Opinion
DOCKET NO. A-2061-14T1
01-03-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.R., Defendant-Appellant. IN THE MATTER OF E.C., M.L., K.L., J.L. and R.E.A., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.C., M.L., K.L., J.L. and R.E.A. (Danielle Ruiz, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Messano and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-29-13. Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.C., M.L., K.L., J.L. and R.E.A. (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
J.R. (Julia) appeals an order of the Family Division under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, that found she abused or neglected her children. We reverse.
In 2012, Julia and her four minor children were evicted from the apartment where they resided because she did not pay the rent, having used her supplemental security income (SSI) monies to purchase new bedding when the apartment became infested with bed bugs. She and her children then lived with a friend for a month until they were asked to leave because of the children's behavior. Julia contacted a number of shelters, and finding no space available for her family, she contacted the Division of Child Protection and Permanency (the Division) on August 10, 2012, asking for help because she and her children were homeless. That night, Julia's adult daughter offered to take in the family for the weekend until housing could be found, even though this was against the wishes of her landlord. On Monday, Julia contacted the local Board of Social Services for housing assistance, only to learn it could not help her. Because her daughter could no longer keep them in her apartment, Julia made arrangements to stay in a local hotel for a week, using SSI monies to pay for the room, and notified the Division of her situation.
Julia also has older children who were are not residing with her when this litigation commenced. Another child was born in September 2013 while the case was pending, who was added to the case, but who remained in Julia's custody.
All four children have significant cognitive deficits and are classified as learning disabled, one of whom is severely learning disabled. Matthew and Kathy suffer from an attention deficit hyperactive disorder. Jane was diagnosed with Tourette's syndrome and was attending special classes in school. Ethan was born with a heart murmur and asthma and needed monitoring. Julia herself was receiving SSI because she cannot read or spell. It was difficult for Julia to search for an apartment while looking after her children.
Fictitious names have been used throughout the opinion to maintain the confidentiality of the parties.
Julia requested that the Division take custody of the children temporarily while she looked for an apartment, but the Division made clear to her it could not take custody of the children based on homelessness without evidence of abuse or neglect. Julia's children were fed, clothed and clean, despite their circumstances. Julia was not abusing drugs or alcohol.
Julia suggested as a possible temporary placement for the children, the paternal grandmother of three of the children who lived in Connecticut, because she had temporary custody of the children two years earlier. Although the paternal grandmother initially was willing to take custody of the children on a temporary basis, she changed her position, ultimately stating that she would only take custody of the children if they were placed with her through the Division, once Julia's parental rights to the children were terminated.
By the morning of August 17, 2012, Julia only had $40 remaining. She acknowledged to the Division workers that she was overwhelmed by the situation, and that the children were out of control. At one point she suggested she might hit the children in her frustration, although the Division's records showed the children were adequately cared for and did not suffer from physical abuse.
Julia was willing to surrender custody of the children to the grandmother on a permanent basis. The Division offered to pay for one more week at the hotel, provide daycare while Julia looked for an apartment, provide food until the end of the month, and provide in-home services through the Early Childhood Assistance Program (ECAP). The Division continued to tell Julia it could not remove the children based on homelessness, but could only do so if there were abuse or neglect.
Julia did not want to stay one more week in the motel, and by the afternoon of August 17, 2012, refused the Division's offered services. The children were then removed from her care through an emergency "Dodd" removal and placed in foster care. Four days later, at the August 21, 2012 order to show cause hearing, the Division requested the continued removal of the children from Julia's custody because she refused services, was homeless and "failed to appropriately plan for the children's immediate safety." The Division's complaint, brought under Title Thirty, N.J.S.A. 30:4C-11 to -15.4, and Title Nine, N.J.S.A. 9:6-8:21 to -8.73, alleged that Julia's refusal to accept services constituted abuse or neglect.
The Dodd Act is found at N.J.S.A. 9:6-8.21 to -8.82.
At the hearing, Julia acknowledged through her counsel that she made a mistake by refusing services because she was "very flustered" and "she had a moment," but that "she contacted the Division again" a few days later and was "willing to take the services." However, the court ordered that the children continue under the care, custody and supervision of the Division, finding it would be contrary to the children's welfare to return them because Julia allegedly had a past history of "failure to comply" with services, had recently refused services, had failed to maintain consistent medical care for the children, had committed educational neglect, had suffered from homelessness and by her own admission, "cannot manage these children."
The complaint filed by the Division did not seek removal for any past failures to comply with Division services, nor do the records show any such past history. --------
A fact-finding hearing on the abuse or neglect charge was conducted on January 16, 2013. Julia did not testify. The judge commented that it was a "tough case" from the Division's perspective, noting that it was difficult from the record to discern how Julia was at "fault" for the situation her family found itself in, and that the children "weren't harmed in any way." However, he found that Julia should have accepted the Division's services. Although he expressed that he wanted to convert the case to a Title Thirty case, with care and supervision provided by the Division and custody with Julia, he believed he could not do so without finding the Division had not met its burden under Title Nine. The judge ultimately found the Division met its burden, stating:
[b]ut I also can't ignore that she basically reached the end of her rope, and just wanted the kids at least taken away from her
temporarily until she got her act together. In which case, that's not what DYFS is there for. We all have our problems. Sometimes we get in over our head and we can't get out. I mean, when you have four kids, you just can't leave them.As such, the judge sustained the Division's charge against Julia of abuse or neglect under Title Nine.
But the - - the additional week at the hotel was rejected. The ECAP services or the other services that were offered were rejected. So as I said before, I'm reluctant to do so, but the testimony is there, so I find that the burden has been met.
The children have since been reunited with Julia once she completed the Division's requirements and found an apartment. The litigation was terminated on November 18, 2014.
Julia contends on appeal that there was inadequate evidence to support the court's abuse or neglect finding under Title Nine and that the case should have been addressed under Title Thirty.
At the outset, we note our general deference to Family Part judges' fact-finding because of their "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). See also N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014). We will uphold fact-finding that is supported by sufficient, substantial and credible evidence in the record. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate to set aside a ruling that is "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). The court's interpretation of the law or its legal conclusions are reviewed de novo. See State in Interest of A.B., 219 N.J. 542, 554-55 (2014) (citations omitted).
"Title [Nine] controls the adjudication of abuse and neglect cases." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). N.J.S.A. 9:6-8.21, in pertinent part, defines an "[a]bused 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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . shelter . . . though financially able to do so or though offered financial or other reasonable means to do so . . . .
[N. J.S.A. 9:6-8.21(c)(4).]
Whether a parent has committed abuse or neglect "must be analyzed in light of the dangers and risks associated with the situation." N.J. Div. of Youth and Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (internal quotation marks omitted) (quoting N.J. Dep't of Children and Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)). The cases are fact sensitive.
We agree with Julia that the trial court erred in finding abuse or neglect under Title Nine. The court assumed, as did the Division, that it could not order the Division to take custody of the children unless there were also a finding of abuse or neglect. The court did not have the benefit in 2012 of our decision in N.J. Division of Child Protection and Permanency v. L.W., 435 N.J. Super. 189, 196 (App. Div. 2014). In L.W., we reversed a finding of abuse and neglect against a mother who because of "poor planning," became homeless but who had "sought housing through government agencies" and "employment to no avail." Ibid. We were clear that "[i]t is important that impoverished, homeless parents feel free to call on the Division in times of need, without fear of being found neglectful for 'poor planning.'" Id. at 196-97. Title Thirty authorizes the Division to provide services to "children in need" through N.J.S.A. 30:4C-11 or -12. N.J. Div. of Youth and Family Servs. v. I.S., 214 N.J. 8, 14, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). "N.J.S.A. 30:4C-11 applies when the parent or parents voluntarily consent to the Division's assistance. N.J.S.A. 30:4C-12 applies when there is no voluntary parental consent to Division care and supervision." Ibid. In I.S., we concluded the Legislature intended N.J.S.A. 30:4C-12 to "authorize[] the court to award care, supervision, and even custody" to the Division "when children need services and a parent cannot provide that help for no fault-based reason." Id. at 15. In L.W., we recognized that
for the many people who live on or over the edge of homelessness in New Jersey, the Division may be their last resort; it provides a way to find safe housing for their young children, even at the cost of the parent's temporary separation from those children. Such a parental sacrifice to promote the welfare of their children should be encouraged.
[L .W., supra, 435 N.J. at 197.]
On these facts, we are satisfied that Julia's isolated refusal of services was not abuse or neglect under Title Nine. Julia took the proper steps in contacting the Division when she became homeless. Whether a parent has engaged in acts of abuse or neglect as defined by the statute must be "analyzed in light of the dangers and risks associated with the situation." N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). See N.J. Div. of Child Prot. & Permanency v. J.C., 440 N.J. Super. 568, 573 (App. Div. 2015) (reversing a finding of abuse or neglect where the mother, who had no substance abuse problem or history, drank too much on one occasion and then overslept the next morning, when her toddler was found in the apartment with a dirty diaper and the door ajar). We have held that not "every failure to perform a cautionary act is . . . abuse or neglect." N.J. Div. of Youth and Family Servs. v. T.B., 207 N.J. 294, 306 (2011). "When the failure to perform a cautionary act is merely negligent, it does not trigger . . . [the] statute." Id. at 306-07. There is no question there was ample authority under Title Thirty to remove the children without a finding of abuse or neglect.
When Julia was faced with homelessness with her children, she approached the Division for help and cooperated with its efforts until apparently reaching the breaking point given the children's behavior and her own cognitive limitations. There was nothing in the record to show that she refused services in the past or had an issue with drugs or alcohol. This is not abuse or neglect under the statute, especially when the judge and the Division erroneously concluded as a matter of law that they could not assist Julia solely based on her homelessness. The court erred in not addressing this case under Title Thirty by providing Julia a temporary separation from the children while safe and adequate housing was being sought.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION