Opinion
DOCKET NO. A-0349-14T3
04-14-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.L., Defendant-Appellant, and A.D. and R.W., Defendants. IN THE MATTER OF Z.L., T.W., and Z.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-71-13. Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
On this appeal, L.L., a mother, challenges a December 14, 2012 Family Part order that found that she abused or neglected two of her minor children by failing to engage in mental health treatment and by violating a safety protection plan. We reverse because there was no showing that either child suffered harm or was in imminent risk of suffering harm.
I.
L.L. (Lucy) is the mother of four children: T.L., Z.L., T.W., and Z.W. T.L. is, and at all relevant times was, in the custody of Lucy's aunt. Z.W. was born in February 2013, and was not the subject of the abuse or neglect finding. A.D. (Alvin) is the biological father of Z.L., and R.W. (Ray) is the biological father of T.W. and Z.W.
To protect their privacy interests, we use fictitious names or initials for the parents and children. R. 1:38-3(d)(12).
The finding of abuse or neglect arose out of events that took place in 2012. At that time, Lucy was living with Ray, Z.L. and T.W. The Division of Child Protection and Permanency (Division) became involved with the family when it received a referral in May 2012 expressing concern about Lucy's mental health and domestic violence by Ray.
The Division investigated the referral and learned that Lucy had recently been diagnosed with anxiety disorder, had begun mental health treatment, and had been prescribed psychotropic medication. The hospital where Lucy was receiving treatment reported to the Division that in May, June, and July 2012, Lucy often failed to attend recommended mental health treatment, when she did attend treatment she did not always actively participate, and she was not always compliant in taking her prescribed medication. The hospital also informed the Division that in early August 2012, Lucy informed hospital personnel that she was pregnant. Personnel at the hospital then informed Lucy that she needed to consult with a doctor to determine if she could continue to take her prescribed medications while she was pregnant.
In June 2012, a psychologist retained by the Division evaluated Lucy and recommended that Lucy receive intensive psychiatric treatment. The Division psychologist also recommended that Lucy should not have unsupervised contact with her children until her mental health improved. The psychologist also evaluated Ray. The psychologist found that Ray was "capable of independently providing adequate parenting" to both children and that the children would not "be at risk in his care."
Thus, on June 31, 2012, the Division entered into a safety protection plan with Lucy, Ray, and Ray's mother. Under that plan, Lucy agreed not to have unsupervised contact with her minor children. Lucy also informed the Division that she planned to leave the home and stay with a relative.
On August 2, 2012, the police were called and a police officer drove Lucy and one of her children, Z.L., to the hospital, where Lucy reported that Ray had slapped her. In a subsequent investigation, Ray admitted to a Division worker that he had slapped Lucy, and Lucy told the worker that she had taken Z.L. with her to the hospital because Z.L. was crying. Lucy also reported that at the hospital Z.L. was always in the presence of hospital personnel, and that Ray had come to the hospital approximately half an hour later.
On August 10, 2012, the Division filed an order to show cause and a complaint seeking custody of Z.L. and care and supervision of T.W. The Family Part granted the Division's request that same day. A hearing on the order to show cause was conducted on October 4, 2012, and the court continued custody of Z.L. with the Division and care and supervision of T.W. The court also directed that Lucy could reside with Ray and T.W., so long as Lucy was supervised when she was with T.W.
The complaint also named Alvin and Ray as defendants. Alvin was incarcerated during most of the Title Nine proceeding. There was no finding of abuse or neglect against Alvin or Ray and neither have appealed.
On December 14, 2012, the Family Part conducted a fact-finding hearing. Only one witness testified at the hearing: the Division's case worker. The Division also submitted documents, including its investigative summaries, a psychological evaluation of Lucy, and certain portions of Lucy's medical records. The Family Part judge ruled that the psychological evaluation was only admitted for the limited purpose of considering how the psychologist's recommendation impacted the Division's case management. Lucy, Alvin, and Ray did not testify and did not call any witnesses.
At the conclusion of the hearing, the Family Part judge issued an oral decision finding that the Division had proven that Lucy had abused or neglected two of her minor children by violating the safety protection plan and failing to comply with her medical health treatment. The judge found that Lucy violated the safety plan on August 2, 2012, when she took Z.L. with her to the hospital. The judge reasoned that Lucy was with the child unsupervised even though the police drove Lucy and Z.L. to the hospital because the police were not acting as supervisors of the child. The judge also found that Lucy's failure to follow up with mental health services placed the children at substantial risk of harm.
On the same day the Family Part found that Lucy had abused or neglected her children, the judge also directed the Division to immediately develop a reunification plan to return Z.L. to live with Lucy, Ray and Z.W. Two weeks later, Z.L. was placed in the physical custody of Ray, who was living with Lucy.
Thereafter, the Division continued to provide services to the family, and Lucy engaged in mental health treatment. Ultimately, in July 2014 the Title Nine proceedings were terminated with the children remaining in the legal and physical custody of Lucy. Ray was also given joint legal and physical custody of T.W. and Z.W., who are his biological children. On appeal, Lucy now challenges the December 14, 2012 fact-finding order.
After Z.W. was born in February 2013, she was added to the complaint for care and supervision by the Division.
II.
On appeal, Lucy argues: (1) the Division failed to show that either child suffered any present or potential future harm, and (2) the finding of abuse or neglect was not based on competent, material, or relevant evidence. In response, the Division contends that the finding of abuse or neglect was supported by credible evidence because Lucy consistently failed to attend mental health treatment and she violated the safety protection plan.
Our scope of review of a trial court's findings of fact in an abuse or neglect case is limited. Family courts have special expertise with issues involving the welfare of children; therefore, we should accord deference to family courts' fact-finding and credibility determinations. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011).
Nevertheless, "[w]here 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." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "We are not bound by '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
The adjudication of abuse or neglect is governed by Title Nine, which is designed to protect children who suffer serious injury "inflicted upon them by other than accidental means." G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (quoting N.J.S.A. 9:6-8.8); see also N.J.S.A. 9:6-8.21 to -8.73 (governing protection of abused and neglected children). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4) 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 [or her] parent or guardian, as herein defined, to exercise a minimum degree of care . . . 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 . . . .
"Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be 'analyzed in light of the dangers and risks associated with the situation.'" N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)). Title Nine prohibits conduct that is "grossly or wantonly negligent, but not necessarily intentional." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 381 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 178). The standard "implies that a person has acted with reckless disregard for the safety of others." S.I., supra, 437 N.J. Super. at 153 (quoting G.S., supra, 157 N.J. at 179).
A court considering whether a parent or guardian's conduct meets the statutory standard must analyze all facts and base its determination on "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 court must then decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014).
The Division bears the burden and must present proofs to establish abuse or neglect as defined in the statute. 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). Specifically, the Division "must 'demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm' to the minor child." S.I., supra, 437 N.J. Super. at 153 (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certifs. denied, 182 N.J. 426 (2005)).
Analyzed under these standards, the Division did not prove that Lucy's conduct rose to the requisite level of gross negligence or recklessness to constitute abuse or neglect within the meaning of Title Nine. No physical abuse or neglect was alleged here. Instead, the issue is whether Lucy's mental health condition caused her to fail to exercise a minimum degree of care by recklessly creating "harm, or substantial risk thereof." N.J.S.A. 9:6-8.21(c)(4)(b).
"Mental illness, alone, does not disqualify a parent from raising a child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450 (2012). Nevertheless, mental illness of a parent may create an environment in which the parent is incapable of safely caring for her or his children. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439-40 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). To establish a substantial risk of harm to the child, there must be proof that the "parent refuses to treat his [or her] mental illness, the mental illness poses a real threat to a child, and the other parent . . . is unwilling or incapable of following court orders to shield [his or] her child from that danger." F.M., supra, 211 N.J. at 450-51. Moreover, a court "must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977). Where a direct causal link exists between a parent's mental illness and the neglect of his or her children, a failure to exercise the requisite degree of minimum care may be found. N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 202 (J. & D.R. Ct. 1981).
Here, there was no evidence that Lucy ever threatened harm to the children. Moreover, the Division presented no evidence that the children suffered any psychological damage as a result of Lucy's mental conditions. Importantly, Lucy had the support of Ray and Ray's mother, who were aware of Lucy's mental health issues and who had agreed to supervise Lucy when she was with the children. The Division's own psychologist evaluated Ray and found him capable of parenting without risk to the children. Indeed, the Family Part judge left the younger child, T.W., in Ray's physical custody throughout the Title Nine proceeding.
The Division argues that Lucy's medical records reflect that she failed to consistently obtain treatment for her mental conditions and that inaction constituted a failure to exercise a minimum degree of care of her children. The problem with that argument on this record, however, is that the Division presented no proof that Lucy's mental condition or sporadic treatment of that condition posed a threat to the children. The record does not contain any evidence of a time or an instance when the children were at substantial risk of harm. Consequently, this case is distinguishable from the case relied upon by the Division. See A.G., supra, 344 N.J. Super. at 440 (finding risk of harm where mother suffered from schizophrenia, had numerous suicidal and homicidal ideations, was unable to provide a stable home, and her doctors felt she could never parent independently); see also Guardianship of R., supra, 155 N.J. Super. at 189-92 (both parents suffered from serious mental illnesses and created an unstable environment with numerous foster placements resulting in significant emotional problems for the children); C.M., supra, 181 N.J. Super. at 198-200 (mother with chronic schizophrenia abused or neglected her children who were residing in a deplorable, roach-infested condition and suffering from developmental disabilities caused by the mother's lack of care and supervision).
The Division also relies on Lucy's violation of the safety protection plan. The only evidence of such a violation was when Lucy went to the hospital with Z.L. on August 2, 2012. It is undisputed that Lucy was never alone with the child. The police drove Lucy and Z.L. to the hospital, and while at the hospital, Lucy and Z.L. were in the presence of hospital personnel. The Family Part judge reasoned that the police were not aware of Lucy's mental conditions and, therefore, were not acting as a supervisor of the child. The legally relevant issue is whether Lucy's actions placed Z.L. in imminent risk of harm. On this record, the Division made no such showing since there was no proof that Z.L. was at any risk of harm while the child was traveling with the police or while the child was at the hospital in the presence of hospital personnel. Moreover, a showing that on one occasion Lucy took one child to the hospital in the company of a police officer does not establish that Ray and Ray's mother were incapable or unwilling to prevent Lucy from violating the safety protection plan.
Finally, by the time the fact-finding hearing was conducted in December 2012, Lucy had already completed some treatment. Indeed, in a hearing one week after the fact-finding hearing, the Family Part judge directed that Lucy be reunited with Z.L. as soon as in-home services could be provided to Ray and Lucy. One week later, both children were back living with Lucy and Ray, while the Division provided the family with services. In that regard, even if the Family Part judge had found no abuse or neglect, the Division could have provided the children with services. Pursuant to N.J.S.A. 30:4C-12, "if 'it appears that the child requires care and supervision by the [D]ivision or other action to ensure the health and safety of the child, the [D]ivision may apply' for a court order 'placing the child under [its] care and supervision or custody . . . .'" N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64-65 (App. Div. 2012) (third alteration in original) (quoting N.J.S.A. 30:4C-12); see also N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 30-34 (2013) (describing the "two alternative approaches in Title 30" that the Division can use to ensure the safety and welfare of a child).
In summary, the Division failed to show that Lucy's failure to treat her mental health condition or her purported violation of the safety protection plan posed an immediate substantial risk of harm to her children. The finding of abuse or neglect is reversed. The Division will remove Lucy's name from the central child abuse registry within thirty days of the date of this opinion.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION