Opinion
DOCKET NO. A-3534-10T3
05-25-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. K.B., Defendant-Appellant, and L.S., Defendant. IN THE MATTER OF B.B. and J.B., minors.
Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Rebecca A. Glick, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Nugent and Maven.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-261-09.
Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Rebecca A. Glick, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Following a fact-finding hearing, the Family Part determined defendant K.B. had abused or neglected her fourteen-year-old biological son and her twelve-year-old adopted daughter when she went to the Dominican Republic for four days and left them alone in the family apartment. K.B. appeals from the July 23, 2009 confirming order, and from the February 9, 2011 order terminating the Title Nine litigation. K.B. argues that the evidence presented by the New Jersey Division of Youth and Family Services (DYFS) at the fact-finding hearing was insufficient to sustain the trial court's finding that she abused or neglected her children by leaving them alone while she spent four days in another country. Having considered defendant's arguments in light of the record and applicable law, we conclude that the trial court's decision was supported by sufficient credible evidence presented at the fact-finding hearing. Accordingly, we affirm.
Title Nine abuse or neglect proceedings are governed by N.J.S.A. 9:6-8.21 to -8.73.
A fact-finding hearing is "a hearing to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44.
I.
The following facts were established at the fact-finding hearing, where DYFS presented the testimony of intake worker Dody Bullerman and permanency worker Margo Meskin, and introduced documentary evidence that included DYFS's investigation summary, screening summary, and case notes.
K.B. did not testify at the hearing because criminal charges against her stemming from the same incident had not been resolved.
DYFS has twice received referrals concerning K.B. and her children: the first from K.B. herself, requesting services for her children; the second from a school counselor, reporting that K.B. had left the children alone. On the first occasion, in October 2008, K.B. contacted DYFS and requested assistance for her son and daughter. K.B. was unable to provide childcare while working the night shift at her job because her "babysitter" had recently been diagnosed with a brain tumor and could no longer "babysit" the children. Additionally, K.B.'s daughter, who had been diagnosed with an adjustment disorder and communication disability, was neglecting her personal hygiene and acting out; and her son needed grief counseling to help him adjust emotionally to the death of his grandmother. K.B. did not feel comfortable leaving her daughter alone.
The parties do not dispute that B.B.'s father, L.S., resided in Florida during the course of DYFS's involvement with K.B. and the children.
DYFS provided K.B. with telephone numbers for community resources, and she eventually found a person to care for her children while she worked at night. DYFS also arranged for appropriate evaluations of K.B.'s daughter, and was still involved with the family when it received the second referral.
DYFS received the second referral on Thursday, May 28, 2009, when a counselor from the children's school informed DYFS that K.B. had not been home for several days, no one was staying with the children, and J.B. was eating potato chips for dinner. DYFS intake worker Dody Bullerman and permanency worker Margo Meskin reported to the children's school and interviewed J.B. and B.B. J.B. told the caseworkers that her mother was in the Dominican Republic on vacation. B.B. confirmed that his mother was in the Dominican Republic on vacation, but said an adult named Michelle was staying with him and J.B., and that Michelle would be with them between six o'clock and seven o'clock that evening. B.B. could not, however, provide a last name, address, or telephone number for Michelle. When Bullerman asked B.B. for his mother's telephone number, he provided the number to an old apartment telephone that had been disconnected. When asked about his sister eating potato chips for dinner, B.B. said there was other food in the house, but J.B. preferred the potato chips.
Bullerman wrote down B.B.'s cellular phone number and said she would come to his home at seven o'clock that evening. Later that evening, when Bullerman arrived at the home and knocked on the door, B.B. did not respond. Bullerman eventually sent a text message to B.B.'s cell phone, threatening to call the police if he did not open the door. He responded to the text by immediately opening the door. J.B., who had been out playing, arrived home around eight o'clock. No adult was present. Because no adult was present, Bullerman contacted the children's grandfather, who said he was retired and could stay with them. He arrived within the hour.
When the grandfather arrived, he explained to Bullerman that he knew his daughter had gone to the Dominican Republic, but thought she had made childcare arrangements with "Ms. Michelle." He also said that had his daughter asked him to stay with the children, he would have been happy to do so. The grandfather agreed to a safety plan whereby he would remain with the children until their mother returned.
While in the apartment, Bullerman noted that there was food in the home, though most of it had to be prepared. B.B. said he had eaten chicken soup for dinner, and Bullerman observed his bowl in the living room. According to Bullerman, the home was disorganized and cluttered, but it appeared that B.B. had made "some" attempt to clean it. Before leaving, Bullerman asked B.B. why his mother had not left him any contact information in case the babysitter was unavailable, and B.B. said he did not know.
K.B. returned from the Dominican Republic on Saturday and on Monday went to the DYFS office where Bullerman interviewed her. K.B. told Bullerman that she had gone to the Dominican Republic on Tuesday and returned on Saturday. She had arranged for a "Ms. Linda," who had previously cared for the children, to watch the children while she was out of the country. K.B. also explained that Ms. Linda had a brain tumor and had been admitted to the hospital on the same day K.B. departed for the Dominican Republic.
K.B. stated she made no attempt to contact Ms. Linda while she was in the Dominican Republic, but did phone the children. She also said that had her children informed her that Ms. Linda was not checking on them, she would have asked her father to care for them. During the interview Bullerman and K.B. discussed J.B.'s special needs. K.B. said that she could no longer deal with J.B.'s behavior.
While in Bullerman's office, K.B. telephoned Ms. Linda so that Bullerman could speak with her. Ms. Linda confirmed that she had agreed to check on the children; however, on the day K.B. left, Ms. Linda told K.B. that she, Ms. Linda, was being admitted to the hospital.
Based on its investigation, DYFS carried out an emergency removal of the children from K.B.'s custody, and filed an order to show cause and verified complaint seeking the care, custody, and control of the children. Following a Dodd hearing on June 3, 2009, at which caseworkers Bullerman and Margo Meskin testified, the court ordered that the children be placed in the custody, care, and supervision of DYFS. On June 16, 2009, the return date of the order to show cause, the court continued physical custody of B.B. with his older brother, and continued physical custody of J.B. with her foster parents. The court also ordered that K.B. undergo psychological evaluation and attend parenting skills training classes; that J.B. be psychiatrically evaluated and receive behavioral assistance and in-home therapy; and that B.B. receive counseling. The court also provided for visitation by K.B. with her children. The court scheduled the fact-finding hearing for July 22, 2009.
When a child has been removed without a court order, the Family Part is required to hold a hearing on the next court day to determine whether the child's interests require protection pending a final order of disposition. N.J.S.A. 9:6-8.31(a). The hearing is referred to as a "Dodd hearing" because Senator Frank J. "Pat" Dodd authored the Title Nine legislation requiring this hearing in 1974. N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 4 n.1 (App. Div. 2010).
Following the fact-finding hearing, the court determined that DYFS had proved by a preponderance of the evidence that K.B. had abused or neglected the children. Thereafter, between August 5, 2009 and October 13, 2010, the court conducted compliance review hearings at approximately three-month intervals. During that period, K.B., B.B., and J.B. underwent various evaluations, therapy, counseling, and other appropriate treatment. On April 20, 2010, the court entered a permanency order approving DYFS's plan for reunification. Physical custody of B.B. was ultimately transferred to his father, L.S., and physical custody of J.B. to her biological mother. On October 13, 2010, the court entered an order terminating the litigation as to B.B. On February 9, 2011, the court entered an order terminating the litigation as to J.B. K.B. filed a timely appeal.
II.
Without dispute, "[p]arents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). That right is not entirely unrestricted and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citations omitted). Title Nine is a comprehensive legislative scheme designed to accomplish that objective. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346 (2010).
In a Title Nine case, DYFS "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Title Nine defines an "abused or 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, 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)(b).]
A parent "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." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). In deciding whether a parent has failed to exercise such a minimum degree of care,
the 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. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.
[Id. at 182.]
Our review of a trial court's decision that a parent has abused or neglected a child is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court factfinding." Id. at 413. We give particular regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "'feel of the case.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293).
We will not disturb a Family Part judge's findings of fact and conclusions of law unless "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (internal quotation marks and citation omitted). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
K.B. contends that DYFS did not meet its burden to prove by a preponderance of the evidence that K.B. abused or neglected her children. K.B. argues that the trial court failed to properly analyze the statutory definition of abuse or neglect because it "did not analyze the risks of leaving the children home alone in the context of the capabilities of the children and the degree of caregiving that was provided." K.B. further argues that the court "did not take into account that the home was appropriately clean, that there was food in the house and that [B.B.] knew how to cook . . . [and] was old enough to babysit a twelve[-]year[-]old." Finally, K.B. argues that she had two caregivers to check in with the children and that she spoke to B.B. by telephone while she was away.
We are unconvinced by K.B.'s arguments. K.B. left her fourteen-year-old son and her twelve-year-old special needs daughter alone in their apartment while she left the country for four days. K.B. herself had previously expressed concern about leaving J.B. overnight with her brother, without an adult caregiver, because of J.B.'s special needs, thereby implicitly acknowledging the risk of harm inherent in that situation.
K.B. did not inform the children's school, DYFS, or even her father, that she was leaving the children at home for four days, unsupervised, while she was out of the country. By her own admission to DYFS caseworkers, K.B. made only one arrangement to provide for the children's supervision during her absence, and that was to ask Ms. Linda to check in on them. But the day K.B. left, Ms. Linda informed K.B. that she, Ms. Linda, was going to be admitted to the hospital that day. And K.B. was well aware that Ms. Linda suffered from a brain tumor.
We conclude that there was sufficient credible evidence in the record to support the trial court's determination that K.B. had neglected her children. K.B.'s conduct, in the circumstances of this case, demonstrates a failure to exercise a minimum degree of care in providing her children with proper supervision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION