DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.V.

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                        NOT FOR PUBLICATION WITHOUT THE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-3948-15T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

              Plaintiff-Respondent,

v.

E.V.,

              Defendant-Appellant,

and

V.V.,

          Defendant.
_________________________________

IN THE MATTER OF
V.V., JR., V.V., L.V., and
A.V.,

          Minors.
____________________________________

              Submitted October 10, 2017 – Decided February 13, 2018

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0182-15.
           Joseph E. Krakora, Public Defender, attorney
           for appellant (John A. Albright, Designated
           Counsel, on the briefs).

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

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors (David Valentin,
           Assistant Deputy Public Defender, on the
           brief).

PER CURIAM

     Following a fact-finding hearing, 
N.J.S.A. 9:6-8.44, the

Family Part judge found that defendant, E.V., had neglected her

four children, V.V., Jr. (Vincent), born February 1998, V.V.

(Valerie), born February 2004, and twin daughters, L.V. and A.V.,

born April 2009, "due to environmental neglect."1          The order also

provided that under the "totality of [the] circumstances," see

Div. of Youth & Family Servs. v. C.M., 
181 N.J. Super. 190, 202

(J. & D.R. Ct. 1981), defendant failed "to ensure that [Vincent]

and [Valerie] attended school regularly."          Approximately fifteen

months later, with the children already returned to defendant's

custody,   a   different   judge   entered   an   order   terminating   the

litigation.    This appeal followed.



1
  We use initials and pseudonyms to maintain the confidentiality
of defendant and the children.

                                     2                             A-3948-15T4
                                I.

     The documentary evidence and testimony adduced at the fact-

finding hearing revealed that the Division of Child Protection and

Permanency (the Division) received a referral in June 2014 that

Valerie was not regularly attending school.2   It was reported that

the family was evicted one month earlier because defendant could

not pay her rent and was now living in a motel.     The caseworker

who testified went to the motel and noted the unkempt nature of

the room.   She also interviewed defendant and Valerie.

     Valerie admitted to not attending school for approximately

three months because her mother was not waking her up on time.

Defendant told the caseworker that the family recently moved from

another motel, and, although she notified Valerie's school of the

move, the school bus never came to the new motel.         Defendant

claimed Vincent was attending and doing well in school.          The

caseworker, however, checked with the school and was told both

children were "classified," had individualized education plans

(IEPs), had missed many days of school and would likely be retained

in grade.




2
  The Division had prior involvement with the family, including
responding to repeated police-initiated referrals earlier in 2014
resulting from violent attacks on defendant perpetrated by her
husband, defendant V.V., Sr.

                                 3                          A-3948-15T4
     The Division was unable to locate the family for several

months   thereafter,   before   defendant   and   her     three   daughters

surfaced at a shelter in New York City.      The city's social service

agency was initiating services.        However, before that happened,

defendant moved again, and the Division found her and her daughters

living in a basement apartment in Union City.        Vincent was staying

nearby with a cousin.

     The caseworker visited the apartment on September 18, 2014,

and was immediately overcome with the strong odor of "Clorox,"

"feces and sewage."     Gnats swarmed the apartment's ceilings, the

countertops in the kitchen were strewn with garbage and there was

no food.   All four children were present at the time of the visit.

     Defendant explained and demonstrated that flushing the toilet

caused sewage to seep up through the floor tiles.            Vincent said

the toilet did not work properly when the family moved in nine

days earlier.3   After speaking with the children and observing the

filthy   conditions,   the   caseworker   effected   an    emergent    Dodd4

removal.



3
  The judge saw pictures of the condition of the apartment taken
that day by the caseworker. They are in the appellate record.
4
  A Dodd removal is an emergent removal of a minor without a court
order pursuant to 
N.J.S.A. 9:6-8.21 to -8.82 known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 
205 N.J. 17,
26 n.11 (2011).

                                   4                                A-3948-15T4
     On   cross-examination,       the   caseworker   acknowledged    that

defendant was the victim of domestic violence and relocated to a

motel with the children in June because her husband was "coming

after her."    The caseworker acknowledged that she did not speak

to the landlord or call the municipal building or health department

to report the unsanitary conditions in defendant's apartment.

     A psychologist for the Union City Board of Education, who was

Valerie's case manager, testified. Valerie had a specific learning

disability, which required in-class support.           Records reflected

that during the 2013-14 school year, Valerie was absent fifty-four

and tardy eighteen days.     However, because the district did not

retain classified elementary school students, Valerie was not

retained despite her many absences.

     Vincent's    case   manager     from   the   school   district   also

testified.    Vincent was classified as emotionally disturbed, and,

because he lacked a sufficient number of credits, was retained in

ninth grade after the 2013-14 school year.            He had been absent

eighty-four days, but received some home instruction, thereby

missing, in total, approximately forty-five days of school.

     Defendant did not testify or call any witnesses.         In colloquy

with the Deputy Attorney General (DAG) representing the Division,

the judge asked about Vincent's current status, and whether the

Division, which now had custody of Vincent, was "having less luck

                                     5                            A-3948-15T4
than mom did" with getting him to school.               The DAG admitted that

Vincent, now nearly seventeen years old, was "missing."

     In his oral opinion, the judge said the case was "very

difficult," because it dealt "with poverty and all the attenuated,

unfortunate circumstances that go along with poverty."                  The judge

addressed each of the four specific claims the Division made to

support    a   finding   of        neglect    under   the   "totality    of    the

circumstances."

     The judge rejected the assertion that defendant "fled" from

the Division's investigation or attempts to provide services to

the family.      He found defendant's frequent movement with the

children   was   "really      of    no   moment."     He    also   rejected    the

Division's argument that the condition of the children or the

motel room in June was anything more than a "onetime event."

     Although he expressed a preference that the Division not have

proceeded under Title Nine, the judge found the Division had proven

"environmental neglect."           Although there was no proof the sewage

backup was defendant's fault, the judge concluded, "you've got to

do a little bit more than throw some bleach down and try to clean

it up when you have four kids there, two of whom are very young."

The judge credited Vincent's statement that the condition existed

ever since the family moved in to the apartment.                     He faulted



                                          6                               A-3948-15T4
defendant for not having called the police or the municipality for

help.

     Turning to the Division's assertion of educational neglect,

the judge recognized that the family repeatedly moved and that

Vincent was frequently truant or suspended.             However, the number

of Valerie's absences was "extraordinary."               The judge said he

would not make a finding of neglect based only upon "educational

neglect," but, under the "totality of the circumstances pursuant

to   C.M.,"    the   judge   concluded      defendant    had   educationally

neglected her two children.

                                      II.

     On appeal, defendant argues that the judge erred in finding

"environmental neglect," because her conduct was neither grossly

negligent nor reckless, but rather resulted from her poverty.

Defendant     also   contends   that    the   Division    failed   to     prove

"educational     neglect,"      and    specifically      failed    to     prove

educational neglect as to Vincent, because the Division "admitted

. . . [he] was not attending school while in [the Division's]

custody."     Both the Division and the Law Guardian for the children

urge us to affirm.

     We have considered these arguments in light of the record and

applicable legal standards.       We affirm.



                                       7                                A-3948-15T4
     "[A]ppellate courts 'defer to the factual findings of the

trial court because it has the opportunity to make first-hand

credibility judgments about the witnesses who appear on the stand;

it has a feel of the case that can never be realized by a review

of the cold record.'"            N.J. Div. of Youth & Family Servs. v. M.C.

III, 
201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth &

Family Servs. v. E.P., 
196 N.J. 88, 104 (2008)).                       Moreover,

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

expertise     in       family    matters,   appellate   courts     should    accord

deference to family court factfinding."                 Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

     However, "[t]here is an exception to th[e] general rule of

deference:        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)).                 When the issue presented

turns    on   a    legal      conclusion    derived   from   the   Family    Part's

factfinding, "we are not required to defer."                 N.J. Div. of Youth

& Family Servs. v. A.R., 
419 N.J. Super. 538, 542-43 (App. Div.

2011).



                                            8                               A-3948-15T4
    "In general, 'Title 9 controls the adjudication of abuse and

neglect cases.'"     Dep't of Children & Families, Div. of Child

Prot. & Permanency v. E.D.-O., 
223 N.J. 166, 177 (2015) (quoting

M.C. III, 
201 N.J. at 343).     "The focus of Title 9 'is not the

culpability of parental conduct but rather the protection of

children.'"     N.J. Div. of Child Prot. & Permanency v. A.B., ___

N.J. ___, ___ (2017) (slip op. at 17-18) (quoting E.D.-O., 
223 N.J. at 178).    Title Nine defines an "abused or neglected child"

as one under the age of eighteen 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 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,
         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. 9:6-8.21c(4)(a) and (b) (emphasis
         added).]

Although the judge said the Division was proceeding under both

subsection (a) and (b), and the Division cites to both in its

appellate brief, it is clear that the judge made his findings



                                  9                        A-3948-15T4
under subsection (a), and that was the only subsection of the

statute relevant to the evidence produced at the hearing.

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

is   grossly     or   wantonly   negligent,      but     not    necessarily

intentional."     G.S. v. Dep't of Human Servs., 
157 N.J. 161, 178

(1999).    "[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.       "To determine

if a parent or guardian failed to exercise a minimum degree of

care,     we   must   additionally    'account   for     the    surrounding

circumstances,' given that '[a]buse and neglect cases are fact-

sensitive.'"     A.B., slip op. at 20 (citation omitted) (quoting

E.D.-O., 
223 N.J. at 180).

     Defendant argues that the judge erred in finding she had

neglected the children because the conditions in the apartment did

not result from grossly negligent or reckless conduct on her part,

and there was no evidence the children were harmed, or faced

imminent risk of harm, because of the conditions.         She also argues

the judge's recognition of her poverty precluded him from finding

defendant had the financial ability to abate the conditions, and

the Division did nothing to help defendant either find other

housing or fix the sewage problem.        We disagree.

                                     10                              A-3948-15T4
     The judge found the conditions in the apartment had existed

for nine days, ever since the family moved in. Raw or dried sewage

was on the floor of every room, including the bedroom, where the

entire family slept on the floor, and the kitchen.           During that

time, defendant did little, except to pour bleach on and mop the

floor and light incense to dispel the fumes.               She told the

caseworker that she was on her way out to buy a plunger just before

the caseworker arrived, but she never complained to the landlord

or the appropriate municipal agencies,             nor did she call the

Division.

     While the caseworker was present, Valerie slipped and fell

while trying to mop up the fetid water.               All of defendant's

children suffered from asthma, yet defendant's attempt to use

chlorine bleach to cure the problem only exposed them to noxious

fumes.      The   judge   expressly   recognized   defendant's   penurious

state, but he placed appropriate significance on the fact that the

sewage flow existed for more than one week.

     We also reject defendant's claim that the Division simply

removed the children rather than assist her.             Defendant never

called the Division after she returned from New York City.              The

Division was only able to locate defendant through the efforts of

the Human Services Police, and did so shortly before the caseworker



                                      11                           A-3948-15T4
visited.   Because the risk posed to the children's health was so

significant, we find no fault with their immediate removal.

     We therefore affirm the fact-finding order based upon the

judge's finding and conclusion that defendant's conduct exposed

the children to "environmental neglect."   As a result, we need not

reach the other arguments raised by defendant.

     Affirmed.




                               12                           A-3948-15T4