Opinion
DOCKET NO. A-3885-13T3
05-09-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.H., Defendant-Appellant, and R.M., Defendant. IN THE MATTER OF C.H., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H. (Margo E.K. Hirsch, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-77-14. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H. (Margo E.K. Hirsch, Designated Counsel, on the brief). PER CURIAM
Defendant B.H. (Beth) appeals from a March 20, 2014 order finding that she had abused or neglected her youngest child by exposing the child to her paramour, A.D., who had previously been found to have sexually abused Beth's oldest child. We affirm.
To protect privacy interests and for ease of reading, we use fictitious names for the parties. See R. 1:38-3(d)(12). --------
I.
Beth is the biological mother of four children: M.H. (Millicent), born in 2002; N.H. (Neil), born in 2003; M.A.H. (Marisol), born in 2005; and C.H. (Carl), born in 2013.
The Division of Child Protection and Permanency (Division) has been involved with Beth and her children since June 2006. Beth was referred to the Division on fourteen occasions before 2012. Those referrals involved allegations of various forms of parental neglect, including sexual abuse of the children, lack of supervision, substance abuse by the adults who were responsible for the care of the children, and unsanitary living conditions. Twice, the Division substantiated Beth for neglect in allowing men to have access to her children resulting in the sexual abuse of two of the children. In 2008, the Division found that Beth had allowed a registered sex offender to have access to the children and that the offender sexually abused Millicent and Neil. In 2011, the Family Part found that Beth's paramour, A.D., had sexually abused Millicent. We affirmed that finding of abuse by A.D. N.J. Div. of Child Prot. & Permanency v. A.D., No. A-1710-12 (App. Div. June 6, 2014) (slip op. at 3).
It is the 2011 sexual abuse that forms the genesis for the finding of Beth's neglect of Carl that is at issue on this appeal. The sexual abuse of Millicent was reported in the fall of 2011. Following an investigation and a fact-finding hearing, a Family Part judge found that A.D., who had assumed a quasi-parental role as Beth's live-in paramour, had sexually abused Millicent. The evidence at the fact-finding hearing included evidence that A.D. had penile-vaginal intercourse with the then nine-year-old child on multiple occasions.
In November 2011, the three older children were removed from Beth's custody and placed in foster care. Millicent, who had already been receiving psychotherapy for the sexual abuse she suffered in 2008, continued with such treatment. The child also suffered from emotional and mental health issues, and continued to receive psychiatric care. As a consequence of her trauma and psychiatric issues, Millicent was placed in inpatient treatment.
A.D. was arrested and charged with criminal sexual assault. The prosecutor, however, chose not to proceed with criminal charges of sexual assault against A.D. because of evidentiary issues. Instead, A.D. pled guilty to a violation of a victim no-contact order by sending a picture to Millicent while he was incarcerated.
In October 2012, Millicent, Neil, and Marisol were returned to Beth's custody. The Division retained care and supervision of the children and continued to provide services to the family. Millicent was placed in a residential treatment facility, but visited her family on weekends.
A.D. was released from jail in April 2013. That same month, Beth, together with the three children, met with A.D. Beth allowed A.D. to have physical interaction with Millicent. Following that incident, the Division removed the three children from Beth's custody and the Family Part approved that removal.
In August 2013, Beth gave birth to Carl. A Division worker went to the hospital to check on Beth and found A.D. in the hospital room with Beth. Although Beth acknowledged that A.D. was not Carl's father, she informed the worker that she intended to name A.D. as the father on Carl's birth certificate. She also informed the worker that she planned to continue to see A.D. and depended on him for support. Beth has acknowledged that R.M. is the biological father of Carl, but R.M. has not participated in the litigation.
The Division executed an emergent removal of Carl from Beth's care based on Beth's ongoing relationship with A.D. Initially, the Family Part granted the Division care and supervision of Carl, but left Carl in Beth's custody. The judge did order, however, that A.D. was not to have any contact with Carl or go to Beth's residence. In September 2013, a fact-finding hearing was held and the Family Part judge found that Beth had neglected her three older children by allowing A.D. to have contact with the children, including Millicent. That same day, the judge approved a permanency plan for all four children that called for the termination of Beth's parental rights and the adoption of the children. The judge also granted the Division custody of Carl, who was then placed in foster care.
Over the Division's objection, the Family Part kept the Title Nine action open to allow a fact-finding concerning the abuse or neglect of Carl. The court did permit, and the Division did file, a guardianship complaint for all four children. The initiation of the Title Thirty proceeding would not have precluded Beth from appealing the final disposition order entered in the Title Nine action concerning her three older children. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261-62 (App. Div. 2009) (explaining that final orders of disposition in a Title Nine action are appealable as of right), certif. denied, 201 N.J. 153 (2010). Nevertheless, Beth did not appeal the order finding that she had abused or neglected her three older children.
On March 20, 2014, a fact-finding hearing was held concerning Beth's abuse or neglect of Carl. The Division presented the testimony of one case worker and submitted documentary evidence. The worker testified that Beth had told him that she and A.D. had known each other for years and she always loved A.D. The worker also explained that he had found A.D. with Beth at the hospital following the birth of Carl. Beth told the worker that although A.D. was not Carl's biological father, she planned to name A.D. as Carl's father on the birth certificate because A.D. was her only means of support. The worker also testified that after he told Beth that the Division planned to remove Carl from her custody because of her ongoing relationship with A.D., he overheard Beth and A.D. agree to meet later and they kissed each other.
Beth did not testify at the fact-finding hearing and presented no witnesses. After hearing the evidence, the Family Part judge found that due to A.D.'s sexual abuse of Millicent, A.D. posed an ongoing risk to all of Beth's children, including Carl. The judge also found that Beth had an ongoing relationship with A.D. and Carl was at risk of harm because of Beth's refusal to end her relationship with A.D. Thus, on March 20, 2014, the judge entered an order finding that Beth had abused or neglected Carl by exposing him to A.D. The judge also terminated the Title Nine litigation because the Division had previously filed a guardianship complaint concerning all four children.
Beth now appeals the finding of abuse or neglect concerning Carl. Beth has separately appealed the subsequent termination of her parental rights of all four children. The appeal of the termination of Beth's parental rights will be addressed in a separate opinion. Here, we address only Beth's appeal from the March 20, 2014 order finding that she abused or neglected Carl.
II.
On this appeal, Beth argues that the finding that she abused or neglected Carl is not supported by the evidence presented at the hearing. Beth also challenges the permanency plan concerning Carl, arguing the judge erred in entering such a plan because Carl was removed on the day of the permanency hearing. Having reviewed the record and applicable law, we determine that substantial credible evidence existed supporting the finding of neglect of Carl, and that the argument concerning the permanency plan is moot.
A.
We first address the fact-finding. Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the "health and safety" of children. N.J.S.A. 9:6-8.8(a), (b). Abuse or neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when
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 [or her] parent or guardian . . . to exercise a minimum degree of care . . . 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. 9:6-8.21(c)(4)(b).]
The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. See N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by "the totality of the circumstances." Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 401 (App. Div. 2014).
The statute does not require that the child experience actual harm. See N.J.S.A. 9:6-8.21(c)(4)(b); see also Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (stating that a court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect" (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999))). Instead, a child can be considered abused or neglected if his or her "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus of the court's evaluation is to preserve the safety of the child. N.J.S.A. 9:6-8.8(a).
The Supreme Court has held that the abuse or neglect standard is satisfied when the Division demonstrates that a parent "has failed to exercise a minimum degree of care." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was "grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Wanton negligence is conduct that was "done with the knowledge that injury is likely to . . . result." Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. See id. at 179. Moreover, a parent can be "liable for the foreseeable consequences of his or her actions." Ibid.
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We defer to the judgments of the Family Part if those findings are "supported 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). A decision should be reversed or modified on appeal only if the findings were "so wholly un-supportable as to result in a denial of justice." Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014).
Applying this scope of review, we conclude that substantial credible evidence exists in this record to support the finding that Beth neglected Carl. The Family Part judge found that Beth had an ongoing relationship with A.D. The judge also found that given A.D.'s past sexual abuse of Millicent, A.D. posed a substantial danger to all of Beth's children, including Carl.
Beth argues that she never left Carl alone with A.D. There was, however, unrebutted testimony that Beth intended to name A.D. as Carl's father on Carl's birth certificate and to continue her relationship with A.D. Moreover, Beth had previously allowed A.D., a substantiated child abuser, to have physical contact with Millicent, the child A.D. had sexually abused. Given the history of past sexual abuse of her other children, the Division did not need to wait until Carl suffered actual harm. See DMH, supra, 161 N.J. at 383; see also N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (explaining that "[p]redictions as to probable future conduct can only be based upon past performance" (quoting J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978))), certif. denied, 174 N.J. 39 (2002). Consequently, Beth's prior parental conduct posed a substantial risk of current danger to Carl. See N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 418 (App. Div.) (explaining that "prior parental conduct posing a risk of harm in the past that did not materialize is pertinent to imminent danger only to the extent that it is probative of current danger"), certif. granted, 220 N.J. 41 (2014), appeal dismissed and remanded, 223 N.J. 160 (2015).
Beth also argues that the Family Part judge did not make an explicit finding of imminent risk to Carl. During his oral ruling, the judge referred to the risk as an "imminent potential risk" and, at other times, stated "that risk is . . . not imminent, but that risk exists." Ultimately, however, the judge ruled that given Beth's pattern of failing to protect her children, the Division had met its burden of proving that Beth had neglected Carl. A review of the judge's entire oral decision shows that the judge found that Beth had placed Carl in imminent risk of harm by exposing the child to A.D. Moreover, our review of the record satisfies us that substantial credible evidence exists showing that Carl would be at imminent risk of harm given Beth's ongoing relationship with A.D. Beth's actions showed an intent to continue her relationship with A.D. without regard to the imminent danger A.D. posed to the children, including Carl. Accordingly, we cannot conclude that the fact-findings of abuse or neglect were so wholly unsupported as to result in the denial of justice and we affirm the fact-finding.
B.
Beth also seeks to challenge the inclusion of Carl in the permanency plan. Beth points out that she was denied the statutorily prescribed fifteen days notice, N.J.S.A. 30:4C-61.2(b), because Carl was removed from her custody on the same day that the permanency plan was entered. Beth also argues that the Division did not provide reasonable efforts to restore Carl to her custody. The filing of the Title Thirty action, however, has rendered this issue moot.
"An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011) (quoting A.P., supra, 408 N.J. Super. at 261). Once jurisdiction is exercised under Title Thirty, any interlocutory orders entered in a Title Nine proceeding "'can have no practical effect on the existing [Title 30 action]' . . . , which renders [the] appeal moot." A.P., supra, 408 N.J. Super. at 264 (first alteration in original) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006)).
The permanency order that was entered by the Family Part in September 2013 was entered in the Title Nine action. In November 2013, the Division filed a Title Thirty action concerning all four children. Consequently, any ruling on the permanency plan entered in the Title Nine action would have no practical effect. Once the Title Thirty action was filed, all issues concerning the custody and visitation of Carl were governed by that proceeding. See id. at 261; see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 435 (2012). Indeed, the Title Nine action only stayed open because Beth requested a fact-finding hearing on the abuse or neglect of Carl. When that fact-finding hearing was concluded in March 2014, the Title Nine action was dismissed, while the Title Thirty action continued to proceed. As we noted earlier, initiation of the Title Thirty proceeding did not preclude Beth from appealing the factual finding of abuse or neglect concerning Carl. A.P., supra, 408 N.J. Super. at 261-62.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION