NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.K.

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                                NOT FOR PUBLICATION WITHOUT THE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-0052-17T4


NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.K.,

          Defendant-Appellant,

and

R.L.,

     Defendants.
________________________________

IN THE MATTER OF A.K. and Z.E.,

     Minors.
________________________________

                    Submitted December 6, 2018 – Decided February 11, 2019

                    Before Judges O'Connor and Whipple.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FN-07-0428-15.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Jennifer M. Kurtz, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Joseph J. Maccarone, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Danielle Ruiz, Designated
            Counsel, on the brief).

PER CURIAM

      Defendant T.K. (Tiffany) 1 appeals from an August 18, 2017 order

terminating litigation after two Family Part judges found she abused or

neglected her son, A.K. (Alex), on two occasions, and approved a permanency

plan for the termination of her parental rights to Alex and her daughter, Z.E.

(Zelda), followed by adoption. We affirm.

      Tiffany has been involved with the Division of Child Protection and

Permanency (Division) since she was twelve. Tiffany suffered from stress,


1
   We use pseudonyms and initials to protect the privacy and identity of the
family and parties, and because it allows for ease of reference when family
members have similar initials. R. 1:38-3(c)(12). By doing so, we mean no
disrespect.
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anxiety and bipolar disorder associated with traumatic life experiences. She also

has experienced financial and housing instability, as well as substance abuse

issues. Tiffany transitioned from foster care to the Division's independent living

services when she reached adulthood.

      Tiffany gave birth to Alex on February 28, 2015. She lived with Alex in

a "Mommy and Me" residential program that provided her with shelter and

stability. At that point, the Division's independent living stipend was Tiffany's

sole source of financial support. On April 7, 2015, she went to the Division

office to get her stipend. A week before, Tiffany told her Division worker that

Alex was throwing up milk and she had taken him to the emergency room twice.

When asked whether she scheduled a doctor's appointment for Alex, as the

Division recommended, Tiffany said she did not. The Division helped her

schedule an appointment.

      Tiffany returned to the Division office on April 9, 2015, ostensibly to sign

herself off of Division services and supervision because she planned to go on

welfare. The worker at the front desk noticed Alex was wet and provided a

change of clothes. When asked why Alex was wet, Tiffany explained he was

allergic to the brand of diapers supplied by the residential program and she did

not know where to buy diapers. The Division worker asked what the doctor


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recommended at Alex's recent appointment. Tiffany reported the only advice

the doctor provided was to give Alex more milk. The worker called the doctor,

who explained on speaker phone to Tiffany and the Division worker that Tiffany

had been given a long list of instructions including giving Alex more formula.

A Division worker asked Tiffany how she planned to support herself and Alex.

Tiffany did not have a plan. Due to the Division's concern that Tiffany was

unable to fully repeat what the doctor had told her, and what the Division

perceived as a lack of sufficient child care knowledge, the Division offered to

place a parent aide at the residential program to monitor Tiffany and Alex.

However, Tiffany resisted both this offer and signing an authorization allowing

the Division to speak to the residential program.

      The Division later learned Tiffany faced a one-week suspension for non-

compliance with the residential program. On April 13, 2015, the Division filed

a complaint and an order to show cause, and the trial court granted the Division

temporary custody of Alex. On July 30, 2015, following a hearing, the trial

court found Tiffany was unable to adequately care for Alex and removed him

from her custody and placed him with a resource parent, C.B. A fact-finding

hearing was conducted on July 30, 2015, during which the Division worker

testified, and Division records and a report from the residential program were


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admitted into evidence. After the hearing, the judge placed his findings on the

record. The judge determined Tiffany had placed Alex at substantial risk of

harm by a preponderance of the evidence. The basis of the finding was Tiffany

was unable to care for Alex in a supervised setting, refused additional support

that was offered, was suspended from the program, and, without any form of

financial assistance, attempted to sign herself off of Division services without

an adequate plan for Alex's care. Additionally, she lacked basic childcare

knowledge and was unable to recite the pediatrician's recommendations. Alex

remained in his resource home and services were ordered for Tiffany.

      Zelda was born on March 8, 2016. At that time Tiffany was engaging in

services, and, on August 26, 2016, the Division returned Alex to her care.

Tiffany resided at a transitional living facility. Shortly after the reunification,

she was evicted from the facility. Tiffany then went to live with a friend, L.E.,

and the Division believed the children were safe there. Soon after Tiffany and

Alex were reunified, Tiffany called C.B. and asked her to take Alex on the

weekends. C.B. agreed, and on October 11, 2016, the Division received a

referral that Tiffany and her children were sleeping in Penn Station and Tiffany

was abusing alcohol and drugs. The Division conducted a visit on November

28, 2016 and noticed Alex did not look well. Tiffany said Alex had recently


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come from C.B.'s house. In late November 2016, Tiffany called C.B. and asked

if she could pick up Alex because he would not stop crying. C.B. did so and ,

upon seeing he was sick, took him to the emergency room, where he was

diagnosed with pneumonia. Alex stayed with C.B. for several weeks. Tiffany

did not visit Alex and offered no financial support for his care despite C.B.'s

request.

       On December 17, 2016, L.E. called the Division to report she had not seen

Tiffany and Zelda for several days. The Division paid an unannounced visit to

L.E. and Tiffany's apartment on December 21, 2016 and found Tiffany and

Zelda, who appeared to be safe. On December 29, 2016, a Division worker

exchanged text messages with Tiffany, who reported L.E. had kicked her out

and asked if the Division were coming to take her kids. The Division believed

Tiffany was homeless because L.E.'s apartment was her only known source of

stable housing. During this exchange, L.E. called the Division to report she had

been taking care of Zelda for three days and Tiffany had not contacted her. L.E.

also explained she did not kick Tiffany out and she did not know where Tiffany

was.

       Meanwhile, on the same day, a woman named J.W. appeared at the

Division's office and introduced herself as Tiffany's wife.     J.W. expressed


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concern for Zelda and mentioned she often took care of her. She reported Alex

had been with C.B. for weeks and Tiffany often left Zelda in the care of different

people.2 Upon receiving this information, the Division executed an emergency

removal of both Alex and Zelda.

      A Division worker called Tiffany and informed her the Division would be

removing both her children. Tiffany hung up on the Division worker and

minutes later appeared at the Division office.      Tiffany told the front desk

personnel the Division was going to "have to find me and the baby." A Division

worker called L.E. to ensure she did not give Zelda to Tiffany.          Division

workers, along with police officers, arrived at L.E.'s apartment and safely

removed Zelda. Later that day, the Division removed Alex from C.B.'s house.

Both children received physicals, and Alex was found to be healthy, while Zelda

was suffering from eczema. On January 3, 2017, the trial court granted the

Division temporary custody, care, and supervision of the children and placed

both children with C.B.

      On June 23, 2017, a different Family Part judge conducted the second fact-

finding hearing. Both C.B. and a Division supervisor testified for the Division.



2
 The trial judge relied on this conversation only for the purpose of learning
why the Division acted, not the truth of the matter asserted.
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Tiffany called no witnesses. The trial judge found C.B.'s testimony regarding

her care of Alex in November and December 2016 credible. He also found the

Division supervisor credible and admitted into evidence the Division's report

chronicling its concern over Alex and Zelda's safety and Tiffany's psychological

evaluation.3 The trial judge found Tiffany left Alex with C.B. for an extended

period of time and did not check in on him or provide C.B. with any financial or

material assistance to care for Alex.

      The court also found Tiffany did not adequately plan for her children and

left them in the care of individuals without providing any indication how long

the children would be left with such caregivers and did not provide any resources

for the caregivers. The judge determined this supported a finding Tiffany

neglected Alex, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), because she failed to

exercise a minimum degree of care.          Because there was little evidence

concerning Zelda, the trial judge did not make a finding Tiffany neglected her.

Nevertheless, both Alex and Zelda remained in the Division's custody and the

trial judge approved the Division's plan to seek termination of Tiffany's parental




3
   The trial judge excluded several hearsay statements in the Division's report
and a psychological evaluation, because they contained uncorroborated
allegations of Tiffany's behavior from out-of-court declarants.
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rights to both children followed by adoption. On August 18, 2017, the trial judge

dismissed the FN litigation. This appeal followed.

      On appeal, Tiffany argues both the 2015 and 2017 findings she abused or

neglected Alex were error. She submits the 2015 trial judge relied on Tiffany's

youth, inexperience as a mother, and poverty to find she abused Alex, and failed

to identify any particular conduct indicating she failed to exercise a minimum

degree of care. Additionally, she argues C.B.'s 2017 testimony was not credible

and the judge had no basis to conclude she abused or neglected Alex.

      We defer to a trial court's findings of fact and credibility determinations

if they are sustained by "adequate, substantial, and credible evidence" in the

record. N.J. Div. of Youth & Family Servs. v. R.G.,  217 N.J. 527, 552 (2014).

As a general rule, with respect to the exclusion or admission of evidence, we

afford "[c]onsiderable latitude . . . [to a] trial court in determining whether to

admit evidence, and that determination will be reversed only if it constitutes an

abuse of discretion." N.J. Div. of Child Prot. & Permanency v. N.T.,  445 N.J.

Super. 478, 492 (App. Div. 2016) (quoting State v. Kuropchak,  221 N.J. 368,

385 (2015)). We owe no special deference to the trial court's rulings here

because they essentially involved the application of legal principles and did not




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turn upon contested issues of witness credibility. See Manalapan Realty, LP v.

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

      We first address the 2015 finding and affirm. Tiffany was found to have

abused or neglected Alex pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). The statute

defines a 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 the failure of his
            parent or guardian . . . to exercise a minimum degree of
            care . . . (b) in providing the child with proper
            supervision or guardianship, by unreasonably inflicting
            or allowing to be inflicted harm, or substantial risk
            thereof . . . .

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

      The basis of the court's 2015 finding was Tiffany failed to meet the

standard of care imposed by this statue, even in a supervised setting. She refused

additional support offered by the Division; was suspended from the residential

program; without having any other form of financial assistance or housing,

rejected Division services without an adequate plan for Alex's care; lacked basic

childcare   knowledge;    and    was   unable    to   recite   the   pediatrician's

recommendations. Defendant argues the court's finding should be reversed

because no gross negligence or recklessness was proven by a preponderance of

evidence.

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      Our Supreme Court has said the standard for abuse and neglect is met

when a parent's conduct is at least "grossly or wantonly negligent." G.S. v Dep't

of Human Servs.,  157 N.J. 161, 178 (1999). A parent "fails to exercise a

minimum degree of care when he or she is aware of the dangers inherent in a

situation and fails [to] adequately . . . supervise the child or recklessly creates a

risk of serious injury to that child." Id. at 181. In making this determination,

courts analyze the harm to the child and whether the harm could have been

prevented. Id. at 182. The Division must show substantial and imminent danger

or substantial risk of harm to the child, but need not wait until the child is

harmed. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v.

A.L.,  213 N.J. 1, 22-23 (2013).

      While the court's rationale could have been more clearly articulated, it is

implicit the court's finding was based upon Tiffany taking steps that would have

unnecessarily rendered her and Alex homeless and without financial or other

resources. We are satisfied these actions by Tiffany created a substantial risk of

harm to Alex.

      Regarding the 2017 finding of abuse and neglect, Tiffany argues the

judge's decision should be reversed because it was so wide of the mark as to be

clearly mistaken, and the elements of imminent danger and parental fault are


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absent. The basis of the 2017 finding was that Tiffany left Alex with C.B. for

an extended period of time and did not check in on him or provide C.B. with any

financial or material assistance to care for Alex. The court found Tiffany did

not adequately plan for her children and left them in the care of individuals,

providing neither an indication of how long the children would be left with them

nor any resources. The judge determined this supported a finding Tiffany

neglected Alex, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), because she failed to

exercise a minimum degree of care. We disagree.

      The court specifically found Tiffany's practice of dropping off Alex at

C.B.'s house on weekends did not constitute abuse or neglect. Rather, the court

found Tiffany abused or neglected Alex because Tiffany left Alex for several

weeks in November and December 2016 without providing baby supplies or

financial assistance to C.B.    C.B. agreed to this arrangement initially, but

complained it was inconsiderate and unfair when the period of time became

weeks rather than weekends. The record does not fully support a finding that

Alex was placed at a risk of harm as a result of Tiffany's failure to exercise a

minimum degree of care. The record demonstrates he was safe in C.B.'s care

even if C.B. was dissatisfied with Tiffany's failure to provide financial support.




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No additional findings were made by the court.           Hence, we reverse as

unsupported the court's June 23, 2017 finding of abuse and neglect.

      In light of our disposition, we instruct the Division to remove from its

records all references to abuse or neglect being "established" as a result of the

December 29, 2016 investigation, consistent with this opinion.

      Affirmed.




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