Opinion
DOCKET NO. A-3954-13T2
10-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.R., Defendant-Appellant, and L.F., Defendant-Respondent. IN THE MATTER OF G.F. and E.P., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Fabiola Ruiz-Doolan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ilana Samantha Wolk, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief). Respondent L.F. has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-405-12. Joseph E. Krakora, Public Defender, attorney for appellant (Fabiola Ruiz-Doolan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ilana Samantha Wolk, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief). Respondent L.F. has not filed a brief. PER CURIAM
J.R. appeals from an order finding that she abused and neglected her two minor children by allowing the children to live in unsanitary and unsafe conditions and exposing at least one of the children to an abusive relationship. The fact findings by the Family Part judge are supported by substantial credible evidence and, thus, we affirm.
I.
The record establishes the following facts and procedural history. J.R. ("Julie") is the mother of two children, G.F. ("Gloria"), a girl born in 2004, and E.P. ("Edward"), a boy born in 2008. L.F. ("Larry") is the biological father of Gloria, and E.P. Sr. ("Eric") is the biological father of Edward. The allegations and findings of abuse and neglect center on events that took place in April 2012. At that time, Gloria was seven- years-old and Edward was three-years-old and Julie and the children were living with Eric.
To protect privacy interests and for ease of reading, we used fictitious names for the mother, fathers and children.
On April 23, 2012, the Division of Child Protection and Permanency ("Division") received a referral reporting alleged domestic violence between Julie and Eric, who were residing together with the two children. A Division investigation revealed two areas of concern relating to the family's living condition and domestic violence.
Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency, L. 2012, c. 16. --------
With regard to the family's living condition, the Division's investigation revealed that on April 20, 2012, Julie detected a gas leak in her apartment and she notified the police. The fire department responded, found Julie and both children in the apartment, and confirmed that there was a gas leak. The fire department personnel turned off the gas, notified PSE&G, ventilated the apartment by opening windows, and advised Julie to take the children and vacate the apartment. Julie, however, remained in the apartment with the children for several more days.
On April 22, 2012, Julie went to the Union City Police Station with her children to report that she and the children were not feeling well and were suffering from headaches and vomiting. The police officer who spoke with Julie that day testified that Julie was also very emotional and that she was crying and shaken. Julie also requested medical assistance, she was treated by EMS personnel at the police station, but she refused to go to the hospital. Julie then took the children to stay with her brother who lived in one room at a rooming house.
A Division investigator met with Julie and the children on April 26, 2012. Julie acknowledged the gas leak at her apartment and that her children had become ill with headaches and vomiting. Julie also confirmed that she had stayed in the apartment with the children for several days after the fire department personnel had advised her to leave the apartment because Julie felt she had no place to go. Further investigation by the Division revealed that Julie was receiving public assistance, including cash benefits, food stamps and Medicaid. The Division also learned that Eric helped to support the family financially through his earnings as a construction worker.
Thereafter, a Division worker inspected the apartment where Julie had been living with the children and Eric. The apartment still had a strong odor of gas. The Division worker observed that the apartment was disorganized, cluttered and unsanitary, with food stains. The worker also noted that there was limited food in the apartment. Further, the worker learned that the mother and children slept in a room together that only had one mattress covered by plastic. Julie reported that she and the children had previously lived in an apartment infested with bed bugs and, thus, they had to vacate that apartment leaving all furnishing behind. The Division learned, however, that Julie had moved from the bed-bug-infested apartment several years earlier.
With regard to concerns about domestic violence, the Division interviewed Julie, Eric, and the child Gloria. Julie informed the Division investigator that for a number of years she and Eric regularly had heated arguments and that Eric often intimidated her and verbally assaulted her. Eric reported that he and Julie would get into arguments, but he denied any physical violence against Julie. Eric did state that Julie had assaulted him on numerous occasions. He also acknowledged that he was aware that Julie had gone to the police to file complaints against him after they argued. Gloria reported to the Division investigator that she had witnessed her mother and Eric hit each other on numerous occasions and that Eric and her mother yelled at each other a lot. To another Division worker, Gloria reported that she saw her mother and Eric argue, but Gloria denied seeing Eric become physical with her mother.
On April 26, 2012, after interviewing Julie, the Division worker took Julie to the Hudson County Courthouse so that she could apply for a domestic violence restraining order against Eric. The court did not grant a restraining order purportedly because Julie informed the court that there currently was no violence between her and Eric. The worker then took Julie and the children to a shelter, but the shelter would not admit Julie and the children because Julie reported that Eric did not live with her and Eric did not abuse her.
On the afternoon of April 26, 2012, the Division executed an emergent removal of the children from Julie's care. Gloria was placed with her biological father, Larry, and Edward was placed in a resource home. The Division then filed an order to show cause and verified complaint for custody of the children. The complaint named Julie, Eric and Larry as defendants. On April 30, 2012, a family court judge found that the emergent removal of the children was appropriate because of imminent danger to the children's life, safety or health. The court then set June 4, 2012, as the return date for the order to show cause.
On June 4, 2012, the family court conducted a further hearing and found that it was contrary to the welfare of the children for the children to be with their mother, Julie. The family court judge, therefore, granted custody of Gloria to her father Larry, and custody of Edward to the Division. The family judge also granted Julie and Eric visitation rights with the children. Furthermore, the family court judge ordered Eric to complete anger management classes and Julie to comply with domestic violence counseling.
On August 21, 2012, the family court conducted a one-day fact-finding hearing. Julie and Eric appeared at that hearing and were represented by attorneys. Larry did not appear. The law guardian appeared for the children. The Division submitted seven exhibits and called two witnesses: a Union City police officer and the Division investigator. No other witnesses were called to testify at the hearing.
At the conclusion of the fact-finding hearing, the family part judge (Judge Elaine L. Davis) issued an order finding that Julie and Eric abused and neglected Gloria and Edward in violation of N.J.S.A. 9:6-8.21(c)(4)(a) and (b) because Eric engaged in domestic violence against Julie in front of at least one of the children, Eric failed to provide Edward with a safe living environment, and Julie failed to provide the children with adequate food and safe shelter. Judge Davis made findings of facts and conclusions of law on the record on August 21, 2012.
Following the fact-finding hearing, the family court conducted a series of hearings in 2013 and 2014. On June 17, 2013, the family court issued a permanency order finding that it was safe to return Edward to the custody of Eric and continuing Gloria in the custody of Larry. The court also found that it was not safe to return the children to Julie because Julie had not completed services and lacked housing.
On March 24, 2014, the family court FN litigation was terminated with Julie's consent. Specifically, Julie consented to the custody of the children remaining with their respective fathers. The Division was to continue providing services to the family. Julie was to continue to have visitation rights with the children. Finally, Julie reserved her right to seek to change custody of the children through a future court action to be filed under the FD Family Part docket. Julie now appeals the August 21, 2012 fact-finding order of abuse and neglect. Neither Eric nor Larry have filed an appeal.
II.
On appeal, the mother Julie argues that the findings of abuse and neglect were not supported by substantial credible evidence. Although she makes one primary argument on appeal, she phrases her arguments in alternative ways. Specifically, Julie contends: (1) the finding of abuse and neglect was against the substantial weight of the evidence; (1a) the Division failed to prove that she failed to exercise a minimum degree of care of the children; (1b) the trial court erred in finding that there was a substantial risk of harm to the children based on the family's living conditions; (2) the trial court erred in basing its decision on the inconsistent statement of a minor child (that is, Gloria); and (3) the record lacks substantial credible evidence to support the finding of abuse and neglect. No matter how phrased, these contentions and arguments lack merit.
Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the health and safety of children. N.J.S.A. 9:6-8.8(a). Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when
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 [or her] parent or guardian . . . 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 (b) 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)(a) and (b).]
The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b); See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that the Division need not wait until a child experiences an actual injury); See also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect"). Instead, a child can be abused or neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus is to preserve the safety of the child. N.J.S.A. 9:6-8.8(a).
The Supreme Court has held that the abuse and neglect standard is satisfied when the Division demonstrates that a parent has failed to exercise a minimum degree of care. G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 178 (citing Miller v. Newsweek, Inc., 660 F. Supp. 852, 858-59 (D. Del. 1987)). Wanton negligence is conduct that was done with the knowledge that injury is likely to result. Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. Id. at 179. Moreover, a parent can be liable for the foreseeable consequences of his or her choices. Ibid.
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the judgments of the Family Part judge if those findings are supported by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). A decision should be reversed or modified on appeal only if the findings were "'so wholly unsupportable as to result in a denial of justice.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting J.N.H., supra, 172 N.J. at 472). This deference is accorded to the trial court's fact- finding "because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citations omitted).
III.
Applying this standard of review, we conclude that there is substantial credible evidence in this record to support the findings that Julie abused and neglected her children by allowing the children to live in unsafe and unsanitary conditions and exposing at least one of the children to an abusive relationship.
Following an evidentiary hearing, the family court judge found that the children's living conditions exposed the children to imminent substantial risk of harm. The family judge focused both on the harm resulting from the gas leak and the living conditions. With regard to the gas leak, the evidence showed that for several days, Julie kept the children in the apartment after a gas leak had been discovered. The family judge then found that that condition presented an imminent substantial risk of harm to the children as was evidenced by the fact that Julie and the children became ill with headaches and vomiting.
On appeal, Julie argues that the Division's evidence was inconsistent. She points to a lack of documentation in the police report of the fire department's advice to Julie to vacate the apartment. She also takes issue with some of the inferences the family judge drew from the evidence. Those arguments do not undercut the substantial evidence of a gas leak, that Julie stayed in the apartment with the children for several days after the gas leak, and that the children became ill. Julie admitted all of those facts to the Division investigator and that investigator testified at the fact-finding hearing. Moreover, Julie did not need to be told to leave the apartment; a minimum degree of care for the children should have informed Julie of the substantial risk of harm to the children.
The family judge also found that the apartment was unsanitary, Julie and the children slept on a single mattress covered with plastic, and there was little food in the apartment. While Julie takes issue with whether those conditions by themselves establish a minimum degree of care, it was appropriate to consider those conditions as part of the totality of the circumstances supporting a finding of abuse or neglect. See N.J. Div. of Youth & Family Servs. v. V.T., supra, 423 N.J. Super. at 329 (explaining that whether a child is abused or neglected should be determined by the totality of the circumstances). More to the point, the risk to the children in staying in an apartment after a gas leak, coupled with the unsanitary conditions in the apartment, are sufficient substantial credible evidence that Julie failed to exercise a minimum degree of care resulting in a substantial imminent risk of harm to the children.
The family judge also found that there was abuse or neglect to at least one of the children, Gloria, because Gloria was exposed to domestic violence between Julie and Eric. That finding was also supported by substantial credible evidence, which included Julie's own admissions, Eric's admissions, and the statements of Gloria. Julie admitted that she and Eric had heated arguments and that she had a fear of Eric. Eric admitted that he and Julie had heated arguments and, although he denied assaulting Julie, he claimed that Julie had assaulted him. Gloria informed the Division investigator that she repeatedly witnessed Julie and Eric yelling at and hitting each other. On appeal, Julie takes issue with relying on the hearsay testimony of Gloria, who is a minor child. Such hearsay testimony is admissible in a hearing to determine abuse or neglect of a child "provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact-finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). See N.J. Div. of Youth & Family Servs. v. P.W.R., supra, 205 N.J. at 33 (explaining that "a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect.") Gloria's statements were not the sole basis for the finding of abuse and neglect. Both Julie's and Eric's own admissions corroborate Gloria's statement and provide credible evidence that Gloria was exposed to domestic violence. In terms of the harm to the child, here again the totality of the circumstances supported the family court's finding of abuse and neglect.
In summary, we find that the family judge's fact findings of abuse and neglect were substantially supported by credible evidence. Moreover, our review discloses no misapplication of the law.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION