Opinion
DOCKET NO. A-5276-11T1
02-03-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.F., Defendant-Appellant. IN THE MATTER OF V.R. AND A.R., MINORS.
Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Jeffrey R. Jablonski, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-326-11.
Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Jeffrey R. Jablonski, Designated Counsel, on the brief). PER CURIAM
This is an appeal from a Title Nine protective services proceeding. Following an April 24, 2012 Family Part order dismissing the Title Nine complaint, defendant C.F. (Christina), appeals from a February 24, 2012 Family Part order finding that she had abused and neglected her children, V.R. (Vanessa), born in July 2007, and A.R. (Andrew), born in March 2011. Because we find that the record lacks substantial credible evidence that Christina recklessly created a substantial risk to her children's health and safety, we reverse the finding of abuse and neglect.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms for the parents and children to protect their privacy.
We derive the following facts from the record. In 2011, Christina lived with her two children and the children's father, R.R. (Robert). Christina's parents, D.F. (Diane) and S.F. (Samuel), also resided in the household. Christina had at least five inpatient psychiatric hospitalizations beginning with her first psychiatric admission in 1994. Throughout the years she has been prescribed various medications to treat her mental illness.
During Christina's pregnancy with Vanessa, she took her prescribed psychiatric medications. However, when pregnant with Andrew, she discontinued her psychiatric medications and did not resume them after his birth in March 2011. Christina began to experience postpartum depression symptoms shortly after Andrew was born.
In April 2011, Christina jumped out of Diane's moving vehicle and began walking on the highway. The police were contacted and intervened. As a result, Christina was hospitalized for psychiatric illness for twenty-three days.
The children were not present during this incident.
On June 2, 2011, the Division of Youth and Family Services (the Division) received a referral from the local police regarding Christina. The police described her as "out of control[,] . . . throwing things, breaking things, screaming, ranting and raving." The police transported Christina to the hospital where she was admitted to the psychiatric floor. The hospital discharged her after five days and referred her for outpatient treatment.
On June 3, 2011, a Division caseworker, Lori Abbaleo, visited the residence. Robert, Diane, and Samuel reported the following: Christina had been "out of control" the prior night, screaming for no reason in the second floor bathroom; Christina mentioned hearing voices; the children had not witnessed Christina's behavior; Christina's mental illness was usually stable, and she typically was fully compliant with her medications; and Christina's interactions with the children were always appropriate, loving, and never cause for concern. The family assured the caseworker that someone was always home with Christina and the children. Specifically, Samuel, who was disabled, generally remained in the home at all times, and Robert and Diane arranged their individual work schedules so either one was also always home. Robert explained that Christina's recent failure to resume her psychiatric medication was because the family had no prescription insurance coverage since Christina lost her job. Filling all of Christina's psychiatric medication prescriptions cost $600 to $700 per month.
Abbaleo developed a safety plan with Robert, Diane, and Samuel, who agreed that all of Christina's contact with the children would be supervised. As a result of her investigation, Abbaleo found no safety or welfare concerns about the home or the children.
Abbaleo then interviewed Christina at the hospital, noting that she had a "flat affect" and did not want to speak with the Division because she believed that the family did not require any services. Christina acted erratically throughout the interview, reported that she was admitted to the hospital for her asthma, and denied that she was on the psychiatric floor. The hospital discharged Christina with a diagnosis of postpartum depression on June 6, 2011.
Abbaleo visited the family again on June 8, 2011. At that time the family advised her that all of Christina's interactions with the children were being supervised pursuant to the safety plan. Christina was "stable" and "continue[d] to interact with [the children] in an appropriate and loving manner." Christina was taking two of her medications at that time, but could not afford the other prescribed medications. In addition, she had attended a clinic program at a nearby hospital for postpartum depression. On June 13, 2011, Robert admitted to Abbaleo that he had to restrain Christina as she was attempting to discard some medication, which he had recently purchased for her.
Also on June 13, 2011, a Family Part judge held a hearing on an order to show cause based on the Division's verified complaint for care and supervision. The judge found that, if the children were to be left alone with Christina, there was a risk of harm. The judge ordered Christina to have no unsupervised contact with the children and to have a psychiatric evaluation. He placed the children in the care and supervision of the Division and left them in the physical custody of both parents.
On June 30, 2011, at the request of the Division, Dr. Samiris Sostre, a psychiatrist, evaluated Christina. The doctor diagnosed Christina with "bipolar disorder or possibly an agitated depression with psychosis." Sostre opined that Christina did "not have an understanding of her mental illness to the point where it would be safe to leave her in charge of her children unsupervised, as she [was] at a very high risk of noncompliance with treatment." Sostre based this opinion on Christina's history of noncompliance, her lack of understanding of her illness, and her belief that her psychological issues were caused by an endocrinological illness. Sostre recommended regular psychiatric treatment, continuous medication management, group or individual counseling, only supervised interaction with her children until a demonstration of consistent compliance, and a psychiatric re-evaluation prior to unsupervised interaction.
At the July 5, 2011 case management review, the judge ordered Christina to comply with all psychiatric recommendations, and he prohibited unsupervised interactions with her children. At that time, Christina was compliant, cooperative, and had a follow-up appointment with a psychiatrist that day. On September 6, 2011, at a case management review, Christina was noncompliant with taking her medication, and she was not seeing a psychiatrist due to the expense. At the next case management review on October 4, 2011, Christina was fully compliant, taking her medication, and seeing her doctor. At the compliance review on January 17, 2012, the judge expanded Christina's contact with her children to two unsupervised hours per day on the recommendation of her mental health counselor.
At the two day fact-finding hearing the Division presented testimony of Abbaleo, Sostre, and Robert. On February 24, 2012, the court found, by a preponderance of the evidence, that Christina's "untreated mental illness posed a substantial risk to the safety of her children sufficient for a finding of neglect[.]"
The court found that the Division had satisfied its burden based on the following factual findings: defendant's chronic mental illness, including symptoms such as occasionally hearing voices and acting aggressively; defendant's lack of insight making the risk to her children high; defendant's refusal, at times, to take her medication; defendant's history of noncompliance with treatment; defendant's numerous hospitalizations; the necessity of police intervention; defendant's "unfettered access" to her children; and the family members in the household only being "usually" present, with defendant's parents being either overwhelmed or ill.
On April 24, 2012, the court terminated the case with no ongoing supervision of the children or Christina. This appeal followed.
On appeal, Christina argues that the Division failed to prove that she neglected her children by a preponderance of the evidence. She maintains that she did not act willfully or recklessly to put her children at risk. Further, she contends that the children were never at risk because of the father's and grandparents' presence in the home, and their commitment to preventing any harm to the children.
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, N.J.S.A. 9:6-8.21 to -8.73. Title Nine sets forth the controlling standards for abuse and neglect cases. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). Title Nine's main precept is to protect children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)).
A fact-finding hearing must be held to determine whether a child is abused or neglected. N.J.S.A. 9:6-8.44. An abused or neglected child is one who is less than eighteen years of age and
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, as herein defined, 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, 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).]
"[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
A minimum degree of care, as required by N.J.S.A. 9:6-8.21(c)(4), is less than a duty of ordinary care; it is something more than ordinary negligence and refers to grossly or wantonly negligent conduct, but not necessarily intentional conduct. G.S., supra, 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Thus, "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." Id. at 181. The analysis does not focus on the intent of the parent or guardian, but rather the resulting injury, or resulting risk thereof, to the child. Id. at 176-77.
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." P.W.R., supra, 205 N.J. at 33. The court must look at the totality of the circumstances in making its findings. Id. at 33-34 (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010)).
Although no physical abuse or neglect is alleged here, the mental illness of a parent may create an environment in which the parent is incapable of safely caring for his or her children. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Nonetheless,
[m]ental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat his [or her] mental illness, the mental illness poses a real threat to a child, and the other parent . . . is unwilling or incapable of following court orders to shield [his or] her child from that danger.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012).]
The court "must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). Where a direct causal link exists between a parent's mental illness and neglect of his or her children, a failure to exercise the requisite degree of minimum care may be found. N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 202 (Cty. Ct. 1981).
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These 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) (internal quotation marks and citation omitted). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). 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).
The narrow issue here is whether the facts demonstrate that Christina's mental illness, as it manifested during this period, caused her to fail to exercise a minimum degree of care by recklessly creating "harm, or the substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4)(b). Although the Division need not wait for harm to occur, S.S., supra, 372 N.J. Super. at 24, under the totality of circumstances here, we do not perceive that Christina created a substantial risk of harm.
The record simply does not show that Christina acted with gross or wanton negligence, knowing that injury was likely, and recklessly disregarding the possibility. G.S., supra, 157 N.J. at 178. While the mere existence of Christina's mental illness and her occasional noncompliance gave rise to the possibility of some risk, to find abuse or neglect the risk must be "substantial." N.J.S.A. 9:6-8.21(c)(4)(b).
The record shows that Christina never harmed or threatened to harm the children. They never saw her when she was "out of control" and needed hospitalization. But, by far the most important factor showing the lack of substantial risk, is that Christina had, and continues to have, the benefit of living with the father of the children and her parents, who are all aware of her mental health issues, aware of the possibility of her getting "out of control" necessitating stabilization, and aware of the need to keep the children safe from Christina when her mental illness manifests itself.
Due to these in-home caregivers' vigilance, the record does not contain any evidence of a time or instance when the children were at a substantial risk of harm. Our opinion might be different if she were the sole caregiver for the children or living with others who did not recognize the need for vigilance. See F.M., supra, 211 N.J. 450-51.
Hence, this case is clearly distinguishable from those cases relied on by the trial judge in finding a risk of harm caused by a parent's mental illness. See C.M., supra, 181 N.J. Super. at 198-200 (mother with chronic schizophrenia abused or neglected her children who were residing in a deplorable, roach-infested condition and suffering from developmental disabilities caused by mother's lack of care and supervision); R.G. & F., supra, 155 N.J. Super. at 189-92 (both parents suffered from serious mental illness and created an unstable environment with numerous foster placements resulting in significant emotional problems of children); A.G., supra, 344 N.J. Super. at 424-33 (finding risk of harm where mother suffered from schizophrenia, had numerous suicidal and homicidal ideations, was unable to provide a stable home, and her doctors felt she could never parent independently).
Moreover, a finding that a parent has not abused or neglected a child, which requires a dismissal of the Title Nine action, N.J.S.A. 9:6-8.50(c), does not prevent the Division from protecting a child in need of services to ensure his or her safety and welfare. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 30-34 (2013). Under N.J.S.A. 30:4C-12, "if 'it appears that the child requires care and supervision by the division or other action to ensure the health and safety of the child, the division may apply' for a court order 'placing the child under [its] care and supervision or custody . . . .'" N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64-65 (App. Div. 2012). Thus, the Division can still provide for children in need where, as here, the children are not abused or neglected under N.J.S.A. 9:8.21(c)(4)(b) but may be in need of services for their safety or welfare.
In sum, the facts here show that Christina acted with the requisite minimum degree of care as she was living with the children and three other caregivers dedicated to protecting the children and her. In this highly structured situation Christine's mental illness alone, given the totality of the circumstances, is not enough to support a finding of abuse or neglect based on a substantial risk of harm.
The finding of abuse and neglect is reversed. The Division will remove Christina's name from the Central Child Abuse Registry within thirty days of the date of this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION