Opinion
DOCKET NO. A-1505-12T2
02-04-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.B., Defendant-Appellant. IN THE MATTER OF A.G., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, A.G. (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-211-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, A.G. (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.B. appeals from a March 9, 2012 order of the Family Part finding that she abused and neglected her daughter A.G. (Alexis) in violation of N.J.S.A. 9:6-8.21(c). Because we agree that there is substantial credible evidence in the record to support the trial judge's finding of abuse and neglect, we affirm.
We refer to the child by a fictitious name in order to protect her privacy.
The case involves only a single incident. On Sunday morning September 11, 2011, T.B. dropped Alexis, then two years and eleven months old, at her father's home pursuant to a visitation order. The father, D.G., lived in an apartment above a commercial establishment near the intersection of Tremont Avenue and South Clinton Street in East Orange. T.B. telephoned D.G. to alert him that she was on her way to his home.
T.B. maintains that she delivered Alexis to her father, who opened the door and let the child inside. The Division of Child Protection and Permanency (the Division) asserts, on the basis of admissions allegedly made by T.B. at or near the time of the incident, that she did not see the child inside, but merely left her on the sidewalk in front of D.G.'s home after she saw him looking out at them through the window.
There is no dispute that Alexis was discovered standing alone on the sidewalk at the intersection near her father's home by a passerby, some ten or fifteen minutes later. The traffic in the vicinity was described as moderate, and the child was apparently scared or anxious, but not crying when the police arrived. After the police arrived, D.G. opened his window and called down to the officer that Alexis was his daughter. When D.G. advised that he could not care for the child, even though he was scheduled to do so, officers attempted to contact T.B. When they could not immediately reach her, they contacted the Division. A Division worker responded to the precinct and later testified to conversations she overheard between T.B. and the police, first on speaker phone and then in-person when T.B. arrived there a few hours later.
T.B. was arrested at the precinct and charged with second-degree endangering the welfare of a child. Because T.B. was being detained, the Division effected an emergency removal pursuant to N.J.S.A. 9:6-8.29. Two days later, the Division filed a verified complaint alleging abuse and neglect and an order to show cause seeking temporary custody of Alexis. T.B. was still in jail and did not appear at the hearing. Judge Katz entered an order granting temporary custody of Alexis to the Division. The Division placed Alexis with her father, who was living with his mother at the time. D.G. moved out within a week, however, leaving Alexis behind. The Division then placed Alexis with non-relative resource parents.
T.B. subsequently entered PTI.
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By the return date of the order to show cause, the Division had concluded that D.G. had little interest in caring for his daughter. Instead, the Division was advocating for the immediate return of Alexis to T.B. The Division advised that judge that both it and the foster parents had concluded that the child was happy and well-cared for by her mother, and that the Division believed it in the child's best interests to be returned to her, even before the initiation of services. The deputy attorney general represented that the incident that resulted in Alexis's removal, although representing a significant lapse in judgment, appeared by all accounts to be an isolated one. Alexis was returned to her mother's care that day, and legal custody was returned to T.B. two months later on consent of all parties.
At the fact-finding hearing, T.B. testified that D.G. had parenting time every Sunday between 9:00 a.m. and 6:00 p.m. She related that when she got out of her car that morning, she saw D.G. in the window and rang the doorbell. She testified that D.G. came downstairs dressed in boxers and a T-shirt. T.B. told her daughter to go to her father, the toddler walked inside, and D.G. shut the door. D.G. did not testify.
The Division worker who responded to the precinct testified that she was speaking with an officer when T.B. called to speak to him in response to his voicemail message. The worker testified that T.B. was on a speakerphone. The worker heard her tell the officer that upon arriving at D.G.'s house, she rang the doorbell. After he opened a window and looked out at them, she got in her car and drove away. When asked if she had physically handed Alexis over to her father, T.B. admitted to the officer that she had not. A Division investigator testified that T.B. admitted to her several days later that she had dropped Alexis off in front of the door to her father's home after seeing the child's father through the window.
After hearing the testimony and the arguments of counsel, Judge Katz put his decision on the record. Acknowledging that the case turned entirely on the credibility of the witnesses, the judge made detailed findings as to why he found the Division's witnesses more credible than T.B., based on the content of the testimony and the demeanor of the witnesses, both on direct and cross-examination. The judge found that T.B. called D.G. and rang his doorbell but left before seeing the child safely in her father's arms. He stated:
I believe what happened was she just didn't leave the child without calling and ringing the bell and I believe she saw the father upstairs in the second floor window or believed he was in the window and left. I specifically don't find credible that he came to the door and took the child. I find no credible evidence in the record that she physically handed this two year old over to the biological father.Acknowledging that Alexis's father was likely not cooperating with visitation, the judge nevertheless determined that Alexis could not be made to bear the brunt of her parents' dispute.
The remedy isn't to thrust the child upon the father in that regard without adequate assurances that the child's cared for. A couple of steps either way into an intersection and there could have been a horrendous tragedy here, and it doesn't require the mind to wander too far to think of some very unfortunate consequences that this situation presented . . . .
So it clearly is in my estimation an indifference to those consequences by leaving the child there. And it's, also, reckless in that there [was] disregard of a known or obvious risk to make it probable that harm could follow. And that's accompanied in this case by a conscious indifference to the consequences. That is more than mere negligence.
Having concluded that the mother in this instance failed to exercise a minimum degree of care in providing the child with proper supervision or guardianship by unreasonably inflicting or allowing to be
inflicted harm or substantial risk, therefore, I do conclude the Division has met its burden by a preponderance of the evidence.
Following the termination of the litigation, T.B. filed this appeal. She contends that the facts found by the court do not amount to abuse and neglect within the meaning of N.J.S.A. 9:6-8.21, and, if they do, then the court erred because those facts are not supported by substantial credible evidence in the record. We disagree with both contentions.
Our review of the trial court's factual findings in a Title 9 abuse and neglect proceeding is limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Our review convinces us that T.B. has provided us no basis on which we could overturn Judge Katz's careful conclusions as to the credibility of the witnesses and the facts to which they testified. The deference we owe the Family Part's factfinding springs not only from its expertise in family matters, but also because its ability to see and hear the witnesses provides it a better perspective than a reviewing court to judge their veracity. Cesare v. Cesare, 154 N.J. 394, 411-413 (1998). That deference is especially appropriate in a case, such as this one, that turns almost entirely on the credibility of the witnesses. Id. at 412.
Although our scope of review is expanded in considering the implications to be drawn from established facts, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007), we do not conclude that the judge went wide of the mark in determining that leaving a toddler on an urban sidewalk without seeing her safely into the arms of a caretaker constitutes abuse and neglect under N.J.S.A. 9:6-8.21. The Supreme Court has explained that whether a parent has failed to exercise a minimum degree of care for a child must be analyzed "in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). We agree with Judge Katz that although no harm came to Alexis, the danger to her was grave, and easily avoidable with an exercise of minimal care.
This appears to have been an anomalous event in Alexis's life. The record suggests she is a loved and well-cared for child, and T.B. an attentive and caring, young single parent. The record does not cast D.G. in the same parental light. As the Division advised Judge Katz, the incident that resulted in Alexis's removal, although representing a significant, momentary lapse in judgment, appeared by all accounts to be an isolated one. We agree.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION