Opinion
DOCKET NO. A-5296-11T4
11-07-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.V., Defendant-Appellant. IN THE MATTER OF J.B. and A.V., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-111-09.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant C.V. (Carol) is the mother of J.V. (Jane), born February 26, 2007, and A.V. (Ann), born May 6, 2008. J.B. (Joseph), who is the father of both children, was a party to the underlying litigation, but did not participate in it and is not the subject of this appeal. At a fact-finding hearing on June 25, 2009, the Division presented the testimony of a caseworker and introduced into evidence several exhibits concerning its investigation. Carol testified on her own behalf. Following the hearing, the Family Part judge determined that defendant had neglected Jane and Ann, having found "inappropriate" cleanliness, sleeping arrangements and medical care.
Carol is also the mother of a third child born November 26, 2010 who is not the subject of this appeal. We have substituted the names of those involved with pseudonyms.
Thereafter, the Division provided various services to Carol and Joseph. On May 3, 2012, the judge entered an order terminating the litigation because the children had been returned home and the conditions had been remediated.
On appeal, Carol argues that the judge's neglect determination was unsupported by the evidence and based on inadmissible hearsay. Carol further contends that the Division failed to prove that she did not exercise a minimum degree of care.
I.
As reflected in the Division's reports, Carol first came to its attention by way of an October 2007 referral, which raised concerns about Jane's welfare, including inadequate supervision and hygiene, substandard nutrition, and a lack of appropriate cold-weather clothing and other supplies. The Division investigated and concluded that the allegations were unfounded. Nevertheless, the case remained open and the Division conducted follow-up visits at Carol's home.
During a January 2008 visit, a Division caseworker observed that Carol's home was cluttered and advised her to clean it. Carol was noted to be twenty-three weeks pregnant with Ann at the time. At the next visit in February, the caseworker discovered that the home remained cluttered and again advised Carol to tidy it up, which she agreed to do. In March, the caseworker once more found the dwelling to be cluttered and reiterated that Carol needed to clean her home. Thereafter, the Division closed the case.
In July 2008, the Division reopened its inquiry after receiving another referral about Carol and her children. It was reported that Carol left the children unaccompanied at home and that the residence was "filthy," smelled "like garbage," and contained so much "stuff all over" that it was difficult to navigate. Consequently, a worker from the Division Special Response Unit (SPRU) inspected Carol's home and observed that it was squalid. The SPRU worker noticed that Jane was walking around in the trash barefoot. Her stomach was covered in ink as she had been drawing on herself. The SPRU worker also observed that Ann, then two-months old, had an eye infection and a slight diaper rash.
In response to the worker's questions, Carol explained that Ann had been prescribed ointment for the eye infection and that she was to use another ointment for the diaper rash. When asked about the disheveled state of her dwelling, Carol stated that she had "not had any time to clean the home." The SPRU worker took photographs and drafted a case plan instructing Carol to clean the home as soon as possible. Two of Carol's friends were present during the visit, one of whom indicated that he would assist Carol with the cleanup.
A caseworker followed up with a visit on July 22, 2008. The home was tidier this time. Carol informed the caseworker that Ann had been taking Zantac for "stridor and reflux something," but Carol took her off of it. When the caseworker, upon reviewing the prescription bottle, asked whether Carol spoke with the doctor before discontinuing Ann's medication, Carol replied she had not.
Carol also stated, "[O]h and by the way, I have [s]cabies and I did not tell the other DYFS people." A doctor had diagnosed the condition and provided ointment, but Carol explained that she unable to use it because she needed to "watch the kids." The caseworker noted that the two children did not appear to have any signs of scabies. Carol was informed that her case would remain open for ongoing services.
According to the Centers for Disease Control and Prevention, "scabies is caused by an infestation of the skin by the human itch mite . . . [which] burrows into the upper layer of the skin where it lives and lays its eggs. Parasites — Scabies, CDC, http://www.cdc.gov/parasites/scabies/ (last updated Nov. 2, 2010).
On July 25, 2008, at the urging of Coventry Family Practice, Carol and her daughters went to the emergency room. However, the children were not treated for scabies; a "white spot" on Ann's tongue turned out to be only baby formula. On August 22, caseworker Jill Miller performed an in-home visit. Miller noted that Jane's crib lacked a mattress; instead that "there was a heavy blanket" a big comforter, in the crib, "like a queen size or twin size" and a "large fleece blanket" in Ann's basinet. Miller also observed that a plumber was in the home at the time attending to a clogged toilet.
At the fact-finding hearing, Miller testified about Carol's chronic inability to maintain a clean household and her failure to comply with Division-offered services. Miller discussed the case plan established for Carol, which included certain Division recommendations that Carol was required to comply with. Under that case plan, Carol was supposed to keep her home environmentally safe and free from hazards, as well as manage the children's medical care.
The evidence adduced at the fact-finding hearing demonstrated that Carol failed to satisfy those requirements. A report by Family Preservation Services noted that Carol improperly dispensed medication to the children. Rather than administering Ann's thrush medication via oral drops as directed by the physician, Carol delivered it in a full water bottle.
Miller testified that Carol had been instructed as to the proper procedure but continued to do it incorrectly. Moreover, Carol neglected to seek medical attention for Ann despite a severe fungal rash in the diaper region. Miller stated that there came a point when Carol was ordered to clean her house, bathe the children daily, comply with Early Head Start, Family Preservation Services, Public Health Nursing, and to administer the medication appropriately.
Miller described her August 22, 2008 visit to Carol's home. Carol's home was extremely cluttered with toys and the floor was dirty. Carol acknowledged the filthiness of her home. When asked by Miller whether she was giving Ann the Zantac medication, Carol replied that she had not given Ann that medication in weeks. Additionally, after being asked how she was administering the Zantac, Carol replied that she was putting the Zantac into Ann's bottle.
When asked specifically about the thrush medication, Carol explained that she put it in Ann's bottle. Miller again explained that this was not the appropriate way of administering the medication. Miller also stated that Carol was not administering the medication from July 21 for Ann's eye infection appropriately. Carol stated that she had just begun the medication and did not feel it was working.
Miller noted that Ann's eye was very red, stating, "There was a discharge, a pussy discharge coming out of her eye. It was very irritated looking." At one point in the home visit, Jane approached Miller with a used sanitary napkin in her hand and tried to hand it to Miller. Carol said that Jane must have picked it out of the garbage again.
As a result, the Division undertook a Dodd removal. After her removal, Ann was taken to St. Clare's Hospital on August 22, 2008. As reflected in Miller's report on that hospital visit, it was discovered that Ann had previously been diagnosed with gastrointestinal esophageal reflux, colic and viral conjunctivitis.
"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. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
On October 26, 2011, physical custody of Ann and Jane was returned to Carol.
Carol testified that she administered the thrush medication in Ann's bottle diluted with water. She further testified that she also administered Ann's reflux medication in the bottle.
The trial judge found Miller credible, while finding Carol to be "somewhat credible." After making findings with regard to the cleanliness of the house, the sleeping arrangements with regard to the children, including "the safety of [Ann] sleeping in the crib with . . . a queen size comforter," the judge determined that the Division "has proven that there was an issue with regard to appropriate medical treatment for the two children." The judge found that Carol did not administer the medication for the thrush as prescribed and that she "unilaterally stopped giving Zantac for the reflux." The judge determined that the medicine was administered inappropriately, as "admitted by [Carol]."
Carol argues that the trial judge's determination that she neglected both children should be reversed because it was based on factual findings unsupported by the record, particularly with respect to Jane. She points to the absence of any "concrete medical evidence or expert testimony" indicating that Ann suffered harm. Carol also contends that the Division failed to prove that she did not exercise a minimum degree of care and, therefore, the judge's findings of abuse and neglect cannot be sustained. As additional ground for reversal, she argues that the Division reports introduced into evidence at the fact-finding hearing contained inadmissible hearsay.
II.
Initially, we set forth some well-settled principles that inform our review. "In a non-jury civil action, the trial court shall make findings of fact and state its conclusions of law." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). A reviewing court must "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe particular deference to a family court's fact-finding because of its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Only when the trial court's conclusions are 'so clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
However, "[t]here is an exception to th[e] general rule of deference: 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." G.L., supra, 191 N.J. at 605 (internal quotation marks omitted). And, when the issue presented turns on a legal conclusion derived from the Family Part's fact-finding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). "The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" Ibid. (quoting N.J.S.A. 9:6-8.8). "'[T]he legislative history of Title 9, precedent and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent.'" M.C. III, supra, 201 N.J. at 344 (second alteration in original) (quoting G.S. v. Dept. of Human Servs., 157 N.J. 161, 176 (1999)). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.
Under Title Nine, the definition of an "'abused' or 'neglected child'" includes:
[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 parent . . . 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 . . . ."Whether a child is 'abused or neglected' is quite frequently 'fact sensitive.'" A.R., supra, 419 N.J. Super. at 544 (quoting P.W.R., supra, 205 N.J. at 33).
[N.J.S.A. 9:6-8.21(c)(4).]
A "court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" 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). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013). As we have said, it is the "risk of harm, not just past injury or acts, [that is] relevant to determining whether a child is an abused or neglected child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575 (App. Div. 2010).
The Division must establish abuse or neglect through "competent, material and relevant evidence" by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); see also P.W.R., supra, 205 N.J. at 32. The trial judge "must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).
We reject Carol's argument that the Division was obligated to present expert testimony concerning harm to the children. In a recent decision, New Jersey Department of Children & Families v. A.L., supra, our Supreme Court expounded the proofs required for a showing of actual, as well as a substantial risk of, harm. 213 N.J. at 22-23. The issue in that case was whether a court could find abuse or neglect under Title Nine in circumstances where a mother had used drugs during her pregnancy but gave birth to an unharmed, healthy baby. Id. at 8-11. As the Court explained,
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.
When, as here, the evidence presented does not demonstrate actual or imminent harm, expert testimony may be helpful. Competent expert testimony, stipulations, or other evidence could shed light on the facts introduced.
. . . .
To be clear, [however,] we do not require expert testimony in abuse and neglect actions. In many cases, an adequate presentation of actual harm or imminent danger can be made without the use of experts.
[Id. at 28-29 (emphasis added) (citations omitted).]
With respect to the standard of care inquiry under N.J.S.A. 9:6-8.21(c)(4), the Court has explained:
Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. . . . [T]he inquiry should focus on the harm to the child and whether that harm could have been prevented had the [parent] performed some act to remedy the situation or remove the danger. When a cautionary act by the [parent] would prevent a child from having his or her physical, mental or emotional condition impaired, that [parent] has failed to exercise a minimum degree of care as a matter of law.
[G.S., supra, 157 N.J. at 181-82.]
To fall below the minimum degree of care "at least requires grossly negligent or reckless conduct." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). We have defined "'gross negligence,'" in other contexts, as "'an indifference to consequences.'" Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J. Super. 277 (App. Div. 1951)). A parent need not actually intend to cause harm. G.S., supra, 157 N.J. at 179. We reiterate that whether a parent deviated from the minimum degree of care is a case-by-case evaluation, P.W.R., supra, 205 N.J. at 33, "based on the risks posed by the situation," T.B., supra, 207 N.J. at 309.
In this matter, the evidence presented by the Division regarding Carol's improper administration of medication was not rebutted. Carol, in fact, admitted doing so. Guided by the preceding legal standards, we conclude that the Division proved, by a preponderance of substantial and credible evidence, that Carol's admitted failure to dispense Ann's medicine as prescribed by her doctor demonstrated her indifference to the consequences and created an actual and imminent risk of serious harm to Ann. Therefore, Carol failed to exercise the minimum degree of care for Ann. N.J.S.A. 9:6-8.21. Having found neglect in administering medication, we need not consider the other alleged grounds of neglect regarding Ann.
Carol also contends that the Division failed to prove that she impaired Jane's physical, mental or emotional well-being. We agree. There is inadequate factual support for the judge's finding that Carol failed to supply Jane with proper medical care. Also, other than pointing to the cluttered state of the home, the Division did not adduce evidence sufficient for a finding of grossly negligent or reckless conduct by Carol resulting in an actual and imminent risk of serious harm to Jane. Accordingly, in light of the exacting standards of N.J.S.A. 9:6-8.21(c)(4)(a), the trial judge erred by concluding that Carol abused or neglected Jane. Ibid.
Finally, we reject Carol's argument that the Division's exhibits introduced during the fact-finding hearing constituted inadmissible hearsay. See N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.) (holding that Division reports are reliable and admissible as regularly-kept business records under N.J.R.E. 803(c)(6), and specifically permitted as prima facie evidence under Rule 5:12-4(d)), certif. denied, 192 N.J. 296 (2007).
Affirmed in part; reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION