OFCHILD PROTECTION AND PERMANENCY v. K.B and B.K IN THE MATTER OF Z.E.K A Minor
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5608-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.B.,
Defendant-Appellant,
and
B.K.,
Defendant.
_______________________________
IN THE MATTER OF Z.E.K.,
A Minor.
_______________________________
Submitted October 12, 2017 – Decided February 16, 2018
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0532-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Dana Citron, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Alexander B. Stockdale, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Caitlin A.
McLaughlin, Designated Counsel, on the brief).
PER CURIAM
Defendant appeals from an October 17, 2014 Family Part order,
finding that she neglected her then nine-year-old son, Z.E.K.,1
within the meaning of
N.J.S.A. 9:6-8.21(c), by failing to ensure
he attended school regularly and on time during the first, second
and third grades. The fact-finding order was perfected for appeal
by a July 18, 2016 order terminating the litigation. We affirm.
The fact-finding hearing followed the Division of Child
Protection and Permanency (Division) executing an emergency Dodd
removal of Z.E.K. on April 18, 2014, pursuant to
N.J.S.A. 9:6-8.29
and 9:6-8.30,2 after defendant was hospitalized for exhibiting
1
We use initials to protect the identity of those involved and to
preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
2
The Division's removal of a child on an emergent basis without
a court order, commonly called a "Dodd removal," is authorized by
2 A-5608-15T2
"bizarre behaviors[.]" She was diagnosed with psychosis, not
otherwise specified, prescribed medications, and directed to
undergo ongoing psychiatric treatment. At the time, defendant had
sole custody of Z.E.K.3 The Dodd removal was subsequently upheld
by the trial judge, who ordered that Z.E.K. remain under the
Division's care, custody, and supervision at the return of the
order to show cause on June 2, 2014 and a subsequent review.
At the fact-finding hearing conducted on October 17, 2014,4
three witnesses testified for the Division, Special Response Unit
(SPRU) caseworker Patricia Ransome, investigative caseworker
Eliana Pazos, and permanency worker Sharon Miles. Additionally,
the Division moved eight exhibits into evidence, over defense
counsel's objection, consisting of Division screening and
investigation summaries, including a prior Division involvement
with defendant in 2013; a 2013 Division contact sheet; defendant's
compliance and therapy records; and certified school records for
the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to
-8.82.
3
Defendant had sole custody of Z.E.K. pursuant to a final
restraining order entered on her behalf against B.K., Z.E.K.'s
father, under the Prevention of Domestic Violence Act,
N.J.S.A.
2C:25-17 to -35.
4
Although B.K. participated in the proceedings, there were no
allegations in the Division's complaint against him and he has not
participated in the appeal.
3 A-5608-15T2
Z.E.K. In admitting the exhibits, the judge ruled that any third
party statements would be inadmissible. Defendant testified on
her own behalf.
At the hearing, Ransome testified that she responded to
defendant's apartment on April 18, 2014, after receiving a referral
from the mother of one of Z.E.K.'s friends, reporting defendant's
bizarre behavior, nonsensical statements, and "glazed" eyes during
the boys' sleep over at the reporter's home. Ransome's
observations of defendant were consistent with the reporter's
account. When Ransome asked defendant about marijuana use, she
evaded the question. In addition, although defendant admitted
living in the apartment with Z.E.K., who was not there at the
time, the apartment had "no furnishings," "no food[,]" and "there
was a pile of trash in every room." Ultimately, with defendant's
assistance, Ransome located Z.E.K. at her sister's home. After
talking to defendant's sister, Ransome transported defendant to
the hospital for a mental health assessment. Defendant was later
admitted to a psychiatric unit, Z.E.K. was placed with his paternal
grandmother, and an investigation ensued.
4 A-5608-15T2
During the course of the investigation,5 Pazos obtained
collaterals6 consisting of Z.E.K.'s school records, which raised
concerns about excessive absences and tardiness at school. Pazos
had reviewed an earlier referral from May 2013 when the Division
had substantiated defendant for educational neglect based on
Z.E.K. being "absent [thirty-eight] times, and tardy [fifty-nine]
times" in the second grade. The 2013 investigation had followed
a school referral to the Division that "[Z.E.K.'s] excessive
absences and tardiness were causing him to fall behind academically
. . . ." Despite meetings with school officials and receiving a
referral for services to address these concerns, defendant made
no effort to improve Z.E.K.'s attendance. In a February 26, 2013
letter, defendant was notified by the school that "State and
district policy consider[ed] students with ten or more unexcused
absences to be considered truant[,]" and "lateness to school [was]
considered an absence for the time missed."
During the 2013 investigation, defendant had explained to the
caseworker that sometimes Z.E.K. did not want to wake up to go to
5
During the investigation, defendant denied exhibiting any bizarre
behavior. However, she claimed "she may have possibly been
drugged" and admitted to Pazos that she took "a puff of marijuana
the day of the referral[.]" However, a drug screen administered
at the hospital was negative.
6
According to Pazos, the Division routinely utilized collaterals
in making findings in the course of an investigation.
5 A-5608-15T2
school. She had also attributed his excessive absences and
tardiness to the weather and her work schedule. As a result, the
caseworker developed "a plan" with defendant, wherein defendant
agreed to wake Z.E.K. at 6:30 a.m. beginning in September 2013,
to ensure that Z.E.K. attended school regularly and timely during
the upcoming school year. Thereafter, the case was closed.
When the Division reopened defendant's case as a result of
the April 18, 2014 referral for mental health issues, the fact
that Z.E.K.'s current school records for the 2013 to 2014 school
year showed continued excessive absences and tardiness raised
additional concerns because "a pattern was established."
Specifically, according to Z.E.K.'s school records, in first
grade, Z.E.K. was absent fifty-two times and tardy seventy times.
In a second grade progress report, the school indicated that it
had met with defendant "to discuss possible retention." In third
grade, Z.E.K. was absent twenty-four-and-one-half times and tardy
fifty-three times. In a third grade progress report, the school
reported that Z.E.K. was below grade level and continuing to fall
behind due to his frequent absences and tardiness. As a result,
the Division again substantiated defendant for educational
6 A-5608-15T2
neglect, rather than mental health issues,7 although the
educational neglect had not been the basis for the removal.
When questioned during the investigation about Z.E.K.'s
excessive school absences and tardiness, defendant told Miles that
"sometime[s] he may have not felt well," "some days he didn't want
to go[,]" and some days he was marked late despite only being "a
few minutes late . . . ." Defendant also explained that "she just
was concerned about [Z.E.K.] at that school" and "wanted him to
go to a new school." At the fact-finding hearing, defendant
testified that in 2012 when Z.E.K. was in the second grade, the
school he attended was over one-half-mile away from her apartment
and she had "[t]ransportation issues" getting him to and from
school, particularly in bad weather. Although "[t]he school tried
to work with [her]," they denied her request for bus transportation
because defendant lived less than one mile away from the school,
which reportedly amounted to a ten-minute walk.
7
Defendant was not substantiated for the mental health issues
that prompted the April 18, 2014 referral and removal because
"there was no[] history" or "evidence that she knew that she was
decompensating," and, based on her diagnosis, it could not be
determined "that she was aware that she had a mental health issue,
and was not treating it." Nonetheless, Miles testified that from
the time the case was reopened on April 18, 2014 to July 21, 2014,
defendant had not attended any follow-up mental health treatment
as directed.
7 A-5608-15T2
Defendant acknowledged that the school Z.E.K. attended in
third grade was "much better." However, Z.E.K.'s attendance record
did not improve because defendant "was going through domestic
issues at the time . . . ." In addition, defendant claimed she
did not learn until much later that "three tardies would be
considered absent." Defendant denied being told by the school
principal that Z.E.K.'s attendance or academic record could result
in his retention.8 Defendant testified further that when the
Division intervened in 2013, she was not offered any assistance.
Instead, the Division "gave [her] advice . . . [as] far as [her]
scheduling and things like that."
After the hearing, in an oral decision, Judge Stephen J.
Bernstein found "the Division ha[d] proven its case by a
preponderance of the evidence . . . ." The judge noted that
although there was no "basis for substantiating based on" the
"bizarre behavior . . . which resulted in the removal," "it was
later discovered that, in fact, the issue that resulted in the
substantiation a year earlier, . . . the educational neglect was
still an ongoing problem that [defendant] ha[d] never really
addressed."
8
Miles testified that since Z.E.K.'s placement with his paternal
grandmother, he had been attending school regularly and "doing
well."
8 A-5608-15T2
The judge found it significant that Z.E.K. "was an [eight]
or [nine][-]year[-]old kid[,]" as opposed to a teenager, and
stated:
There's no reason that this child was not
going to school regularly. . . . [T]he report
card is replete with instances of failure to
finish work, . . . of having problems, and
. . . bad grades. I mean this child needed
to get education. And if there's one thing
that['s] a parent's obligation, if nothing
else, it's to make sure their kid gets to
school, gets to school on time, and get's an
education so that they have a . . . future
life where they can succeed. . . . [T]he
Division was already involved, already
substantiated for . . . educational neglect,
and she repeats the same behavior the
following year. This is just not acceptable,
this is abuse and neglect.
The judge rejected defendant's explanations as "not
believable" and "not credible[.]" The judge described defendant's
testimony as "really just excuse after excuse after
misunderstanding . . . ." The judge concluded that Z.E.K. suffered
"actual harm" due to defendant's "repeated failures to meet his
educational needs by her repeated failure to send him to school
and her repeated failure to send him to school on time." The
judge noted, "more than neglect[,] it is abuse of a child to keep
them away from getting a good education." A memorializing order
was entered on the same date and this appeal followed.
9 A-5608-15T2
On appeal, defendant argues that the judge failed to satisfy
the requirements of Rule 1:7-4 because he "did not correlate the
factual findings to proper legal conclusions[,]" but rather "made
a blanket statement that [defendant] committed educational neglect
without a reasoned explanation based on the provisions of the
statute . . . ." Defendant argues further that the judge never
determined "whether [defendant] failed to exercise a minimum
degree of care, as required by the statute" and asserts "[t]here
is no evidence in the record that she acted with gross negligence
or reckless conduct." Instead, according to defendant, she "did
not purposely or recklessly encourage the truancy of her child
because she lacked the mental capacity to do so" as a result of
her "undiagnosed" and "untreated mental illness . . . ." We
disagree.
Our task as an appellate court is to determine whether the
decision of the family court is supported by substantial credible
evidence in the record and is consistent with applicable law.
Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). We owe particular
deference to "the family courts' special jurisdiction and
expertise . . . ." Id. at 413. Unless the judge's factual
findings are "so wide of the mark that a mistake must have been
made[,]" they should not be disturbed, even if we would not have
made the same decision had we heard the case in the first instance.
10 A-5608-15T2
N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279
(2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc.,
233 N.J. Super. 65, 69 (App. Div. 1989)). "It is not our place
to second-guess or substitute our judgment for that of the family
court, provided that the record contains substantial and credible
evidence to support" the judge's decision. N.J. Div. of Youth &
Family Servs. v. F.M.,
211 N.J. 420, 448-49 (2012). "Just as
important, the trial court must state the grounds for its
disposition." N.J. Div. of Youth & Family Servs. v. G.M.,
198 N.J. 382, 401 (2009) (citing
N.J.S.A. 9:6-8.51(b)).
Through the admission of "competent, material[,] and relevant
evidence," the Division must prove by a preponderance of the
evidence that the child was abused or neglected.
N.J.S.A. 9:6-
8.46(b). In pertinent part,
N.J.S.A. 9:6-8.21(c)(4)(a) defines
an "abused or neglected child" as a child under eighteen years of
age:
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 . . . to exercise a minimum
degree of care (a) in supplying the child with
adequate . . . education . . . though
financially able to do so or though offered
financial or other reasonable means to do so
. . . .
In New Jersey, parents are required to ensure that their
children either regularly attend the public schools of the district
11 A-5608-15T2
in which they reside or receive instruction equivalent to that
provided in the public schools.
N.J.S.A. 18A:38-25. Attendance
of a school age child is compulsory, Joye v. Hunterdon Cent. Reg'l
High Sch. Bd. of Educ.,
176 N.J. 568, 641 (2003), and 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. "The
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), aff'd,
74 N.J. 196 (1977)).
Applying these standards, we affirm the finding of
educational neglect substantially for the sound reasons expressed
by Judge Bernstein in his oral decision. Contrary to defendant's
argument, the judge's factual findings were adequately explained
and fully supported by the record. In light of those facts, his
legal conclusions are unassailable. The record also fully supports
the judge's finding that Z.E.K. suffered harm as a result of
defendant's neglect. His school records showed that Z.E.K. was
doing poorly in several classes, and was in danger of being
retained. Even if this were not the case, however, a court "need
not wait to act until a child is actually irreparably impaired by
parental inattention or neglect." N.J. Dep't of Children &
12 A-5608-15T2
Families, Div. of Youth & Families Servs. v. A.L.,
213 N.J. 1, 23
(2013) (quoting In re Guardianship of D.M.H.,
161 N.J. 365, 383
(1999)). "In the absence of actual harm, a finding of abuse and
neglect can be based on proof of imminent danger and substantial
risk of harm." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b)). That
is clearly the case here because Z.E.K.'s poor attendance record
placed him at serious risk of suffering an educational deficit.
Defendant argues that her mental illness precludes a finding
of educational neglect. Judge Bernstein rejected this argument,
and so do we. The existence of a mental illness, whether known
or unknown, does not preclude a finding of child abuse or neglect
under Title 9. The language in
N.J.S.A. 9:6-8.21(c)(4) concerning
failure "to exercise a minimum degree of care" has been interpreted
by our Supreme Court as referring to "conduct that is grossly or
wantonly negligent, but not necessarily intentional" and "reckless
disregard for the safety of others . . . ." Dep't of Children &
Families, N.J. Div. of Youth & Family Servs. v. T.B.,
207 N.J.
294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs.,
157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family
Servs. v. S.N.W.,
428 N.J. Super. 247, 254-56 (App. Div. 2012).
Although it is clear that the phrase implies more than simple
negligence, it can apply to situations ranging from "slight
inadvertence to malicious purpose to inflict injury." McLaughlin
13 A-5608-15T2
v. Rova Farms, Inc.,
56 N.J. 288, 305 (1970). "Where an ordinary
reasonable person would understand that a situation poses
dangerous risks and acts without regard for the potentially serious
consequences, the law holds him or her responsible for the
injuries" caused. G.S.,
157 N.J. at 179 (citing McLaughlin,
56 N.J. at 305).
Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result.
McLaughlin,
56 N.J. at 305. Because risks that are recklessly
incurred are not considered unforeseen perils or accidents in the
eyes of the law, actions taken with reckless disregard for the
consequences also may be wanton or willful. Ibid.; Egan v. Erie
Railroad Co.,
29 N.J. 243, 254-55 (1959). So long as the act or
omission that causes injury is done intentionally, whether the
actor actually recognizes the highly dangerous character of her
conduct is irrelevant. See McLaughlin,
56 N.J. at 305. Knowledge
will be imputed to the actor.
Affirmed.
14 A-5608-15T2
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