Opinion
DOCKET NO. A-5824-13T2
12-21-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.R., Defendant-Appellant, and A.N., Defendant. IN THE MATTER OF I.N., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sheena M. Rinkle, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0230-11. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sheena M. Rinkle, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant appeals from a May 9, 2011 Family Part order finding her failure to ensure her then six-year-old son (the child) attended school regularly caused the child to be abused or neglected. We affirm.
The child's father, defendant A.N., is now deceased and not part of this appeal.
On January 21, 2011, the Division of Child Protection and Permanency (the Division) received a referral from the child's school reporting that, despite the assistance of an attendance counselor, the child had accumulated thirty-two absences that academic year. The Division commenced an investigation.
The Division's involvement with the family occurred prior to the passage of the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b). To avoid confusion, we refer to the Division by its current name.
A social worker at the school reported the doctor's notes defendant produced for absences were suspicious; the child contradicted defendant's explanations for the absences; there was a pattern to the child's absences, with most occurring on Mondays, Fridays, or the day after a holiday; and the child was not performing at grade level because of the absences.
The Division's investigator went to defendant's home and interviewed defendant and the child. During the investigator's interview with the child, the child stated defendant allows him to stay home from school when he is not sick. The investigator then interviewed defendant, who explained she presented doctor's notes to the school, and the child's doctor, Rene Esquerre, M.D., provided a note to the school explaining the child is constantly sick. However, defendant "did not give a clear explanation for [the child's] absences" and acknowledged she was aware the child was struggling in school.
On January 26, 2011, the Division spoke with Dr. Esquerre who explained "it[ is] unusual for [the child] to miss [thirty-two] days of school" during the academic year. Dr. Esquerre confirmed he provided the child with doctor's notes excusing the child from school. The Division advised the doctor to complete its medical forms and answer questions regarding the child's weight.
On January 31, 2011, defendant signed the Division's case plan requiring her to comply with services. Specifically, defendant was required to submit to a substance abuse assessment, parenting classes, have the child seen by a nutritionist, and ensure the child attend school regularly.
On February 7, 2011, the Division filed a verified complaint for care and supervision of the child after defendant failed to comply with services and ensure the child attended school. Following a hearing on the same date, the judge entered an order to show cause granting the Division care and supervision of the child.
On March 9, 2011, at the return on the order to show cause, the Division explained defendant was having housing issues and had been hospitalized the prior week. The child had been staying with his maternal grandmother (the grandmother), who expressed interest in applying for custody of the child because "[defendant] cannot care for the child properly" and "[defendant] does not send [the child] to school." The judge then granted the grandmother temporary physical custody, with defendant retaining legal custody.
On April 27, 2011, during a compliance review, the Division notified the court that, if defendant continued to be non-compliant, the Division would request custody at the next hearing. While living with his grandmother, the child had been "getting to school every day," and was "doing quite well."
A fact-finding hearing was held on May 9, 2011. The Division presented documentary evidence and the testimony of its investigator to support its allegation defendant abused or neglected the child. Specifically, the Division submitted into evidence: its investigation summary and case plan, certified records from the child's school, and certified medical records from Dr. Esquerre.
Defendant testified on her own behalf, maintaining the child was sick on each absence because the child was "always constantly sick[,]" suffering from an array of ailments including throat infections, fever, bladder problems, and stomach pains. Defendant failed to explain why the child was frequently absent on Mondays, Fridays, and the day after holidays but acknowledged the child was "struggling in school because of his absences most likely and because he[ had] been out so many days."
The judge considered the records and testimony adduced at the hearing, then rendered an oral opinion and entered the order under review. Although abuse or neglect can be shown by a preponderance of the evidence, at the Division's request, the judge applied the more exacting clear and convincing standard required in Title Thirty termination of parental rights cases, when assessing the proofs. He concluded defendant's conduct of failing to ensure the child regularly attended school, clearly and convincingly proved the child was abused or neglected as defined by Title Nine. In making this determination, the judge emphasized the child was not performing well and needed to attend school. He further explained, although the medical records accounted for some of the days missed, there was "nothing to explain the inordinate number of absences" the child accumulated. Specifically, the medical records accounted for only eight of the child's forty-five absences and seven tardy arrivals. The judge ordered defendant to comply with services and follow up with the child's educational and medical needs.
Litigation then continued for over three years during which defendant failed to comply with services and ensure the child attended school. On July 2, 2014, the judge entered an order terminating the litigation because a complaint for termination of defendant's parental rights had been filed. On November 19, 2014, defendant entered an identified surrender of her parental rights so the grandmother could adopt the child.
On appeal, defendant argues the finding of abuse or neglect cannot be sustained because the judge's decision is not adequately supported, and the judge did not provide defendant advance notice the higher Title Thirty standard would be applied to her Title Nine case.
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence[,]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), this court only disturbs factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "There is an exception to that general rule of deference: Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." Ibid. (citation and internal quotation marks omitted).
We first address defendant's argument there is insufficient support for the judge's finding of abuse or neglect. Specifically, defendant argues the judge failed to identify her level of culpability and there exists insufficient evidence the child was harmed.
Where the Division seeks care and supervision of a child pursuant to Title Nine, the court conducts an evidentiary hearing after which the judge must make findings to determine "whether the child is an abused or neglected child." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002) (citing N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.21c). "[O]nly competent, material and relevant evidence may be admitted" at a fact-finding hearing and the Division bears the burden of proving abuse or neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46b.
A parent's duty to provide an education to his or her child is statutorily mandated by N.J.S.A. 18A:38-25, which provides:
Every parent, guardian or other person having custody and control of a child between the ages of six and [sixteen] years shall cause such child regularly to attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or to receive equivalent instruction elsewhere than at school.
The failure to provide an education is a form of abuse or neglect under Title Nine, which provides an "abused or neglected child" includes
a child less than [eighteen] years of age . . . 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 . . . to exercise a minimum degree of care . . . in supplying the child with adequate . . . education . . . .This reference to education "concerns parental encouragement to truancy of a school age child, or other interference with normal educative processes." Doe v. Downey, 74 N.J. 196, 199 (1977) (citation and internal quotation marks omitted). When evaluating whether a parent has failed to exercise a "minimum degree of care[,]" courts apply a gross negligence standard. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Under this standard, "a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Id. at 179.
[N. J.S.A. 9:6-8.21c(4)(a).]
Here, at the time of the January 2011 referral, the child had already accumulated thirty-two absences. Despite the Division's intervention and assistance, defendant failed to comply with services and allowed the child to be absent thirteen more times. Thus, the judge found defendant allowed the child to miss forty-five days of school and be tardy seven times between September 2010 and February 2011, with the medical records only accounting for eight of these absences. Indeed, the judge found there was "nothing to explain the inordinate number of absences." Furthermore, as the judge noted and defendant admitted, the child was struggling in school because of the excessive absences. Despite this awareness, defendant failed to comply with services or ensure the child attended school. Any failure by the judge to specifically delineate defendant's level of culpability was at most harmless error because substantial credible evidence in the record supports the judge's conclusion.
Moreover, as the judge properly determined, the child was harmed by defendant's failure to ensure he regularly attended school. The child was not performing at grade level and was struggling in school because of the excessive absences. The sheer number of absences the child accumulated doubtlessly interfered with "normal educative processes" because the repeated absences deprived the child of the necessary foundation to progress in the daily lessons. As the judge explained, "a six-year-old child who is not doing well in school has to get there and can[not] learn if he[ is] not in school." Indeed, the child's performance improved when he attended school regularly under the care of the grandmother.
Finally, we reject defendant's contention the order must be reversed because the judge applied the heightened Title Thirty clear and convincing standard when evaluating the evidence in this Title Nine case, without providing her advance notice.
"The tendency of Family [Part] judges in certain circumstances to make a finding in a Title Nine case through utilization of the clear and convincing standard applicable in Title Thirty cases is not unfamiliar." N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 223 (App. Div. 2011). Although this "gratuitous lifting" of the standard of proof initially benefits the defendant by requiring the Division to meet a higher burden of proof in the Title Nine case, the finding may collaterally estop a defendant from contesting the issue in a later Title Thirty case if three requirements are met. Ibid. The first requirement, at issue here, provides "the Title Nine court must provide advance notice to the parties that, if supported by the proofs, it will make its findings using the higher Title Thirty 'clear and convincing evidence' standard[.]" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 120 (2011).
Here, the judge obliged the Division's request, made immediately before he delivered his oral opinion, that he make a finding of abuse or neglect by clear and convincing evidence. Although the judge's conclusion the higher standard was satisfied cannot be relied on for collateral estoppel purposes, this has no bearing on the validity of the judge's determination the Division met its burden under Title Nine to establish abuse or neglect by a preponderance of the evidence. H.P., supra, 424 N.J. Super. at 224. Furthermore, defendant would be included in the child abuse registry after a finding of abuse or neglect regardless of which standard the judge applied. Ibid. Thus, although the judge erred by applying the higher standard without advance notice, "defendant has not been . . . harmed by the consequences of that error[,]" ibid., because the judge would have reached the same result through the less exacting Title Nine standard.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION