwellings ranged along most of the New Jersey shore, including Brick, Toms River, Forked River, Manahawkin, Atlantic City, as well as "North Jersey." Most recently, defendant and C.H. alternated between Charlie's apartment, and a finished basement in Atlantic City. Defendant had only recently met Charlie, and Charlie's family kicked her and C.H. out of the apartment on at least one occasion.

Moreover, while Charlie's apartment is in Toms River, only a few minutes away from C.H.'s school in Lanoka Harbor, Atlantic City is nearly an hour from the school. According to C.H., defendant overslept one morning when they stayed in Atlantic City, causing him to miss school. Defendant also admitted to lacking money for gas to drive C.H. to school. Lastly, there is no indication in the record that, absent the Division's intervention, defendant's health, mental condition, or housing were likely to improve.

Defendant's failure to medicate according to her prescription and her unstable living arrangements, defendant twice failed to meet C.H. at his bus stop, as expected. Accordingly, her decision to cease taking her medication was sufficient to satisfy the intentional and reckless act requirement of N.J.S.A. 9:6-8.21c. G.S., supra, 157 N.J. at 178.

Turning to the risk of harm to C.H., the record indicates that on the first occasion defendant left him unsupervised for thirty to fifty minutes. The parking lot where C.H. waited was an open lot with several cars and no notable traffic. C.H. lacked any means to contact defendant, or to navigate to Charlie's apartment without her. Defendant appears to have been unconcerned with this first instance, as she failed to meet him at the bus stop again the next week. On that second occasion, but for the case worker's presence, C.H. would have been alone, unprotected and unsupervised, for fifty minutes.

The record clearly shows defendant's conduct caused C.H. to experience the emotional trauma of being scared and anxious, while at the same time exposing him to the substantial risk of harm that occurs when an eleven-year-old child is left unsupervised and unprotected for extended periods of time in a parking lot distant from his home, with no ability to contact his mother or another responsible adult. The record supports the conclusion that this was not a single isolated incident unlikely to recur and that defendant exposed C.H. to a substantial and ongoing risk of serious physical injury, whether it be from traffic, child predators, or other dangers.

Affirmed.

1 These documents also included eight screening summaries from 1995 to 2012; two investigative summaries dated July 21, 2012 and September 25, 2012; various contact sheets from September and October 2012; and an October 3, 2012 notice of emergency removal.

2 Generally, full names were redacted from the Division's records. Accordingly, we will use fictitious names, rather than initials, where appropriate.

3 C.H. stated they slept in the car on the night of September 20, 2012 but other information indicates this instead likely occurred on September 25, 2012.

4 See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009) (holding that, after the fact-finding hearing in an abuse or neglect action, a disposition hearing "must be held to determine the appropriate outcome of the case" (citing N.J.S.A. 9:6-8.50)). "[T]he court has multiple alternatives in determining the appropriate disposition[,]" including placing "the child with 'a relative or other suitable person[.]'" Id. at 399-400 (quoting N.J.S.A. 9:6-8.54a). The final order here continued C.H. in the custody of Dad.