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New Jersey Div. of Youth & Family Servs. v. M.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Jun 18, 2012
DOCKET NO. A-5207-10T4 (App. Div. Jun. 18, 2012)

Opinion

DOCKET NO. A-5207-10T4 DOCKET NO. A-5210-10T4

06-18-2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.P. and D.C., Defendants-Appellants. IN THE MATTER OF I.C. and K.P., Minors.

Theresa A. Nitti, Designated Counsel, argued the cause on behalf of appellant M.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Nitti, on the brief). Evangeline Gomez, Designated Counsel, argued the cause on behalf of appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Gomez, on the brief). Shona L. Mack, Deputy Attorney General, argued the cause on behalf of respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Mack, on the brief). Katherine J. Bierwas, Designated Counsel, argued the cause on behalf of the minor children (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Bierwas, on the brief).


RECORD IMPOUNDED


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Fisher, Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-90-10.

Theresa A. Nitti, Designated Counsel, argued the cause on behalf of appellant M.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Nitti, on the brief).

Evangeline Gomez, Designated Counsel, argued the cause on behalf of appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Gomez, on the brief).

Shona L. Mack, Deputy Attorney General, argued the cause on behalf of respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Mack, on the brief).

Katherine J. Bierwas, Designated Counsel, argued the cause on behalf of the minor children (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Bierwas, on the brief). PER CURIAM

In these consolidated appeals, we consider the trial judge's determination that defendants abused or neglected their children. Although certain aspects of the claim may be reviewed on their merits -- and in those regards are found insufficient as a matter of fact -- because the judge's findings on other aspects are inadequate, we remand for additional findings.

K.P., who was born in 1994, and I.C., who was born in 2007, are the children who are the subject of this litigation. Defendant M.P. is the mother of both; defendant D.C. is the father of I.C. The claim of abuse and neglect centered on three different sets of allegations -- educational neglect, the mother's nomadic lifestyle, and domestic violence -- and varies with regard to each defendant. Because the bulk of the evidence related to the mother, we direct our immediate attention to the claim that she abused or neglected her two children.

The father of K.P. was dismissed from the litigation prior to the fact-finding hearing.

In ruling in favor of plaintiff Division of Youth and Family Services (the Division) and against the mother, the judge -- in a very brief oral opinion -- found that she lacked credibility. Indeed, approximately one-half of the judge's three-page oral opinion explains why the judge found the mother's testimony to be unworthy of credit. That finding is entitled to our deference, Cesare v. Cesare, 154 N.J. 394, 413 (1998), but it does not alone justify the conclusions reached.

In explaining the nature of the abuse or neglect committed by the mother, the judge stated:

We have numbered these four paragraphs of the judge's decision for easy reference later in this opinion. We have omitted the judge's brief comments regarding the allegations of domestic violence, which we will quote and discuss later in this opinion; those comments are located in the judge's opinion where the ellipsis appears between paragraphs 1 and 2. A discussion between the judge and counsel regarding the scheduling of a permanency hearing took place between the utterance of the third and fourth paragraphs and is represented by the second ellipsis in the quoted material above.

[1] You know, I don't -- I don't have any problem in finding that she failed to give her children adequate shelter. The conditions in the -- in the trailer where they were first discovered were abominable. Electric wires, extension cords all over the
floor with a young baby running around. It's -- no running water. Temporary heaters. The condition as -- as -- of that trailer as viewed from the photographs was horrendous. And I don't -- I don't think the father in this case[,] the father of the baby[,] was as blame[]worthy, because according to the facts in the case, he was trying to give them someplace to plant, and he was contacting DYFS.
. . . .
[2] I -- I have no reason -- I -- I don't think we'll ever know the real reason why there was movement by this mother from one state to another, but such chronic transience and instability is an element of not giving proper shelter to the children. And the -- the educational neglect I think was all a part of that.
[3] Here the son said oh, she lifted me. He actually in testimony [said], "She lifted me out of school, and then I went back and then she lifted me again." I mean, this sort of conduct is unexplainable and I have no explanation for it, but certainly the mother of the children has no explanation for her conduct.
. . . .
[4] By the way, I want to make a note of the fact that I do not find medical neglect. It just so happens that I don't feel that the -- that DYFS met their burden [o]n that issue.
These conclusory findings are problematic and make our review difficult. Despite the bulk of evidence discussed at length by the parties in their submissions in this court, it is not clear to us what part of that evidence persuaded the judge to draw these conclusions. Only the judge's findings regarding the trailer are of the type that permit our review and they, like the credibility findings that took up much of the judge's opinion, are entitled to our deference.

The binding nature of the judge's finding regarding the trailer, however, is not sufficient to support a claim of inadequate housing as an element of abuse or neglect. The trailer situation came to light upon a referral to the Division in November 2009. The mother and the youngest child were living in a trailer, or camper, that was parked in a lot of a business in Paterson owned by a family member. The record suggests that the mother was staying there temporarily, as she had come to New Jersey from Arizona to take part in litigation concerning an earlier referral to the Division.

The parties interchangeably refer to it as either a trailer or camper.

Two Division caseworkers responded to the referral. They found that the younger child was clean and healthy, well-dressed and fed. The trailer had electricity and was stocked with food. Although the trailer did not have a heating system, space heaters were present. Running water was a problem but the father was in the process of addressing that. A summary prepared by a caseworker at the time stated that wires were running throughout the trailer, as the judge highlighted in his findings, but, at the hearing, the caseworker testified that the wires were to appliances, such as a blender, coffee maker and hot plate, and were all inserted into sockets. Even though the condition of the trailer was not as clearly insufficient as suggested by the trial judge's findings in paragraph 1 of his opinion, we will adhere to his finding in light of the standard that binds reviewing courts.

The judge's finding about the trailer, however, does not support the finding of inadequate housing. The investigating caseworkers at the time of that visit did not approve of the trailer and a plan was developed, calling for the mother to stay at her sister's home in Carteret until she returned to Arizona. The older child was already staying in Carteret with her maternal aunt and the Division, upon inspection, not only found that the older child was healthy and safe but that the maternal aunt's home was spotless. The Division approved of this home for the children.

It was not until approximately one week later, when the mother advised the Division that she was planning to return to Arizona, that the Division -- the next day -- immediately conducted an emergency removal and, the day after that, commenced this action, alleging the parents' failure to provide a safe and stable home; the complaint also alleged that defendant was a "flight risk." Even assuming that the trailer was inadequate -- a fact that would support the unlikely conclusion that every child on a camping trip with a parent or guardian is abused or neglected -- the judge's finding in that regard does not address the heart of what is really the Division's allegations of abuse and neglect: defendant's alleged nomadic lifestyle and its impact on the children's education.

It is with regard to these two keystones to the Division's case that the judge's findings turn conclusory. In the second paragraph of his opinion, the judge only stated that "the real reason why there was movement by this mother from one state to another" was unknown but he nevertheless concluded that "such chronic transience and instability is an element of not giving proper shelter to the children." We question whether a nomadic lifestyle is alone conclusive to support the Division's claim. Certainly, a child of a parent in the military or a child of a politician running for national office might also live a similarly nomadic life but it does not immediately follow that the parent has not provided proper housing or shelter.

To be sure, we do not conclude that a nomadic lifestyle might not alone suffice to support a claim of abuse or neglect. But, if there was a reason to conclude that the mother's alleged nomadic lifestyle is injurious to the children or that it has led to the children living in inadequate housing, such findings were not made by the trial judge. Accordingly, the judge's conclusory finding of abuse or neglect on the basis of a nomadic lifestyle or on the basis of a lack of proper housing or shelter cannot stand.

Similarly, the judge's conclusion of educational neglect suffers from the same malady. At the end of paragraph 2 of his opinion, the judge concluded "the educational neglect I think was all a part of" the nomadic lifestyle. The example provided in paragraph 3 of the judge's opinion only iterates the judge's view that a nomadic lifestyle must, a fortiori, deprive a child of an adequate education. As with the judge's view that a nomadic lifestyle is to be equated with insufficient shelter or housing, we reject the notion that a nomadic lifestyle is conclusive of an inadequate education. If, as the Division forcefully argues, the evidence supports a finding that defendant has failed to provide an adequate home education, the judge made no findings that would suggest he found that evidence sufficient.

Contrary to what the parties' submissions in this court would urge, we are in no position to opine on whether there is evidence to support the Division's case for abuse or neglect on educational or shelter issues. Our judicial system presupposes that a trial judge, in the first instance, will interpret the evidence and make findings necessary to the ultimate conclusions drawn, followed by appellate review based on a standard of deference for the trial judge's findings. Here, with regard to the claim of abuse or neglect regarding the children's shelter or education, the judge provided only bare conclusions. Because those conclusions do not meet the requirements of Rule 1:7-4(a), we remand for proper findings of fact.

With regard to the father, that part of the judge's opinion that we have already quoted absolved him. The judge, however, found the father abused or neglected the children by engaging in domestic violence with the children's mother. The judge's entire findings on this point are as follows:

But I also find that the -- the instances of domestic violence also constituted neglect. [The oldest child] didn't say that she — wouldn't admit that she saw domestic violence, but she certainly admitted that she heard it when [D.C.] struck her mother.

This "finding" suffers from the same malady revealed by the judge's opinion regarding the claims against the children's mother. Rule 1:7-4(a) requires more than an unspecified statement such as this. We need not, however, remand as we have with regard to certain claims asserted against the mother. Although the judge did not provide any detail about the act of domestic violence that he found K.P. heard but did not see, the record establishes that this alleged act of domestic violence occurred five years earlier. In addition, there was no additional evidence to suggest that this stale claim that K.P. heard the father strike the mother caused harm or imminent danger to the child. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (holding that "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs"); see also N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Accordingly, even if the judge's finding about this event was entitled to our deference, that fact was inadequate to support a claim of abuse or neglect.

To summarize, we: (1) reverse the finding of abuse or neglect insofar as it is based on the trailer qualifying as inadequate housing because the mother immediately complied with the Division's request that she move to her sister's home in Carteret; (2) reverse the finding of abuse or neglect against the father based on K.P. being exposed to domestic violence; and (3) remand for further findings as to whether the mother abused or neglected the children by failing to provide a suitable or adequate home or shelter or by failing to provide an adequate education.

Because the judge made no other findings of abuse or neglect with regard to the father, our ruling on the one finding regarding him requires a dismissal of the complaint. The judge shall forthwith enter an appropriate order in favor of the father.
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In compliance with our mandate, the trial judge should issue appropriate findings of fact within thirty days. We do not, however, foreclose the judge's reopening of the record to hear additional testimony or receive additional evidence and, if the judge opts to reopen the record, his findings of fact shall issue within thirty days of the completion of such additional proceedings as the judge deems appropriate.

Reversed and remanded. We 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


Summaries of

New Jersey Div. of Youth & Family Servs. v. M.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Jun 18, 2012
DOCKET NO. A-5207-10T4 (App. Div. Jun. 18, 2012)
Case details for

New Jersey Div. of Youth & Family Servs. v. M.P.

Case Details

Full title:NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jun 18, 2012

Citations

DOCKET NO. A-5207-10T4 (App. Div. Jun. 18, 2012)