Opinion
DOCKET NO. A-5455-12T3
01-08-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.M., Defendant-Appellant, and R.R., Defendant. IN THE MATTER OF B.R., A.R., AND J.R., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0229-12. Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief). PER CURIAM
Following a fact-finding hearing in this Title 9 matter, the trial judge found by a preponderance of the evidence that defendant E.M. abused or neglected her three children pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). The judge also found that the children's father, R.R., abused or neglected the children. R.R. has not appealed. For the following reasons, we affirm.
At the fact-finding hearing, a caseworker from the New Jersey Division of Child Protection and Permanency (DCPP) testified that DCPP received a referral indicating that on March 3, 2012, the police responded to a report of gunshots fired in defendant's home and saw that the home was filthy with cat feces throughout, the children lacked proper sleeping arrangements, and there was drug paraphernalia in the home used to smoke crack cocaine. The police arrested two individuals that night, and arrested R.R. the next day on an outstanding arrest warrant.
The caseworker testified that she went to defendant's home on March 4, 2012, and found it and the children in deplorable condition. The home smelled of marijuana and cat urine, and there were no sheets on the children's bed, clothes and garbage piled on the floor throughout the home, dirty dishes piled in the kitchen sink, and dirty items were on top of a microwave oven. There also was a cat litter box overfilled with feces, cat feces and other dirty items in the bathtub, bullets in the toilet bowl, no food in the home, and medication left where the children could reach it.
The caseworker testified that she spoke with the children on March 4, 2012, and saw that they were dirty, their clothes were soiled, they smelled as if they had not bathed, and they had dirt on their faces. The children told the caseworker that their parents and other individuals used drugs in the home, they saw domestic violence between their parents, there were loaded guns in the home, which they saw their parents load and point, and they were home when the gun was discharged in the kitchen the night before. They also said they were hungry and had not eaten dinner the night before or breakfast that morning because there was no food in the home.
The caseworker testified that she spoke to defendant, who said she was receiving financial assistance and awaiting receipt of funds so she could purchase food. Defendant denied there was marijuana use in the home or that she used drugs or was present when the gunshots were fired.
Photographs corroborating the caseworker's observations of the home and children were admitted into evidence. Defendant and R.R. did not testify or present any documentary evidence; however, at a prior hearing before the same judge, R.R. testified, under oath, that he was employed.
In an oral opinion, the trial judge made detailed factual findings and determined by a preponderance of the evidence that defendant abused or neglected the children pursuant to N.J.S.A. 9:6-8.21(c)(4). The judge found that the children's physical or mental condition was impaired or in imminent danger of becoming impaired as a result of defendant's failure to exercise a minimum degree of care in supplying them with adequate food and shelter. The judge emphasized that defendant and R.R. were aware of the lack of food in and deplorable condition of the home, but took no corrective action. This appeal followed.
On appeal, defendant contends there was insufficient evidence of a lack of food in the home. She argues that the judge erred in relying on the children's uncorroborated hearsay statements to make that finding. She also argues that missing one meal does not constitute neglect and there was no evidence the family could afford food. Defendant also contends the condition of the home was merely "general clutter" that did not cause a serious risk of harm to the children. We reject these contentions.
Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:
[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. Indeed, we recognize that because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding."[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. Manalapan Realty L.P. v. Twp of Manalapan, 140 N.J. 366, 378 (1995).
[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (internal quotation marks and citations omitted).]
An "abused or neglected child" means, in pertinent part, a child 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, as herein defined, 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[.]The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). It is also irrelevant that the parent or guardian did not intend to cause the harm. G.S. v. Dep't of Human Servs., 157 N.J. 161, 183 (1999). The failure to exercise a minimum degree of care occurs when the parent or guardian "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 the child." Id. at 181.
[N. J.S.A. 9:6-8.21(c)(4)(a).]
Governed by these standards, we are satisfied there was substantial credible evidence to support the judge's conclusion that defendant abused or neglected the children pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). The children's out-of-court statements about the lack of food in the home were admissible under N.J.S.A. 9:6-8.46(a)(4) and corroborated by the caseworker's observations and photographs admitted into evidence. This and other evidence established that the children were living in deplorable conditions with no food, and these conditions were not the result of the family's lack of financial means, as R.R. was employed and defendant was receiving financial assistance. The lack of food in and deplorable condition of the home placed the children's physical, mental or emotional condition in imminent danger of becoming impaired and constituted abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(a). See N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 551-53, 562 (1994) (affirming a finding of abuse and neglect based, in part, on "deplorable living conditions that were not the result of poverty," on the children's and parents' routinely filthy physical appearance and foul odor," and on the failure to feed the children).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION