Opinion
DOCKET NO. A-5048-13T3
05-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.J., Defendant-Appellant. IN THE MATTER OF I.J. and A.B., minors.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the brief). William T. Harvey, Jr., Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Mr. Harvey, on the brief). Todd S. Wilson, Designated Counsel, argued the cause for minors I.J. and A.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-245-14. Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the brief). William T. Harvey, Jr., Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Mr. Harvey, on the brief). Todd S. Wilson, Designated Counsel, argued the cause for minors I.J. and A.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). PER CURIAM
Defendant T.J. (Terry) challenges the Family Part's order memorializing its determination that she abused or neglected her children within the meaning of Title Nine, N.J.S.A. 9:6-8.21 to -8.73. On appeal, she argues there was insufficient evidence supporting the court's conclusion because there was no evidence her children had been harmed or were exposed to a risk of harm at the time they were removed from her care, as the evidence relied upon by the Division was discovered two weeks prior to the children's removal. The Law Guardian and the Division disagree and argue the order should be affirmed. According to the Division, Terry "put the children at substantial risk of harm by allowing access to weapons, drugs, and drug paraphernalia."
We use pseudonyms to protect the privacy of those involved.
We conclude the Division's proofs lacked substantial credible evidence demonstrating that defendant's conduct recklessly created a substantial risk of imminent harm to the children's mental health or physical safety. See N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8-9 (2013). Accordingly, we reverse the finding of abuse and neglect, and remand for entry of an order to remove defendant's name from the child abuse registry.
We discern from the hearing record the following facts, which were generally not in dispute. Terry gave birth to two children with different fathers, I.J. (Isabel), born in 2009, and A.B. (Alice), born in 2012. Prior to August 30, 2013, the Division had no contact with Terry or her children.
On that date, police notified the Division that they had been to Terry's home, where she lived with her children and Alice's father, P.B. (Peter), and discovered drugs and a weapon within reach of the children. The police also advised that another individual known as T.B. or T.R. (Thomas) lived at the same residence. Peter and Thomas were believed to be brothers, and were both known to the police as being involved in the sale of controlled substances. According to the police, they had obtained a warrant to search the premises after receiving information in a domestic violence action that Thomas was residing there and had a gun.
Upon their arrival at Terry's apartment, the police removed her and the children, and obtained her consent to search the premises. According to the police report of the incident, in the living room the police discovered small plastic bags of the type "commonly used for packaging of CDS [controlled dangerous substances]" on a table and on the couch, and, in an open backpack at the end of the couch, a loaded gun, ammunition, and what they believed to be CDS. In Terry's bedroom, the police found additional CDS and several hundred dollars in cash under the bed, and, on the nightstand, a scale and a vial containing what appeared to be marijuana. While the search was being conducted, they also discovered Terry texting Peter to warn him and Thomas against coming back to the apartment. As a result of their discovery, the police later found and arrested Peter and Thomas.
Although the Division argues "[t]he backpack was found in a location easily accessible to the children," there is no record citation supporting this statement.
After completing the search, the police brought Terry to their headquarters and Peter's father took the children to his home. At headquarters, the police told Terry she would be charged with endangering the welfare of the children. Though they never took any action against Terry, they did contact the Division about the children.
At the time the Division became involved, the police understood the children were still with Peter's father. Although the Division tried to get in touch with Terry and Peter's father, they were unable to do so until the children's grandfather contacted the Division on September 1, 2013. He told its representative the children were with Terry in Philadelphia, but he did not provide any additional information and instead promised that Terry would contact the Division.
On September 5, 2013, Terry contacted the Division and advised that she and the girls were safe, but that she was feeling threatened and had not been back to her residence since the police were there on August 30. Terry agreed to meet with the Division's representative at the grandfather's home that day.
Terry brought the children to the meeting. She explained to the assigned caseworker that she was engaged to Peter, but that neither he nor Thomas lived with her and the children. Terry described how the police came to her apartment and explained that when she opened the door for them they had guns drawn and pointed at her. The police removed her and the children from the apartment, conducted their search, and found the "book bag" with the weapon and drugs, all of which she denied ever seeing before or knowing to whom they belonged. Terry stated she was not involved with the sale of drugs and that no one else sold drugs from her apartment. She understood the risks that the weapon and CDS posed to her children, and agreed to undergo drug testing, which returned a negative result.
The caseworker subsequently met with Peter at the county jail. He confirmed that he did not live with Terry and told her the bag and its contents belonged to Thomas, who attended school at the county college. According to Peter, Thomas had permission to leave his belongings at Terry's home. He explained that neither he nor Terry had any knowledge about Thomas's bag or its contents, and denied that he or Terry sold drugs or knew of Thomas selling drugs.
The caseworker's meetings with Terry and Peter occurred before the Division received a copy of the September 18, 2013 police report, which detailed the items recovered from Terry's apartment. The day after the Division received the report, the caseworker met again with Terry, who denied having any knowledge of the items the police found during their search. The caseworker observed that the children were fine and not harmed. However, she told Terry that, as a result of what the police report detailed, the Division was going to conduct an emergent "Dodd removal" of Isabel and Alice from her custody and place them with a resource family until a relative could be found to take custody of the children.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
After securing the children, the Division filed a Title Nine complaint and an application for an order to show cause, which the court subsequently entered, granting the Division custody and care of the children. Terry consented to the removal with the understanding that her great aunt would be immediately considered as a resource parent for the children. Prior to the ensuing fact-finding hearing, the court also ordered Terry to undergo various drug and psychological evaluations, and to attend substance-abuse treatment.
The court conducted a fact-finding hearing on January 30, 2014. No witnesses testified at the hearing. In support of its claims, the Division offered into evidence its screening and investigation summaries, as well as the police report, which the court admitted without objection. After considering the evidence and the oral arguments of counsel, the court placed its findings on the record. The court observed that the evidence did not disclose there was a danger that the young children would have had access to the materials discovered by the police, but it made a finding of "gross negligence." The judge stated:
Although a police officer appeared for that purpose, he was not called by either party.
I don't believe that a one-year old, necessarily, could get into the drugs, because we don't have a very detailed analysis — maybe we should have had the officer who was here earlier testify to explain the situation. Maybe the Division could have c[o]me in here with pictures and showed the Court exactly where the drugs were, and where the guns were, and to show that . . . the children would have had access to these dangerous things, and could have been very well harmed.
But as is typical in th[ese] type[s] of proceedings, . . . the Court is given very little information, but it does appear from the police report that we have . . . a dangerous situation where the children could have been harmed, and we're only talking about the day of the involvement with the police, August 30th.
That's the day that the Court is . . . concerned with and the Court finds that mom's having custody of the children at that time created a dangerous situation where the children could very well have been substantially harmed.
. . . .
The Court makes . . . a specific finding of gross negligence that . . . having . . . the guns and . . . the drugs with the children having access to both creates this dangerous situation, and mom . . . , the Court finds, act[ed] in a grossly negligent manner. The children could very easily have been harmed by either the drugs or the guns, and as such, the Court sustains the Division's position.
[(Emphasis added).]
After entering its fact-finding order in January, the court entered an order in March transferring legal and physical custody of the children back to Terry. In May, the court entered an order terminating the litigation. This appeal followed.
We begin our review by recognizing its limited scope. We defer to the Family Part's factual findings "when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)). "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." 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, 189 (App. Div. 1993)). The trial judge's interpretation of the law and the application of such legal conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"New Jersey's child-welfare laws balance a parent's right to raise a child against 'the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting A.L., supra, 213 N.J. at 18). "The adjudication of abuse or neglect is governed by Title [Nine], which is designed to protect children who suffer serious injury inflicted by other than accidental means." S.I., supra, 437 N.J. Super. at 152; see also N.J.S.A. 9:6-8.21 to -8.73. Title Nine is intended to safeguard children who have been abused or are at risk of imminent harm. A.L., supra, 213 N.J. at 18. "To that end, Title Nine provides for the civil prosecution of a parent or guardian who abuses or neglects a child." Y.N., supra, 220 N.J. at 178 (citing N.J.S.A. 9:6-8.33).
In order to maintain the action against the parents, the Division must prove at a fact-finding hearing that 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). To do so, the Division must "demonstrate . . . the probability of present or future harm" to the minor child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).
After the parties present their evidence at the hearing, courts must not "fill in missing information on their own or take judicial notice of harm." A.L., supra, 213 N.J. at 28. Rather than "filling in missing information, an understandable response by judges who regularly witness the evils inflicted on children by their parents[] . . . , judges must engage in a fact-sensitive analysis turning on 'particularized evidence.'" N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470 (App. Div. 2014) (quoting A.L., supra, 213 N.J. at 28).
N.J.S.A. 9:6-8.21(c) provides that a child is "abused or neglected" when his or her
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 providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . 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)(b).]
A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999)). Therefore,
the primary question under Title [Nine] is whether [the children] . . . "ha[d] been impaired" or w[ere] in "imminent danger of
becoming impaired" as a result of [their parent's] failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a "substantial risk" of harm to be inflicted.
[A.L., supra, 213 N.J. at 22 (third alteration in original) (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).]
"Accordingly, Title [Nine] initially looks for actual impairment to the child. . . . [W]hen there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J. at 178. "[T]he standard is not whether some potential for harm exists." Id. at 183 (quoting N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009)). "[A] finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm." Id. at 178 (emphasis added) (quoting A.L., supra, 213 N.J. at 23).
Applying this statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Thus, proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011) (describing the "continuum between actions that are grossly negligent and those that are merely negligent"). As we recently explained:
"[T]he elements of proof are synergistically related." In this regard, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. A court need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare.
[S.I., supra, 437 N.J. Super. at 154 (final alteration in original) (citations omitted) (quoting N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329, 330 (App. Div. 2011)).]
"Strict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J. at 179. Consequently, whether a parent 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. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82), and evaluated as of "the time of the event that triggered the Division's intervention." E.D.-O., supra, 223 N.J. at 170.
Applying these guiding principles, we reject Terry's contention that the court improperly focused on what occurred on August 30 rather than September 19 when the children were removed by the Division. As noted, the facts a court must consider are those that triggered the Division's involvement. The fact that time transpired between the triggering events and the removal — some of which was due to Terry hiding in Pennsylvania and the police report not being available sooner — did not prevent the court from considering what occurred on August 30 when deciding if the Division met its burden here. Terry's argument to the contrary is without any merit.
However, we find the court's determination that the children were abused and neglected because Terry exposed them to a substantial risk of harm was not supported by the evidence adduced by the Division. There was no evidence that the children were in imminent danger of being impaired as a result of Terry's conduct. For example, it was undisputed that the children were not harmed in any way. To the contrary, the evidence established they were healthy and well cared for by their mother. The Family Part instead found that Terry committed gross negligence and "created a dangerous situation" by "having the guns and the . . . drugs[,] with the children having access to both." It made that finding, however, after first acknowledging a lack of evidence as to where the gun and drugs were located and whether they were accessible to the very young children. Compounding that missing evidence is the fact that there was no proof that Terry had any knowledge the gun or CDS was in her house or that the children were not properly supervised to insure they would not come into contact with the items. At best, the evidence supported a finding of only ordinary negligence. Without any proof of Terry being "aware of the dangers inherent in [the] situation and fail[ing to] adequately . . . supervise the child[ren] or recklessly creat[ing] a risk of serious injury to the child[ren]," E.D.-O., supra, 223 N.J. at 179 (quoting G.S., supra, 157 N.J. at 181), the evidence certainly did not support a finding of gross negligence.
Reversed and remanded for entry of an order removing Terry from the registry. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION