Opinion
DOCKET NO. A-5264-14T4
10-27-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.M., Defendant, and F.M., II, Defendant-Appellant. IN THE MATTER OF F.M., III, a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joann M. Corsetto, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Danielle Ruiz, Designated Counsel, on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fasciale and Kennedy. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-57-13. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joann M. Corsetto, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant F.M. II (the father) appeals from an April 11, 2013 order finding he abused or neglected his three-year old son (the child) pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) by subjecting him to deplorable living conditions and failing to adequately address his developmental and medical needs. We affirm.
The child was born in 2010.
The judge conducted a fact-finding hearing as to the father over two days in April 2013. Before the fact-finding hearing commenced, the mother stipulated that she had neglected the child. At the hearing, the New Jersey's Division of Child Protection and Permanency (the Division) produced testimony from a caseworker (the caseworker), a director of a daycare center (the daycare director), and an early intervention service coordinator (the services coordinator). The father did not testify and attended only the first day of the fact-finding hearing. We discern the following facts from the evidence adduced at the hearing.
The child was enrolled in daycare from April 2012 to mid-August 2012. The father would often bring the child to school with hair matted and askew, dirt on his face and feet, and clothes that did not fit. The child, who at that time was twenty-three months old, did not speak or possess self-help skills.
The daycare director characterized the father as someone who was "a little off," disheveled, and ungroomed. She observed that the child arrived at the daycare without diapers, wipes, a cup, or a change of clothes. She also noticed that the father transported the child there without using a car seat. The father also failed to provide the daycare with the child's medical records.
The services coordinator confirmed the child lived in substandard living conditions. She arrived at the home to complete an individualized family service plan and noticed decorative cups with different drug names on them including a cup with the word "heroin" written on it. While she was in the home, the father did not participate in any meaningful conversation with the caseworker. Instead, he just nodded his head and muttered "the man, the man."
The caseworker described the child's home as having overflowing garbage, dirty floors, black toilet water, stains on the bathroom sink, and prescription bottles of medicine in an open drawer in the father's bedroom. The judge admitted into evidence pictures depicting these conditions. Indicating that the home posed hazardous risks to the child, the caseworker added that the sink was full of dishes, the garbage bags were overflowing with cigarettes and ash, and there were clothes tossed in a pile.
In a previous hearing, the caseworker also testified that she witnessed the child sitting in a pool of urine.
Upon the caseworker's insistence, the father consented to urine testing. He tested positive for marijuana, and admitted to drug use. He stated that smoking marijuana "wasn't a big deal" and that "he just smokes to like mellow himself out." The father's medical records also noted track marks on his arms, indicating that he was an intravenous drug user.
The judge found the Division's witnesses to be credible, and was satisfied that the Division met its burden by a preponderance of the evidence. The judge concluded that the father abused or neglected the child pursuant to N.J.S.A. 9:6-8.21(c). She found that the home was in a deplorable condition and unsafe; the child was filthy and neglected; and that the father subjected the child to a dangerous environment in which to live. In the order under review, the judge wrote:
[the father] failed to adequately address child's developmental and medical needs. [The] [c]hild ha[s] obvious severe delays and [the] parents failed to attend to his [Individualized Education Program (IEP)] evaluation for over one year; [the] [c]hild was frequently dirty, unkempt [and] generally neglected[;] [the] parents failed to provide for basic needs such as a car seat until told to do so. [The] [p]arents allowed [the] home to be in deplorable, unsafe condition, posing safety hazards to toddler; [the] parents appear to be longstanding drug abusers.In 2014, the mother consented to the award of kinship legal guardianship (KLG) of the child to his maternal grandmother. The KLG was granted in June 2015.
On appeal, the father argues the Division failed to prove by a preponderance of the evidence that he abused or neglected the child. He contends therefore that there is insufficient evidence to support the judge's findings.
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence[,]" we only disturb factual findings when "'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. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation and internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Where the Division seeks care and supervision of a child pursuant to Title 9 under the belief the child has been neglected or abused, the court conducts an evidentiary hearing where the Division must prove by a preponderance of the evidence that "'the child is an abused or neglected child. . . .'" N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002) (quoting N.J.S.A. 9:6-8.44); see also N.J.S.A. 9:6-8.21(c); N.J.S.A. 9:6-8.46(b). An "[a]bused or neglected child" includes
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 (a) 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, or (b) 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).]
Our Supreme Court has explained that, when evaluating whether a parent has failed to exercise a "minimum degree of care," courts are to use a gross negligence standard. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (referring to conduct that is "grossly or wantonly negligent, but not necessarily intentional"). In construing this provision, we have emphasized that the primary concern of Title 9 is the protection of children, not the culpability of parental conduct. State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991). "[A] guardian fails to exercise a minimum degree of care when he or she 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 that child." G.S., supra, 157 N.J. at 181.
An essential element in the definition of abuse or neglect is the "probability of present or future harm" to the child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). "[H]arm cannot be presumed in the absence of evidence of its existence or potential." Id. at 28. However, "[i]n the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013). The analysis of such allegations of child abuse which do not result in actual harm is fact-sensitive and resolved on a case-by-case basis. Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 192 (2015).
There exists sufficient credible evidence in the record to support the judge's findings that the father abused or neglected the child. The father failed to adequately care for the child; the child lived in a deplorable environment, including a home that was constantly "filthy," with overflowing trash and dishes, and dirt everywhere; the father did not attend to the child's developmental delays, hygiene, or basic needs, such as a car seat; and the father was a longstanding drug user who tested positive for marijuana use.
The judge also found the father exposed the child to imminent danger and substantial risk of harm. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (explaining a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect"). And there exists sufficient credible evidence in the record to support that finding. The father's actions — or lack thereof — placed the child in a constant situation of imminent danger and substantial risk. The father's drug problem only exacerbated the substantial risk of harm to the child.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION