NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 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NOT FOR PUBLICATION WITHOUT THE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-6391-11T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF C.C., M.C.

and N.C.,

Minors.

______________________________________

February 14, 2014

Submitted November 18, 2013 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-168-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.C., M.C. and N.C. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

J.C. appeals from a judgment of the Family Part, which found that she had abused or neglected her three children, C.C., M.C. and N.C. For the reasons that follow, we affirm.

I.

The Division s involvement with the family began in 1984, when it received a referral concerning J.C. s three older children, L.M.C., S.L.C. and J.M.C. In June 1988, J.C. surrendered her parental rights to these three children. C.C. was born in 1991. J.C. surrendered her parental rights to another child, A.R.C. in 1992. M.C. was born in 1993, and N.C. was born in 1997. R.K. is the father of C.C., M.C. and N.C.

In 2007, the Division received various referrals that pertained to, among other things, the family s housing, financial instability, lack of proper supervision for the children, educational concerns, and failure to provide adequate medical care to C.C., who had been rendered paraplegic in 2003, when she suffered a stroke during surgery to remove a brain tumor.

The Division referred the family to Family Preservation Services (FPS), which was to provide intensive, short-term services to prevent removal of the children from the home. FPS terminated the services on December 21, 2007. However, FPS reinitiated services a short while later and continued to assist the family until February 2008. The family showed some improvement, and the Division referred the family to FPS for another eight weeks of intervention, beginning in February 2008.

In June 2008, the Division received another referral, alleging that the children were being neglected. The Division determined that the allegations were not substantiated, but the family was in need of services because J.C. had not fully complied with the previously-established case plan. The Division was concerned that the family was only functioning because of the assistance of in-home counselor Judy A. Vliet-Lavin of Catholic Charities' Families First Program.

In September 2008, J.C. and R.K. signed a case plan, in which they agreed to provide the children with a safe home, with no incidents of domestic violence; properly supervise the children at all times; assure that the children s education and medical needs are being met; complete a risk assessment through Catholic Charities; ensure that there would be no contact between the children and K.M., J.C. s new boyfriend; and make certain that the children would have appropriate living and sleeping arrangements.

The Division continued to provide the family with services through December 2008. The family made some progress, but still had financial problems, which placed their housing at risk. In addition, J.C. was unemployed, numerous individuals were coming and going from the home, there were many pets in the residence, and child support was not being paid consistently.

In November 2008, Vliet-Lavin informed the Division that J.C. was not attending to the children s educational needs. In December 2008, Vliet-Lavin again reported concerns about the family s finances, the number of persons coming and going from the home, the children s academic needs, and other issues.

In February 2009, the school district reported that M.C. had a history of absences, only some of which were excused. From September 2008, until early March 2009, M.C. missed school ten days and was late nineteen times. She sporadically attended therapy at a guidance center.

In March 2009, C.C. was admitted to a hospital because she was regressing in her ability to function independently and engage in her daily activities. C.C. was discharged from the hospital the following month, but she was to continue outpatient physical and occupational therapy. Hospital staff was concerned that C.C. was not receiving physical and occupational therapy and there was no follow-through with her exercises at home.

The Division continued to provide services to the family through FPS in April 2008 to March 2009. During that time, J.C. continued to have difficulties with her finances and housing, although the Division provided assistance for heat and telephone service. M.C. s participation in therapy was inconsistent, and C.C. made minimal progress in outpatient rehabilitation.

In April 2009, the Division remained concerned about the family s housing. There were issues regarding the number of pets in the home. The Division also thought that J.C. may be abusing prescription medications. It appeared that J.C. had repeatedly gone to the hospital emergency room and was given prescriptions for Percocet. Vliet-Lavin expressed her concern that the family had not been able to establish or follow through with the services.

