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

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1766-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

J.B.,

Defendant-Appellant,

and

D.G.,

Defendant.

IN THE MATTER OF M.B.,

a minor.
———————————————————————————————————

Submitted May 8, 2018 – Decided May 16, 2018

Before Judges Yannotti, Carroll and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FN-20-0010-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Ifeoma A. Odunlami, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney;
Jason W. Rockwell, Assistant Attorney General,
of counsel; Tarabeth LeFurge, Deputy Attorney
General, on the brief.

Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Melissa R. Vance,
Assistant Deputy Public Defender, on the
brief.

PER CURIAM

Defendant J.B. appeals from an order entered by the Family

Part on February 3, 2015, finding she abused or neglected her

minor child, M.B. The Law Guardian supported the finding in the

trial court and, on appeal, joins the New Jersey Division of Child

Protection and Permanency (Division) in urging us to affirm.

Having reviewed the record in light of the contentions advanced

on appeal, we affirm.

By way of background, J.B. became known to the Division on

October 7, 2011, when at around midnight, the Rochelle Park police

reported that J.B. and then two-year-old M.B. were in the lobby

of a local hotel, and apparently had no place to go. The Division's

worker investigated the referral, and attempted to provide J.B.

with assistance. The following day, after additional efforts to

find housing for J.B. and M.B. were unsuccessful, the Division

removed the child from J.B.'s custody and care.

2 A-1766-16T3
On October 12, 2011, the Division filed a verified complaint

and order to show cause, pursuant to
N.J.S.A. 9:6-8.21 and
N.J.S.A.

30:4C-12, seeking the custody, care and supervision of the child.

In February 2012, the court conducted a fact-finding hearing to

determine whether J.B. had abused or neglected M.B. The judge

found that M.B. was an abused or neglected child, as those terms

are defined in
N.J.S.A. 9:6-8.21(c)(4), because J.B.: failed to

use available resources to maintain appropriate housing; did not

immediately seek welfare's assistance in having her utilities

turned back on; decided to leave Paterson, where social service

agencies were available to her; failed to secure appropriate food

and necessities for the child, even though she had available

resources to do so; did not adequately supervise the child; failed

to properly clothe two-year-old M.B. even though she had clothes

for her; and did not provide appropriate information about family

resources to the Division's representatives.

The judge noted there were no signs of physical abuse, such

as scars or marks, and the child appeared well when the Division's

workers saw her. The judge determined, however, that J.B. had

placed the child at risk of harm. The judge accordingly entered

an order dated February 9, 2012, finding J.B. had abused or

neglected the child. J.B. appealed, and we affirmed in an

3 A-1766-16T3
unpublished opinion. N.J. Div. of Child Prot. & Permanency v.

J.B., No. A-2761-12 (App. Div. June 18, 2014) (slip op. at 10).

J.B. complied with services, including a Mentally Ill,

Chemically Addicted (MICA) treatment program. On January 3, 2013,

the court dismissed the litigation after M.B. was returned to

J.B.'s custody and the court found the conditions requiring M.B.'s

removal had been remediated.

On December 11, 2013, the Division was advised that J.B. set

fire to her home and was psychiatrically hospitalized. J.B.

arranged for M.B. to be cared for by a maternal aunt, J.M., while

J.B. was in the hospital.

Following J.B.'s release from the hospital, on December 24,

2013, the Division received a referral from the Roselle Police

Department reporting that M.B. was walking around unclothed and

unsupervised. J.B. advised she left M.B., who was napping, with

her eleven-year-old brother while she went to buy cigarettes.

As a result of these December referrals, J.B agreed to engage

in substance abuse counseling and medication monitoring. J.B.

also continued to receive mental health services and was assigned

a Catholic Charities' Integrated Case Management Services (ICMS)

worker.

4 A-1766-16T3
II.

The present appeal arises out of an incident that occurred

on July 3, 2014. The Division received a referral from ICMS that

J.B. was having mental health issues and "acting bizarre." J.B.'s

ICMS case manager, Laryssa Lukiw, reported that J.B. "did not look

good" and she had found J.B. "having a conversation with herself"

and "laughing and crying" repeatedly for "no reason." Lukiw

informed the Division that J.B. was diagnosed with bipolar

disorder, was not taking care of herself, was not feeding M.B. or

herself, and there was little food in the home. Lukiw further

advised that J.B. would be taken to Trinitas Hospital, and although

there was another "family member at the home, . . . she [was] not

willing to take the child without receiving money from [the

Division]."

Division caseworkers responded to the home where they met

with Lukiw and J.M. and observed M.B. J.M. also advised that J.B.

suffered from bipolar disorder, and she had stopped taking her

medication eight months earlier. J.M. visited the home daily to

make sure J.B. and M.B. were "doing okay." The workers observed

that the home was unkempt and disorganized, there was rotten food

on the floor, and there was limited food, including rotten milk,

in the refrigerator. The workers were unable to find any of M.B.'s

clothes in the home, and J.M. reported J.B. "had stop[ped] cleaning

5 A-1766-16T3
her house a couple of months ago." The Division conducted an

emergency removal and placed M.B. in J.M.'s care.

Division workers met with J.B. at Trinitas Hospital on July

8, 2014. The workers observed that J.B. appeared to be coherent,

in good spirits, and respectful. J.B. admitted she was talking

and laughing hysterically five days earlier. When questioned

about the allegation that she was rolling on the grass, J.B.

responded, "What? I can't have a picnic now?" J.B. further

admitted she had not been taking her medication or attending

therapy for her mental health problems. J.B. stated she relied

on J.M., a Division worker, and Lukiw for food and a phone. She

also reported, "I neglect myself, but not [M.B.]."

The Division filed a verified complaint and order to show

cause seeking custody, care, and supervision of M.B. On July 8,

2014, the court approved the Division's removal of M.B. and granted

the Division temporary custody of M.B. due to J.B.'s mental health

issues and hospitalization. The court continued custody of M.B.

with the Division at the return of the order to show cause on July

31, 2014.

On October 1, 2014, a case management review hearing was held

and the court was notified that J.B. had been discharged from

mental health treatment, but failed to follow through with

aftercare. She had obtained and then lost employment, and admitted

6 A-1766-16T3
to her caseworker and ICMS worker that she "had been off her

medication for a few days." The court ordered J.B. to attend

mental health treatment, and visitation was to be allowed "on a

liberal basis," but "supervised by the caretaker." On December

15, 2014, it was reported that J.B. was "doing well," in her

treatment and was participating in supervised visits with M.B.

The fact-finding trial took place on February 3, 2015. Three

witnesses testified for the Division: Division intake worker

Maritza Gill, Division supervisor Olivia Yearns, and ICMS case

manager Lukiw. Prior to the start of the hearing, Lukiw testified

that she attempted to bring J.B. to court that day, but J.B.

refused to attend. Lukiw explained she worked with the "very

mentally ill," and she provided services to J.B. at least once a

week. She planned on serving as J.B.'s "social support" during

the hearing. With the consent of all counsel, the trial proceeded

in J.B.'s absence.

Gill testified with respect to the July 3, 2014 incident that

resulted in M.B.'s removal. Lukiw called Gill from J.B.'s home

and reported that on her arrival she found J.B. "talking to

herself. She was crying, laughing hysterically and repeatedly for

no reason." It also appeared to Lukiw that J.B. "was not taking

care of [M.B.'s] hygiene and that she was not feeding [M.B.]."

7 A-1766-16T3
Gill responded to the home where she met with other Division

workers who advised that M.B. was taken to "Trinitas Hospital due

to the fact that she had a mental health breakdown." Gill observed

that M.B. "appeared to be healthy . . . and that she was fed."

J.M. agreed to care for M.B., "but she said she was not going to

do it without the Division assisting her financially."

Photographs taken by Gill depicting the dirty and messy

conditions inside the home were admitted in evidence at the

hearing. Gill also recounted the details of her July 8, 2014

meeting with J.B. at Trinitas Hospital. At the conclusion of the

investigation, the Division substantiated J.B. for neglect

"[b]ecause there was no food in the house and because [of] her

mental health."

Yearns testified regarding the Division's involvement with

the family, including the October 2011 incident that led to the

prior finding of abuse and neglect, and the two December 2013

referrals. Due to those referrals, J.B. was supposed to be

complying with substance abuse counseling, medication monitoring,

and mental health services. However, as of July 2014, when M.B.

was again removed from the home, J.B. was not compliant with any

of those services.

According to Yearns, in August 2014, the Division referred

J.B. for a psychological evaluation and another substance abuse

8 A-1766-16T3
evaluation. J.B. was also required to continue with services that

were already in place with ICMS. However, J.B. did not attend

mental health services and was non-compliant with two substance

abuse programs despite efforts by the Division to assist J.B. with

those services.

At the conclusion of the hearing, the trial judge found the

Division satisfied its burden of demonstrating that M.B. was an

abused or neglected child pursuant to
N.J.S.A. 9:6-8.21(c)(4).

The judge found a continued pattern of J.B.'s lack of compliance

with services put into place to assist her, both before and after

M.B.'s July 2014 removal from the home. The judge noted the

importance of the December 2013 referrals, which "dovetail[ed]

into the July 2014 referral." Specifically, the judge found "[a]t

the time of the July 2014 referral, services were already being

attempted, and they were ignored and rejected by [J.B.]" and that

J.B. "ignored the services [and] that put her in position in July

[2014] to be inadequately prepared to be a parent." The "bottom

line," according to the judge, was that as a result of J.B.'s lack

of compliance with services, "the child wasn't properly attended

to."

Thereafter, the trial court held permanency hearings and

compliance reviews on May 13, August 19, and October 26, 2015, and

on January 27, April 20, and July 20, 2016. On August 15, 2016,

9 A-1766-16T3
the court rejected the Division's permanency plan, which included

the termination of J.B.'s parental rights followed by adoption.

However, on September 13, 2016, the court approved the Division's

permanency plan, which included the termination of J.B.'s parental

rights, stating: "we've reached a point . . . where I think it's

in the best interest of [M.B.] . . . to move forward with some

planning that would include . . . terminating parental rights."

On November 1, 2016, the Division filed a guardianship

complaint. On November 9, 2016, the judge terminated the

protective services litigation at the request of the Division.

This appeal followed.

III.

J.B. argues that M.B. was not actually harmed, and that the

Division failed to present sufficient evidence to prove the child

was at substantial risk of harm. She further contends the trial

judge improperly relied on N.J. Div. of Child Prot. & Permanency

v. M.C.,
435 N.J. Super. 405 (App. Div. 2014), in finding abuse

or neglect. Finally, she argues the court should have dismissed

the Title Nine action and continued the case under Title Thirty.

We do not find these arguments persuasive.

We begin with a review of the applicable legal principles

that guide our analysis. The Division brought this case under

Title Nine,
N.J.S.A. 9:6-8.21 to -8.73. Title Nine sets forth the

10 A-1766-16T3
controlling standards for abuse and neglect cases. N.J. Div. of

Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 31 (2011). Title

Nine's main precept is to protect children from circumstances and

actions that threaten their welfare. G.S. v. Dep't of Human

Servs.,
157 N.J. 161, 176 (1999) (citing State v. Demarest,
252 N.J. Super. 323, 331 (App. Div. 1991)).

A fact-finding hearing must be held to determine whether a

child is abused or neglected.
N.J.S.A. 9:6-8.44. An abused or

neglected child is one who is less than eighteen years of age and

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 or guardian, as herein defined,
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[.]

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

"[A]ny determination that the child is an abused or neglected

child must be based on a preponderance of the evidence and . . .

only competent, material and relevant evidence may be admitted."

N.J.S.A. 9:6-8.46(b). While the Division must demonstrate "the

probability of present or future harm" to the child, "the court

'need not wait to act until a child is actually irreparably

11 A-1766-16T3
impaired by parental inattention or neglect.'" N.J. Div. of Youth

& Family Servs. v. S.S.,
372 N.J. Super. 13, 24 (App. Div. 2004)

(quoting In re Guardianship of DMH,
161 N.J. 365, 383 (1999)).

A minimum degree of care, as required by
N.J.S.A. 9:6-

8.21(c)(4), is less than a duty of ordinary care; it is something

more than ordinary negligence and refers to grossly or wantonly

negligent conduct, but not necessarily intentional conduct. G.S.,

157 N.J. at 178. The essence of gross or wanton negligence is

that it "implies that a person has acted with reckless disregard

for the safety of others." Id. at 179. Thus, "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. The analysis does not focus on the

intent of the parent or guardian, but rather the resulting injury,

or resulting risk thereof, to the child. Id. at 176-77.

Abuse and neglect cases are fact sensitive and "[e]ach case

requires careful, individual scrutiny" as many cases are

"idiosyncratic." P.W.R.,
205 N.J. at 33. The court must look at

the totality of the circumstances in making its findings. Id. at

33-34 (citing N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 345 (2010)).

12 A-1766-16T3
Although no physical abuse or neglect is alleged here, the

mental illness of a parent may create an environment in which the

parent is incapable of safely caring for his or her children. N.J.

Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 439

(App. Div. 2001); see also N.J. Div. of Youth & Family Servs. v.

I.Y.A.,
400 N.J. Super. 77, 94 (App. Div. 2008) (noting "a

psychiatric disability can render a parent incapable of caring for

his or her children."). "That the parents may be morally blameless

is not sufficient to tip the scales in their favor." A.G.,
344 N.J. Super. at 438. Nonetheless,

[m]ental illness, alone, does not disqualify
a parent from raising a child. But it is a
different matter if a parent refuses to treat
his [or her] mental illness, the mental
illness poses a real threat to a child, and
the other parent . . . is unwilling or
incapable of following court orders to shield
[his or] her child from that danger.

[N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 450-51 (2012).]

The court "must consider the potential for serious

psychological damage to the child inferential from the proofs."

In re Guardianship of R.G. & F.,
155 N.J. Super. 186, 194 (App.

Div. 1977). Where a direct causal link exists between a parent's

mental illness and neglect of his or her children, a failure to

exercise the requisite degree of minimum care may be found. N.J.

13 A-1766-16T3
Div. of Youth & Family Servs. v. C.M.,
181 N.J. Super. 190, 202

(Camden Cty. Ct. 1981).

The scope of our 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). These findings may not be disturbed unless "'they

are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend

the interests of justice[.]'" Rova Farms Resort, Inc. v. Inv'rs

Ins. Co. of Am.,
65 N.J. 474, 484 (1974) (citation omitted).

Moreover, "'[b]ecause of the family courts' special jurisdiction

and expertise in family matters, appellate courts should accord

deference to family court factfinding.'" M.C. III,
201 N.J. at
343 (quoting Cesare v. Cesare,
154 N.J. 394, 413 (1998))

(alteration in original). "Where the issue to be decided is an

'alleged error in the trial judge's evaluation of the underlying

facts and the implications to be drawn therefrom,' we expand the

scope of our review." N.J. Div. of Youth & Family Servs. v. G.L.,

191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T.,
269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's

legal conclusions and the application of those conclusions to the

facts are subject to plenary review. Manalapan Realty, LP v. Twp.

Comm. of Manalapan,
140 N.J. 366, 378 (1995).

14 A-1766-16T3
Having reviewed the record, we conclude the proofs were

sufficient for the Family Part to find by a preponderance of the

evidence that J.B. neglected M.B. by continually failing to accept

and complete treatment for her mental disorders. On December 11,

2013, J.B. set fire to her home while trying to teach M.B. how to

cook and was psychiatrically hospitalized. Approximately two

weeks later, M.B. was found walking around unclothed and

unsupervised. Although J.B. agreed to continue receiving mental

health services as a result of these referrals, the undisputed

proofs show she stopped attending therapy and discontinued her

medication several months before the July 3, 2014 incident, during

which M.B. was present. That incident resulted in a second

psychiatric hospitalization, and M.B. was again placed with J.M.,

with the Division's financial assistance. When Division workers

arrived, the home was unsanitary, there was little food to eat,

and the workers were unable to locate any of M.B.'s clothes.

The evidence establishes that, due to J.B.'s refusal to treat

her mental illness, she was unable to care for herself or her

child. As a result, M.B. was placed at substantial risk of harm.

It is true, as J.B. contends, that the trial judge

specifically referenced M.C. in concluding at the fact-finding

hearing that the Division established abuse or neglect by a

preponderance of the evidence. In M.C.,
435 N.J. Super. at 419,

15 A-1766-16T3
the panel ruled that "imminent danger" and risk of harm must be

evaluated as it exists at the time of the fact-finding hearing.

The panel stated: "In our view, the Legislature's decision to

require proof that a child 'is in imminent danger' requires an

assessment of the evidence available at the time, which may be

different when the complaint is filed than it is at the time of

the fact-finding hearing." Ibid.

However, following the trial judge's decision in this case,

the New Jersey Supreme Court remanded M.C. for reconsideration in

light of its decision in Dep't of Children & Families, Div. of

Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 178 (2015).

N.J. Div. of Child Prot. & Permanency v. M.C.,
223 N.J. 160 (2015).

In E.D.-O., the Court rejected the interpretation that proving

"abuse and neglect" "requires a finding that the parent's conduct

presents an imminent risk of harm to the child at the time of

fact-finding rather than at the time of the event that triggered

the Division's intervention." E.D.-O.,
223 N.J. at 170. The

Court noted that in enacting Title Nine, "the Legislature sought

to squash the notion of a 'free pass' if the child did not suffer

actual harm." Id. at 187. Thus, the court's focus must be on "a

parent's conduct at the time of the incident to determine if a

parent created an imminent risk of harm to a child." Id. at 189.

16 A-1766-16T3
In this case, the trial judge considered J.B.'s conduct

following the July 3, 2014 incident, properly relying on M.C.,

which was the controlling law at the time of his decision.

Nonetheless, the judge did not solely rely on J.B.'s conduct at

the time of the fact-finding hearing in determining that M.B. was

in imminent danger. Rather, the judge also considered J.B.'s

conduct at the time of M.B.'s removal on July 3, 2014, including

the fact that J.B. had ignored services following the December

2013 referrals, which "put her into [a] position in July [2014]"

where she was "inadequately prepared to be a parent."

Finally, we reject J.B.'s argument that "the Division's

proofs at trial were inadequate to establish abuse and neglect as

a matter of law, [and] the trial court should have dismissed the

Title Nine action and continued the matter under Title Thirty in

order to provide services to the family."

When abuse or neglect is not found, a trial court must dismiss

a Title Nine action, but Title Thirty provides an alternative

means for providing services to children in need. N.J. Dep't of

Children & Families, Div. of Youth & Family Servs. v. I.S.,
214 N.J. 8, 31 (2013) (citing N.J. Div. of Youth & Family Servs. v.

N.D. (In re T.W.),
417 N.J. Super. 96, 109 (App. Div. 2010)).

However, as explained above, there is sufficient, credible

evidence in the record supporting the trial judge's ruling that

17 A-1766-16T3
the Division proved by a preponderance of the evidence that J.B.

neglected her young daughter. Accordingly, dismissal of the Title

Nine complaint in favor of a Title Thirty proceeding was not

warranted under the facts presented.

Affirmed.

18 A-1766-16T3

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