NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.R.

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NOT FOR PUBLICATION WITHOUT THE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.

F.R.,

Defendant-Appellant,

And

M.W.,1

Defendant-Respondent.

___________________________________

IN THE MATTER OF B.W., a minor.

___________________________________

July 7, 2014

Submitted February 26, 2014 - Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-130-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.W. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant F.R. appeals from the July 16, 20122 Family Part order, entered following a fact-finding hearing, which determined she abused or neglected her ten-year-old son B.W. when she left him alone at home. The Law Guardian concurs with the court's findings that F.R. abused or neglected B.W., as well as the court's grant of physical custody to M.W. We affirm.

The following facts were presented during the January 6, 2012 fact-finding hearing, through testimony and exhibits admitted into evidence. F.R. and M.W.3 are the estranged parents of B.W., who was born in 1999. At the time the abuse or neglect proceedings were initiated, the parents were embroiled in ongoing matrimonial litigation. A major dispute between the parties related to custody of B.W. At the time, F.R. accused M.W. of physically and sexually abusing B.W. B.W. also made similar allegations, but later advised the court that he had been told by his mother to do so. The Division of Child Protection and Permanency (Division)4 investigated F.R.'s allegations and determined the allegations were unfounded. In April 2011, despite a court order issued in the matrimonial litigation, directing that each parent should have alternate weekly parenting time, M.W. had not seen his son in weeks. After learning from school officials that B.W. had not been attending school, M.W. contacted the Division. The Division received a similar report from the Delran Intermediate School in early May, expressing concerns that B.W. may be the victim of emotional abuse. School officials informed the Division they received a note from a pediatrician advising that B.W. had been vomiting and experiencing insomnia due to "family stressors." The pediatrician recommended that B.W. be home-schooled. A Division representative spoke with B.W.'s pediatrician, who confirmed he treated B.W. the previous day and wrote the note for B.W.'s school. He reported B.W. told him, in the presence of his mother, he was feeling sick and did not want to see his father. B.W. also told the doctor his father beats him and molests him.

On May 6, 2011, the Division attempted to address the referral with F.R. She told the Division caseworker B.W. was deathly afraid of his father, and reiterated that M.W. had sexually abused B.W. She admitted to the caseworker B.W. had not been in school for three weeks because he feared his father and had been throwing up. She also advised the caseworker she would ignore the custody order if the Division did not investigate the sexual abuse allegations and she denied coaching B.W. During a brief, private interview with B.W., he told the caseworker his father beat him and touched his private parts. He was unable to indicate when the incidents occurred and told the worker to ask his mother.

On May 9, 2011, M.W. filed an order to show cause (OTSC) in the matrimonial litigation seeking, among other relief, sole custody of B.W.5 The court made no changes to the joint custody arrangement but ordered the parties to submit to psychological evaluations. The court additionally granted M.W. two weeks of uninterrupted parenting time, since F.R. had not complied with the alternate week parenting-time arrangement. The court also ordered that F.R. re-enroll B.W. in school.

In an effort to address the court's order with F.R., a Division caseworker went to F.R.'s home, but found only B.W. at home. B.W. told the caseworker that F.R. was at work. The Division worker spoke with a neighbor, who stated that she was not really watching B.W. and did not want to be involved. B.W. told the worker that his mother left for work at 6:00 a.m., his neighbor watched him sometimes, and that in case of emergency, he would call his mom or leave the house in the event of a fire.

The Division effectuated an emergency removal of B.W. at that time. B.W. told the caseworker he did not wish to see his father. The Division placed B.W. in a therapeutic home. When the Division caseworker spoke with F.R. later that day, she acknowledged leaving B.W. home alone for two days that week. The court transferred legal and physical custody of B.W. to the Division, ordered bi-weekly counseling, in-home weekly therapy, and supervised visitation for B.W. The court subsequently transferred legal and physical custody of B.W. to M.W. in September, 2011.

In her testimony, F.R. admitted she left B.W. home alone. She explained that beginning in January or February 2011, she made arrangements for her neighbors to check on B.W. when he was home alone, rather than send him to his father's home because "that's where the abuse happened" and she did not believe that it was "safe sending him back to the father's." She stated she had been aware, prior to kindergarten, that B.W. experienced communication difficulties, and was also aware, based upon his individualized education plan (IEP), he had been diagnosed as communication-impaired and experienced difficulty responding. She expressed that her primary concern was B.W.'s safety and she did not feel it was safe to send B.W. to M.W.

The trial court found the Division established, by the requisite preponderance of the evidence, F.R. had neglected or abused B.W.:

At the time of the incident[,] [B.W.] was ten years old. According to his IEP he is communication-impaired and has difficulty responding. He is easily distracted and needs information and directions frequently repeated. Dr. Roth stated that there are times when [B.R.]'s understanding of events or information that is communicated to him is misunderstood, and there are times when he is given directions and does not follow them because he lacks the understanding of what is being asked of him. [F.R.] is aware that [B.W.] had an IEP and has difficulty communicating. [B.W.]'s IEP reports that [F.R.] was concerned about his ability to communicate. Knowing these concerns, [F.R.] stated she would rather leave [B.W.] at home than have him spend time with [M.W.].

In light of the dangers and risks associated with this situation, she failed to exercise a minimum degree of care and proper supervision because she left [B.R.] home alone while she was at work. At the time[,] again[,] he was ten years old and had difficulty communicating and understanding directions. He was at substantial risk of harm because he may have had difficulty responding or calling for help in an emergency if such a situation arose. Furthermore, [F.R.] acted willfully and wantonly by intentionally leaving [B.W.] home to prevent him from seeing [M.W.].

The Supreme Court[,] in the Division versus G.S.[,][6] stated that when an ordinary, reasonable person would understand that the situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him or her responsible. [F.R.] was aware that [B.W.] was home alone without supervision and she was aware of his difficulty communicating. Therefore, she was aware of the dangers inherent in a situation and still failed to adequately supervise [B.W.]. She recklessly created a risk of serious injury to [B.W.] by purposely leaving him home alone.

Therefore, the [c]ourt concludes and finds that the Division has proven by a preponderance of the evidence that [F.R.] has abused or neglected [B.W.] because of her failure to exercise a minimum degree of care.

The court, pursuant to the order issued in the matrimonial action, continued custody with M.W. It conducted a G.M.7 hearing, after which it concluded that F.R.'s initial conduct, which led to B.W.'s removal, had not been ameliorated, and "[F.R.] had not made significant progress through services that would result in her no longer making inappropriate decisions regarding [B.W.]." The court additionally found that it was "not clear . . . [whether] further counseling and monitoring will adequately address the problems presented such that on balance [B.W.] should reside with [F.R.]." The court then engaged in a best interest analysis to determine who should have custody of B.W. and concluded placement should be with M.W. The present appeal ensued.

On appeal, F.R. contends the finding of abuse or neglect is not supported by competent, material and relevant evidence, the court should have retained jurisdiction under N.J.S.A. 30:4C-12, and the court erred in granting custody to M.W. because the court's determination that it was in B.W.'s best interest to have custody awarded to M.W. was not supported by the evidence.

We have examined the record in light of F.R.'s contentions and reject all of her contentions. We affirm substantially for the reasons expressed by Judge Philip E. Haines in his oral opinions rendered on April 11, 2012 and July 16, 2012.

Our standard of review on appeal is narrow. We defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference to a trial court's supported factual findings is warranted because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [and] has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); accord, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J.at 279 (citation and internal quotation marks omitted).

Abuse or neglect proceedings are governed by Title 9, N.J.S.A.9:6-8.21 to -8.73. An "abused or neglected child" is defined as 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 . . . to exercise a minimum degree of care . . . in providing the child with proper supervision." N.J.S.A.9:6-8.21(c). The proofs necessary to establish abuse or neglect are measured by a preponderance of evidence standard. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011); see alsoN.J.S.A.9:6-8.46b Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J.at 161, 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id.at 179.

Whether a parent has engaged in acts of abuse or neglect involves a totality of the circumstances analysis. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.320, 329 (App. Div. 2011). We determine whether a minimum degree of care was exercised. N.J. Div. of Child Protection & Permanency v. J.A., ___ N.J. Super.___ (2014) (slip op. at 9). In V.T., we recognized that "the elements of proof are synergistically related. . . . One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J. Super.at 329-30 (citation and internal quotation marks omitted).

Importantly, a court does not have to wait until a child is actually harmed before it can act on behalf of the welfare of the minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super.222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J.365, 383 (1999)), certif. denied, 200 N.J.505 and 201 N.J.272 (2009), cert. denied, ___ U.S.___, 130 S. Ct. 3502 and 3537, 117 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 344 (2010).

Applying these standards to the facts in the present matter, it is undisputed F.R. left B.W. home alone. F.R. suggests the only finding this court could make is that her conduct was negligent and that such a finding does not rise to the level of gross negligence or recklessness necessary to sustain a charge of abuse or neglect under Title Nine. We disagree.

F.R. cites Division of Youth & Family Services v. T.B., 207 N.J.294 (2011) to support her contention that negligent conduct cannot form the basis of a finding of a abuse or neglect. While that is the correct interpretation of the Court's decision in T.B., F.R.'s conduct was not inadvertent or negligent, as was the challenged conduct of the defendant in T.B. Id.at 309-10. F.R. made a conscious decision to leave B.W. home alone. She did so with the full knowledge that he suffered from communication-impairment and had difficulty responding.

Negligent conduct implies inadvertence. King v. Patrylow, 15 N.J. Super.429, 433 (App. Div. 1951) (stating "'"[n]egligence" conveys the idea of inadvertence as distinguished from premeditation or formed intention'" (quoting 38 Am. Jur. Negligence, 48, p. 692.)) F.R.'s decision to leave B.W. home alone was intentional. Intentional conduct is not a required finding in order to sustain a charge of abuse or neglect. G.S., supra, 157 N.J.at 177 (noting that "[i]f the Legislature intended [the Division] and the courts to apply an 'intent' standard, it would have stated so explicitly"). Rather, the lesser standard of grossly negligent conduct applies, which is conduct that is willful or wanton. Id.at 178. "Because 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." Ibid. F.R.'s actions were taken with reckless disregard for the safety and well-being of B.W.

Next, the fact that the order finding abuse or neglect refers to "other reasons placed on the record," which the court did not articulate in its oral decision of April 11, 2012, does not alter the outcome. The undisputed fact that F.R. deliberately left B.W. home alone was sufficient to sustain the finding she failed to exercise "a minimum degree of care . . . in providing [B.W.] with proper supervision." N.J.S.A.9:6-8.21(c); see alsoV.T., supra, 423 N.J. Super.at 329-30 (noting that one act of abuse or neglect may be sufficient to sustain a charge of abuse or neglect). F.R. admitted she started leaving B.W. home alone in January or February 2011. Thus, the court's failure to specify the "other reasons" does not warrant reversal.

Finally, the remaining points advanced in Points Two and Three are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A),(E). The court adhered to the dictates of G.M., supra, 198 N.J. at 402, in conducting a dispositional hearing before concluding, based upon substantial, credible evidence in the record, that it was not safe to return B.W. to F.R. Further, there is substantial, credible evidence in the record supporting the court's conclusion that continuing custody with M.W., with whom B.W. had been living since September 2011, was in B.W.'s best interest. The allegations of physical and sexual abuse were deemed unfounded and B.W., when interviewed by the court, advised that his mother had told him to make the accusations. B.W. also expressed the preference to remain with his father. See Palermo v. Palermo, 164 N.J. Super. 492, 499 (App. Div. 1978) (holding while "expressed preference of the child to live with defendant was not controlling[,]" it is one of the factors which may properly influence the trial judge's decision).

Affirmed.

1 M.W.'s proper initials are M.P.W., III.

2 Although the Notice of Appeal states that the July 16, 2012 order is being appealed, F.R. also appeals the April 11, 2012 fact-finding order.

3 M.W. has not participated in this appeal and was not involved in the underlying incident which triggered the Division's involvement.

4 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).

5 The record does not include M.W.'s OTSC, only the May 9, 2011 order which states "no change in custodial relationship." We assume M.W. sought sole custody.

6 G.S. v. Dep't of Human Servs., 157 N.J. 178 (1999).

7 N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009). In G.M., the Court held, following a finding of abuse or neglect, the trial court must conduct a disposition hearing to determine the outcome of the case. Id. at 399.