Opinion
DOCKET NO. A-1161-14T1
02-03-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.N., Defendant-Appellant, and S.B., Defendant. IN THE MATTER OF Sa.N. and A.B., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Cary L. Winslow, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sandra Ostwald, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.N. and A.B. (Gillian Hemstead, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-121-14. Joseph E. Krakora, Public Defender, attorney for appellant (Cary L. Winslow, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sandra Ostwald, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.N. and A.B. (Gillian Hemstead, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.N. (Steve) appeals from a March 19, 2014 fact-finding order determining that he abused or neglected his daughter Sa.N. (Sue) within the meaning of N.J.S.A. 9:6-8.21(c). The Family Part judge found that defendant "willfully chose to forsake his obligation to meet his parental duties to his child by not providing proper food, clothing, and shelter." Defendant argues this finding should be vacated as contrary to law and not supported by a preponderance of the evidence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
To maintain confidentiality, we use pseudonyms for those involved.
The March 19, 2014 order was perfected for appeal when the trial court entered a final order on September 23, 2014 terminating the litigation.
The facts are straightforward and undisputed. Defendant and M.W. (Mary) are the parents of Sue, who was born in May 2012. Mary also had another young daughter, A.B. (April), born in December 2010, from another relationship. The Division of Child Protection and Permanency (Division) first became involved with the family in September 2012, after a hospital representative reported that Mary arrived there unconscious and with severe lacerations to her arms. Following an investigation, the Division determined that Mary had punched glass panes on a door after arguing with defendant over infidelity issues, thereby causing her injuries.
In September 2013, Mary obtained a restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In her amended complaint dated September 17, Mary averred that she had recently ended her two-year relationship with defendant "due to his physical and mental abuse."
On September 19, the Phillipsburg Police Department advised the Division that Mary had been shot in the head and killed and that defendant was the suspected shooter. It was alleged that defendant went to the home to visit with the children but was advised by Mary that the restraining order prohibited him from doing so. An argument ensued, and defendant allegedly shot Mary and then fled the scene. A paternal relative and her friend were upstairs in the home, heard the gunshots, and called the police. Sue and April were also upstairs and did not see the incident. However, April told Division caseworkers that she heard defendant and Mary yelling, and then heard screaming and loud bangs.
The Division executed an emergency removal and assumed custody of the children. Although several maternal and paternal relatives initially came forward as possible placements, for various reasons none were viable candidates. A paternal relative, T.G., informed police that she had received a text message from defendant advising her to take care of Sue. However, T.G. resided out-of-state and therefore could not qualify as an emergency placement. Consequently, the children were placed in foster care until the court authorized that they be transferred to the care of a maternal aunt at a September 23 hearing.
Defendant's whereabouts remained unknown to the Division until January 6, 2014. At that time defendant was incarcerated at the Warren County jail. According to Division caseworker Monique Horne, when contacted at the jail defendant did not inquire about Sue's welfare until Horne broached the subject.
The record does not reveal the circumstances or date of defendant's apprehension on the murder charge.
The fact-finding hearing was conducted on March 19, 2014. Defendant appeared, represented by assigned counsel. The Division presented the testimony of Horne and introduced documentary evidence. Defendant did not testify or present any evidence. At the conclusion of the hearing, the judge summarized the evidence and noted that, from September 19, 2013 through January 6, 2014,
[t]here was no contact by [] defendant [] with the Division during that entire time period. There was no telephone contact inquiring as to the whereabouts or the welfare of his child[]. There were no letters received. He certainly did not step forward to take care of his child [] at anytime during that time period.
The judge concluded that the Division met its burden to establish abuse and neglect by a preponderance of the evidence. Specifically, the judge found:
In this case [defendant] willfully chose not to provide the appropriate supervision, care, [and] shelter for his child, [Sue], and . . . defendant willfully chose to forsake his obligation to meet his parental duties to his child by failing to provide the appropriate and adequate food, clothing, [and] shelter for the child.
On September 23, 2014, another Family Part judge signed an order terminating the abuse and neglect litigation because a guardianship complaint had been filed. This appeal followed.
On appeal, defendant argues that the judge's findings are not supported by a preponderance of the evidence, that the judge failed to identify a specific subsection of N.J.S.A. 9:6-8.21(c) in her findings, and that the judge failed to make a finding that defendant was financially able to provide Sue with the proper food, clothing, and shelter.
At a fact-finding hearing, the judge must determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44. Our scope of review is limited. "The general rule is that 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). Deference is appropriate because trial judges have the opportunity to see and hear the witnesses and evaluate the credibility and weight to be afforded their testimony. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Deference to family court fact-finding is particularly appropriate because of the family court's special jurisdiction and expertise in family matters. Cesare, supra, 154 N.J. at 411-13. We do not interfere unless the trial judge's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Abuse cases are fact sensitive and are examined on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The standard for a finding of abuse or neglect is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
N.J.S.A. 9:6-8.21(c)(4) states that an "[a]bused or neglected child" is "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[.]" That phrase "refers to 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). A parent or 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." Id. at 181.
Under N.J.S.A. 9:6-8.21(c)(5), an "[a]bused or neglected child" is also "a child who has been willfully abandoned by his parent or guardian[.]" Abandonment is elsewhere defined:
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 the 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 the 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.
[N.J.S.A. 9:6-1.]
"Abandonment 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). "The word 'willfully' in the context of this statute means intentionally or purposely as distinguished from inadvertently or accidentally." State v. Burden, 126 N.J. Super. 424, 427 (App. Div.), certif. denied, 65 N.J. 282 (1974).
Here, the record contains substantial, credible evidence to support a finding of neglect under both N.J.S.A. 9:6-8.21(c)(4) and (5). Not only did defendant fail to "exercise a minimum degree of care," he clearly and explicitly refused to care for his child at all when, on September 19, 2013, he willfully left the scene of Mary's murder and thereafter remained a fugitive for more than three months while showing no care or concern for his young child's welfare. Defendant was not forced to abscond, but rather chose to do so of his own volition.
We recognize that, had defendant remained at the scene, most likely he would have been taken into custody and incarcerated. While he thus would have been unable to take physical custody of Sue, he would nonetheless have been in a position to provide authorities with pertinent information about a viable caretaker for his young child. He did not do so, with the result that no qualified caretaker was immediately identified and the child was placed in foster care until a suitable placement could be arranged. Defendant, in effect, "abandoned" his daughter, forcing the Division to assume care, custody and control of Sue. See N.J.S.A. 9:6-1. But for the Division's intervention, defendant left Sue without a safe and secure place to stay, thereby exposing the child to an actual and imminent risk of harm. In essence, defendant "willfully forsook his parental responsibilities." K.L.F., supra, 129 N.J. at 39.
After a thorough review of the record and consideration of the controlling legal principles, we conclude that defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant did not argue before the trial court that his failure to care for the child resulted from his financial inability do so. Generally, an argument not presented in the trial court is not cognizable on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the record fails to support such a contention. Rather, at the time of the September 2012 incident, defendant was employed at a lumber yard, and there is no indication that his employment status ever changed. The clear implication from the evidence adduced at the fact-finding hearing is that defendant forsook his child not due to impoverishment, but rather to escape prosecution.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION