Opinion
DOCKET NO. A-4947-12T3
03-02-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.W., Defendant-Appellant. IN THE MATTER OF X.R.W., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor X.R.W. (Charles Ouslander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-447-11. Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor X.R.W. (Charles Ouslander, Designated Counsel, on the brief). PER CURIAM
N.W. (defendant) appeals from a finding she abused and neglected X.W.R. (the child), by failing to provide adequate housing and care. The Law Guardian urges us to affirm the finding. After careful consideration of the record, we affirm.
The salient facts from the fact-finding hearing can be briefly summarized. The New Jersey Division of Child Protection and Permanency (Division) initially became involved with defendant in 2007 following a referral that she and her siblings were residing in a motel with their father, who was alleged to be using illegal substances. At that time, the Division made efforts to locate defendant but was unsuccessful.
The Division of Child Protection and Permanency was then known as the New Jersey Division of Youth and Family Services.
In 2010, while defendant was pregnant with the child, she requested services from the Division. In response, the Division filed for custody of defendant, then sixteen years of age. Defendant was placed in the Crossroads Capable Adolescent Program (Crossroads) for parenting skills. The Division maintained custody of defendant until she was eighteen years of age. On February 9, 2011, the child was born during defendant's residency at Crossroads. Defendant remained in Crossroads until the child's first birthday in February 2012.
The Division filed for care and supervision of the child on June 14, 2011. At that time, the father of the child, L.L.B. (the father) was incarcerated.
On February 11, 2012, the Division placed defendant in a Mommy and Me program at The Children's Home Society. Defendant voluntarily left that program on March 20, 2012. At that time, defendant did not have stable housing because she lacked her own housing or any family members who could assist her with housing. At one point defendant went to where the father was residing. The father did not have stable housing nor did he have his own home. He was living from home to home with his paramour and his mother.
On March 29, 2012, the Division received a referral from the Division of Welfare (Welfare) reporting defendant was at their office with the child. While at the office, defendant reported she was "kicked out" of her foster home and was sleeping in Newark Penn Station, with the child for the last four days. Defendant requested a shelter placement and assistance from Welfare with cash and food stamps. Welfare indicated a snack had been provided to the child and it was unknown how defendant was providing the child with food.
On the same date of the referral, a Division caseworker met with defendant who, at that meeting, did not have the child with her. Defendant initially refused to provide the Division with the child's location. Defendant advised the caseworker she had not been sleeping at Newark Penn Station but lied to Welfare because she believed she would be provided with emergency housing assistance. Defendant reported the child had been going back and forth between his paternal grandmother's home in Paterson and with his father in Newark. Defendant informed the caseworker she was staying with a friend in Newark and would continue to stay with friends. However, defendant refused to provide the caseworker with the address.
According to defendant, she left The Children's Home Society to attend a funeral, and asked the father to care for the child. Defendant acknowledged she violated the program's curfew by not reporting back for several days after she left. Defendant also admitted she did not have housing for herself or the child when she left the program, and further admitted she was not discharged from the program but chose to leave.
During her interview on March 29, 2012, defendant informed the caseworker that upon being advised by Welfare that the Division was contacted, she called the father and instructed him to pick up the child, which he did, because she thought the Division planned to remove the child. The father complied with defendant's request. According to defendant, she applied for housing with Welfare, but was denied and told she could reapply in six months. Defendant told the caseworker she was unsure where she would reside. Defendant also acknowledged she was unemployed and had no source of income.
The caseworker, after learning the location of the child, met with the father at his grandparent's residence on March 29, 2012. The child was present. The father informed the caseworker that the day before defendant requested to see the child and took him with her. The father reported he was concerned because "when [the child] was placed in his care [by defendant] the week prior, his pants were wet, he didn't have a coat on and he wasn't wearing any shoes." It was noted by the caseworker during the visit that the father did not have a bed or crib for the child at the residence. The father reported that while he was concerned defendant no longer resided in the Mommy and Me program and was staying with various individuals, he returned the child to defendant on March 28 because she told him she reported to the police that he kidnapped the child. The father said he returned the child because he feared not complying with defendant's request and did not want any issues with the police. The father informed the caseworker that he did not have the financial ability, housing or resources to care for the child alone. On that same date, an emergency removal of the child was conducted.
On July 31, 2012, at the conclusion of the fact-finding hearing, Judge Lois Lipton found the Division's witnesses credible and accepted their testimony as uncontroverted. The court found that while the father did not have the ability to care for his child either financially or with support from others, the defendant did have the ability to do so, but simply failed. The court found:
[S]he was given services. She was put in an appropriate place, a Mommy and Me program. I don't know what else the Division could have done for her. She was unable financially, but was provided the help. She chose to throw it away. She chose to go off and live somewhere where for whatever reason she wouldn't even give the Division the address of the friend she was living with and clearly she failed to provide [the child] with adequate shelter, though given the means to do so. So I find that there was neglect on the part of defendant by a preponderance of the evidence.
Compliance reviews were held on September 18, 2012, December 4, 2012 and February 19, 2013, and, in accordance with the Division's requests, legal and physical custody, care and supervision of the child remained with the Division while defendant received services.
A permanency hearing was held before a Family Part judge on April 2, 2013, at which time the court approved a permanency plan of termination of parental rights followed by adoption. The court found it would not be safe to return the child home in the foreseeable future because the "parents have been unable and/or unwilling to rectify the reasons for the Division's involvement [and] mother has an ongoing history of substance abuse and unstable housing." Defendant's counsel was present, but defendant did not appear. On May 7, 2013, the court entered an order terminating protective services litigation since the Division had filed a complaint for termination of parental rights.
A notice of appeal was filed on behalf of defendant, on or about June 19, 2013, challenging the court's July 31, 2012 finding of abuse or neglect.
On October 1, 2013, defendant entered a voluntary surrender of her parental rights. As a result, a judgment of guardianship was entered.
On appeal, defendant challenges the judge's finding. Defendant argues:
POINT I
THE DIVISION FAILED TO PROVE BY A PREPONDERENCE THAT THERE WAS CHILD NEGLECT ON THE PART OF DEFENDANT.
POINT II
DEFENDANT'S DUE PROCESS RIGHTS WERE DENIED WHEN THE PERMANENCY HEARING WAS CONDUCTED OUTSIDE HER PRESENCE AND WHEN HER ATTORNEY
WAS UNABLE TO PROTECT HER RIGHTS BECAUSE OF HER ABSENCE AT THE HEARING.
Our review of the court's factual finding of neglect is limited; we defer to the court's determinations "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 4 00 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 412-13. Unless the trial judge's factual findings "'went so wide of the mark that a mistake must have been made,'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)(citation omitted), they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. See Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4) 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 (a) in supplying defendant with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or through offered financial or other reasonable means to do so, or (b) in providing defendant 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[.]
This statutory definition applies to both a neglected child and abused child.
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A court does not have to wait until a child is actually harmed before it can act in that child's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.), certif. denied, 200 N.J. 505 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010); In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Nor does harm to defendant need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.
In finding neglect, the court must base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).
On appeal, defendant argues there was insufficient evidence to support the court's finding of abuse and neglect. We disagree. The evidence at the fact-finding hearing was "adequate, substantial and credible" and amply supported the finding defendant exercised a minimum degree of care of the child, subjecting her child to a lack of adequate shelter and nutrition which caused a "substantial risk" of harm. N.J. Div. of Youth & Family Services v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).
We next address defendant's claim that she was denied due process based upon her absence at the April 2, 2013 permanency hearing. At the outset of the hearing, defendant's counsel noted her absence due to an emergency hospitalization. Nonetheless, counsel did not object to the hearing proceeding despite her absence. The Division caseworker for defendant testified. The testimony focused upon the conduct of defendant and the services provided to her while under the Division's supervision. The testimony also referenced defendant's agreement with the proposed placement of the child with her "second cousin" in Virginia for eventual adoption if she was not reunified with the child. Her counsel decided not to cross- examine the caseworker. At the conclusion of the testimony, the court rendered its decision after counsel for defendant, based upon her absence, took "no position" concerning the Division's plan to seek termination of her parental rights.
The court approved the plan finding the Division made "reasonable efforts." The court did not foreclose defendant's opportunity to seek reunification in the future nor did it make a determination of parental rights. The court stated:
And if mom progresses again and gets to the verge and doesn't relapse and continues to go forward, other options can be explored, but everything is appropriate today that indicate - - everything is in order today. The testimony and the evidence today indicates that termination of parental rights is clearly the appropriate plan by the Division.
In light of our review of the record, given the nature of the proceeding and its outcome, we conclude that while it would have been preferable for the hearing to abide defendant's presence, her due process rights were not violated. She was represented by counsel and had the opportunity, through counsel, to confront the witness. Notably, her parental rights were not adversely impacted by the court's decision which was limited to approval of the Division plan to seek termination.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION