NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.B.

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This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.B.,

Defendant-Appellant,

and

R.M.,

Defendant.

_______________________________________

IN THE MATTER OF H.M. and S.M.,

Minors.

___________________________________________________________

October 11, 2016

 

Submitted September 27, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-252-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Kylie A. Cohen, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief)

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen Ann Lodeserto, Designated Counsel, Law Guardian, on the brief).

PER CURIAM

Defendant M.B. (defendant) is the mother of twin daughters, H.M. and S.M., who were six years old at the time of the event that lies at the heart of the decision under review. During a two-day evidentiary hearing, the judge heard evidence relating not only to defendant but also R.M. (Rico, a fictitious name), the father of the twins; the Division of Child Protection and Permanency had alleged the conduct of both parents rendered the twins abused or neglected children.1 The judge rejected the Division's claim against Rico,2 but sustained the Division's claim against defendant.

Later in the proceedings, physical and legal custody of the children were returned to defendant and the action dismissed, leading to defendant's appeal now before us in which she argues3

I. THE TRIAL COURT MADE AN IMPROPER CATEGORICAL ASSESSMENT RATHER THAN ANALYZE THE PARTICULAR FACTS BEFORE IT LEADING TO IMPROPER GENERALIZED CONCLUSIONS, AS WELL AS FAILED TO MAKE PROPER CONCLUSIONS IN CONTRAVENTION OF R. 1:7-4(a), AND PROPER TRIAL PROCEDURE WAS NOT FOLLOWED.

II. THE COURT ERRED IN FINDING THAT [THE DIVISION] MET ITS BURDEN AS TO N.J.S.A. 9:6-8.21(c)(4)(b) BECAUSE [DEFENDANT] ADEQUATELY PLANNED FOR HER CHILDREN AND [THE DIVISION'S] FAILURE TO ASSESS HER PLAN IS NOT TANTAMOUNT TO NEGLECT BY [DEFENDANT].

A. THE COURT ERRED AS IT FAILED TO FIND [DEFENDANT] ACTED RECKLESSLY, WHICH IS REQUIRED FOR [THE DIVISION] TO PREVAIL ON AN ALLEGATION UNDER N.J.S.A. 9:6-8.21(c)(4)(b).

B. THE COURT ERRED IN FINDING THAT THE CHILDREN WERE IN IMMINENT DANGER OF BECOMING IMPAIRED OR WERE PLACED AT A SUBSTANTIAL RISK OF HARM AS THE RECORD SHOWS THAT THEIR CARE WAS PLANNED FOR AND NO THREAT TO THEIR WELL-BEING EXISTED.

C. EVEN IF THIS COURT FINDS A SUBSTANTIAL RISK OF HARM AS TO THE TWO CHILDREN, A FINDING OF NEGLECT CANNOT BE MADE AS [DEFENDANT] ACTED REASONABLY IN THE SITUATION, AND ADDITIONALLY, THE TRIAL COURT FAILED TO CONSIDER CASE LAW WHICH HOLDS THAT MERE POOR PLANNING DOES NOT EQUATE TO NEGLECT.

III. THE COURT ERRED IN FINDING THAT [THE DIVISION] MADE STATUTORILY REQUIRED REASON-ABLE EFFORTS TO PREVENT THE PLACEMENT OF THE CHILDREN AS IT DID NOT FOLLOW ITS OWN POLICY PROCEDURES TO ASSESS THE SECOND PARENT AND RELATIVES WHO WERE PRESENTED AS POTENTIAL CARETAKERS FOR THE CHILDREN AND RATHER IT HASTILY AND UNNECESSARILY PLACED THE CHILDREN WITH NON-RELATIVE FOSTER PARENTS.

We agree the evidence does not support the judge's finding that defendant's conduct rendered the children abused or neglected.

The judge found the Division intervened because of a referral about what occurred between this married but separated couple on December 19, 2012. The referral revealed that after Rico arrived at defendant's residence, an argument ensued because of defendant's "suspicions that he was cheating on her." According to the referral, as the couple struggled over a pair of scissors, defendant "grabbed a knife and cut [Rico] causing a deep laceration on his face." The children, as the judge recognized, "were in school at the time." Defendant was arrested and Rico was taken to the hospital.4

The judge canvassed the evidence relating to the parents' plan for the children in this circumstance, noting that defendant was unavailable to care for them because she was in police custody and their father was not immediately available to care for them because of his injuries. According to the judge's written decision, Rico went from the hospital to his current residence, where he lived with his father and another man, and was met by a Division caseworker, who inquired about his plan for the children. Rico stated he could not care for the children at this location and wanted his mother to care for them; she, however, was out of the country. Upon the caseworker's further inquiry, Rico suggested his sister, who soon arrived for that purpose. The caseworker, however, was directed by a supervisor to conduct a Dodd removal5 of the children notwithstanding the sister's availability.

The judge was incredulous about the case against Rico

The Division's position that [Rico] neglected his daughter[s] is without merit. [Rico] was the victim of domestic violence. He was not the custodial parent. He did not plan to be viciously attacked requiring 158 stitches to his face. It is beyond belief that the Division expects this [c]ourt to believe that it would have placed these six-year-old girls in an apartment without doing a background check on the roommate whom the father told the worker that he did not trust. Yet, the caseworker would not allow the children to stay with the aunt until she was vetted by licensing simply because she had executed the D[odd] at the direction of her supervisor who was not present and their attorney.

For these reasons, the judge dismissed the abuse/neglect claim asserted against Rico. As noted earlier, the Division has not appealed that determination.

The following constitutes the judge's entire decision as to the claim against defendant

The Division also seeks a finding that [defendant] placed her children in a situation with a substantial risk of harm by exposing them to instances of domestic violence and by failing to provide adequate supervision under . . . the abuse and neglect statute.

The Division has met its burden as to [defendant]. She was the custodial parent. Her actions placed in motion a set of circum-stances, which led to the children's removal. She alone was responsible for the risk of harm to these young children by assaulting their father and by failing to provide the Division or her children with an alternate plan for their continued care forcing the children to be removed.

[Defendant's] actions causing her arrest constituted a failure to exercise the minimum degree of care required by parents under Title Nine. [Defendant] put her children in a substantial risk of harm by failing to provide them with proper care and supervision as a result of her arrest. Therefore, [the] [c]ourt finds that [defendant] abused and/or [sic] neglected her children under N.J.S.A. 9:6-8.21(c)(4)(b).

We agree that the first aspect of the judge's findings against defendant exposing the children to acts of domestic violence was not supported by the evidence. This type of finding has been the subject of considerable discussion in this court, which we briefly recount. In N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), and later in N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584-85 (App. Div. 2010), we held that the statute's definition might be met in instances where a child has witnessed domestic violence between others, such as the child's parents. See also N.J.S.A. 2C:25-18 (observing that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence"). We have, however, held that "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs." I.H.C., supra, 415 N.J. Super. at 584. What exactly constitutes the "additional proofs" in this context may be understood by comparing these two decisions.

In S.S., supra, 372 N.J. Super. at 22, we found an absence of the necessary additional proof where "[n]o witness stated as a matter of fact that evidence of emotional injury to the [twenty-one-month old] child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty." On the other hand, in I.H.C., supra, 415 N.J. Super. at 584, we found sufficient additional proof where that defendant's three-year old son had become "disturbingly combative and disdainful of adult authority" and that he called women "bitch" and "threaten[ed] to kill his sister with a vacuum cleaner" conduct the experts concluded was "not natural" and "could only be learned conduct" "while in the care of his parents."

The judge here observed that the children were not present on December 19, 2012, when the incident occurred; they were, therefore, not exposed to domestic violence on that occasion. And, if the judge based her determination on some other act or acts of domestic violence, she did not explain what they were with any specificity. Indeed, in rejecting this aspect of the claim against Rico, the judge recognized there was "no corroboration of the children's statement that repeated instances of domestic violence occurred in the home." We are, thus, left with the judge's conclusion that the children were harmed by a single act of domestic violence between their parents that they did not witness. Such a circumstance does not fulfill the meaning and intent of N.J.S.A. 9:6-8.21(c)(4)(b).

We also reject the judge's conclusory finding that defendant "was responsible for the risk of harm to these young children" by failing "to provide the Division or her children with an alternate plan for their continued care" for the same reasons the judge rejected that same claim against Rico. In this regard, we defer to the finding that defendant was the aggressor in the December 19, 2012 domestic violence incident. And it is fair to say that defendant had no contingency plan for her sudden unavailability on that particular day, that her actions caused Rico's unavailability to immediately care for the children in her absence, and that the children's paternal grandmother was unfortunately out of the country. But Rico's sister immediately made herself available and was ready to care for the children until the paternal grandmother's return. Even if defendant had no specific and detailed plan to care for the children upon this unexpected event, surely the presence and availability of Rico's sister belies the conclusion that the children were abused or neglected due to the absence of such a plan. Moreover, it is clear from the judge's findings regarding the Division's claim against Rico that she believed the Division acted precipitously in conducting a Dodd removal in the face of Rico's sister's availability to care for the children until the dust settled, a finding that is certainly supported by the evidence. For these reasons, we conclude that the judge's findings about defendant not only find no support in the factual record but are inconsistent with the findings the judge made in dismissing the action against Rico.

The order under review is, therefore, reversed, and the matter remanded for entry of an appropriate order in conformity with this opinion. We do not retain jurisdiction.


1 N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child as one 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 (b) 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."

2 The Division has not appealed that determination.

3 On behalf of the children, the Law Guardian also seeks reversal of the order under review.

4 The judge's written opinion does not suggest the judge found these circumstances as fact. Instead, the opinion seems to assert only that this is what the referral recounted. Notwithstanding, we assume the judge found defendant attacked Rico with a knife. And we also assume the children were not present at the time; indeed, no one testified to the contrary about the children's absence.

5 Pursuant to legislation sponsored by Senator Dodd, the Division is authorized to take custody of a child on an emergency in order to protect the child's safety. N.J.S.A. 9:6-8.29.


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