Opinion
DOCKET NO. A-1162-14T4
03-17-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.B., Defendant-Appellant. IN THE MATTER OF A.F., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Dana Citron, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James J. Gross, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-208-13. Joseph E. Krakora, Public Defender, attorney for appellant (Dana Citron, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James J. Gross, Designated Counsel, on the brief). PER CURIAM
Defendant A.B. appeals from a February 19, 2013 Family Part order, entered following a fact-finding hearing, finding that she neglected her sixteen-year-old daughter, A.F., by refusing to permit her to live in her home. On appeal, defendant challenges the sufficiency of the Family Part judge's factual findings and legal conclusions. Defendant also contends she received ineffective assistance of counsel at the fact-finding hearing. We have considered the arguments advanced in light of the record and governing law, and affirm.
We use initials to protect the confidentiality of the parties.
I.
The record establishes the following facts and procedural history. Defendant A.B. is the biological mother of A.F. A.F.'s biological father is deceased. Prior to the events in question, defendant and A.F. lived together with defendant's boyfriend in a home owned by her sister, J.F. The record reflects that defendant was unemployed and receiving government benefits.
The parties agree that sixteen-year-old A.F. displayed significant behavioral problems. There is evidence that she refused to attend school, obey set rules, or follow her curfew. She had an infant son and was reported to smoke marijuana and drink alcohol. She was also repeatedly suspended from school for misconduct.
On October 2, 2012, the Division received a referral stating that A.F. had run away from home with her infant son several days before, and was likely staying with a friend. Upon investigation, a Division caseworker interviewed defendant at her home. Defendant stated that A.F. ran away after defendant attempted to confiscate her cell phone and laptop. The confiscation was intended to punish A.F., who had been suspended from school for cursing at a teacher.
Defendant insisted that she did not eject A.F. from the home, and wanted A.F. and A.F.'s son to return. Defendant also stated that she attempted to file a missing person report with the police, but was informed that she could not file a report, because her daughter was "legally emancipated" by virtue of having a child. A.F. was unreachable by phone because defendant had since cancelled A.F.'s cell phone service.
The caseworker also interviewed J.F., who stated that defendant and A.F. were not "getting along" because A.F. refused to listen or follow her mother's rules. J.F. also stated that A.F. briefly returned to the family home to pick up some belongings, and left again. According to the caseworker's investigation report, J.F. stated that defendant did not attempt to stop A.F. from leaving. J.F. stated that defendant was "tired of the things [A.F.] takes her through."
Eventually, on October 23, 2012, the caseworker located A.F., and learned that she had been staying at various friends' homes. At that time, she and her son were staying at the home of L.V. However, L.V.'s home had no utility service, and the caseworker determined it was inadequate housing for A.F. and her son. The caseworker also learned that defendant had previously threatened to eject A.F. from the home, and was advised by her daughter's school crisis intervention teacher "she cannot kick [A.F.] out of the home."
When the caseworker informed defendant that A.F.'s living arrangement with L.V. was inadequate, defendant told the caseworker that A.F. could not return to the home because she refused to follow the rules or respect the adults in the household. She then informed the caseworker that her sister, the owner of the house, also did not want A.F. to return, and that she could think of no one else with whom A.F. could stay. As a result, on October 23, 2012, the Division carried out an emergency removal of A.F. and A.F.'s infant son. A.B. was substantiated for neglect.
A fact-finding hearing was held on February 19, 2013, before a Family Part judge. At the hearing, both the Division and the appointed Law Guardian for A.F. advocated a finding of neglect on the part of defendant. The Division caseworker who investigated the October 2, 2012 referral was the only witness at the hearing. The caseworker testified to the above facts.
In her oral findings of fact, the Family Part judge deemed the testimony regarding whether or not defendant's sister refused to let A.F. return to their home to be unreliable and inadmissible hearsay. The judge found that defendant refused to allow A.F. to live with her and failed to arrange any other source of food or shelter for her daughter, remarking that "[defendant] had no idea where the child was going to go." From these facts, the judge determined that defendant displayed "reckless disregard for the safety of her child[,]" and her actions constituted "gross negligence." Ultimately, she concluded that defendant neglected her daughter. The judge's findings were memorialized in an order issued later that day.
Subsequently, on September 23, 2014, an order was issued terminating the litigation because A.F. reached the age of majority. A.B. appeals the Family Part's order of neglect.
II.
We turn first to defendant's argument regarding the sufficiency of the Family Part's findings and conclusions. On appeal from a finding of abuse or neglect, we defer to the factual findings and credibility determinations of the trial court so long as they "could reasonably have been reached on sufficient credible evidence present in the record." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). That is because, "by virtue of its specific jurisdiction, the Family Part possess[es] special expertise in the field of domestic relations." N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citation and internal quotation marks omitted). However, our review of a trial court's legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011). Thus, we review de novo the "trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Title Nine, N.J.S.A. 9:6-8.21 to -8.73, sets forth the controlling standards for adjudicating cases of abuse and neglect. See N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The Division has the burden of proving abuse or neglect by a preponderance of the evidence. New Jersey Div. of Youth & Family Servs. v. P.C., 439 N.J. Super. 404, 413 (App. Div. 2015); N.J.S.A. 9:6-8.46(b).
Here, the Family Part judge determined defendant neglected her daughter under both subsections (4)(a) and (5) of N.J.S.A. 9:6-8.21(c). Under N.J.S.A. 9:6-8.21(c)(4)(a), an abused or neglected child is defined as:
(4) 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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so[.]
The "minimum degree of care," required by the statute refers "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 305 (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)). The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, at 179 (citations omitted). Whether conduct is merely negligent, as opposed to grossly or wantonly so, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309.
Here, defendant does not challenge the correctness of the court's factual findings. Rather, defendant argues that the trial court failed to make sufficient findings of fact to support its conclusion that defendant neglected A.F. Specifically, defendant contends that no actual harm befell defendant's daughter while she was barred from the home. Defendant also asserts the Family Part failed to address the "imminent danger" element of N.J.S.A. 9:6-8.21(c)(4). Defendant also argues that the "imminent danger" requirement calls for proof of an imminent danger of impairment at the time of the fact-finding hearing, rather than at the time of the event that triggered the hearing.
We are unpersuaded by defendant's arguments. As an initial matter, we note that the statute makes expressly clear that actual impairment of the child is not required to support a finding of neglect. Rather, it is sufficient that the parent or guardian's failure to care for a child creates an imminent danger of impairment.
We also reject defendant's argument regarding the appropriate interpretation of N.J.S.A. 9:6-8.21(c)(4)'s "imminent danger" requirement. Since the initiation of this appeal, the Supreme Court has explicitly rejected the interpretation advocated by defendant. See Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 170 (2015). Thus, a court's inquiry into the "imminent danger" requirement of N.J.S.A. 9:6-8.21(c)(4) properly focuses on the danger posed at the time of the incident in question, not at the time of the fact-finding hearing.
Here, although the Family Part judge did not make an explicit finding with respect to the imminent danger of impairment, the risks inherent in barring a sixteen-year-old child from the family home without arranging any alternative source of shelter or support are obvious. We therefore affirm the Family Part's conclusion that defendant neglected her daughter under N.J.S.A. 9:6-8.21(c)(4).
For similar reasons, we also affirm the Family Part's finding of neglect with respect to N.J.S.A. 9:6-8.21(c)(5). Under subsection (5) of the abuse and neglect statute, an abused or neglected child may also be defined as "a child who has been willfully abandoned by his parent or guardian[.]" N.J.S.A. 9:6-8.21(c)(5). Unlike subsection (4) of the neglect statute, which turns upon the risk of harm resulting from a parent's failure to care for a child, the "abandonment" requirement in section (5) imports an element of willfulness. In re Guardianship of D.M.H., 161 N.J. 365, 376 (1999) ("[A]bandonment can be established if the parent has 'engaged in a course of conduct that evidences a settled purpose to forgo all parental duties and relinquish all parental claims to the child.'").
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.]
Here, the record contains substantial, credible evidence that defendant willfully abdicated any responsibility for her daughter. Defendant refused to permit her daughter to return home despite being informed by the Division that her daughter's living arrangement was unacceptable, nor did she make any other arrangement for her daughter's care and support. Defendant's failure to shelter and care for her daughter forced other private persons, and, ultimately, the State, to bear the burden and expense of maintaining her child, in contravention of N.J.S.A. 9:6-1(c). We therefore also agree with the Family Part's conclusion that defendant neglected her daughter under N.J.S.A. 9:6-8.21(c)(5).
Our dissenting colleague contends defendant's due process rights were "severely compromised" by the court's decision to suppress hearsay testimony that defendant's sister was the one responsible for barring A.F. from the home. We respectfully disagree.
In an abuse and neglect fact-finding hearing, the trial court must serve as both evidentiary gate-keeper and fact-finder. See New Jersey Div. of Youth and Family Services v. J.Y., 352 N.J. Super. 245, 264-265 (App. Div. 2002). Here, the court found the hearsay testimony regarding J.F. both inadmissible and unreliable. The trial judge, in the capacity as fact-finder, is within his or her discretion to determine the credibility of evidence adduced at trial. See In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 468 (App. Div. 2006), cert. denied, 190 N.J. 255 (2007). It is incumbent upon defendant, as the party wishing to prove a fact through testimony, to present sufficient admissible and credible testimony to convince the fact-finder of the point in issue. Thus, we perceive no error in the Family Part judge's conclusion that the hearsay testimony regarding defendant's sister was unreliable. See J.Y., supra, 352 N.J. Super. at 264-65 (holding a finding of abuse or neglect based on hearsay statements "erodes the foundation" of the abuse and neglect statute).
Furthermore, even if defendant's sister was responsible for barring A.F. from their home, that does not relieve defendant of her obligation, as A.F.'s mother, to make other arrangements for her daughter's shelter, care, and support. Even when a parent lives in the home of a family member, boyfriend, or other third party, and that third party bars the parent's child from the household, the parent's duty to shelter and care for his or her own child is not extinguished. Likewise, a child's behavioral issues, however difficult and burdensome, do not mitigate the fundamental responsibility of a parent to provide care for his or her child.
We agree with the dissent that "parent[s] in defendant's position should . . . be[] able to look to the Division for assistance and services." Thus, courts should not make a finding of neglect where a parent is unable to provide for his or her children, and contacts the Division for temporary assistance with sheltering the children. See New Jersey Div. of Child Protection and Permanency v. L.W., 435 N.J. Super. 189, 195-96 (App. Div. 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976), aff'd sub. nom Doe v. Downey, 74 N.J. 196, (1977)). However, the situation presented in this case is wholly different.
Here, even after defendant was made aware that her sixteen-year-old daughter was living without utilities in inadequate housing, she refused to permit her daughter to return to the family home, and failed to make any other arrangements to ensure her child was properly sheltered and provided for. Furthermore, defendant did not seek help from the Division to shelter her daughter. This is not a situation where the defendant requested the Division to temporarily care for her daughter, while she attempted to find suitable shelter for her. On the contrary, the record reflects that defendant even refused to sign the Notice of Emergency Removal.
III.
We turn now to defendant's ineffective assistance of counsel arguments. "[A] defendant has a right to [the effective assistance of] counsel when a complaint is filed against him or her charging abuse and neglect and threatening the individual's parental rights." N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 345 (App. Div.), certif. denied, 192 N.J. 296 (2007). In determining whether that right has been violated, we apply the test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007).
A parent claiming ineffectiveness of counsel must establish: (1) that counsel's performance was objectively deficient, in other words, that it fell "outside the broad range of professionally acceptable performance;" and (2) that counsel's deficient performance prejudiced the defense, meaning there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." N.J. Div. of Youth and Family Servs. v. M.D., 417 N.J. Super. 583, 609-610 (App. Div. 2011) (quoting B.R., supra, 192 N.J. at 307).
Defendant contends she suffered lasting effects from a head wound one year prior to the incident at issue. The effects of this injury allegedly include headaches and short-term memory loss. Defendant argues her counsel at the fact-finding hearing rendered ineffective assistance by failing to request a neurological exam or explore the impact of her injury on her ability to parent. Defendant also argues that her counsel was ineffective for failing to challenge the appropriateness of Title Nine charges, as opposed to more remedial procedures targeted at assisting defendant with coping with her daughter.
These arguments fail because counsel's decision not to introduce evidence regarding the effects of defendant's head wound is a reasonable strategic choice. See State v. Cooper, 410 N.J. Super. 43, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). There is no evidence that defendant's head wound had any appreciable impact on her refusal to shelter A.F. and her child. Likewise, counsel's decision to directly challenge the Division's evidence of neglect at the fact-finding hearing, rather than demand other services, was also a reasonable strategic choice. Furthermore, defendant fails to demonstrate how either argument could have changed the outcome of the fact-finding hearing.
In conclusion, although we are sympathetic to the plight of a parent dealing with an obstreperous teenager, the actions of the child do not relieve the parent of her maternal responsibilities to provide, or make arrangements, for the shelter and care of her daughter.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION GUADAGNO, J.A.D., dissenting
When a child decides to run away from home, the parent faces several choices, none of which promise resolution of the problem or assure the welfare of the child. The parent can attempt to prevent the child from leaving, either verbally or physically; the parent can call the police, even though the child is in no immediate danger; or the parent can allow the child to leave and hope she decides to return.
When defendant's daughter ran away, defendant went to the police, but was given misinformation and no assistance. When the Division became involved, defendant was told she had to accept her runaway daughter back into the home where she was living. Defendant balked because of the child's behavior and because defendant's sister, who owned the home, did not want the child to return. After evidence of the sister's role in barring the child's return was admitted at the fact-finding without objection, the trial judge refused to consider the testimony in rendering her decision. If the sister barred the child, the finding of abuse or neglect against defendant for failure to allow the child to return to the home cannot stand.
More importantly, there was no evidence of actual harm to this child, and defendant's conduct did not amount to gross or wanton negligence. For these reasons, I respectfully dissent from the majority opinion affirming the finding that defendant abused or neglected her daughter.
Runaway children are not uncommon. It is estimated that in the United States, between 1.6 and 2.8 million children run away from home each year. The Truth About Runaway Teens, Polly Klass Foundation, http://bit.ly/24t33Ss (last visited Feb. 26, 2016). Most children who run away return home within a few days. Julia M. Robertson, Homeless and Runaway Youths, in Homelessness: A National Perspective 287, 288 (Marjorie J. Robertson & Milton Greenblatt 1992).
Defendant is a single mother who has had a strained relationship with her daughter, A.F., for many years. It is not disputed that A.F. smoked marijuana, drank alcohol, stayed out all night, became pregnant with her first child at age fifteen, and was pregnant with her second child when this incident occurred.
A.F. left home on September 24, 2012 with her then three-month-old son because she was "upset" that defendant took away her laptop and cell phone as punishment for her suspension from high school for cursing at a teacher, a punishment that most would agree was appropriate if not lenient. Defendant went to the police to file a missing person report, but was told mistakenly that, because A.F. had a child, she was considered "emancipated."
On October 1, 2012, A.F. returned home and defendant went with her to have her reinstated to her high school. While there, A.F. began cursing at defendant and at a member of the school staff. Following an argument with defendant, A.F. took her child and left. A.F. and her son then stayed at the homes of different friends. Defendant visited A.F. at one of the homes and gave her "permission" to remain there. When a Division caseworker learned the utilities had been shut off at the home, she told A.F. that she could not stay there with her child and had to return to live with her mother. A.F. refused to return home. When defendant was told she had to allow A.F. back into the home, she objected because A.F was disrespectful and refused to abide by curfew rules. Defendant also told the caseworker that the home belonged to her sister, who did not want A.F. there because she suspected her of stealing money. The caseworker then placed A.F. and her son in a resource home and substantiated defendant for neglect of A.F.
It is not disputed that defendant has been living with her sister, J.F., since October 2009. The caseworker reports and the Division's complaint clearly indicate the house where defendant and A.F. resided was owned or leased, not by defendant, but by J.F. J.F was interviewed by a caseworker and referred to the residence as "her home." Defendant told the caseworker she paid no rent while living at her sister's home. The trial court refused to consider evidence of the sister's ownership of the house and her decision not to readmit A.F. The majority suggests that "even if defendant's sister was responsible for barring A.F. from their home, that does not relieve defendant of her obligation, as A.F.'s mother, to make other arrangements for her daughter's shelter, care, and support." While this is an interesting alternative theory to validate the trial judge's finding, it is not the allegation of neglect pursued by the Division, nor does it reflect the judge's finding that "refusing to allow a 16 year old child into her home who has an infant would be gross negligence."
Clearly, if the decision to bar A.F. was made by J.F., defendant cannot be held responsible for not allowing her daughter to return to the home. The trial judge refused to consider evidence of J.F.'s decision finding it was "embedded hearsay." The majority perceives no error in that conclusion. Scrutiny of the record reveals that the evidence was not derived from a secondary source in a Division report but was elicited by the Deputy Attorney General (DAG) representing the Division during her direct examination of a caseworker. When asked why defendant was not willing to take A.F. back, caseworker Crystal McClinton testified, without objection
[A.F.] was very disrespectful. [Defendant] also had concerns . . . she resided with her sister and the apartment belonged to her sister and her sister was not willing to allow [A.F.] back into her home as well.On cross-examination, defendant's counsel developed this point further:
Q: Isn't it true that [defendant] was residing with [J.F.] at that time?
A: Yes.
Q: And isn't it a fact that [J.F.] was the . . . person on the lease for the apartment?
A: I don't know who was on the lease.
Q: Isn't it a fact that [J.F.] did not want [A.F.] back into the home because . . . she believed that [A.F.] stole one hundred and twenty dollars from the home?
A: According to [defendant], that's what [defendant] told me.
. . . .
Q: Did [defendant] state that the home belonged to [J.F.]?
A: Yes.
Q: Why did [defendant] allegedly refuse to allow [A.F.] back into the home?
. . . .
A: According to [defendant, A.F.] was very disrespectful and she refused to follow
curfew. Therefore, she was not willing to allow her back into the home.Even though there was no objection to this testimony during the hearing, the trial judge waited until defendant's attorney was delivering his summation to determine that not only was the testimony inadmissible hearsay, but was not reliable. The majority sidesteps J.F.'s ownership of the home and simply refers to the residence as the "family home."
The last question was objected to by the DAG as "asked and answered," not on hearsay grounds.
N.J.S.A. 9:6-8.46(a)(3) allows admission into evidence of Division records "of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding . . . [as] proof of that condition, act, transaction, occurrence or event" if it meets the prerequisites of admission of a business record. See also R. 5:12-4(d) (stating that documents prepared by Division staff are admissible if they satisfy the requirements of the business records exception to the hearsay rule, N.J.R.E. 803(c)(6) and 801(d)).
It has long been the rule in New Jersey that hearsay evidence not objected to should be considered evidential. Smith v. Del. & Atl. Tel. & Tel. Co., 63 N.J. Eq. 93, 95 (Ch. 1902), aff'd, 64 N.J. Eq. 770 (1902); State v. Ingenito, 87 N.J. 204, 224 n. 1 (1981) (Schreiber, J., concurring). See also Morris v. United States, 813 F.2d 343, 348 (11th Cir. 1987) ("if evidence of this kind [hearsay] is admitted without objection, it is to be considered, and accorded its natural probative effect, as if it were in law admissible." (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co., 253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920))).
Defendant's statement that her sister objected to A.F.'s return to the home entered the record without objection and should have been given its natural and logical probative effect. Moreover, McClinton interviewed defendant and her sister, J.F., on October 2, 2012, and her investigation summary was admitted at the fact-finding. Defendant told McClinton, "she does not pay rent as the apartment belongs to her sister [J.F.]" McClinton's testimony that J.F. did not want A.F. to return to the home was clearly helpful to defendant. Not surprisingly, defendant's counsel referenced that testimony during his summation, arguing that defendant's sister would not allow A.F. back into the house. Even though the DAG had introduced this evidence during her direct examination of caseworker McClinton, she now objected that the sister's statement was "embedded hearsay." Without any explanation, the judge agreed. When counsel pointed out that he had questioned the caseworker on this very issue, the judge recalled that she had sustained an objection to the testimony. In fact, the court sustained two objections on this subject, but both were on cross-examination after the DAG had elicited the testimony on direct.
The first was to a question posed by defendant's counsel to McClinton: "If [J.F.] did not want [A.F. in] the home and that's where my client and [A.F.] were residing at the time, what should my client have done in the Division's eyes?" The DAG objected stating, "That's not for a witness to answer. We don't even know if the basis of the question is true."
The second objection was to the Law Guardian's question whether J.F. ever told McClinton that she was not willing to let A.F. stay in the house. Perhaps not realizing that the Law Guardian was questioning McClinton about her actual conversations with J.F., the judge sustained the objection as calling for "embedded hearsay."
When defendant's counsel presented his summation, he reasonably believed that McClinton's unchallenged testimony that J.F. was not willing to allow A.F. back into her home was part of the record. This testimony represented competent, material and relevant evidence and the Division's last minute objection to the very evidence it introduced during McClinton's direct examination severely compromised defendant's basic due process rights. Plaza 12 Assocs. v. Carteret Borough, 280 N.J. Super. 471, 477 (App. Div. 1995) (a party cannot wait until trial and "sandbag" his opponent by then making an objection to the adequacy of answers to interrogatories not previously objected to).
Even assuming defendant had the authority to bar her daughter from returning to the home, and did so, that act standing alone, does not support a finding of abuse and neglect as the majority concludes.
There was no finding by the trial judge that A.F. was harmed by not being allowed to return home. Rather, the judge found that "refusing to allow a 16 year old child into her home who has an infant herself would be gross negligence . . . [and] reckless disregard for the safety of her child." The majority glosses over the trial court's failure to make any specific findings and, in similar conclusory fashion, finds "the risks inherent in barring a sixteen-year-old child and her infant son from the family home without arranging any alternative source of shelter or support are obvious." While that may be true for defendant's three-month old grandson, it is not so "obvious" for A.F., who has run away on several occasions, apparently stayed with friends and family members, and returned home each time without suffering harm.
The trial judge and the majority considered the potential for harm to A.F. as well as to A.F.'s son. Because A.F.'s son was never named in this litigation, defendant was not on notice that she was facing allegations of abuse or neglect of her grandson as well as her daughter. Moreover, there was no proof at the fact-finding hearing that defendant owed her grandson a duty of care as a "parent or guardian" under N.J.S.A. 9:6-8.21 (c). --------
As there was no evidence of actual harm, the focus must be on whether there was a threat of harm. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (citing N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013)). To sustain a finding of abuse or neglect, there must be proof that a parent failed to exercise a minimum degree of care and there was an "imminent danger or a substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)). In G.S. v. Department of Human Services, the Court defined the phrase "minimum degree of care" as "conduct that is grossly or wantonly negligent, but not necessarily intentional." 157 N.J. 161, 178 (1999). Willful or wanton conduct is "done with the knowledge that injury is likely to, or probably will, result." Ibid.
I am equally unpersuaded by the majority's conclusion that defendant willfully abandoned her daughter. Abandonment requires a finding that a parent, although physically and financially able to care for her child, willfully forsook her parental responsibilities. See N.J.S.A. 30:4C-15(d). Abandonment requires a state of mind that indicates the willful or purposeful repudiation of parental responsibilities. In re Adoption of Children by L.A.S., 134 N.J. 127, 134-35 (1993). The parent "must have engaged in a course of conduct that 'evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" Ibid. (quoting In re N., 96 N.J. Super. 415, 426 (App. Div. 1967)).
The facts here do not begin to support the conclusion that defendant either willfully surrendered or intentionally abdicated her parental rights and duties. Defendant was faced with a disrespectful and headstrong child who left home with her three-month-old infant, with nowhere to go and no way to support the baby, simply because her mother took her cell phone and laptop away. When A.F. returned home on October 1, 2012, defendant took her back and accompanied her to school to get her reinstated. When A.F. left again, defendant was reluctant to take her back because she was disrespectful and did not follow rules, but gave no indication that she intended to permanently bar her daughter or in any way abdicate her parental rights and duties. In fact, by December 2012, two months before the fact-finding hearing was held, defendant had obtained her own housing and A.F. returned to live with her.
A parent in defendant's position should have been able to look to the Division for assistance and services. Instead, the Division needlessly and mechanically responded by substantiating defendant for neglect. Because there was no "fault-based reason" for proceeding under N.J.S.A. 9:6-8.21(c) (Title 9), this case would have been more appropriately considered under the jurisdiction of N.J.S.A. 30:4C-12 (Title 30). N.J. Division of Youth & Family Services v. I.S., 214 N.J. 8, 15 (2013); see also N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 30 (2013) (the Division can proceed under Title 30 "when there is insufficient proof of actual harm or imminent danger to a child."). By proceeding under Title 30, the Division could have provided services to the family and even granted custody of A.F. and her son without subjecting an apparently well-intentioned and caring mother to a listing on the Central Child Abuse Registry.
A.F. experienced no apparent harm during the three-week period she spent with friends after she left home. She was sixteen and not willing to abide by her mother's curfew rules or to refrain from drinking and smoking marijuana. Because I cannot agree that a parent who temporarily refuses to allow a defiant, disobedient, and disrespectful runaway child back into a home has abused or neglected that child, I respectfully dissent. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION