NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.P.

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                        NOT FOR PUBLICATION WITHOUT THE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-1545-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

A.P.,

        Defendant-Appellant,

and

J.C.,

     Defendant.
______________________________

IN THE MATTER OF A.C. and J.C,

     Minors.
_______________________________

              Argued March 6, 2018 – Decided March 16, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-0238-16.

              Beatrix W. Shear, Designated Counsel, argued
              the cause for appellant (Joseph E. Krakora,
            Public Defender, attorney; Beatrix W. Shear,
            Designated Counsel, on the briefs).

            Monisha A. Kumar, Deputy Attorney General,
            argued the cause for respondent (Gurbir S.
            Grewal, Attorney General, attorney; Andrea M.
            Silkowitz, Assistant Attorney General, of
            counsel; Monisha A. Kumar, Deputy Attorney
            General, on the brief).

            Todd Wilson, Designated Counsel, argued the
            cause for minors (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Todd Wilson,
            on the brief).

PER CURIAM

     In this appeal, Defendant A.P. seeks reversal of the April

13, 2016 Family Part order finding she abused or neglected her

children, Jason and Ashley1, within the meaning of 
N.J.S.A. 9:6-

8.21(c).2    In   that   order,   the   trial   court   found   defendant


1
   We refer to the children by pseudonyms for anonymity and ease
of reference.
2
    Defendant's notice of appeal states she appeals from an order
entered on November 4, 2016; however, that order only terminated
the Title 9 litigation filed by the Division of Child Protection
& Permanency (Division). Based upon defendant's brief, she clearly
intended to appeal from the April 13, 2016 adverse fact-finding
order.    Since all counsel fully briefed the issue defendant
intended to raise, we exercise our discretion and consider
defendant's challenge to the April 13, 2016 order. But see W.H.
Indus., Inc. v. Fundicao Balancins, Ltda, 
397 N.J. Super. 455, 458
(App. Div. 2008) ("It is clear that it is only the orders
designated in the notice of appeal that are subject to the appeal
process and review.").




                                    2                             A-1545-16T3
educationally neglected her children by failing to send them to

school or provide them with an equivalent education.3    We affirm.

                                   I

                  A.   Referral and Investigation

     On August 10, 2015, the Division received a referral alleging

defendant   educationally    and   environmentally   neglected   her

children.   The Division attempted to investigate, but found the

parents uncooperative.      The father reported the children last

attended school three years ago and were currently home-schooled.

Defendant initially refused to allow Division workers to speak to

the children.   She transported them to Georgia temporarily and

then lied about enrolling them in school there.

     On September 22, 2015, a Division worker finally met with

defendant and the children.     Defendant stated she home-schooled

the children and they had a set curriculum, but provided no lesson

plan.   She claimed she taught them math, language arts, religious

studies, cooking, and gym, and showed the worker a Triumph Learning

Common Core Coach book.     Defendant stated Jason did not have a

learning disability.   Defendant also stated she and the children's

father separated and she did not intend on returning to his home.




3
    The court found both parents educationally neglected their
children; however, only defendant — the mother — appealed.

                                   3                        A-1545-16T3
     The Division worker also spoke with Ashley that day.     Ashley

was eleven years old at that time.        Ashley first stated she

attended school, but then stated defendant home-schooled her.     She

said she was in eighth grade.     Ashley stated she studied math,

science, and English; when asked what type of math, she replied

"time tables."    When the worker asked to see her books, Ashley

provided a coloring book.    She could not provide math or English

books.   Ashley also provided a folder of work, but the work was

not recent.

     The worker then spoke with Jason, who was nine years old at

that time.    Jason stated defendant home-schooled him.   When asked

to sing the alphabet, he made some mistakes.   When asked to count

to thirty, he also made some mistakes.   When asked to add ten plus

two, he answered "six."     He could not write his last name.     The

worker advised defendant that Jason may need an evaluation.         At

the end of the September 22, 2015 meeting, defendant signed a

Family Agreement stating she would enroll the children with a

school district in order to have them evaluated.

     On October 5, 2015, the Division followed up with defendant

and learned she had not yet registered the children in any school.

The Division informed defendant that if she did not register the

children with the local board of education, the Division would

likely petition the court for care and supervision.

                                  4                          A-1545-16T3
       The Division's Investigation Summary stated, "The children

are safe at this time"; however, it also stated, "The children's

well-being is compromised due to their lack of education."                    In the

report's summary of conclusions, the Division listed defendant's

lack    of    cooperation         and    the   children's     delayed    educational

development as aggravating factors.                    The Division substantiated

defendant for educational neglect but not environmental neglect.

                             B.    Fact-Finding Hearing

       On April 13, 2016, the Family Part held a fact-finding hearing

regarding       the    Division's         substantiation       of    defendant    for

educational neglect.              The Division presented its Investigation

Summary      report    and    one       witness,   a   Division     supervisor,   who

essentially testified to the facts summarized above.                       Defendant

declined to testify or submit any evidence. The parties stipulated

that at the time of the hearing, the children were enrolled in

school, and that Ashley was in fifth grade and Jason in fourth

grade.

       During    its     closing         argument,      the   Division     asserted,

apparently for the first time, that 
N.J.S.A. 18A:38-31 — a truancy

statute — mandates parents either send their children to school

or provide an equivalent education.                    The Division further cited

State v. Vaughn, 
44 N.J. 142 (1965), and State v. Massa, 95 N.J.



                                               5                             A-1545-16T
3 Super. 382 (Law Div. 1967), regarding the meaning of an equivalent

education under the truancy statute.

     The court considered the truancy statute and related cases;

however, the court emphasized several times those were criminal

cases, not abuse and neglect cases.                    At the conclusion of the

hearing,   the    court      found     "the      Division       has    proven       by   a

preponderance     of   the   evidence          that    the    [d]efendants      .    .   .

educationally neglected their children and have failed to exercise

a minimum degree of care in supplying their children with education

. . . ."

                                        II

     Defendant argues we should reverse the trial court's finding

of abuse and neglect, asserting the Division failed to prove

educational      neglect     by    a   preponderance           of     the   evidence.

Specifically,     defendant       argues       the    trial   court    impermissibly

relied on 
N.J.S.A. 18A:38-, a criminal truancy law, and shifted the

burden of producing evidence to defendant.                    We disagree.

     In general, we do not disturb the trial court's factual

findings on appeal when they are supported in the record with

substantial, credible evidence.            Rova Farms Resort, Inc. v. Inv'rs

Ins. Co. of Am., 
65 N.J. 474, 483-84 (1974).                        We must give due

regard to the trial judge's credibility determinations and "'feel'

of the case" based upon the opportunity of the judge to see and

                                           6                                    A-1545-16T3
hear the witnesses.      N.J. Div. of Youth & Family Servs. v. M.M.,


189 N.J. 261, 293 (2007) (quoting State v. Johnson, 
42 N.J. 146,

161 (1964)).    Given the Family Part's special expertise, appellate

courts   accord   particular   deference   to   fact-finding    in    family

cases, and to the conclusions that logically flow from those

findings.    Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

     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 [or her] parent or guardian
            . . . to exercise a minimum degree of care
            . . . 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 . . . .

            [
N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]

     "[T]he phrase 'minimum degree of care' refers to conduct that

is   grossly      or   wantonly   negligent,    but   not      necessarily

intentional."      G.S. v. N.J. Div. of Youth & Family Servs., 
157 N.J. 161, 178 (1999).      A parent or 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.




                                    7                                A-1545-16T3
     
N.J.S.A. 18A:38-25 sets forth the duty of every parent to

provide an education to his or her child:

          Every parent, guardian or other person having
          custody and control of a child between the
          ages of six and [sixteen] years shall cause
          such child regularly to attend the public
          schools of the district or a day school in
          which there is given instruction equivalent
          to that provided in the public schools for
          children of similar grades and attainments or
          to receive equivalent instruction elsewhere
          than at school.

A parent who fails to comply with the attendance requirements

"shall be deemed to be a disorderly person . . . ."         
N.J.S.A.

18A:38-31.

     In order to initiate a truancy complaint, the State need only

make an allegation of a violation of 
N.J.S.A. 18A:38-25.       State

v. Vaughn, 
44 N.J. 142, 147 (1965).   The burden of production then

shifts to the defendant to introduce "evidence from which it could

be found that a child attends a day school in which equivalent

instruction is given, or that the child is receiving equivalent

instruction elsewhere than at school."     Ibid.   "If there is such

evidence in the case, then the ultimate burden of persuasion

remains with the State . . . ."   Ibid.   The Court reasoned "if the

burden of proving a violation of [providing equivalent instruction

elsewhere] rests upon the State, it would be saddled with a fairly

impossible task, for it would be obligated to prove a negative


                                  8                          A-1545-16T3
proposition in circumstances in which the area of disproof is

extremely wide."    Id. at 146.

     Our   courts   have   specifically   recognized   the   failure    to

provide an education as a form of abuse and neglect under Title

9.   See, e.g., N.J. Div. of Youth & Family Servs. v. M.W., 
398 N.J. Super. 266, 285-86 (App. Div. 2008) (noting a parent had

harmed her children through educational neglect, among other forms

of abuse, because she had left them with her cousin who locked

them in a basement for an extended period of time and deprived

them of beds, food, a toilet, and the physical ability to attend

school).   Our Supreme Court also linked truancy to child neglect

in finding "[t]he reference to education contained in 
N.J.S.A.

9:6-8.21(c)(4)(a) concerns parental encouragement to truancy of a

school age child, or other interference with normal educative

processes."   Doe v. Downey, 
74 N.J. 196, 199 (1977) (quoting Doe

v. G.D., 
146 N.J. Super. 419, 431 (App. Div. 1976)) (holding a

pre-school age child's lack of education is not educational neglect

under 
N.J.S.A. 9:6-8.21).

     Accordingly, in order to satisfy the "minimum degree of care"

under 
N.J.S.A. 9:6-8.21 for educational care, a parent or guardian

must meet the statutory requirements of 
N.J.S.A. 18A:38-25.          That

is, a parent educationally neglects a child when he or she fails

to "cause [a school-aged] child regularly to attend the public

                                   9                             A-1545-16T3
schools . . . or a day school . . . or to receive equivalent

instruction elsewhere than at school."           See 
N.J.S.A. 18A:38-25.

     The burden-shifting of 
N.J.S.A. 18A:38-25 is also applicable

in proving educational neglect under 
N.J.S.A. 9:6-8.21.              Namely,

the parent has the burden of production to prove the child is

enrolled in private school or "receive[s] equivalent instruction

elsewhere than at school."         
N.J.S.A. 18A:38-25.      Once the parent

meets the burden of production, the burden of persuasion then

shifts to the Division, so the ultimate burden of persuasion

remains with the Division.     See Vaughn, 
44 N.J. at 142 (explaining

the burden shifting under 
N.J.S.A. 18A:38-25).

     Here, defendant failed to meet the burden of production.                She

failed to present any testimony or other evidence of school

enrollment for the children or that they received "equivalent

instruction   elsewhere     than    at    school."     
N.J.S.A.   18A:38-25.

Parents   cannot   simply   declare       they   are   home-schooling     their

children; they must provide some minimum level of proof. Defendant

told the Division she home-schooled the children; however, she

produced no lesson plan or curriculum for the children. The record

shows the children did not attend school for at least three years

and academically suffered, as evidenced by their inability to

complete the most basic educational tasks. Defendant was generally

evasive toward the Division, lied to the Division, and failed to

                                     10                                 A-1545-16T3
register the children with the local school district until the

Division obtained care and custody.

     Applying our deferential standard of review to the trial

court's factual findings, as well as to the relevant law, we are

satisfied the trial judge's determination of educational neglect

was evidentially and legally sound.   We therefore affirm the trial

court's decision.

     Affirmed.




                               11                           A-1545-16T3