On April 13, 2009, the Division filed an order to show cause and complaint in the Family Part, seeking care and supervision of the children. On April 29, 2009, the court determined that placement of the children under the Division s care and supervision was required. In July 2009, the court ordered that the children continue under the Division s care and supervision. In February 2010, after the Division filed an amended complaint, the court ordered that N.C. and M.C. be removed and placed together in a foster home.1

J.C. participated in a forensic psychological evaluation by Dr. F. Guenther. In his report, Dr. Guenther stated that he strongly suspected that J.C. had a personality disorder which made her a high risk parent. Among other things, he stated that J.C. was in dire need of therapeutic intervention.

The Division received additional referrals concerning the family in November 2009, December 2009, and January 2010. On January 8, 2010, the Division prepared another case plan for the family, which addressed various concerns, including the children s educational needs, medical appointments, housing, lack of cleanliness of the home and compliance with services.

In February 2010, FPS issued a report concerning the family s progress. The report stated that the family continued to lack financial stability. FPS noted concerns about the children s educational needs, the lack of follow through with the children s medical appointments, inadequate supervision of the children and problems with cleanliness in the home.

The judge conducted a fact-finding hearing in the matter on several days in March and May 2010. On June 11, 2010, the judge placed his decision on the record, finding by a preponderance of the evidence that J.C. neglected the children by failing to adequately address C.C. s medical needs; neglected M.C. s educational and psychological needs and exposed her to individuals who acted inappropriately towards her; and neglected N.C. s educational needs. The court found that J.C. had not provided appropriate housing for the children, thereby placing them at substantial risk of harm. The judge memorialized these findings in an order dated June 11, 2010.

The court continued to review the matter through July 2012. Previously, M.C. and N.C. were placed with R.K. On July 11, 2012, the litigation was terminated as to N.C. pursuant to a consent order which provided that N.C. would remain under the joint legal custody of the parties, but would remain in R.K. s physical custody.2 J.C. filed a notice of appeal on August 24, 2012.

II.

J.C. argues that there was insufficient evidence for the court s determination that she neglected the three children.

Here, the trial court found that, due to J.C.'s actions or inaction, the three children were "[a]bused or neglected" as those terms are defined in N.J.S.A. 9:6-8.21(c)(4). The statute provides that a child is "[a]bused or neglected " if 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 or guardian, . . . 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; . . .

[Ibid.]

In order to establish that a parent or guardian failed to "exercise a minimum degree of care," the Division must show that the parent or guardian engaged in conduct that is "grossly or wantonly negligent." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Conduct is willful or wanton if engaged in 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)).

Actions taken with reckless disregard of the consequences may be wanton or willful. Ibid. (citing Egan v. Erie R.R. Co., 29 N.J. 243, 254-55 (1959)). "So 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. (citing McLaughlin, supra, 56 N.J. at 305). "[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." Id. at 181 (citing In the Matter of Sellnow v. Perales, 551 N.Y.S.2d 428, 429 (N.Y. App. Div. 1990)).

A trial court's findings of fact are binding on appeal if supported by sufficient 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, 484 (1974)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court should also accord deference to family court fact-finding because of its special jurisdiction and expertise in family matters. Id. at 413.

However, an appellate court owes no special deference to a trial court's interpretation of the law or its determination as to the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). See also N.J. Div. of Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).

J.C. notes that the Division had numerous concerns about her parenting of the children, including her finances, inability to pay for utilities, lack of employment, failure to attend to M.C.'s and N.C.'s academic needs, choice of paramours and their interaction with the children, and inability to attend to C.C.'s medical needs. She contends that, while these concerns are important, they do not rise to the level of gross misconduct required to support a finding of neglect. We cannot agree.

In his decision, the judge reviewed the Division's records and the testimony presented at the hearing. The judge found that the evidence established that J.C. had been "abjectly and clearly" neglectful of all three children "on many levels[.]" The judge stated that J.C.

neglected [C.C.'s] medical needs by refusing to commode and . . . go through necessary trainings for her and keep her clean, by refusing to attend medical appointments for her and on her behalf, by refusing to follow up with the landlord to get the bathroom installed properly on the first level . . of the floor of her home, by humiliating [C.C.] by allowing her to urinate and defecate in her diaper, by humiliating [C.C.] by refusing to allow her to bathe except in a blown up swimming pool in the center of the home.

The judge additionally found that J.C. neglected M.C. by causing her "to fall dangerously behind in her schooling." The judge noted that, were it not for Vliet-Lavin's intervention, M.C. would not have advanced to the next grade in school. The judge also pointed out that J.C. neglected M.C.'s psychological needs by failing to get M.C. to therapy appointments, and by causing her to be fearful about homelessness and the payment of bills.

In addition, J.C. neglected M.C. by exposing her to two of her paramours. One of these individuals was a Megan's Law Tier Two sex offender.3 The judge noted that J.C. knew that the paramour was a sex offender but nevertheless was "defensive" regarding this individual. The judge pointed out that J.C.'s reaction was not what one would expect from a caring mother, and it was "extremely troubling."

The judge also found that J.C.'s other paramour made "sexually inappropriate comments" to M.C., and J.C. refused to deal with this problem. The judge noted that the evidence showed that J.C. signed a case plan, which addressed this issue, but J.C. then placed the child back into the "unfortunate" situation where she was subject to this individual's sexually inappropriate remarks.

The judge also pointed out that the evidence established that M.C. was frustrated with the fighting in the family, and threatened to hurt herself. Vliet-Lavin testified that M.C. told her she did not care if she lived or died. The judge stated that, while teenagers often say "stupid things like that," J.C. did not even have the decency to take M.C. to therapy to deal with "her issues."

The judge further found that J.C. neglected N.C. by causing her to suffer excessive absences from school, by refusing to work with N.C. on her homework so she could move from one grade to another, and by refusing to work with the school so that N.C. would have an appropriate education. As the judge stated in his review of the evidence, J.C. had signed a case plan which required that she report concerning N.C.'s homework to ensure that it was completed. However, J.C. was inconsistent in complying with the plan and, as a result, N.C.'s schooling suffered.

In addition, the judge found that J.C. had neglected all three of the children, by failing to provide them with appropriate shelter, despite assistance from the Division and others, and by refusing to pay "basic bills" for utilities and heat, despite financial assistance. The judge stated that, although J.C. could not be faulted for being poor, that did not justify the filth, the sticky floors in the home, and the fact that the children had been at times "covered with cat urine."4

The judge pointed out that, in the report of his psychological evaluation, Dr. Guenther found that J.C. was not suffering from any cognitive impairment that affected her ability to parent the children. Dr. Guenther reported, however, that J.C. had an average to low I.Q. The doctor stated that J.C. had a personality disorder that made her a high risk parent. He said she required therapeutic intervention.

The judge stated that J.C.'s low I.Q. did not cause J.C.'s parenting difficulties. The cause of those difficulties was J.C.'s "attitude" and her "personality patterns." The judge noted that J.C. had rebuffed the Division's recommendations that she engage in individual counseling.

We are convinced that there is sufficient credible evidence in the record to support the judge's factual findings. We are also convinced that, based on those facts, the judge properly determined that J.C.'s actions regarding the three children amount to a failure to exercise a minimum degree of care, which is neglect under N.J.S.A. 9:6-8.21(c)(4). We reject J.C.'s contention that her actions do not meet the statutory definition of abuse or neglect. The record fully supports the judge's finding that J.C.'s actions regarding these three children were grossly negligent.

Affirmed.

1 C.C. reached the age of eighteen in July 2009, and therefore she was not included as a party in the amended complaint.

2 It appears that M.C. had reached the age of nineteen. She asked that the litigation remain open and the court schedule a further proceeding in the matter in September 2012.

3 Under Megan's Law, community notification is provided regarding convicted sex offenders, depending on the level of risk of re-offense. Doe v. Poritz, 142 N.J 1, 22 (1995). A Tier Two sex offender is one who poses a moderate risk of re-offense. Ibid. (citing N.J.S.A. 2C:7-8(c)(2)).

4 In his decision, the judge noted that he had questioned M.C., who told him the family had numerous pets. Although the number fluctuated, at times the family had up to fifteen cats in the home. According to M.C., the family also had other pets including three dogs and three birds. She said the house was infested with fleas.