NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.C.

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NOT FOR PUBLICATION WITHOUT THE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 YOUTH AND

FAMILY SERVICES,1

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF

Je.M. and Jn.M., Minors.

_______________________________________

April 10, 2014

Submitted January 7, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-184-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Nichole R. Nunes, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Phyllis G. Warren, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following a June 5, 2012 Family Part order terminating Title Nine2 litigation, defendant J.C. (Jeffrey)3 appeals from a February 9, 2011 Family Part order finding that he had abused and neglected his children. Because we find that the record lacks substantial credible evidence that Jeffery recklessly created a substantial risk to his children's health and safety, we reverse the finding of abuse and neglect.

The record reveals the following facts. Defendant had custody of his children, sixteen-year-old Jn.M. (Jackson), and six-year-old Je.M. (Jenny). He was arrested4 on Friday, September 24, 2010, during a police raid of a location he was visiting. The next day, when Jackson heard that his father had been arrested, he and Jenny went to the residence of their stepmother S.C. (Serena) and stayed the night. Their adult sister Ja.C. (Janice) picked them up and returned them to their home on Sunday. The following Monday and Tuesday, Janice went to the home, picked up Jenny for school, and brought her home again at the end of the day. If Jackson was not home, Janice took Jenny to her cousin's home nearby. Jackson took care of Jenny at night.

On Wednesday, September 29, 2010, after receiving a referral that the children were left alone without proper supervision, the Division conducted an investigation. When interviewed by the Division caseworker, Jenny stated that she had not seen her father since the previous week, and that Jackson and Janice were taking care of her. The Division also interviewed Janice, who told the caseworker that she was looking after the children, but could not have them stay at her home because she did not have enough room.

The caseworker also interviewed Jackson, who stated that he did not know when his father would return. He reported that his father had been arrested three times in the past few months for child support, usually on Fridays, and was normally out of jail by Tuesday.5 During his father's incarceration, he and Jenny usually stayed with either Janice or Serena. He explained that, when his father is not in the home, he watched Jenny and that he left her with a neighbor if he went to the store to get her food.6

The Division also interviewed Serena, defendant's estranged wife, whom the children call their stepmother and who made the referral to the Division. She informed the caseworker that during defendant's recent arrests for child support, she kept the children, and he picked them up when he was released. The day before the interview, Serena had gone to the courthouse to get custody of the children while defendant was incarcerated, but had to wait several weeks for a hearing. Her concern was that defendant's criminal arrest might lead to a long-term incarceration, and she needed help from the Division.

At the show cause hearing, the court determined that the removal of the children was warranted due to imminent danger to the children's life, safety, or health. The children were eventually placed with their adult cousin pending the outcome of a fact-finding hearing.

At the fact-finding hearing on February 9, 2011, the Division presented the investigating caseworker's testimony and numerous Division reports and other business records. The Division alleged that defendant abused and neglected Jenny and Jackson by failing to put a child-supervision plan in place upon being incarcerated. The Division caseworker agreed that a mature sixteen-year-old could care for a six-year-old child and that Jackson was interviewed and appeared to be mature. However, she felt that his apparent maturity was refuted by the fact that both children admitted that he left the house at least once to buy food, leaving Jenny only in the care of a neighbor. Defendant's attorney asserted that it was impossible for defendant to contact a family member to watch the children as he was not permitted to make a phone call in jail. Furthermore, he argued, Jackson generally took good care of Jenny with the help of Janice and Serena, and if they left the children alone at night, it was their neglect, not his, as there was nothing he could do from jail.

The law guardian argued that even if defendant could not make a phone call, by Saturday their stepmother knew that defendant had been arrested, yet the children were left alone on four nights without a plan for care in place. Both the Law Guardian and the Division argued that defendant's conduct was not an isolated incident; rather, there was a pattern where defendant left Jackson in charge of his six-year-old sister.

The judge found that defendant abused and neglected his children by failing to put a safety plan in place upon his incarceration. The judge found the caseworker's testimony to be credible, and found defendant's claim that he was not allowed to make a call while incarcerated unconvincing. The judge stated that upon defendant's arrest, "it was incumbent upon him to provide a safety plan . . . whereby a responsible adult would have cared for these children in his absence [such as] a call to [the stepmother] empowering her to care for the children."

After a number of compliance hearings, on April 9, 2012, the judge entered an order granting legal and physical custody of Jenny to defendant, who had relocated to Florida. On June 5, 2012, the litigation was terminated. This appeal followed.

On appeal, defendant argues that the trial court erred in finding that he failed to exercise a minimum degree of care as his failure to arrange child care upon being arrested was not grossly negligent or willful. Defendant contends that there was no way he could have anticipated being arrested, he was prohibited from making a call in jail, he had successfully relied on Serena and Janice in the past, and he did not purposefully create a situation in which he knew that injury to his children was a likely or probable result. Defendant asserts that, at maximum, his failure to act was negligent, which is insufficient for a finding of abuse and neglect under Title Nine. Under the totality of circumstances of this case, we agree.

We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). A child is abused or neglected when the child's

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 . . . 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. 9:6-8.21(c)(4).]

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).

A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 300 (quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 124 (1995); McLaughlin, supra, 56 N.J. at 305).

Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309-10 (finding only negligence where mother left four-year-old alone at home because she mistakenly believed the child's grandmother was present); see also N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (finding only negligence where mother allowed children to walk from playground to condominium within her line of sight, and they accidentally locked themselves in the home); but see N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (finding gross negligence where defendant left infant on bed near radiator and infant was severely burned because defendant's use of blanket as buffer showed he was aware of substantial risk of imminent harm).

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We must determine "whether the findings made 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to the family court because of its "'expertise in family matters.'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

However, "[w]here 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 plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The issue here is whether defendant's failure to perform the cautionary act of affirmatively arranging adult supervision of his children while he was incarcerated constitutes a failure to exercise a minimum degree of care by recklessly creating "harm, or [the] substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4)(b). Whether a particular event should be classified as merely negligent, as opposed to gross or wanton negligent, can be difficult to determine, T.B., supra, 207 N.J. at 309, and often seems much clearer with the benefit of hindsight, which the parent did not have at the time. Although the Division need not wait for harm to occur, A.L., supra, 213 N.J. at 23, the record does not contain competent evidence that defendant acted with gross or wanton negligence, knowing that injury was likely, and recklessly disregarding the possibility. See G.S., supra, 157 N.J. at 178.

The Division bore the burden of proving that defendant's failure to arrange child care while incarcerated was reckless or unreasonable. N.J.S.A. 9:6-8.46(b). The Division did not offer any evidence, direct or circumstantial, that defendant had the opportunity to call from jail, and then declined to do so, thereby recklessly creating a substantial risk to the children. Further, the Division failed to offer any evidence demonstrating that defendant should have anticipated his arrest, and then failed to put into place a contingency child-care plan, knowing that his failure to do so would likely cause harm.

On the contrary, the record shows that prior to defendant's arrest, sixteen-year-old Jackson generally took good care of his sister, the children had dependable adult family members as immediate resources, and Jackson knew to reach out to these resources for help and did so upon learning of the arrest. During defendant's past arrests, Serena took care of the children. Neither Janice nor Serena felt that Jackson was incapable of watching his sister alone, and Janice checked in with them twice daily. Significantly, there is no evidence that the children were harmed using this informal system of child supervision in the past. Indeed, the Division agreed that Jackson was mature enough to care for a six-year-old child, but questioned his maturity because he admitted that he briefly left Jenny in the care of a neighbor when he went to the store to buy food to cook for her. Although it is true that Jackson admitted to smoking marijuana and had a juvenile arrest history, there were still responsible and caring adults closely involved and ready to provide additional care if required.

Furthermore, the Division can come to the aid of the children by providing services to ensure their safety and welfare without a finding that a parent has abused or neglected a child. A.L., supra, 213 N.J. at 30-34. Under N.J.S.A. 30:4C-12, "if 'it appears that the child requires care and supervision by the division or other action to ensure the health and safety of the child, the division may apply' for a court order 'placing the child under [its] care and supervision or custody . . . .'" N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64-65 (App. Div. 2012).

In sum, given the totality of the circumstances, the record simply does not support a finding of abuse and neglect. Defendant's reliance on prior informal arrangements of having Serena and Janice take care of the children during his brief arrests for child support was perhaps negligent in the face of a potentially much longer incarceration. But, that reliance, which proved beneficial in the past, does not permit a finding of wanton and reckless negligence. The Division failed to prove by a preponderance of the evidence that defendant acted with gross or wanton negligence by failing to make more concrete arrangements for supervision of his children while incarcerated.

The finding of abuse and neglect is reversed. The Division will remove defendant's name from the Central Child Abuse Registry within thirty days of the date of this opinion.

1 A reorganization of the Department of Children and Families included the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as "the Division."

2 N.J.S.A. 9:6-8.21 to -8.73.

3 We use pseudonyms for the parents, children, and other family members to protect their privacy.

4 According to a July 20, 2011 court report, the criminal charges against defendant were ultimately dismissed shortly before the report was generated.

5 The family members explained that defendant was arrested for child support because the children's mother had claimed that the children lived with her while they had been in his custody for many years.

6 During the investigation, the Division received a referral indicating that Jackson was smoking marijuana and skipping school. He admitted to smoking marijuana but denied skipping school. He added that he recently had been arrested on juvenile charges. Jenny denied ever seeing anyone take drugs in the home.