Opinion
DOCKET NO. A-1926-13T1
09-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. W.J., Defendant-Appellant. IN THE MATTER OF J.N., a Minor.
Steven E. Braun, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Braun, on the brief). Michael Antenucci, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Antenucci, on the brief). Todd Wilson, Designated Counsel, argued the cause for minor (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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-266-12. Steven E. Braun, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Braun, on the brief). Michael Antenucci, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Antenucci, on the brief). Todd Wilson, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). PER CURIAM
In this Title 9 case, defendant W.J. appeals from a February 15, 2012 fact finding order determining that he abused or neglected his grandson, J.N. Both defendant and the Law Guardian argue that the Division of Child Protection and Permanency (Division) did not prove abuse or neglect, and they contend we should reverse the order on appeal. Having reviewed the record in light of the applicable law, we agree and reverse.
Defendant was the child's legal custodian. According to testimony from a Division caseworker, this arrangement was not the result of Division involvement; rather, defendant obtained custody of the child "in an FD litigation . . . in 2008."
I
At the fact finding hearing, the Division presented testimony from two of its case workers. We summarize the hearing record as follows. The child was born on October 22, 2005, and he was a five-year-old kindergarten student when the Division first became involved with his family. In March 2011, the child's school reported to the Division that the child had exhibited sexualized behavior by pulling down his pants, exposing his genitals, and telling the other children to "let it all hang out." The school reported that the child also hit other students and was generally disruptive in class. The school reported that, as a Division case worker put it, defendant was "refusing services [from the school] to work with the kid." For those reasons, the child was "kicked out" of kindergarten and the school would not re-enroll him until he had undergone a psychological evaluation.
Defendant resisted the Division's efforts to investigate, leading to the agency applying for and obtaining a court order for investigation. See N.J.S.A. 30:4C-12. In compliance with a court order, defendant met with Division workers on September 16, 2011. At that point, he told the workers that the child, who was still five years old, was not re-enrolled in school and that he had "made an appointment" for the child to be evaluated at the Behavioral Health unit of the University of Medicine and Dentistry of New Jersey (UMDNJ), but did not actually have an appointment date. However, within a few days, defendant told a Division case worker that the UMDNJ had given him "an appointment date for November 7, 2011," and when contacted by the case worker the UMDNJ confirmed that information.
"Around" October 8, 2011, defendant told the case worker that he had tried to re-enroll the child in school, but the child was rejected for enrollment because "the school was full." The worker contacted the school, which confirmed that information. Defendant very much wanted the child to attend that particular school and was contesting the school's decision. When the child had not been enrolled in any school by October 17, 2011, the Division filed a complaint and order to show cause, which was first heard on October 20, 2011. Defendant appeared by telephone and explained that he had attempted to enroll the child in his preferred school but was unable to do so. However, by October 26, or four days after the child's sixth birthday, defendant had enrolled the child in another school and the Division had confirmed that information. Because the child had not previously completed kindergarten, the new school placed him in a kindergarten class.
The complaint sought care and supervision of the child pursuant to N.J.S.A. 30:4C-12, and additional relief under Title 9.
Later in the transcript, the worker testified that the child had been enrolled by October 22.
A second Division worker testified that she had not been able to confirm whether the child had attended the November 7, 2011 psychological evaluation, because defendant had refused to sign a medical release. However, she later was able to confirm with UMDNJ that the child was assessed in December "for [c]risis." According to the worker, the child's school reported that he was well-behaved when first enrolled, but later started engaging in disruptive conduct, and brought some kind of inappropriate material to school which may have been a flier for a "gentlemen's club." P.M., the woman defendant lived with, reported to the school that the child told her he wanted to kill himself. Thereafter, however, the child was evaluated at UMDNJ, and was "cleared to return to school."
This testimony contradicted the representation made by another case worker at a prior hearing on November 17, 2011; that case worker assured the judge that defendant had taken the child "for a psychological evaluation via UMDNJ on November 7."
All of this information was hearsay. P.M. did not testify, nor did anyone from either of the child's schools.
The case worker expressed concern that P.M. had a "history" with the Division and had given up custody of one of her own children in the past, due to her substance abuse issues. However, the Division did not cite to any legal authority for precluding a child's legal custodian from living with a paramour who had prior involvement with the Division. Nor did the Division produce any evidence that P.M. was currently using drugs.
A few days before the fact finding hearing, the Division had obtained a court order allowing the agency to take custody of the child, due to defendant's failure to cooperate with the Division. At the time of the fact finding hearing, defendant had disappeared with the child. Prior to his disappearance, defendant had told Division workers that he was afraid they were going to take the child away from him.
The Division did not produce any expert testimony or other legally competent evidence that defendant's decision to keep the child home from kindergarten, or the child's later placement in kindergarten at age six, caused him any educational harm. Nor did the Division present any expert psychological testimony as to the child's emotional or psychological health, or the risk, if any, posed by the delay in seeking an evaluation of his psychological condition. In essence, the Division presented a portrait of a grandparent who held strong opinions about what was best for his grandchild, was deeply suspicious of the agency, and was committed to the child's placement in a neighborhood school.
The initial hearing transcript from October 20, 2011 reflects that the child's first school, where defendant preferred to send him, was a few houses away from where defendant and the child lived.
At the end of the fact finding hearing, the judge stated his decision, which we quote in full:
I'm satisfied the Division has proven abuse and neglect from the standpoint of failure to properly enroll in school, take care of the medical and psychological needs of the child, and for those reasons I do find there's jurisdiction in this case. And you can proceed.
In the fact finding order, the judge further stated as follows:
[W.J.], as legal custodian of [J.N.], failed to adequately follow up on [J.N.'s] educational and emotional needs, and permitted [J.N.] to remain out of school as of April 2011, and failed to re-enroll [J.N.] in school until October 26, 2011, under Division pressure. This resulted in [J.N.] missing more than 4 months of school and having to repeat kindergarten. Further, [W.J.] failed to obtain a psychiatric evaluation or comply with a Child Study Team for the child, pursuant [to] the request of the school in Spring 2011, despite receiving notice of the child's profound behavioral problems in school. [W.J.] did not timely follow up on a referral . . . for a psychiatric evaluation for [J.N.]. This investigation was fraught with noncompliance by [W.J.] with Division requests. Further, removal of the child became necessary on 2/10/12 due to [W.J.]'s continued noncompliance with Division services, requests, MVR's, court orders, as well as his failure to follow up on [J.N.]'s needs. [W.J.] refused to sign a release in order for the Division to review [J.N.]'s psychiatric evaluation, although court ordered to do so. [W.J.] also kept [J.N.] out of school on 2/3/12 and 2/6/12, without reasonable explanation, and throughout this litigation, permitted [P.M.] . . . to care for [J.N.], despite her having a previous DYFS history, substance abuse issues, and a TPR in August 2011. Further, [W.J.] refused to disclose the identity and whereabouts of [J.N.]'s mother and has prevented the Division from finding or serving her.
II
Our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, a trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to a trial judge's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we do not defer to its ruling. Ibid. Based on the record before us here, we are constrained to conclude that the trial court erred as a matter of law.
The goal of Title 9 is to protect children, not punish uncooperative parents. See N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013). A Title 9 finding requires a determination that a child has suffered serious harm or has been placed at risk of serious harm. See N.J.S.A. 9:6-8.8(a).
Title 9 defines an abused or neglected child as one
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, as herein defined, to exercise a minimum degree of care (a) 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, or (b) 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).]
At the fact finding hearing, the Division must prove its case by a preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). A finding of child abuse or neglect under Title 9 must be based on legally competent evidence, not hearsay. N.J.S.A. 9:68.46(b); N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 175 (2005). The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" refers to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and "reckless disregard for the safety of others." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07. Moreover, "[f]ailing to perform a cautionary act . . . is not necessarily abuse or neglect." N.J. Div. of Child Prot. & Permanency v. E.D.O., ___ N.J. ___, ___ (2015) (slip op. at 19).
Title 9 permits a court to consider a child's out of court statements about alleged abuse, but a finding of abuse requires corroboration by legally competent evidence. N.J.S.A. 9:6-8.46(a)(4). That provision is not relevant here, where the Division is alleging neglect, rather than physical abuse.
The Division need not wait until a child is actually harmed before intervening for the child's protection. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005). However, that does not mean that every case in which the Division initially intervenes will, or should, result in a Title 9 finding of child abuse or neglect. See N.J. Div. of Youth and Family Servs. v. S.I., 437 N.J. Super. 142, 157-58 (App. Div. 2014).
By statute, a parent is not legally required to enroll a child in school until the child is six years old. N.J.S.A. 18A:38-25. At least absent a much more compelling record than was presented here, a parent's decision not to send a five-year-old child to kindergarten does not constitute child neglect.
As this court observed years ago:
Equally inappropriate was the trial court's conclusion that N. was neglected or abused because of G.'s failure to educate or provide her with intellectual stimulation. The reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) concerns parental encouragement to truancy of a school age child, or other interference with normal educative processes. It does not, and cannot, have reference to the more subtle and intangible incidents of a home environment of a preschool infant which hopefully would encourage beneficial intellectual growth; to so hold would be to sanction state intrusion into the personal relationship between parent and child to an
intolerable degree and would impermissibly impair the normal prerogatives of parenthood. The enactment was never meant to provide governmental monitoring of these intimate details of the parent-child relationship.
[Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd sub nom Doe v. Downey, 74 N.J. 196 (1977).]
In affirming, the Supreme Court specifically approved of that interpretation of educational neglect under Title 9. Doe, supra, 74 N.J. at 199-200. Consequently, the fact that defendant chose not to send his grandson to kindergarten for several months did not constitute child neglect under Title 9. As the adult with legal custody of the child, defendant had the right to use his judgment as to that issue, without being second-guessed by the Division or the trial court.
We reach a similar conclusion with respect to defendant's delay in taking the child for a psychological evaluation. Absent convincing expert evidence concerning the child's psychological condition, a parent's disagreement with the Division about the need to have a child examined by a psychologist does not constitute child abuse or neglect. See S.I., supra, 437 N.J. Super. at 146-47. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm. Instead, the fact-sensitive nature of abuse and neglect cases, turns on particularized evidence." Id. at 157 (quoting A.L., supra, 213 N.J. at 28).
In this case, as in S.I., there was no expert evidence that the child was at risk. In fact, when the child finally was examined, he was cleared to return to school.
[O]ur holding intends to underscore the need for evidence to support a claim of abuse or neglect . . . . This includes proof of actual harm or, in the absence of actual harm, "the Division was obligated to present competent evidence adequate to establish [the child was] presently in imminent danger of being impaired physically, mentally or emotionally." These essential proofs cannot merely be based on the Division's view that the parent or guardian's decision on behalf of a child was ill-advised. Rather, the Division must demonstrate harm or show the likelihood of an imminent substantial risk of harm rising above mere negligence. Such evidence is absent here. Accordingly, S.I.'s demonstrated failure to comply with the recommended psychiatric evaluation was not proven to be medical neglect under N.J.S.A. 9:6-8.21(c)(4).
[S.I., supra, 437 N.J. Super. at 158 (internal citations omitted).]
Finally, there was no evidence that defendant's female companion, P.M., posed any risk to the child or that she caused him any harm. There was no evidence, for example, that P.M. was using illegal drugs, much less that she was using them while caring for the child or in his presence. Nor was there any legally competent evidence in the record as to any other risk she might have posed to the child.
We understand the Division's concern for this child, which was no doubt heightened by defendant's belligerent attitude toward the agency. But Title 9 is not an appropriate vehicle to punish a parent for being uncooperative. As this court observed in S.I.:
[R]ather than resorting to Title 9, the Division has extensive authority to assure children are protected under the State's child welfare laws pursuant to N.J.S.A. 30:4C-11 and -12. . . . [T]hese statutory provisions authorize not only services, but as necessary, care and custody. Every event requiring the Division's intervention does not result from abuse or neglect.
[Id. at 157-58 (internal citations omitted).]
Because the trial court's decision was not supported by substantial credible evidence, we reverse the order on appeal and remand for entry of an order vacating the finding of abuse or neglect and directing that defendant's name be removed from the child abuse registry. See N.J.S.A. 9:6-8.11.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION