DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only 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

A-1776-14T3

A-1777-14T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.J., R.J., and j.m.,

Defendants-Appellants.

___________________________

IN THE MATTER OF C.M.

and B.M., minors.

___________________________

December 2, 2016

Submitted October 25, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-60-14.

Joseph E. Krakora, Public Defender, attorney for appellant J.J. (Kimmo Z. H. Abbasi, Designated Counsel, on the brief in A-1775-14).

Joseph E. Krakora, Public Defender, attorney for appellant R.J. (Howard Danzig, Designated Counsel, on the brief in A-1776-14).

Joseph E. Krakora, Public Defender, attorney for appellant J.M. (John A. Albright, Designated Counsel, on the brief in A-1777-14).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Joseph H. Ruiz, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, J.M. (Jerry)1, the father, and J.J. (Janet) and R.J. (Rhonda), paternal aunts, appeal from an October 2, 2013 order finding that they abused or neglected two sixteen-year-old sons of Jerry by sometimes locking the children out of their home and not providing them with proper shelter, food, or clothing. We affirm because the findings of abuse or neglect are supported by substantial credible evidence.

I.

The facts were established at an evidentiary hearing. The children, C.M. (Chris) and B.M. (Brian), are twins and they were born in October 1996. Jerry is the biological father of both children. The mother, E.M. (Evelyn), lives in St. Vincent and has not had custody of the children since 2011, when the children moved to the United States to live with their father.2

Since approximately September 2012, Jerry and his sons have lived in an apartment in Paterson with Jerry's mother, S.J. (Sally), Sally's husband, Janet, Rhonda, and the children of Janet and Rhonda. Jerry has a wife and child in New York and he often visited his other family. He also worked at night and he had a pending criminal case in New York. As a consequence, Jerry did not always stay at the apartment in Paterson and he was often absent at night. Jerry told a worker for the Division of Child Protection and Permanency (Division) that when he was away from Paterson, his sons were entrusted to the care of their grandmother and adult aunts.

On July 31, 2013, the Division received a referral concerning Chris and Brian from a counselor at their school. Chris had told the counselor that he and Brian had been locked out of their home and had slept in the hallway outside the apartment. Chris also expressed concern that he and Brian might be locked out of the apartment again and they might not be given anything for dinner.

A Division worker responded and interviewed both Chris and Brian. The boys reported that they resided with their father, grandmother, grandmother's husband, aunts, and the aunts' children. They explained that they did not get along well with their father's family and that, when their father was not home, they were not always let into the apartment if they arrived after 5 p.m. For example, they described an incident where they arrived at the apartment after 5 p.m., knocked on the door, heard people inside in the living room, but no one let them in the apartment. On the nights that they were locked out, the boys would either sleep over at friends' homes or sleep in the hallway outside the apartment. The boys also reported that when their father was not home, sometimes they were not allowed to eat anything.

After interviewing the boys, the Division worker called Jerry. Jerry explained that when he was away from the apartment in Paterson, his plan for his sons was that they would stay with their grandmother at the apartment where the boys regularly resided. Jerry also acknowledged that he was aware that his mother and sisters did not want his sons staying with them and did not properly care for his sons. Jerry explained that he was currently in New York and he could not come to New Jersey to care for his sons. Moreover, Jerry could not suggest a plan for his sons and, instead, he recommended that the boys should be "placed" with the Division.

After speaking with Jerry, Division workers went to the apartment and spoke with Sally, Janet, and Rhonda. The grandmother and aunts expressed frustration with the boys, explaining that they did not listen or follow rules. They all denied locking the boys out of the apartment. The grandmother and aunts also denied having any responsibility to care for the boys. Finally, they all informed the Division workers that they did not want the boys staying with them at the apartment.

Based on what the workers had learned, the Division decided to remove the boys from the apartment and place them in foster care. Several days later, on August 2, 2013, the Division filed a complaint for the custody, care and supervision of Brian and Chris. In the complaint, the Division named Jerry, Sally, Janet, Rhonda, and Evelyn as defendants. 3 Following a hearing, the Family Part granted the Division custody of the children. Thereafter, the Division attempted to work with Jerry to develop a plan for his sons, but he was not very cooperative. Thus, the children remained in foster care.

On October 2, 2013, a fact-finding hearing was held. All parties appeared with counsel, including Evelyn who appeared telephonically with counsel present in the courtroom. The Division presented testimony from three witnesses: the school counselor and two Division workers. Sally and Rhonda also testified. The Division also submitted a number of exhibits into evidence.

After considering the evidence, the Family Part judge issued an order finding that Jerry, Sally, Janet, and Rhonda had abused or neglected Brian and Chris. The judge explained his decision in an oral opinion. He found that there were "times" when Chris and Brian were not permitted inside the apartment. The judge also found that such lock outs placed the children in jeopardy because the boys were not provided with proper shelter, food, or clothing.

With regard to Jerry, the judge found that Jerry had entrusted the care of his children to his mother and sisters when he was not present. Jerry knew, however, that his mother and sisters were not properly caring for his sons and he failed to make alternative plans for his children.

Relying on N.J.S.A. 9:6-2, the judge found that the grandmother and aunts had a responsibility to care for and protect Brian and Chris as caretakers because they resided with the children in one home. The judge then found that the grandmother and aunts had abused or neglected the children by not allowing them into the home at certain times. Specifically, the judge found that they each knew what was going on in the home, but they "did nothing about it."

Following the fact-finding hearing, the Family Part ordered the children to remain in the physical and legal custody of the Division. Thereafter, the Family Part conducted compliance reviews. The litigation was terminated on October 31, 2014, because Brian and Chris had reached the age of eighteen years.

Jerry, Janet, and Rhonda filed separate appeals. We consolidated those three appeals. Sally did not file an appeal.

II.

On appeal, Jerry argues that the Family Part erred in finding abuse or neglect because (1) there was no proof of any harm to the boys from being locked out of the home; (2) he was not financially able to provide better or alternative shelter, food, or clothing and the Division did not attempt to assist him; and (3) the judge precluded testimony of Jerry's efforts to make arrangements for the children after their removal and, thus, it was a violation of his due process rights to find that he abused or neglected his children by failing to make such arrangements. Janet and Rhonda both argue that there was insufficient evidence to establish that they abused or neglected the children and that neither of them had legal responsibility for the care of the children.

The Division opposes all of these appeals and argues that the fact findings are supported by substantial credible evidence in the record. The Law Guardian, who represents Brian and Chris, also argues that the finding of abuse or neglect against Jerry, Janet, and Rhonda should be affirmed.

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 defer to the judgments of the Family Part if those findings are "supported by adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision should be reversed or modified on appeal only if the findings were "so wholly un-supportable as to result in a denial of justice." Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014).

Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the "health and safety" of children. N.J.S.A. 9:6-8.8(a) and (b). Abuse or neglect occurs when

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 or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter . . . though financially able to do so . . . or (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.

[N.J.S.A. 9:6-8.21(c)(4)(a) and (b).]

The statute does not require that the child experience actual harm. See N.J.S.A. 9:6-8.21(c)(4)(b); see also Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (stating that a court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect" (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999))). Instead, a child can be considered abused or neglected if his or her "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus of the court's evaluation is to ensure the safety of the child. N.J.S.A. 9:6-8.8(a).

Our Supreme Court has held that the abuse or neglect standard is satisfied when the Division demonstrates that a parent or guardian "has failed to exercise a minimum degree of care." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was "grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Wanton negligence is conduct that was "done with the knowledge that injury is likely to . . . result." Ibid. A parent's or guardian's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. Id. at 179. Moreover, a parent or guardian can be "liable for the foreseeable consequences of [his or] her actions." Ibid.

The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by considering "the totality of the circumstances." Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 401 (App. Div. 2014).

A. Abuse or Neglect by Jerry

Based on the evidence presented at the hearing, the Family Part judge found that there were a number of "times" when Brian and Chris were locked out of the apartment in Paterson. Jerry acknowledged that he was often not home at night. His mother and sisters did not want his sons in their apartment and did not properly care for his sons when he was not home. Further, he wanted the Division to "keep [the boys]" and "place them in a safe space." Those facts support the Family Part judge's finding that Jerry failed to exercise a minimum degree of care in providing his sons with shelter. Jerry, as the father, was responsible for his children, but he failed to ensure that the children were properly cared for when he was not home.

Jerry contends that the boys suffered no actual harm and they faced no imminent danger of harm. The judge, however, found that the children were "placed in jeopardy" when they were not allowed into the apartment. That finding is supported by substantial credible evidence. Both boys reported that there were times that they slept in the hallway outside the apartment when they were locked out. The Division also presented evidence that the apartment was located in a dangerous area. Indeed, the grandmother testified that the apartment door was always locked because she lives in a dangerous neighborhood. Thus, when the boys were locked out, they were in imminent danger of suffering harm.

Jerry also argues that he should not be held responsible because he did not have the financial means to find alternative shelter for his children. Although Jerry had limited financial resources, he had the ability and obligation to speak with his mother and sisters to ensure that they treat his children properly when he was not present. Thus, it was not Jerry's poverty or lack of financial resources that created the circumstances of his abuse or neglect. Instead, it was Jerry's wanton indifference to the welfare of his children that gave rise to the finding of abuse or neglect.

Finally, Jerry contends that the Family Part judge erred when he precluded him from presenting evidence about his efforts to make arrangements for his sons after they were removed, but then found that Jerry failed to make such arrangements. We agree. At the hearing, the judge precluded Jerry from presenting evidence concerning efforts he made after the children were removed. As a consequence, the judge should not have found that Jerry abused or neglected his sons by failing to make arrangements for the children after their removal.

Nevertheless, even without the additional finding of abuse or neglect based on the effective abandonment of the children after their removal, there is still substantial credible evidence that Jerry abused or neglected his sons before they were removed by the Division. Thus, while the record does not support the finding that Jerry abused or neglected his children by failing to make arrangements for them after their removal, the record does support a finding of abuse or neglect based on his actions and inactions before the children were removed.

B. Abuse or Neglect by Janet and Rhonda

"The person having the care, custody or control of any child" shall include "any person with whom a child is living at the time the offense is committed." N.J.S.A. 9:6-2. Courts have construed N.J.S.A. 9:6-2 to mean that an adult living in the home at the time an act of abuse or neglect is committed shall be deemed to be a parent or guardian for the child. State v. Galloway, 133 N.J. 631, 659 (1993); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010).

Here, the evidence established that Janet and Rhonda lived with Brian and Chris for approximately one year. The grandmother testified that the boys had lived with her since September 2012. Ronda and Janet were also living at the same apartment with their children. Thus, the living arrangements were not temporary. Janet and Rhonda, as adult paternal aunts, were living as family members with Brian and Chris.

Moreover, the evidence demonstrated that Rhonda and Janet had assumed the role of caretakers for the children. Although Janet and Rhonda both argue that they never assumed legal responsibility for the children, they were living in the same home and Jerry stated that he had entrusted the boys to the care of his mother and sisters when he was not present.

There was also substantial credible evidence that the children were deprived of shelter and put at imminent risk of serious harm because of the actions and inactions of Janet and Rhonda. As previously noted, the Family Part judge found that there were several times when Brian and Chris were locked out of the apartment. The boys reported that on the nights that they were locked out, their grandmother and aunts were home, but refused to open the door. Neither Rhonda nor Janet contested that they were present at the apartment on the nights that the boys were locked out of the apartment. As a consequence, there was substantial credible evidence that Rhonda and Janet put the children in imminent risk of harm.

Affirmed.

1 We use fictitious names for the family members to protect privacy interests. See R. 1:38-3(e); see also R. 5:12-4(b).

2 Evelyn was named as a defendant in the proceedings, but only appeared telephonically since she resides abroad. The Family Part ultimately made no fact findings against her.

3 As noted earlier, the Division never made any allegations of abuse and neglect against Evelyn and the Family Part did not make any findings against her.