DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.T.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2053-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.T.,
Defendant-Appellant,
and
J.H., S.S. and F.H.,
Defendants.
_____________________________________
IN THE MATTER OF Z.H., W.T. and M.H.,
Minors.
_____________________________________
Argued October 2, 2017 – Decided March 8, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0113-13.
Ifeoma A. Odunlami, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ifeoma A. Odunlami,
on the brief).
Sara M. Gregory, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Sara M. Gregory, on the brief).
Margo E.K. Hirsch, Designated Counsel, argued
the cause for minors (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Margo
E.K. Hirsch, on the brief).
PER CURIAM
In this appeal, we consider whether the Family Part correctly
determined that defendant, M.T., abused or neglected her two
children, W.T. (Walter),1 born in October 2009, and M.H. (Mark),
born in June 2011, by failing to supply adequate shelter and proper
supervision in July 2012. Because we conclude the State failed
to prove the children suffered either actual harm or an imminent
risk of harm, we reverse.
I.
The evidence presented at the fact-finding hearing showed
that in the early morning hours of July 17, 2012, the New Jersey
Division of Child Protection and Permanency (Division) received a
referral that defendant, Walter and Mark were homeless after being
directed to leave the home of Walter's godmother, J.L., where they
1
We employ initials and pseudonyms to protect the privacy of the
parties and children.
2 A-2053-15T1
had been residing for a "few months." At approximately 3:00 a.m.,
Sonia Velasquez, a supervisor in the Division's special response
unit who knew defendant from prior referrals, was advised defendant
was at the Hoboken University Medical Center (hospital) with the
children.
Velasquez went to the hospital, where she found defendant and
the children in the lobby. The children were sleeping, one in a
stroller and the other on a chair. Defendant appeared disheveled
and her clothes were dirty. Velasquez noticed the children had
dirty and greasy hair.
Defendant explained she had an argument with J.L., who then
directed defendant and the children to leave her home. Defendant
contacted shelters and determined there was no available emergency
housing. Defendant called the Hoboken Police Department and was
told to go to the hospital until the morning when she could request
that welfare put her and the children in a shelter.
Velasquez and defendant discussed family members who might
be of assistance. Velasquez and defendant went to defendant's
uncle's home, and he allowed defendant and the children to stay
with him until 9:00 a.m. Velasquez and defendant agreed defendant
would take the children to their daycare program in the morning,
and then go to the welfare office to obtain shelter.
3 A-2053-15T1
Keisha Adams is a Division permanency worker who first
interacted with defendant seven months earlier, in January 2012, 2
as the result of a referral arising from a domestic violence
incident between defendant and Mark's father, F.H. At that time,
defendant, F.H. and the children lived in a Jersey City apartment.
Following the incident, defendant agreed to comply with services
and the Division thereafter visited with defendant on a monthly
basis.
On May 2, 2012, Adams met with defendant at her Jersey City
apartment. Defendant was paying the rent with Temporary Rental
Assistance (TRA) benefits from WorkFirst, New Jersey's welfare
program,3 but had exceeded her benefits limit. Adams explained
TRA benefits were of limited duration and defendant needed a
permanent plan for the children's housing. Adams asked defendant
if she submitted the application Adams previously provided for
2
The record shows the Division received referrals concerning
defendant and her children in January, September and December
2011. Adams had no involvement in the referrals and the trial
court did not rely on any evidence related to the referrals in
support of its abuse or neglect finding.
3
See generally The New Jersey WorkFirst Handbook,
http://www.state.nj.us/humanservices/dfd/programs/workfirstnj/wf
nj_handbk_e0118.pdf (last visited Feb. 10, 2018) (explaining the
New Jersey WorkFirst welfare program and benefits, TRA benefits,
fair hearings, sanctions and WorkFirst-required activities).
4 A-2053-15T
1 Section 8 housing benefits 4 in Morris County. Adams advised
defendant the Section 8 program waiting list in Jersey City was
closed, but the Morris County waiting list had recently reopened
and defendant had a "good chance of being called soon, due to her
current housing status." Defendant said she misplaced the
application and did not want to move to Morris County. Adams gave
defendant a Section 8 program contact number to call if defendant
changed her mind.
Adams also asked defendant about her housing plans if
defendant and the children were evicted from their Jersey City
apartment. Defendant said she planned to live with Walter's
godmother, J.L. Adams provided defendant with additional housing
resources and reminded her that she needed a permanent housing
plan.
On June 27, 2012, Adams again spoke with defendant about
housing. Defendant had requested a letter from the Division
advocating for additional TRA benefits for defendant. Adams went
to J.L.'s home to deliver the letter to defendant, who explained
she was scheduled for a Fair Hearing over welfare's imposition of
4 Section 8 rental assistance is provided under a federal program
that is regulated by federal statutes and regulations. Bouie v.
N.J. Dept. of Cmty. Affairs,
407 N.J. Super. 518, 528 (App. Div.
2009).
5 A-2053-15T1
a sanction for defendant's receipt of TRA benefits in excess of
the applicable limit.
On July 9, 2012, Adams again visited defendant at J.L.'s
home. Defendant explained welfare required that she complete four
consecutive days of WorkFirst activities to obtain additional TRA
benefits. Adams testified defendant was available to perform the
activities because the children were in daycare and defendant was
unemployed.
Adams next spoke with defendant on July 17, 2012, several
hours after Velasquez met defendant and the children at the
hospital in response to the referral. Defendant said J.L. told
defendant and the children to leave her home. Adams asked
defendant about a housing plan, and defendant said she did not
have one. Defendant and Adams agreed defendant should take the
children to daycare and then go to the welfare office to discuss
housing options.
Defendant later reported to Adams that welfare advised her
it now required she perform ten days of WorkFirst activities to
qualify for additional TRA benefits. Adams provided defendant
with a list of housing resources, including the homeless prevention
hotline which was only available after 4:00 p.m.
At 11:30 a.m., defendant and Adams discussed family members
and friends who might provide housing, but none was available.
6 A-2053-15T1
Defendant advised Adams the Division should take custody of the
children.
During a conversation one hour later, defendant told Adams
that the housing resources and a shelter she contacted were
unavailable because she had not completed the WorkFirst activities
required by welfare. Lacking any housing options, defendant again
said the Division should take custody of the children.
Later in the day, defendant told Division investigator
Janibell Romero that she contacted her uncle to request housing,
but he could not accommodate defendant and the children. Defendant
explained she contacted the homeless prevention hotline but was
informed she was not eligible for housing because she failed to
complete the required WorkFirst activities. Defendant confirmed
she had advised Adams the Division should take custody of the
children.
Romero went to the daycare center where she found the children
dirty, disheveled and smelling of urine. Walter did not have
shoes. The Division removed the children from defendant's care
pursuant to the Dodd Act.5
5
A "Dodd removal" is an emergency removal of a child without a
court order, pursuant to N.J.S.A. 9:6-8:29 of the Dodd Act,
codified in N.J.S.A. 9:6-8:21 to -8:82. N.J. Div. of Youth & Family
Servs. v. N.S.,
412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
7 A-2053-15T1
The Division filed a verified complaint against defendant and
the children's fathers, co-defendants S.S. and F.H., for custody
of Walter and Mark. F.H. was incarcerated during the litigation
but was represented by counsel. Walter's father, S.S., was
previously deported and his whereabouts are unknown. The court
did not make any findings of abuse or neglect as to F.H. and S.S.
Defendant did not testify or present any witnesses at the
fact-finding hearing. After considering the evidence presented,
the court found the Division proved by a preponderance of the
evidence defendant abused or neglected her children. See
N.J.S.A.
9:6-8.21(c)(4)(a) and (b). More particularly, the judge found
that despite being advised by Adams of the need for a housing plan
for the children, and being afforded opportunities to obtain
housing prior to July 17, 2012, defendant's failure to develop a
plan or take advantage of opportunities to extend her TRA benefits
by completing WorkFirst activities resulted in her children
becoming homeless. The court found defendant could have completed
the WorkFirst activities necessary to obtain reinstatement of TRA
benefits because the children were in daycare, defendant "did
absolutely nothing to secure housing for herself," and defendant
placed her children at risk of harm by failing to "supply them
with the appropriate housing when she had the means . . . through
8 A-2053-15T1
welfare." Defendant appeals the court's order finding she abused
or neglected her children.6
On appeal, defendant presents the following arguments:7
POINT I
THE TRIAL COURT[] FAILED TO APPLY THE WELL
ESTABLISHED LEGAL STANDARD[] STATED IN
N.J.S.A. 9:6-8.21(c) AND CASE LAW IN MAKING
THE FINDING THAT M.T. ABUSED OR NEGLECTED HER
CHILDREN AND THAT FINDING MUST BE REVERSED.
A. The Division Failed to Prove that M.T.
Did Not Exercise a Minimum Degree of Care
Under Title Nine (
N.J.S.A. 9:6-8.21(c)(4)(a)
and (b)), Therefore the Court's Finding of
Abuse or Neglect Cannot Be Sustained.
B. There Is No Evidence Of Actual Harm
or The Imminent Danger of Harm in the Record
to Sustain the Lower Court's Finding of Abuse
or Neglect[.]
6
There were subsequent compliance reviews and in December 2012,
the Division filed a complaint for guardianship of Walter and
Mark, and they were dismissed from this proceeding. Defendant's
parental rights to the children were subsequently terminated in a
separate proceeding. See N.J. Div. of Child Prot. & Permanency
v. M.T., A-5885-13 and A-5886-13 (App. Div. June 29, 2015).
Defendant had another child, Z.H., who was born in April 2013.
The Title Nine proceeding continued as to that child and was
subsequently terminated. On this appeal, we consider only the
court's order finding defendant abused or neglected Walter and
Mark.
7
The law guardian argued before the trial court that defendant
abused or neglected the children. On appeal, the law guardian
argues that although defendant acted negligently, the Division
failed to prove the children suffered actual harm or were at
imminent risk of harm. The law guardian offers no explanation for
the change in its position, but we find the change irrelevant to
our consideration of the evidence and review of the court's abuse
or neglect finding.
9 A-2053-15T1
POINT II
THE TRIAL COURT ERRED IN FAILING TO EXERCISE
ITS DISCRETION TO DISMISS THE TITLE NINE
ACTION AND CONTINUE THE MATTER UNDER TITLE
THIRTY AND THIS ERROR CONSTITUTED A DENIAL OF
DUE PROCESS[.]
II.
In our review of an order finding abuse or neglect, we
determine whether the trial judge's decision was based on evidence
supported by the record before the court. See N.J. Dep't. of
Children & Families, Div. of Youth & Family Servs. v. A.L.,
213 N.J. 1, 22 (2013) ("The Division bears the burden of proof at a
fact-finding hearing and must prove . . . [harm] . . . by a
preponderance of the evidence."). We will not disturb a trial
court's factual findings "unless they are so wholly unsupportable
as to result in a denial of justice." In re Guardianship of
J.N.H.,
172 N.J. 440, 472 (2002) (citations omitted).
Even when a party "allege[s] error in the trial judge's
evaluation of the underlying facts and the implications to be
drawn therefrom," deference must be accorded unless the court
"went so wide of the mark that a mistake must have been made."
N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279
(2007) (citations omitted). That is because, "by virtue of its
specific jurisdiction, the Family Part possess[es] special
10 A-2053-15T1
expertise in the field of domestic relations." N.J. Div. of Youth
& Family Servs. v. R.G.,
217 N.J. 527, 553 (2014) (alteration in
original) (citation and internal quotation marks omitted).
"Nevertheless, the trial judge's findings are not entitled to that
same degree of deference if they are based upon a misunderstanding
of the applicable legal principles." N.J. Div. of Youth & Family
Servs. v. Z.P.R.,
351 N.J. Super. 427, 434 (App. Div. 2002) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366,
378 (1995)).
Title Nine,
N.J.S.A. 9:1-1 to 9:25-11, sets forth the
controlling standards for adjudicating cases of abuse and neglect.
N.J. Dep't of Children & Families, Div. of Youth & Family Servs.
v. T.B.,
207 N.J. 294, 303 (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). In pertinent part, the statute defines an "abused or
neglected child," as one:
(4) . . . 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 . . .
to exercise a minimum degree of care (a) in
supplying the child with adequate . . .
shelter . . . though financially able to do
so or though offered financial or other
reasonable means to do so, or (b) in providing
the child with proper supervision or
guardianship, by unreasonably inflicting or
11 A-2053-15T1
allowing to be inflicted harm, or substantial
risk thereof . . . .
[N.J.S.A. 9:6-8.21(c)(4)(a),(b).]
The Division bears the burden of proving abuse or neglect.
N.J. Div. of Child Prot. & Permanency v. Y.N.,
220 N.J. 165, 178-
79 (2014). Generally, "any 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). However, where there is no
evidence of actual harm to the child, "a finding of abuse and
neglect can be based on proof of imminent danger and substantial
risk of harm." A.L.,
213 N.J. at 23. As the Court noted in A.L.,
"we do not require expert testimony in abuse and neglect actions.
In many cases, an adequate presentation of actual harm or imminent
danger can be made without the use of experts." Id. at 29.
A "minimum degree of care," as required by the statute, does
not refer to merely negligent conduct, but rather "to conduct that
is grossly or wantonly negligent, but not necessarily
intentional." T.B.,
207 N.J. at 305 (quoting G.S.,
157 N.J. at
178). "Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result."
G.S.,
157 N.J. at 178 (citation omitted). The essence of gross
or wanton negligence is that it "implies that a person has acted
12 A-2053-15T1
with reckless disregard for the safety of others." Id. at 179
(citations omitted).
Whether conduct is merely negligent, as opposed to grossly
or wantonly so, is determined by a fact-sensitive inquiry where
the conduct is "evaluated in context based on the risks posed by
the situation." T.B.,
207 N.J. at 309. While the Division must
demonstrate "the probability of present or future harm" to the
child, N.J. Div. of Youth & Family Servs. v. S.S.,
372 N.J. Super.
13, 24 (App. Div. 2004), "[a] court 'need not wait to act until a
child is actually irreparably impaired by parental inattention or
neglect,'" A.L.,
213 N.J. at 23 (quoting In re Guardianship of
D.M.H.,
161 N.J. 365, 383 (1999)).
We first apply these standards to the court's finding of
abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b). The court did
not make any factual findings supporting its determination that
defendant failed to supervise the children and, based on our
careful review of the record, we find no evidence defendant failed
to supervise her children while they were in her care following
their eviction from J.L.'s home. To the contrary, the evidence
shows defendant supervised the children at all times prior to
surrendering custody of the children to DYFS on July 18, 2016.
Cf. N.J. Div. of Child Prot. & Permanency v. J.D.,
447 N.J. Super.
337, 352-54 (App. Div. 2016) (affirming an abuse or neglect finding
13 A-2053-15T1
under N.J.S.A. 9:6-8.21(c)(4)(b), where a father left his child
unsupervised in the car while he patronized a bar); N.J. Div. of
Child Prot. & Permanency v. K.G.,
445 N.J. Super. 324, 327, 348
(App. Div. 2016) (affirming an abuse or neglect finding under
N.J.S.A. 9:6-8.21(c)(4)(b) where a mother left her infant under
the supervision of her nineteen-year-old son, who was
"substantially cognitively impaired"). The court therefore erred
in finding defendant abused or neglected her children under
N.J.S.A. 9:6-8.21(c)(4)(b).
We next consider the court's abuse or neglect finding under
N.J.S.A. 9:6-8.21(c)(4)(a), and are satisfied there was
substantial credible evidence supporting the judge's determination
that defendant was grossly negligent by failing to take available
steps to secure stable housing for her children. The evidence
showed defendant failed to supply the children with
"adequate . . . shelter . . . though offered financial or other
reasonable means to do so . . . ." N.J.S.A. 9:6-8.21(c)(4)(a);
see, e.g., N.J. Div. of Youth & Family Servs. v. K.M.,
136 N.J.
546, 550-53 (1994) (affirming abuse or neglect finding where
parents who were financially and physically capable of providing
"food, clothing and shelter" for their children failed to do so
despite Division assistance).
14 A-2053-15T1
In May 2012, Adams warned defendant she needed a stable
housing plan for the children. Defendant failed to complete the
Section 8 application Adams had provided and thereafter opted not
to complete the WorkFirst activities she knew were required for
continued TRA benefits. By July 9, 2012, eight days before she
was kicked out of J.L.'s home, defendant had been advised she
needed to perform only four days of WorkFirst activities to qualify
for TRA benefits, but she failed to complete the activities even
though she was not working and the children were in daycare.8 It
was defendant's inexplicable failure to complete the WorkFirst
activities that made her ineligible for TRA benefits and also
emergency housing from shelters and other resources. Thus,
defendant's failure to complete the WorkFirst activities directly
resulted in her inability to provide stable housing immediately
following her eviction from J.L.'s home.
Defendant relies on N.J. Div. of Child. Prot. & Permanency
v. L.W.,
435 N.J. Super. 189 (App. Div. 2014), where we reversed
a trial court order finding the defendant mother neglected her two
young children by failing to provide adequate housing. The mother
moved with her fiancé to Georgia, returned to New Jersey after a
8
Beyond defendant's statement she and the children were staying
at J.L.'s home, there is no evidence she enjoyed an enforceable
tenancy or the arrangement was intended to be permanent.
15 A-2053-15T1
death in her fiancé's family, but then did not have the funds to
return to Georgia. Id. at 193. While in New Jersey, the mother
and children lived with a relative, and then in a shelter before
being forced to leave. Id. at 193. The mother was neither
eligible for welfare nor housing benefits, and went to the Division
seeking housing assistance to avoid being homeless. Ibid. The
trial court found the mother abused or neglected the children by
failing to provide shelter due to her "unbelievably poor planning."
Ibid.
We reversed the trial court's abuse or neglect finding, id.
at 197, concluding the mother's "poor planning" was "in part a
side-effect of poverty," id. at 196, and "poverty alone is not a
basis for a finding of abuse or neglect," id. at 195 (citation
omitted). We also observed that the mother "sought housing through
government agencies[,] . . . sought employment to no avail[,]" and
did the "responsible thing" when she was unable to provide housing
by contacting the Division for "help instead of subjecting her
children to further homelessness." Id. at 196.
Defendant's reliance on L.W. is misplaced. The judge did not
base her finding of abuse or neglect on defendant's poverty, and
the record does not support defendant's contention that her poverty
caused her failure to provide shelter for the children. To the
contrary, it was defendant's abject failure to take advantage of
16 A-2053-15T1
various options about which she was fully informed, and not her
poverty, that resulted in her inability to provide shelter for the
children. The mother in L.W. was not eligible for welfare or
housing benefits, but actively pursued other housing options and
employment before being rendered homeless. Id. at 196.
Here, defendant was eligible for TRA housing benefits, but
simply failed to take the available steps necessary to obtain
them. The court correctly determined defendant's failure
satisfied the gross negligence standard supporting its abuse and
neglect finding. See N.J. Div. of Youth & Family Servs. v. C.H.,
428 N.J. Super. 40, 68-69 (App. Div. 2012) (finding defendant's
failure to take available actions to properly protect her children
satisfies the gross negligence standard for a finding of abuse or
neglect).
The fact that defendant acted in a grossly negligent manner
does not end the inquiry. "Each determination of whether the
conduct of a parent or caretaker constitutes child abuse or neglect
. . . requires a determination of whether the child suffered actual
physical, mental, or emotional harm or whether the conduct exposed
the child to an imminent risk of such harm." N.J. Dep't of
Children & Families, Div. of Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 185 (2015);
N.J.S.A. 9:6-8.21(c)(4). A finding of
abuse or neglect requires proof "by a preponderance of the
17 A-2053-15T1
competent, material and relevant evidence [of] the probability of
present or future harm" to the child. S.S.,
372 N.J. Super. at
24. "Imminent risk of harm" under Title Nine requires a showing
that the children are in imminent risk of impairment to their
"physical, emotional, or mental well-being." E.D.-O.,
223 N.J.
at 193;
N.J.S.A. 9:6-8.21(c)(4). The imminent risk of impairment
must exist at the time the Division responds to the incident.
E.D.-O.,
223 N.J. at 187.
"A court 'need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect.'" A.L.,
213 N.J. at 23 (2013) (quoting In re Guardianship of D.M.H.,
161 N.J. 365, 383 (1999)). "[H]arm cannot be presumed in the absence
of evidence of its existence or potential." S.S.,
372 N.J. Super.
at 28. Our Supreme Court has cautioned that where, as here, an
"allegation of child neglect in which the conduct of the parent
or caretaker does not cause actual harm is fact-sensitive and must
be resolved on a case-by-case basis." E.D.-O,
223 N.J. at 192.
We eschew "categorical rule[s]" that a parent's gross negligence
results in an imminent risk of harm, and determine on a case-by-
case basis under all of the circumstances whether a parent's
conduct poses an imminent risk of harm to his or her children.
Id. at 192-93.
18 A-2053-15T1
The court did not make any factual findings supporting its
determination that defendant's conduct placed the children in an
imminent risk of physical, mental or emotional harm. Instead, the
court assumed that during the short period defendant and the
children were without housing prior to the Division's initial
involvement and award of custody, the children were in imminent
risk of harm. The record does not support the court's finding.
Although defendant was grossly negligent in failing to take
the actions necessary to secure housing prior to her eviction from
J.L.'s home, the evidence shows the eviction from J.L.'s home was
unanticipated. Faced with an unexpected late evening eviction,
defendant attempted to secure emergency housing. When her efforts
proved unsuccessful, she contacted the Hoboken Police Department,
was advised to go to the hospital, and followed the instruction
with a plan to seek assistance from welfare in the morning. During
this period, defendant cared for the children and when Velasquez
arrived at the hospital in the early morning hours, she observed
the children were sleeping and noted only that they appeared
disheveled and had greasy hair.
The Division had been involved with defendant and the children
for six months and never had any concerns regarding the children's
care, and further had no concerns about defendant's care of the
children during the few hours they were homeless. Following their
19 A-2053-15T1
departure from the hospital, the children were cared for by
defendant at her uncle's home and then at daycare. Later in the
day, when defendant was confronted with a lack of any available
housing resources, she requested the Division take custody of the
children to ensure their proper care. See L.W.,
435 N.J. Super.
at 196 (finding mother who could not provide housing for her
children "did the responsible thing" by surrendering the children
to the Division for placement in foster care).
We reject any categorical determination that defendant's very
brief period of homelessness alone permits a finding of imminent
risk of harm, E.D.-O,
223 N.J. at 192, and find there was no
evidence the children faced an imminent risk of harm under the
circumstances here. The court therefore erred by finding defendant
abused or neglected her children under N.J.S.A. 9:6-
8.21(c)(4)(a).9
Reversed.
9
Because defendant's parental rights to the children have been
terminated, it is unnecessary to address defendant's contention
that the court abused its discretion by failing to continue the
matter under Title Thirty in order to provide services to defendant
and the children.
20 A-2053-15T1
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