Opinion
DOCKET NO. A-0119-13T1
03-11-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.H., Defendant-Appellant. IN THE MATTER OF W.H. AND N.H., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-106-11. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant M.H. (Molly) appeals the Family Part's August 1, 2011 order finding that she neglected her twin daughters, W.H. (Wendy) and N.H. (Nikita), by willfully abandoning them. We reverse.
We use initials and pseudonyms to refer to the individuals in this case for the purpose of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Wendy and Nikita, who are twins, were born in July 1995. Their father, Molly's husband, is deceased. Molly, Wendy, and Nikita have histories of mental health issues and hospitalizations. Although Molly had a substantial history with the Division of Child Protection and Permanency (Division), there were no substantiated allegations of abuse or neglect prior to the incident involved in this appeal.
At about 5:10 p.m. on January 19, 2011, Molly arrived at St. Clare's Hospital to pick Wendy up from a treatment session. She was approximately seventy minutes late. A staff member at the hospital described Molly as "very distressed" and "upset," and speaking in "tangential" thoughts. Molly said "I cannot take [Wendy] home." Although two staff members tried to calm her down, they were unable to do so.
As Molly was preparing to leave St. Clare's at approximately 6:00 p.m., hospital staff told her that they would not permit her to leave the hospital with Wendy because of her present mental state. When Molly left, she told the staff members that she did not want psychiatric intervention and that they could "keep" Wendy. A hospital staff member notified the local police, requesting that they attempt to locate Molly and return her to the hospital "to make sure she was safe."
After Molly left, Division and hospital staff had concluded that Wendy should be admitted to the hospital. That required the Division to take custody of Wendy, so that it could consent to the admission.
Still in a state of distress, Molly returned to the hospital around 7:00 p.m. Maria Loizides, a hospital counselor, characterized Molly as being under "psychiatric distress," but noted she was not Molly's "treating clinician." After Molly was assessed, the staff determined that it was safe for her to return home. She was released around 4:00 a.m. on January 20.
The Division executed an emergency removal of Wendy at 8:22 p.m. On advice from hospital staff, the Division did not serve Molly with a notice of this removal because of her condition at the time.
Molly subsequently admitted to a clinician at St. Clare's that, between her first and second visit to the hospital on January 19, she drank "an entire bottle of wine" to calm herself from the stress resulting from her first interaction with the St. Clare's staff that day. At a meeting with a Division worker in June, Molly explained that January 19 had been an especially difficult day for her. Earlier that morning, "she learned that one of her close friends was diagnosed with cancer" and had written an emotional letter of support to the friend. Later in the day, she had appointments with both daughters at two distant treatment centers. Because of the distance involved and a disagreement over the medication Nikita was being prescribed, Molly was running late to pick up Wendy. Nikita's clinician later reported that Molly had cried throughout their meeting.
On January 21, the Division filed a verified complaint, seeking care, custody, and protection of Wendy. The complaint was subsequently amended to include Nikita.
On February 10, the return date of the Division's order to show cause, the judge ordered expedited evaluations of both girls and increased visitation between Molly and Wendy. The judge also expressed the hope that the girls could be returned home as quickly as possible.
Subsequent orders continued custody of both girls with the Division, required that all visitation be therapeutically supervised, and ordered Molly to undergo psychiatric evaluation, substance abuse treatment, and random urine screenings.
The Division offered three witnesses at the June 20 fact-finding hearing, which was conducted by a different judge. The witnesses were: (1) Loizides, the counselor from St. Clare's; (2) Nicole Rocco, a Division intake worker; and (3) Elmira Essen, also a Division intake worker. Their testimony was consistent with the facts outlined above. The Division offered exhibits consisting of Division records, police records, medical records, a substance abuse evaluation, and a counseling evaluation.
Essen testified that neither of Molly's daughters were physically harmed by the events of January 19. She was unwilling to give an opinion on the issue of whether they had experienced any emotional trauma because a full counseling evaluation was not available.
On August 1, the judge entered an order finding that Molly had neglected her daughters by abandoning them. The order was accompanied by a written opinion, which summarized the facts and explained the judge's reasons for a finding of neglect by abandonment. She wrote, in part, as follows:
In 2009 and 2010, [Molly] had agreed to obtain appropriate medical and psychiatric treatment for her children. Yet, upon further investigation, the medical records showed continued problems between [Molly] and [Wendy], and that [Molly] expressed she was unable to care for [Wendy]. [Wendy] was aware that her mother had expressed her inability to care for her and her desire that [Wendy] not return to the family home. She remained hospitalized . . . until February 1, 2011. [Molly's] actions caused her to fail to appropriately care for [Wendy] and created a need for her to be cared for by others, which constitutes abandonment.
. . . "Abandonment" is defined in part as anyone having the custody or control of the child willfully forsaking the child. N.J.S.A. 9:6-1. In any hearing under Title [Nine], proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child, or the responsibility of the parent or guardian. N.J.S.A. 9:6-8.46.
On January 19, 2011, [Molly] willfully forsook her child, which forced the Division to conduct a Dodd removal of [Wendy] in order to secure medical care for her. [Molly's] actions with respect to her failure to appropriately parent [Wendy] rendered her incapable of appropriately parenting [Nikita].
For the foregoing reasons, the [c]ourt finds that there was substantiated neglect of [Wendy] and [Nikita] by [Molly].
Following entry of the fact-finding order, the Division's efforts to implement its goal of reunification were unsuccessful. Molly's visits with her daughters were reduced to one hour per week in September 2012. The Division's plan was changed from reunification to independent living for Wendy and Nikita when they reached the age of majority.
In July 2013, Wendy and Nikita turned eighteen. Because they had "reached the age of majority and [were] no longer receiving Division services," the initial Family Part judge entered an order terminating litigation. This appeal followed.
II.
On appeal, Molly argues that the hearing judge's finding of abandonment is not supported by the facts in the record or the governing law.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this
legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.8(a).]
Among its other provisions, Title Nine provides that an abused or neglected child includes one who "has been willfully abandoned by [her] parent or guardian." N.J.S.A. 9:6-8.21(c)(5). Abandonment is further defined by N.J.S.A. 9:6-1, which states:
Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that a child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that a child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.
"'The statutory notion of abandonment . . . import[s] any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" Lavigne v. Family & Children's Soc'y of Elizabeth, 11 N.J. 473, 480 (1953) (quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)). Similarly, in the context of a termination of parental rights case, "[a]bandonment requires a finding that parents, although physically and financially able to care for their children, willfully forsook their parental responsibilities. The concept of abandonment entails a willful surrender or intentional abdication of parental rights and duties." In re Guardianship of K.L.F., 129 N.J. 32, 39 (1992) (citations omitted).
B.
Having reviewed the facts as found by the trial judge in light of the applicable law, we conclude that the facts do not support a finding of abandonment as that term is used in the governing law.
It is clear from the record that Molly and her two daughters suffered from significant mental health issues. It is also clear that Molly was unable to cope with her stress on January 19, 2011, due in part to her own mental health problems and also to those related to her efforts to care for her daughters by facilitating their need for psychological counseling. We find it significant that both Wendy and Nikita were at different facilities receiving psychological counseling on that day.
During the time between Molly's two visits to St. Clare's, she was using alcohol and that undoubtedly added to her inability to cope when she returned to the hospital in the early evening. However, by that time, the staff at St. Clare's had (1) refused to allow Molly to take Wendy from the hospital when she left the first time and (2) determined that Wendy required hospitalization. Nikita also remained at the mental health facility at which she was being treated that day. Consequently, both of Molly's daughters were being cared for at the time.
The children were not left on the street or alone at home for an extended period of time, nor were they turned over to a relative or friend who was unwilling or unable to care for them. Molly did not "evince[] a settled purpose to forego all parental duties and relinquish all parental claims to [Wendy,]" Lavigne, supra, 11 N.J. at 480 (quoting Winans, supra, 47 N.J. Eg. at 304), nor did she engage in a "course of conduct amounting to intended abandonment . . . with no reasonable expectation of any reversal of that conduct in the near future," In re Adoption of Children by D., 61 N.J. 89, 94-95 (1972).
The situation was far from ideal, and Molly and her daughters quite obviously required assistance from the Division, but there is no basis for a finding of abandonment or even neglect as that term is used in N.J.S.A. 9:6-8.21(c), as interpreted by Division of Youth & Family Services v. T.B., 207 N.J. 294 (2011). We reverse the order on appeal. Molly's name shall promptly be removed from the child abuse registry. N.J.S.A. 9:6-8.11.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION