Opinion
DOCKET NO. A-1415-13T4
04-28-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.N., Defendant-Appellant. IN THE MATTER OF J.N., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-159-12. Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, on the brief). PER CURIAM
Defendant R.N. ("Ruth") appeals from an order entered by the Family Part finding that she abused or neglected her minor child J.N. ("Judy") by placing her at substantial risk of harm. We affirm.
We use pseudonyms to protect the identity of the minor and for ease of reference.
I.
We discern the following facts from the record adduced at the fact-finding hearing. Judy was born in 1997. Judy lived with Ruth and her grandmother ("Agnes"). The Division became involved with the family in March 2012 after receiving a report from Judy's middle school that Judy had missed thirty-two days of school and had been cutting herself throughout the school year. The referral indicated that Ruth had been taking Judy to the local emergency room for crisis screening and Judy had been referred for after-care or out-patient treatment, but Ruth did not follow up with the care plans. The Division worker, concerned about whether Judy was getting proper mental health services, interviewed Ruth, Judy, and Agnes at their home. Ruth acknowledged that Judy was diagnosed with depression, has been prescribed medication, and would begin to see a counselor. Ruth, Judy, and Agnes reported that Judy's absences were the result of bullying at school. Ruth indicated she was only aware of Judy's cutting for a few months, but Judy privately told the Division worker that she had been cutting herself since age six. The Division worker noticed that the basement was cluttered and there were dog feces on the floor. Ruth told the Division worker she would clean it.
Agnes shared temporary joint custody of Judy and was parent of primary residence pursuant to a previous Family Part order.
Upon further investigation at Judy's school, the Division worker learned that Judy was failing three of four major subjects in the eighth grade and that the school was concerned about abuse or neglect due to the cutting and prior suicide attempts, of which Ruth was aware and responsive to conference requests. Eventually, the Division determined that the allegations of abuse or neglect were not substantiated.
A few weeks later, in April 2012, an anonymous caller reported animal cruelty at Ruth's residence to the police. Ruth met Officer D. Wentz at the door and presented a healthy dog, which she claimed was the only dog in the home. As she did so, Judy stood behind her shaking her head. The officer detected an overwhelmingly foul smell inside the residence. He spoke to Judy outside the presence of her mother. Judy informed the officer that she knew another dog had been locked in the basement for months because, at one point, she had gone down to the basement and seen the dog, which was locked in a cage filled with urine and feces. Judy said that thereafter, she had not gone down to check on the dog because of her severe allergies. Judy told the officer that if Ruth could do that to her dog, she was afraid of what Ruth could do to her.
The officer went to the basement and observed a dog in a cage filled with feces and urine. The dog appeared emaciated, the outlines of his spine and hips were visible through his skin, and he had several open wounds. The dog had no food or water. There were urine and feces all over the basement floor. The officer was overcome by the odor and went outside to get some air. He only entered the basement after he had retrieved a mask and some plastic bags to wrap around his boots. While in the basement, the officer also found a malnourished cat. All three animals were removed to a shelter. Ruth was arrested for obstruction of the administration of the law or other governmental function, N.J.S.A. 2C:29-1(a). Agnes had an anxiety attack and went to the hospital. The Division worker arranged to have Judy stay with her grandfather.
Ruth was released from police custody the following day and went to Judy's school to make sure she would be sent home. However, Judy told her guidance counselor she was afraid to return home. The Division worker went to Judy's school to speak with her. Judy told the Division worker she was doing better since she was out of Ruth's house. In response to questioning, Judy disclosed that she did not feel safe at home and said she was afraid to go home because she was the one who told animal control about the dog. She disclosed that her mother had hit her in the past and had recently grabbed her neck and tried to choke her until Agnes intervened. Judy reported that both Ruth and Agnes yelled at her and "put her down" frequently, and she expressed a desire to continue living with her grandfather.
The Division worker went to speak with Ruth at her residence. Ruth acknowledged that she had lied to the police about having only one dog but denied abusing Judy. The Division initially determined that the home would be safe if Ruth cleaned the basement. However, a short time later, the Division worker talked to Officer S. Wentz who had spoken with Judy. Officer S. Wentz encouraged the Division to reconsider its decision based upon additional information he received from Judy about her distress over the possibility of returning, including the allegation that the house had a bed bug infestation. He said that Judy stated that "living in that home" had caused her to try to kill herself. Moreover, Officer S. Wentz observed cut marks and insect bites on the child's arms. Thereafter, the Division initiated a safety plan that permitted Judy to stay at her grandfather's home.
Officers D. and S. Wentz are brothers.
On April 11, 2012, after another referral was received, the Division worker spoke with Judy at her grandfather's house. Judy disclosed that on St. Patrick's Day, Ruth gave her two cups of alcohol and she became drunk. Judy also discussed the previous choking incident saying it only happened one time, but that afterwards she began sleeping with a knife under her pillow. Ruth was also interviewed and admitted that she gave Judy alcohol but that it was a small amount and Judy was not drunk. The Division received a letter from Judy's therapist, who expressed concern about Judy returning home due to the conditions that led to her deepening depression and excessive school absences.
On April 12, 2012, the Division received a letter from Judy's school outlining concerns for Judy's home life and describing her as sullen and withdrawn, with her basic needs not being met. The letter reported that since her removal from Ruth's house, she looked cleaner, had more energy, and smiled. The Division completed its investigation and substantiated Ruth and Agnes for educational and environmental neglect as well as physical abuse.
On May 4, 2012, the court awarded the Division care, custody and supervision of Judy. The Family Part judge ordered that Judy remain in the care of her grandfather.
At the fact-finding hearing, Officer D. Wentz, the Division worker, and Officer S. Wentz testified. The court found that
the photo evidence of the condition of the home . . . [t]ogether with the officer's detailed testimony and contemporaneous police reports, . . . depict a situation that a range of reasonable individuals would perceive as at least shocking and visually disturbing to horrifying and traumatizing. Clearly, the condition of the basement and dog occurred over time, was well within [Ruth's] ability to prevent with relative ease, and which she knew or recklessly ignored the impact on any others who might encounter it.
. . . .
[Ruth] acted in reckless disregard of her daughter's well[-]being as she knew [Judy] did not have the emotional or physical strength of the hypothetical, reasonable, average person described by the court above. [Judy], in comparison, was a thirteen-year-old asthmatic child who was struggling with and in treatment for depression, was cutting herself and had to be taken to a local hospital for a crisis psychiatric evaluation during the time these animals were starving and dying, literally, right under her nose.
The child's essentially unaddressed absence from school for thirty-two days in one school year in the midst of her living in the environmentally hazardous household, simply compounds the evidence supporting the Division's Title 9 claim.
The court entered an order finding by a preponderance of evidence that Ruth had abused or neglected Judy. The Division offered a permanency plan of kinship legal guardianship (KLG), which the court approved. Ultimately, Ruth withdrew opposition, Judy's grandfather was granted KLG, and the litigation was terminated.
The court dismissed the Title 9 claim as to Agnes.
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II.
On appeal, Ruth argues that the Division did not prove abuse or neglect because there was insufficient evidence to find gross negligence or reckless conduct, the evidence fails to prove that the condition of the home caused harm or risk of harm to Judy, and the mere existence of a malnourished dog is insufficient to support a finding of abuse or neglect. Ruth also argues that the trial court erred by relying upon Judy's uncorroborated statements, and that the evidence does not support educational neglect. In addition, Ruth argues that the court failed to make particularized findings of fact and that the trial judge pre-judged the case.
Appellate review of a trial court's findings of fact is limited, and "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Family courts in particular have "broad discretion because of [their] specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts [is] not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 9:6-8.21(c)(4)(b) defines a child as abused or neglected where the child's
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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]The minimum degree of care standard is violated by conduct that is grossly or wantonly negligent but not necessarily intentional. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Moreover, actual harm need not be shown, only the substantial risk thereof, by virtue of the caregiver's failure to exercise a minimum degree of care. Id. at 177. Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011).
Ruth's argument that the conditions at the home did not harm Judy or place her at substantial risk of harm are unpersuasive. While Ruth notes that nothing in the record supports the finding that Judy had asthma, it is undisputed that Judy suffered from allergies. There is sufficient evidence to find that her allergies prevented her from entering the basement to do laundry or check on the dog.
More significantly, there is sufficient evidence that the condition of the house and the animal caused distress to a child who was already suffering from depression. Moreover, the assertion that the mere presence of the "malnourished" dog could not have caused Judy's emotional problems overlooks "the risks posed by the situation." Ibid.
Judy was a thirteen-year-old child suffering from depression, cutting, allergies, and bullying at school. The conditions in the basement were described by the officer as deplorable, disgusting, and horrible. The child herself reported that the treatment of the animal in the basement made her feel at risk. It was not the mere presence of a malnourished dog in the basement that posed the risk of harm, but Ruth's misconduct attendant to that situation. The trial court properly considered Judy's vulnerability in determining that Ruth failed to provide her with the minimum degree of care required. We discern no error in the court's determination that the conditions of the home placed Judy at substantial risk of harm.
We also reject Ruth's contention that the trial court improperly relied upon Judy's uncorroborated statements. Prior statements by children relating to allegations of abuse or neglect are admissible, but only sufficient for a finding of abuse or neglect if corroborated. N.J.S.A. 9:6-8.46(a)(4). Corroborative evidence in a particular case "need only provide support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002).
Here, the trial court identified the condition of the home, the treatment of the dog, and the absences from school as the bases for finding that Ruth abused or neglected Judy. It was undisputed that Judy had allergies, which corroborated her refusal to venture down to the foul-smelling basement. The trial court heard testimony from the two officers and the Division worker and considered photographic evidence that documented the condition of the home's basement and the dog. The court also had documentation from the school regarding Judy's absences. Therefore, the trial court's decision did not improperly rely on uncorroborated hearsay statements by Judy.
Finally, we reject Ruth's argument that the evidence did not support a finding of educational neglect. The record contains sufficient credible evidence to demonstrate educational neglect. It is undisputed that Judy was repeatedly absent from school. As noted, those absences were well-documented. Ruth's contention that the absences were excused, and her claim that the judge was biased, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION