Opinion
DOCKET NO. A-2664-11T3
02-05-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.S., Defendant-Appellant, and L.E., Defendant. IN THE MATTER OF P.E., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-180-08.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.S. appeals from a September 9, 2008 order finding that she abused and neglected P.E., her severely autistic son, pursuant to N.J.S.A. 9:6-8.21c(4). We remand for the judge to make particularized findings of fact consistent with this opinion.
She also appeals from a February 2, 2011 order granting joint legal custody of P.E. to his father, L.E., and DYFS; and a July 19, 2011 order granting full custody of P.E. to L.E. We deem her appeal from these two orders to be moot because P.E. is now more than eighteen years old. Our Legislature enacted Title 9, N.J.S.A. 9:6-8.21 to -8.73, to "protect[] the health and welfare of the children of" New Jersey. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (emphasis added). Pursuant to Title 9, a "child" is "less than [eighteen] years of age." N.J.S.A. 9:6-8.21c.
S.S. is a native of Peru, where her son P.E. — who is unable to speak — was born in 1993. They arrived in the United States in May 2006 and they settled in New York where P.E. received educational and medical services. In May 2008, S.S. struck her then-paramour, R.P., over the head with a bottle or ashtray in his New Jersey apartment. Both she and R.P. had been drinking. P.E., who was fifteen-years-old, was in the apartment during the incident. Authorities arrested S.S., charged her with aggravated assault, and placed her in custody. She then informed a DYFS caseworker that R.P., his sister, and his aunt would be able to care for P.E. while she was detained.
Subsequently, a municipal court judge remanded S.S. to Passaic County Jail and notified immigration authorities.
On May 13, 2008, DYFS initiated a DODD action by Verified Complaint and Order to Show Cause seeking care, custody, and supervision of P.E. The judge ruled that New Jersey had emergency jurisdiction and granted custody of P.E. to DYFS.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
DYFS attempted unsuccessfully to find shelter for P.E. and then returned P.E. to R.P.'s home. R.P.'s aunt informed DYFS that she could take care of P.E. during the day and that R.P. could care for him at night. Upon completion of the requisite background check, DYFS learned that neither R.P. nor his aunt had a criminal history. DYFS offered the aunt a homemaker service to assist her in caring for P.E., but the aunt rejected it because she believed that having strangers in the house would make caring for P.E. more difficult. DYFS then removed P.E. from this placement because it believed that R.P. and his relatives were undocumented, an assertion which S.S. disputed.
DYFS considered placing P.E. with L.E., who DYFS had reason to believe was P.E.'s father. L.E. denied paternity, so in June 2008, DYFS transferred P.E. to the Woods Services Residential Treatment Program in Pennsylvania (the "Woods Facility"). In August 2008, the court downgraded S.S.'s charge to a disorderly person's offense and she was transferred to another jail to await a decision as to whether she would be deported.
In September 2008, the judge conducted a fact-finding hearing, considered the testimony from a DYFS caseworker regarding the incident and arrest, and concluded that P.E. was an abused or neglected child pursuant to N.J.S.A. 9:6-8.21c(4). In April 2009, the judge ordered DYFS to pursue paternity testing of L.E. and P.E.
The parties contend that S.S. offered to stipulate at the fact-finding hearing that she had been arrested for disorderly conduct, but S.S. would not acknowledge that she had been arrested for a "crime." As a result, the judge rejected her proposed stipulation.
In April 2009, S.S. was released from custody, and in May 2009, the judge authorized S.S. to have visitation with P.E. at the Woods Facility. The judge also approved a permanency plan of reunification so long as S.S. obtained employment and housing.
In December 2009, police officers arrested S.S. for simple assault involving another incident with R.P. and she was incarcerated between December 14, 2009 and February 1, 2010. Immigration authorities then notified S.S. that she would be deported.
In June 2010, the judge ordered that legal and physical custody of P.E. would be transferred to S.S. because it was in P.E.'s best interest to be with his mother, whom he "recognize[d] and reacted positively" to, and that P.E. would travel with her to Peru. In July 2010, the judge explained to S.S. that she had won her custody case, but she responded that she "cannot take the child in this condition that he's in" to Peru. She asserted that P.E. would receive inadequate care in Peru. In July 2010, S.S. boarded a plane for Peru and a DYFS worker tried to seat P.E. next to her, but S.S. "punched" the DYFS worker. Both S.S. and P.E. were then removed from the plane and S.S. boarded a later flight to Peru. DYFS returned P.E. to the Woods Facility, where he remained as of the writing of the briefs on appeal.
In August 2010, a paternity test established that L.E. is P.E.'s father, and in February 2011, the judge ordered joint legal custody between DYFS and L.E. In May 2011, the judge denied DYFS's request to terminate the protective services (FN) litigation based on P.E. turning eighteen years old, and denied S.S.'s request for visitation in Peru. On July 19, 2011, the judge again denied DYFS's request to terminate the proceedings, and awarded full custody to L.E. On December 22, 2011, the judge terminated the FN litigation.
P.E. turned eighteen in May 2011.
The judge ordered that the matter would continue to be reviewed under a child placement docket. On February 9, 2012, the judge conducted a permanency hearing approving DYFS's permanency plan of long-term specialized care. N.J.S.A. 30:4C-2.3 authorizes DYFS to provide services to individuals with disabilities between eighteen and twenty-one years of age.
S.S. argues on appeal that the judge erred by finding she abused or neglected P.E. pursuant to N.J.S.A. 9:6-8.21c(4). N.J.S.A. 9:6-8.21c provides, in pertinent part:
c. "Abused or neglected child" means a child less than 18 years of age . . . (4) . . . 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 . . . to exercise a minimum degree of care . . . (b) in providing the child with properIn a factfinding hearing, "any determination that the child is an abused or neglected child must be based on a preponderance of . . . competent, material[,] and relevant evidence." N.J.S.A. 9:6-8.46b. "[T]he phrase 'minimum degree of care' 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, 182 (1999). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. "[A]ctions taken with reckless disregard for the consequences also may be wanton or willful." Ibid. Willful misconduct "'takes its meaning from the context and purpose of its use.'" Ibid. (quoting Fielder v. Stonack, 141 N.J. 101, 124 (1995)).
supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[(Emphasis added).]
In addition, the minimum degree "inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." Id. at 182. Further, "non-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." 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). "[A] 'parent's conduct must be evaluated in context based on the risks posed by the situation.'" N.J. Div. of Youth & Family Servs. v. C.H. & M.B., 428 N.J. Super. 40, 64 (App. Div. 2012) (quoting Dep't of Children & Families v. T.B., 207 N.J. 294, 309-10 (2011)).
The judge must "make particularized findings" as to "the risks posed, the harm to [the child], and whether that harm could have been prevented by a cautionary act on [the parent's] part." Id. at 66-67; see N.J.S.A. 9:6-8.50a (noting that the judge shall "state the grounds for [abuse or neglect] findings"). Whether a parent failed to exercise the minimum degree of care is decided on a case-by-case basis. G.S., supra, 157 N.J. at 182.
Here, the judge found that S.S. abused or neglected P.E., and stated:
I'm satisfied that th[is] case falls within . . . N.J.S.A. 9:6-8.21[c(4)]. . . . [T]he factual situation here is . . . . [S.S.] was drinking and there was an altercation between her and her paramour where she actually hit him with a bottle. As a result[,] she was charged and arrested . . . for aggravated assault.The impetus for the judge's finding of abuse or neglect is that by being arrested, S.S. "had no one more or less to take care of [P.E.]" But S.S. offered R.P., his sister, and his aunt to care for P.E. while she was incarcerated and they were willing to do so. DYFS ruled out R.P. and his relatives because it believed that R.P. and his aunt were undocumented. S.S. disputed DYFS's belief, but the judge did not resolve this factual issue or address how their immigration status is relevant to his finding that S.S. abused or neglected P.E. We need not reach whether the purported inability to place P.E. with R.P. and his relatives constitutes abuse or neglect under the statute because the record must be more fully developed to address the risks posed to P.E.
[S]he knowingly — she had no one more or less to take care of the child. [S]he knows her own personal status, but the fact of actually entering into the altercation, subjecting herself to . . . being arrested
. . . so that there was no one to take care of the child.
I'm satisfied, again, that the child['s] . . . wellbeing or physical condition became impaired or it was impaired because of her failure to simply exercise a minimum degree of care[,] which would be, as far as the [c]ourt is concerned, in the actual altercation by getting into that altercation and striking someone with a bottle. She placed herself at risk, whereby she would be arrested and incarcerated, creating a situation where there was no one to take care of the child. I'm satisfied that satisfies the statute. . . .
We do not intimate the result of any such analysis.
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At the fact-finding hearing, a DYFS caseworker testified that DYFS "d[id not] know for sure" whether P.E. was in the same room during the incident. As a result, we are unable to conclude whether P.E. perceived the violence that S.S. exhibited, and if so, what risks were posed by that perception. We are also unsure to what effect the judge may have considered the undisputed fact that S.S. and R.P. had been drinking alcoholic beverages that night. Thus, the judge did not provide sufficient "particularized findings" as to "the risks posed, the harm to [P.E.], and whether that harm could have been prevented by a cautionary act [by S.S.]." C.H. & M.B., supra, 428 N.J. Super. at 66-67.
We remand for further proceedings consistent with this opinion. We dismiss as moot the remainder of the appeal and do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION