NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.T.

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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NOT FOR PUBLICATION WITHOUT THE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-5696-12T4

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

T.T.,

Defendant-Appellant.

_________________________________

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

_________________________________

December 4, 2014

 

Submitted October 16, 2014 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0465-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ioannis S. Athanasopoulos, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian for minors C.T. and J.T. (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

At the conclusion of a fact-finding hearing, the trial court entered an order finding T.T. (mother) had abused and neglected her sons C.T. (Chad1), born in September 2008, and J.T. (John), born in April 2011, in violation of N.J.S.A. 9:6-8.21(c)(4)(a). We affirm in part and reverse in part.

I

The pertinent evidence at the fact-finding hearing was as follows. On December 29, 2011, the New Jersey Division of Child Protection and Permanency2 received a referral that the mother "possibly" was selling drugs in the children's presence. Initially, the Division was unable to locate the mother but eventually learned she had moved into her sister's home in Pennsylvania. Within a few weeks, however, the mother returned to New Jersey to live with her godmother, a home the Division investigated and found appropriate for the children. Because the godmother was critical of the mother s parenting skills, on February 2, 2012 the mother moved into a motel with the children, using welfare benefits to pay for the room. The godmother advised the Division that the mother and children were welcome back into her home and that she would provide any provisions the children needed.

Before the mother moved out of her godmother's home, the Division managed to see the children at one of the Division s offices. At that time, the caseworker observed the mother giving nine-month old John chocolate milk in place of formula. The mother claimed giving John chocolate milk was approved by the baby s pediatrician, but a check with the doctor revealed he had not made that recommendation. When asked about her plans to care for the children, the mother reported that she had applied for food stamps, housing assistance and TANF3 benefits and, in the meantime, would be staying with her godmother, who was willing to supply any provisions the children needed.

On February 24, 2012, the caseworker visited the mother and children at the motel. The motel room was described as "normal" but the caseworker noticed the children were dirty and smelled of urine. Although the mother had $230 worth of food stamps available to her, there was no food but for a few jars of baby food, a small container of spaghetti, and Kool-Aid. The caseworker observed that the children were sharing a baby bottle that contained Kool-Aid.

More important, the baby was wheezing and Chad was "really, really congested." The mother reported that the baby had been diagnosed with asthma the previous month and was supposed to be using a nebulizer, but the medical device was stolen the previous month. When asked why she had not sought to obtain a replacement, nor take both children to the doctor, she merely replied that she was a "good mother" and had decided to treat the baby s wheezing and Chad s congestion by giving them Kool-Aid.

The caseworker also testified that the mother's welfare benefits were to be terminated at the end of February 2012 due to alleged welfare fraud. When asked how she was going to survive financially when her welfare benefits ceased, the mother said she was going to rely upon friends for help. No other witnesses testified.

Concerned about the mother s ability to financially support and address the children s medical needs, on February 24, 2012, the Division decided to exercise its authority under N.J.S.A. 9:6-8.294 and take custody of the children. On February 25, 2012, the children were taken to a hospital emergency room. The medical records, which were admitted into evidence during the fact-finding hearing, revealed that the baby had asthma and was experiencing "mild-moderate" wheezing and congestion. He was treated with a nebulizer and discharged later in the day after his breathing improved. The discharge instructions directed that he be administered medication and nebulizer treatments on a daily basis. The discharge instructions also indicated that, when wheezing is present, asthma is deemed severe and can be life threatening.

Chad s records merely stated that he had a viral syndrome similar to that of a cold. The discharge instructions stated that this syndrome does not ordinarily produce serious medical problems but, to avoid dehydration, a patient should drink fluids such as, among other things, Kool-Aid.

On February 27, 2012, the Division filed a verified complaint against the mother and the children s respective biological fathers seeking the custody, care and supervision of the children pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. On February 28, 2012, the court ordered the removal of the children because of her failure to obtain necessary medical care for the children and her transient and dysfunctional lifestyle, which rendered her unable to provide the children with adequate shelter. The court placed John in his father s custody and directed the Division to assume custody of Chad. In adherence thereto, the Division arranged for Chad to reside with a resource family; on November 20, 2013, the mother gave an identified surrender of her parental rights to Chad to the caregivers with whom he had been placed in April 2012.5

Following the fact-finding hearing on July 19, 2012, the trial court concluded that the mother had abused and neglected the boys because she had not properly attended to their medical needs and had failed to provide them with adequate food and shelter. The court stated, in relevant part, as follows

We have two sick children. Sick is clear. We don t have any real medical diagnosis. But two children who are wheezing, have either asthma or some type of respiratory problem, who are drinking out of the same bottle. I can t tell how that takes place, short of extreme poverty. . . .

We have a very, very young child, less than a year, drinking chocolate milk, and when that is checked out, we certainly recognize that a child, at the age we are given here, eight months, should not be drinking chocolate milk.

That Mom indicates because of the respiratory problem that both children are exhibiting, they re getting red Kool-Aid to resolve the problem. . . .

Why she would be giving Kool-Aid to two sick children is something not clear at all. Why Mom didn t take the children to the doctor s or take the children to an emergency room someplace, we don t know, other than the fact that it wasn t done.

Mom was living in a hotel room. She doesn t reach out for any help. . . . We learn that Mom has $230 in her ATM/food stamp device that she could maybe not live on for weeks and weeks, but certainly enough money to care for children.

Why Mom doesn t do this, we don t know. I could see a problem. I could see that Mom is maybe trying to make it last, what she has, for several weeks. But it is not realistic to to assume that she wants to use the $230 to allow her to live in this hotel room. It boggles the imagination. . . .

I have to find that this type of activity on Mom s part is gross negligence. . . .

And she didn t take care of her children. The children could have very well been severely made ill, because of this lack of care. . . .

She is guilty in this court s mind of gross negligence, and the court will sustain the abuse and neglect finding at this time under Title IX judgment.

II

On appeal the mother raises two arguments. First, she argues there was no evidence to support the trial court's conclusion that the children were in fact impaired or put in imminent danger of becoming impaired when she fed the baby chocolate milk and failed to take the children to a doctor when John started to wheeze and Chad became congested. Second, she claims the trial court erred as a matter of law when it found her inability to provide housing, based exclusively on her impoverished condition at the time, was a valid basis to conclude she abused or neglected her children.

N.J.S.A. 9:6-8.21(c)(4)(a) states that an "abused or neglected child" includes

[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 [or her] parent . . . 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 . . . .

As recently clarified in N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 409 (App. Div.), certif. granted, __ N.J. __ (2014), a finding that a child has been abused and neglected on the ground that a parent put the child in imminent danger as opposed to causing actual harm must be based on evidence that the child is still in imminent danger at the time of the fact-finding hearing. That a child was put in imminent danger in the past does not constitute abuse and neglect, unless the danger still exists and it places the child at imminent risk for harm. We held that "[w]ithout evidence permitting a finding of likely repetition of past conduct creating a substantial risk of harm, a finding based on past conduct cannot be sustained. The statute permits a focus on past conduct alone only when the child's condition has been impaired."6 Id. at 420 (internal quotation marks omitted).

A finding of abuse and neglect must be proven by a preponderance of the competent, material and relevant evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002). "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. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). "'Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.'" N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (quoting G.S., supra, 157 N.J. at 179).

However, it is also "well-settled that poverty alone is not a basis for a finding of abuse or neglect." N.J. Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 195-96 (App. Div. 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976), aff'd sub. nom., 74 N.J. 196 (1977)). In Doe, we reversed a finding of abuse and neglect even though a child had been found to be "filthy dirty," "extremely thin," "sickly," and had been observed playing with cockroaches, because the child s circumstances were incidents of poverty. Id. at 427, 431. See also In re Guardianship of J.E.D., 217 N.J. Super. 1, 12-13 (1987) (courts should not decide a case because of a cultural bias or because of the parents' economic or social circumstances), certif. denied, 111 N.J. 637 (1988).

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974)). "On the other hand, deference is not appropriate if the trial court's findings are 'so wide of the mark that the judge was clearly mistaken.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Further, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), certif. denied, 190 N.J. 257 (2007)).

Here, the finding the mother abused and neglected the baby under N.J.S.A. 9:6-8.21(c)(4)(a) for not securing medical treatment when he exhibited wheezing is supported by the evidence. As of February 24, 2012, the mother knew John had been diagnosed with asthma and needed a nebulizer to treat his condition. Yet when the baby began to wheeze, the mother did not obtain a nebulizer or take him to a doctor. The ordinary reasonable person understands that those afflicted with asthma are vulnerable to suffering respiratory distress and that wheezing indicates breathing is compromised and may require immediate treatment. The mother declined to take any reasonable action and, while the baby was wheezing, he was physically impaired.

There was no medical evidence, however, that feeding the baby chocolate milk in fact caused him any physical impairment or placed him in imminent danger of becoming impaired. In fact, the medical records stated that the baby was "well nourished." While there is evidence the baby s pediatrician never recommended that the baby be fed chocolate milk, nevertheless, there was no indication the baby had endured or was placed in imminent danger of sustaining any harm.

The evidence also does not support the trial court s conclusion that the mother abused and neglected Chad because she failed to take him to a doctor for his congestion. The medical records indicate Chad had a condition similar to the common cold for which there was no treatment, other than to drink liquids to stave off dehydration. The very liquid the mother gave to Chad to treat his condition Kool-Aid was one that the hospital recommended be given to patients with his condition. There was no evidence the mother s conduct caused or exacerbated Chad s illness, let alone caused him any physical impairment or put him in imminent risk of harm.

Further, the Division did not prove that the mother s failure to have more food in the motel room on the day of the caseworker s visit amounted to abuse and neglect. The Division failed to adduce any evidence the mother intended to limit the children to only the food found in the motel room for their next meal or meals. Certainly there was not any evidence the children were harmed or placed in imminent risk of harm because there were few groceries available in the motel room itself.

Finally, there was no evidence to support the finding that the shelter the mother provided for the children caused them actual or imminent harm. The motel room was described by the caseworker as "normal" and the Division deemed the godmother s home appropriate. There was no indication the sister s home was inadequate. While the mother was transient, she needed to live with others (but for the brief period she lived in a motel room) to survive because of her impoverished condition, and poverty may not be used to find a parent abused and neglected a child. L.W., supra, 435 N.J. Super. at 195-96. Further, at the time of the children's removal, it was not known whether she was going to be homeless when her welfare benefits terminated. She told the caseworker she was going to move in with friends. The Division did not ascertain whether she was going to return to her godmother s house or go to another home just as appropriate. More important, the record does not indicate whether the mother was living in adequate quarters at the time of the fact-finding.

The parties remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). While there was sufficient evidence to support the finding the mother abused and neglected John under N.J.S.A. 9:6-8.21(c)(4)(a), there was no evidence she abused and neglected Chad.

Affirmed in part and reversed in part.


1 We refer to the children by fictitious names to protect their privacy and for ease of reference.

2 At the time, the Division was known as the Division of Youth and Family Services. Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency.

3 "TANF" stands for Temporary Aid to Needy Families, which is part of the Work First New Jersey Act. N.J.S.A. 44:10-55 to -78.

4 N.J.S.A. 9:6-8.29 authorizes the Division to take custody of a child if there is evidence the child's life, safety, or health will be in imminent danger if left in a parent's care and there is insufficient time to apply for a court order.

5 While the mother has surrendered her parental rights to Chad, this appeal as to this child remains legally viable because she challenges the finding that she abused and neglected him, a finding that mandates her name be added to the child abuse registry. N.J.S.A. 9:6-8.11.

6 In M.C. the parents were alleged to have violated N.J.S.A. 9:6-8.21(c)(4)(b), whereas here, the mother is alleged to have violated N.J.S.A. 9:6-8.21(c)(4)(a), but as indicated in M.C., the standard is the same whether dealing with subparagraph (a) or subparagraph (b). See id. at 417 (emphasis supplied).