Opinion
DOCKET NO. A-4798-14T4
11-28-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.C., Defendant-Appellant, and D.R., Deceased, Defendant. IN THE MATTER OF T.R., S.R., M.R. and L.R., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, designated counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Koblitz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-439-14. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, designated counsel, on the brief). PER CURIAM
In this Title 9 case, defendant J.C. appeals from an April 27, 2015 fact finding order determining that she abused or neglected her children. See N.J.S.A. 9:6-8.21(c)(4)(a). We affirm.
In our opinion in A-2258-15, we decided J.C.'s appeal from a Title 30 order terminating her parental rights to her children. That order was entered after a separate trial, with a different evidentiary record, and involved a higher proof burden.
The finding arose from events that occurred on January 28, 2014. Based on a report of possible neglect, two case workers from the Division of Child Protection and Permanency (Division) visited the home where defendant and her three young children — ages four years, three years, and fifteen months, respectively - resided. According to their testimony, which was corroborated by photographs, the case workers found that the entire house was filthy, including the kitchen and bathrooms. The house was also freezing cold. Although the heating system worked, it was not turned on.
The children's father, D.R., also lived at the residence. He died while the case was pending.
The three children were encrusted with dirt, with matted hair, and their skin was dry and smelly, as though they had not been bathed in a long time. Defendant told the workers that she bathed the children every two weeks. The children had scars and insect bites, and one child had a black eye, the source of which defendant could not explain. The Division workers found the fifteen-month-old child sleeping alone on a bed upstairs, in a room with a doorway open to an unprotected staircase. One of the downstairs windows was blocked by a filing cabinet, which a worker testified was unsafe because it would prevent fire fighters from gaining access to the house in case of a fire.
The children could not tell the workers when they last ate, and when offered PediaSure one of the children drank it as if he were starving. Defendant could not state when the children last saw a doctor or a dentist, and one child had a front tooth that had turned purple with decay. When the workers took the children to their doctor, they discovered that they were overdue for their immunization shots and had not been to the doctor in almost a year. At the time of the Division's visit, defendant was using a crutch due to a fall suffered a month earlier. However, as the Division workers observed, she was ambulatory and not bed-ridden.
In her testimony, defendant stated that she bathed the children every other day, although she also claimed that she never saw any of the marks on their bodies. On cross-examination, she was confronted with her testimony from an earlier hearing, at which she admitted only bathing them every two weeks. Defendant also testified that she and the children's father were in the process of cleaning the house, which she claimed belonged to her mother. She claimed that she and the children's father had been cleaning the house for "a year." Defendant blamed her mother for the dirty and cold state of the house, although she admitted that the mother was living elsewhere at the time of the Division's January 28, 2014 visit. She admitted that she had not taken the children for regular medical care. Defendant did not present any other witnesses or evidence. She did not present evidence that the deplorable condition of the house, or her children's neglected physical condition, was due to poverty.
After hearing two days of testimony, the Family Part judge issued an oral opinion on April 27, 2015. She determined that the Division's witnesses were credible, and accepted their testimony as true. The judge found defendant's testimony not credible. Based on the evidence she found believable, the judge concluded that defendant had physically neglected the children, within the meaning of N.J.S.A. 9:6-8.21(c)(4)(a), by depriving them of adequate shelter, food and medical care. She found that the children were "malnourished and were not bathed," and defendant kept them in a home that was unheated, unsanitary and unsafe for young children. The judge also found that the children were subjected to educational neglect.
After reviewing the record in light of the applicable legal standards, we conclude that the Division's evidence was more than sufficient to prove by a preponderance that defendant subjected the children to physical neglect. There is sufficient credible evidence to support the entry of the fact finding order. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). However, we agree with defendant that the Division did not prove educational neglect, because the children were not of mandatory school age and there was no expert testimony concerning the reasons why the two older children could not recognize shapes or letters. See N.J.S.A. 18A:38-28; N.J.S.A. 18A:38-5. The order is therefore modified to eliminate the finding of educational neglect. In all other respects the order is affirmed.
Defendant's sole appellate contention - that "the conditions facing the children were the result of poverty and not neglect" — is based on testimony the judge did not find credible and on evidence that was not presented at the fact finding hearing. The argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Defendant's brief inappropriately states facts without citations to the record, and cites to alleged evidence that was not introduced at the fact finding hearing. --------
Affirmed as modified. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION