DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.C.

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                         NOT FOR PUBLICATION WITHOUT THE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-4654-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

D.C.,

     Defendant-Appellant.
_______________________________

IN THE MATTER OF A.C.,

     A Minor.
_______________________________

              Submitted January 25, 2018 – Decided February 5, 2018

              Before    Judges    Simonelli,     Haas    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Passaic
              County, Docket No. FN-16-0198-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John A. Salois, Designated
              Counsel, on the briefs).

              Gubir S. Grewal, Attorney General, attorney
              for respondent (Andrea M. Silkowitz, Assistant
              Attorney General, of counsel; Yudelka R.
              Felipe, Deputy Attorney General, on the
              brief).
           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minor (James J. Gross,
           Designated Counsel, on the brief).

PER CURIAM

     Defendant D.C.1 appeals from the Family Part's May 19, 2016

order approving the permanency plan proposed by the Division of

Child   Protection   and    Permanency   (Division),    terminating     the

litigation   the   Division    initiated   for   care   and   custody    of

defendant's six-month-old child A.C. (Andy) under Title 9, and

directing the case to proceed as a guardianship action under


N.J.S.A. 30:4C-15(c).      In addition, defendant challenges the trial

judge's finding that she abused or neglected Andy under 
N.J.S.A.

9:6-8.21(c)(4)(a) by failing to provide him with adequate housing.2

Based upon our review of the record and applicable law, we affirm.

     The Division developed the following facts at the two-day

fact-finding hearing.       On May 6, 2015, the Division received a

referral that defendant was leaving Andy alone in an apartment.

A caseworker went to the apartment, which was leased by defendant's

cousin, but was unable to establish the allegation of inadequate




1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.

2 This October 22, 2015 determination became final and appealable
as of right after the entry of the May 19, 2016 order terminating
the Title 9 litigation.

                                    2                             A-4654-15T4
supervision.   However, the caseworker found that the apartment did

not have electricity or gas.

     The Division determined that defendant had no job or source

of income, and was not eligible for Temporary Rental Assistance.

Defendant was also not able to provide the names of any other

relatives or friends who could provide temporary housing. Instead,

defendant told the caseworker that she planned to "walk around and

ask people" she met on the street "if [she could] stay at their

home."

     The caseworker took defendant and Andy to the Division's

office, and the Division found a shelter that would take defendant

and Andy for the night.     In addition, the Division arranged an

appointment for defendant and the baby the next day at the Family

Promise Shelter, which offered a number of programs for its

clients, including employment and housing assistance.

     After defendant agreed to go to the shelter, defendant, Andy,

and the caseworker returned to the apartment so that defendant

could retrieve some of her belongings.    Once she was back in the

apartment, however, defendant refused to leave.      She told the

caseworker that she would use flashlights and candles to light the

apartment, and did not need gas to cook because she only planned

to feed the child powdered milk.     In order to protect the baby,



                                 3                          A-4654-15T4
the Division arranged for an Emergency Child Abuse Program (ECAP)

worker to stay in the apartment with defendant and Andy.

     Later that night, however, the police contacted the Division

to advise that the landlord wanted defendant and the baby to leave

the apartment because it was not safe, as there had already been

two fires in the building because of tenants improperly using

candles.    Defendant's   cousin   also   told   the   caseworker   that

defendant was not welcome in his home.

     The caseworker then made arrangements for defendant and Andy

to spend the night in a hotel with the ECAP worker present to

monitor Andy.   Defendant went to the hotel, but then threatened

to leave throughout the evening.

     The next morning, a caseworker went to the hotel to pick up

defendant and Andy for their appointment at the Family Promise

Shelter.   Defendant began to yell at the caseworker and stated she

wanted to pick up some more of her belongings at the apartment,

and then go to the welfare office.          The Division agreed to

transport defendant and the baby to the apartment and to then have

the ECAP worker accompany them to the welfare office.

     Once defendant arrived at the apartment, she got into an

argument with the landlord, and told the caseworker that she was

not going to the welfare office or the Family Promise Shelter



                                   4                            A-4654-15T4
appointment.     Instead, she said she wanted to file a complaint

with the police about the landlord.

      As a result of defendant's failure to secure safe housing for

Andy, and her refusal to take advantage of the services and

assistance the Division offered, the Division removed Andy from

defendant's care later that day.        Defendant did not testify at the

hearing, and her attorney did not call any witnesses.

      At the conclusion of the hearing, Judge Daniel Yablonsky

rendered a thorough oral decision, finding that the Division

established by a preponderance of the evidence that defendant

abuse or neglected Andy by failing to provide him with adequate

housing.    In so ruling, the judge recognized that defendant may

not have had the funds to obtain housing on her own.            However, the

judge found that defendant abused or neglected Andy because she

adamantly refused to take advantage of the services the Division

arranged for her and the baby, and instead proposed to attempt to

stay in an apartment that did not have working utilities.

      During the ensuing months, the Division provided defendant

with a host of services, including referrals to vocational training

and   job   training   programs,   as   well   as   to    psychological     and

substance    abuse   treatment   evaluations    and      counseling.     Judge

Yablonsky conducted a permanency hearing on April 7, 2016.                  The

judge found that defendant had not secured a job or stable housing

                                    5                                  A-4654-15T4
despite   the    Division's    assistance    during      the   eleven    months

following Andy's removal from her care, and was still exhibiting

unmitigated mental health issues.        Accordingly, the judge approved

the Division's plan to dismiss the Title 9 matter, and institute

a Title 30 action for the termination of defendant's parental

rights.   This appeal followed.

       On appeal, defendant argues in Point I that the judge's

determination that she abused or neglected Andy by failing to

provide   him    with   adequate   housing   "is   not    supported     by   the

evidence."      We disagree.

     Our review of the trial judge's factual finding of abuse or

neglect is limited; we defer to the court's determinations "when

supported by adequate, substantial, credible evidence."             N.J. Div.

of Youth & Family Servs. v. I.Y.A., 
400 N.J. Super. 77, 89 (App.

Div. 2008) (quoting Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998)).

The trial court is best suited to assess credibility, weigh

testimony and develop a feel for the case, and we extend special

deference to the Family Part's expertise.             N.J. Div. of Youth &

Family Servs. v. M.C. III, 
201 N.J. 328, 342-43 (2010).

     In pertinent part, 
N.J.S.A. 9:6-8.21(c)(4)(a) defines an

"abused or neglected child" as:

           a child whose physical, mental, or emotional
           condition has been impaired or is in imminent
           danger of becoming impaired as the result of

                                     6                                  A-4654-15T4
            the failure of his 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[.]

       "Whether a parent or guardian has failed to exercise a minimum

degree of care in protecting a child is determined on a case-by-

case   basis   and   analyzed   in   light     of     the   dangers    and     risks

associated with the situation." N.J. Div. of Youth & Family Servs.

v. N.S., 
412 N.J. Super. 593, 614 (App. Div. 2010) (quoting G.S.

v. Dep't of Human Servs., 
157 N.J. 161, 181-82 (1999)).                 Moreover,

a parent may be found to have abused or neglected a child when the

parent creates a substantial risk of harm, since a court "need not

wait until a child is actually irreparably impaired by parental

inattention or neglect."        In the Matter of the Guardianship of

D.M.H., 
161 N.J. 365, 383 (1999).

       Applying   these   standards,      we    are     satisfied     there       was

competent,     credible   evidence   in   the    record      to    support     Judge

Yablonsky's finding that defendant abused or neglected Andy by

failing to provide him with adequate shelter even though the

Division offered her reasonable means to do so.              When the Division

began its investigation, it discovered that defendant was living

in an apartment that had no electricity or gas.                   The leaseholder



                                      7                                      A-4654-15T4
and the landlord both refused to permit defendant to remain in the

apartment.

      The Division promptly arranged for shelter for defendant and

the baby, but defendant did not cooperate.            At first, she would

not leave the apartment.      Once she finally relented and went to

the hotel, she continually tried to leave.             The next day, she

refused to attend the appointment the Division had scheduled at

the Family Promise Shelter, which would have afforded defendant

and   Andy   shelter,   together   with   a   range   of   other   services.

Instead, defendant again refused to leave the apartment.               Thus,

the record clearly supports Judge Yablonsky's determination that

defendant put Andy in imminent danger and substantial risk of harm

by rejecting the opportunity to provide the baby with safe and

secure shelter.

      Defendant's reliance upon our decision in N.J. Div. of Child

Prot. & Permanency v. L.W., 
435 N.J. Super. 189 (App. Div. 2014)

is unavailing because that case is readily distinguishable from

the facts presented here.     In L.W., we reversed the trial court's

finding of abuse or neglect after a parent was unable to provide

her children with adequate housing.           Id. at 197.    We noted that

"poverty alone is not a basis for a finding of abuse or neglect."

Id. at 195.     We concluded that the evidence did not support the

trial court's decision because the parent in that case actively

                                    8                                A-4654-15T4
sought housing assistance and employment and, when her efforts

were unsuccessful, "did the responsible thing" by seeking the

Division's assistance.        Id. at 196.

     The record in this case simply does not support defendant's

contention that Judge Yablonsky's finding of abuse or neglect was

based solely on poverty.        Rather, the judge properly found that

although   the   Division     offered   shelter   and   other    services     to

defendant and her infant son, defendant refused these services,

and proposed no reasonable alternatives.            Therefore, we reject

defendant's contention on this point.3

     Finally,    in   Point    II,   defendant    challenges     the   judge's

approval of the Division's permanency plan.             Because a Title 30

guardianship     complaint     has   since   been    filed      to   terminate

defendant's parental rights, review of the permanency order is now

moot.   N.J. Div. of Youth & Family Servs. v. A.P., 
408 N.J. Super.
 252, 255 (App. Div. 2009).

     Affirmed.




3
    Defendant also asserts that her cousin and the landlord
wrongfully evicted her from the apartment and she should have been
given the opportunity to institute and complete an appropriate
legal action against them before the Division took custody of Andy
in order to provide him with shelter. This argument is without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

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