Opinion
DOCKET NO. A-1172-13T2
01-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.H., Defendant-Appellant. IN THE MATTER OF E.H., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, E.H. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-425-12C. Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, E.H. (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant S.H. appeals from a December 4, 2012 fact-finding order that she neglected her two-year old son E.H. in violation of N.J.S.A. 9:6-8.21c. Because we agree with the Division of Child Protection and Permanency and the Law Guardian that there is substantial credible evidence in the record to support the trial judge's finding of neglect, we affirm.
The facts presented at the fact-finding hearing can be briefly summarized. E.H. was born in June 2010 when defendant was incarcerated in the Essex County Jail, serving a sentence on a drug-related conviction. Defendant was released to a Mommy and Me program and later enrolled in drug court. Because she tested positive for marijuana in the spring of 2012 while enrolled in the program, defendant was sanctioned to spend a weekend in the county jail in April. The Division caseworker testified that before being remanded, defendant had arranged for E.H. to be cared for by her cousin and the Division had visited the cousin's apartment to ensure it was suitable for E.H.'s stay.
Defendant continued to test positive for drugs, however, and thus faced increasingly severe sanctions for violating the rules of her probation. At a scheduled court hearing on May 17, 2012, defendant was remanded to the county jail for three weeks. The caseworker testified that she learned of defendant's remand from defendant's probation officer following defendant's arrest in court. The probation officer advised that E.H. was with defendant's boyfriend at defendant's apartment. When the caseworker went to the apartment, defendant's boyfriend said that he was not aware defendant had been remanded. He stated that defendant had not made arrangements with him to care for E.H. and that he would be unable to do so. He also said that he doubted defendant's cousin could care for E.H. for three weeks. According to the caseworker, upon learning that defendant had not made arrangements with her boyfriend to care for E.H. and unable to reach defendant's cousin, the Division effected an emergency removal.
The caseworker testified at the initial hearing that defendant's cousin returned her call the following day and advised that she could not care for E.H. during defendant's three-week remand.
Defendant testified that because she was not sure she would be remanded on May 17, she made plans for E.H. to be cared for by her mother. According to defendant, she gave her boyfriend money and her ATM card that morning and asked him to drop E.H. at her mother's house in Plainfield. Defendant admitted on cross-examination that her boyfriend had not taken E.H. to her mother's house and could not recall whether she advised anyone at the Division of those arrangements at the time of the removal.
After hearing the testimony, Judge DeCastro concluded that defendant had neglected her son in violation of N.J.S.A. 9:6-8.21c(4)(b), by failing to make arrangements for his care while she was incarcerated. Noting that defendant had made appropriate arrangements for her son when she had previously been remanded for a weekend, the judge found that defendant had not made similar arrangements when she was remanded for three weeks on May 17, despite knowing "of the very strong possibility" of incarceration. The judge rejected defendant's testimony that she had arranged for her mother to care for E.H., noting
this is the very first time this version has been told. [Defendant] claims she gave her boyfriend the money and that he didn't take the child, but she never told the caseworker that. The grandmother is not here to testify that there were plans that the child was supposed to go to her house that day.
I don't find that to be credible. I find the caseworker and the other witnesses to have been credible and I do find that in this instance that [defendant] put [E.H.] at a significant risk of harm by engaging in the use of illegal substances through a violation of her probation from drug court . . . .
On May 17th she did not make the appropriate plans for the care of her son and she was arrested. The child was placed with her boyfriend who would not care for the child and I do find that that constitutes neglect.
On appeal, defendant contends that the trial court erred in "disregard[ing]" her testimony that she had made arrangements with her boyfriend for E.H. to be cared for by her mother in favor of the caseworker's interview with the boyfriend who claimed no knowledge of any such arrangement. Judge DeCastro did not, however, disregard defendant's testimony; she rejected it as incredible and without any support in the record. Because that finding is supported by adequate, substantial, and credible evidence in the record, it is binding on appeal. See N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Having reviewed the record in light of defendant's contentions, we are satisfied that the court did not err in finding that defendant neglected her two-year old son in violation of N.J.S.A. 9:6-8.21c, by leaving him without a caretaker for the three weeks of her incarceration. Accordingly, we affirm substantially for the reasons expressed by Judge DeCastro in her opinion from the bench on December 4 2012.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION