October 31, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF H.B. AND J.D., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Number FN-02-57-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Collester and Graves.
Defendant S.B. is the mother of two children: H.B. (fictiously, Harold), born on February 1, 1992, is now sixteen years old, and J.D. (fictiously, Janet), born on December 13, 1994, is now thirteen years old. Although the trial court ultimately returned the children to S.B.'s care and custody, S.B. appeals from a Family Part order dated January 12, 2007, finding she abused or neglected the children. S.B. contends the evidence presented by the Division of Youth and Family Services (DYFS or the Division) was insufficient to prove, by a preponderance of the evidence, that she abused or neglected her children under N.J.S.A. 9:6-8.21. We agree and reverse. The relevant facts are substantially undisputed. On June 8, 2006, the Division received a referral from S.B.'s landlord. The landlord reported that the children "were not attending school, [and] that their mother left them home alone for long hours and sometimes overnight." The landlord also reported that S.B. had not paid the rent, and that the electricity in the apartment had been turned off.
In response to the referral, DYFS sent a Division worker to S.B.'s apartment to investigate the matter. Upon arrival at S.B.'s apartment, the Division worker explained why she was there, and S.B. told the Division worker that she was "taking care of her children." S.B. then asked who had called DYFS, and the Division worker said she could not disclose the person who made the referral. At that point, S.B. told the Division worker that if she would not identify the person who called the Division, then S.B. would not cooperate with the investigation, and S.B. "closed the door."
Shortly thereafter, when S.B. exited the building, the Division worker told her the children should not be left alone if they were under age. S.B. then went back into the building and, "about three minutes or so later," she came out with four children between the ages of ten and fourteen. The children went to a different apartment building, and S.B. left. The next day, the Division worker returned to S.B.'s apartment with a Hackensack police officer, but S.B. was not home. On the following day, the Division worker returned to S.B.'s apartment and, this time, S.B. was home. S.B. was unwilling, however, to answer any questions and she told the Division worker to stop "nosing into her business." Because of S.B.'s refusal to cooperate, the Division filed a verified complaint for investigation. On June 21, 2006, the court signed an order to show cause for investigation and an order requiring defendant to produce the children in court. After S.B. was served with the complaint and the signed orders, she agreed to be interviewed at the Division office.
During the interview on June 22, 2006, S.B. advised the Division that her children were with their maternal great- grandmother, T.B., in California. But S.B. said she did not know T.B.'s address. The Division worker's written report regarding the interview with S.B. and the subsequent events on June 23, 27, and 29, 2006, reads as follows:
Worker asked [S.B.] if her children were attending school. She stated that they were attending school regularly. She withdrew them from school in June, because they were doing good, and they passed. [S.B.] stated that she came to New Jersey on April 12, 2006. She rented that apartment and the last rent she paid was in April. She stated that her gas and electricity was included in her rent. She stated that she started having problems with her Landlord, because [the landlord] turned off her light. [S.B.] went to the electric company and she was told . . . that her light was turned off from her apartment. She stated that she went to court and won the first case. She told worker that her landlord was upset with her and [her landlord] called DYFS on her. Worker told her that if she had granted the interview on 6/8/06, the Division would have been able to make an assessment and contact the Landlord to turn on her light. [S.B.] stated that she was very annoyed that someone could just call the Division and make up stories about her family.
Worker asked [S.B.] where she was living before she came to New Jersey. She stated that she was living with her best friend at the Military Base at [Fort] Leavenworth, Kansas. She gave her previous address as 12 1st. Calvary Court, [Fort] Leavenworth, KS. She did not give the name of her best friend. She also stated that her children were attending the Military School at the Base, but she did not give the name of the school. She stated that it was a private Military School and she could not tell worker the name of the school.
Worker asked her about her children's fathers. She gave their names as [H.B.] and [J.D.]. She did not have information about their addresses, but she stated that they live in Monticello, New York. She stated that the children do not have contacts with their father.
Worker asked about her extended family. [S.B.] stated that she has a family, but they were not really involved in her [life]. She asked worker if she understood what it meant for someone to have been caring for herself since she was 15 years old. She stated that she started providing for herself since she was 15; that she has some contact with her [grandparents] and some cousins.
Casework[er] supervisor came in to find out if [S.B.] had provided her grandmother's address. [S.B.] became argumentative again and stated that she did not know the address, but she knew how to get there. Caseworker supervisor explained to her that she needed the address so that the Child Protective Service of the State of California could be sent to her grandmother's home to see the children. She stated that she was concerned about the children's safety. [S.B.] refused to provide the information. Caseworker supervisor told her that she was to come to court the next day . . . .
[S.B.] was in court on [June 23, 2006], but she refused to provide the information about her grandmother's address. She went back to court on [June 27, 2006], and still carried on with her uncooperative attitude and she was put in jail until she produces her children. She went back [to court on June 29, 2006], and she stated that her children would be flying in with Spirit Airlines from California to Newark Airport.
On July 5, 2006, the Division received a phone call from S.B.'s brother, [L.B.], stating that the children were with him in Brooklyn, New York. He stated that his sister did not understand how the State works, and she was "trying to protect her children." He also agreed to bring the children to the Division office that day. After interviewing both children on July 5, 2006, the Division worker concluded that the child neglect referral was "unfounded." The Division worker's report concerning the interviews with the children contained the following information:
[Harold] told worker that he is 14 years old and he was promoted to the 7th grade. He is attending Hackensack Middle School. Worker read the allegations to [Harold] and asked him if he was in [s]chool regularly. He stated that he attended school regularly, and he took his finals. He stated that he stopped going to school after his finals, because he passed. Worker asked him where they were living before they came to New Jersey. He stated that they were living with his aunt in Kansas, and he attended a Military School. [Harold] did not say his aunt's name or the school he was attending. He told worker to ask his mother.
Worker asked him about his father. He gave his father's name and stated that he lives in Monticello. He stated that he sometimes sees his father during the summer. He stated that he saw him last summer. He told worker that his father has other children, he has two brothers, and 3 sisters. The other children are younger than him. He stated that his father is married. He did not know his father's telephone number or address.
Worker asked him where he has been. He stated that he was in California with his great grandmother. He did not know her name or the address where he was. He stated that he came back to New Jersey over the weekend and his uncle took him to his home in Brooklyn, New York. Worker asked him how he got to California. [Harold] did not provide any answer. He told worker to ask his mother.
Worker asked him when he saw his mother last. He stated that he "does not remember." Worker asked if they were always home alone. He said "no". He stated that his mother went to work and came back home. Worker asked who cooked his meals. He stated that his mother did.
Worker asked if they had light in their apartment. He stated that there was light before he traveled.
Worker asked about discipline in their home. He stated that he gets a "punishment." Worker asked what he meant by "punishment." He stated that he was not allowed to watch television.
[Janet] stated that she is 11 years old and she was born on 12/13/94. She was promoted to the 6th grade, and she attends 5-6 school, Hackensack.
Worker told [Janet] why the Division is involved with her family. She told her what the allegations were. [Janet] denied that she was not attending school. She stated that she attended school regularly. The only time she did not attend school was when she was sick. She stated that she did not have . . . finals and she did not remember her last day at school.
She stated that their apartment had electricity before she traveled to California. She stated that they were in California with her great grandmother. She also confirmed that they just came back to New Jersey over the weekend. [Janet] did not know the Airlines they traveled with or the plane that brought them to New Jersey. She also did not know the address of her great grandmother's home.
[Janet denied] that her mother [leaves] them home alone. She stated that her mother cares for them, and she is a good mother. She stated that she is very careful, and does not want them to know if something is wrong with her.
Worker asked her about discipline in their home. She stated that her mother does not allow her out, if she does something bad.
[Janet] also told worker that they were in [f]oster care before in New York. She stated that she was in placement when she was 5 years old, and she believed that her mother did not want to say where they were, because she was afraid that they would remove them from her care.
Worker asked [Harold] if it was true that they were in placement before, and he nodded his head to indicate that it was true.*fn1
On July 5, 2006, the Division contacted S.B., who had been released from jail, and she was asked to come to the Division office to discuss a plan to care for the children. S.B. stated she "wasn't well," and she did not go to the Division office that day. Consequently, the children went home with S.B.'s brother after the Division determined there were no safety concerns.
The next morning, S.B.'s brother phoned the Division and stated that S.B. had visited his home during the night and asked to take the children. When he refused, she insisted and an argument ensued. S.B.'s brother said he could not handle the situation, and he asked if he could return the children to the Division office. That same day, DYFS executed an emergency removal of the children, pursuant to N.J.S.A. 9:6-8.29, and the children were placed together in a foster home.
The fact-finding hearing to determine whether S.B. abused or neglected her children took place on October 27, November 15, and December 8, 2006. On January 12, 2007, the court rendered an oral decision. The court's findings and conclusions included the following:
I find that this Division acted in good faith in investigating the initial complaint and was met with a total lack of cooperation for a period of nearly two weeks. That forced the filing of the complaint for investigation. While it is true that the Defendant did not have an obligation to cooperate with the Division until the Order to Investigate was entered on June 22nd, 2006, once that Order was signed, I find that this Defendant did anything but cooperate. Instead she sought to obfuscate any information regarding the children.
I find that her lack of candor was alarming and her contempt of this Court's Orders to divulge information regarding the whereabouts of the children was an affront to the Court.
The histrionics . . . that I just outlined prove that by a preponderance of the evidence there was sufficient basis for the Division to believe that the children were at risk of abuse or neglect. While it is true that both children were taken out of school before the term was over and that the educational neglect allegations which were initially substantiated after conferencing were determined to be unsubstantiated and that the Defendant [sic] was never able to substantiate the lack of electricity in the apartment due to lack of access, the Division, nonetheless, from the inception had a duty to continue to investigate even if the end result determined that the initial referral was retaliatory in nature.
I find that the Defendant's predicament was, by and large, self-inflicted and I find that the actions of the Division were appropriate.
MS. RUSSO [DEFENDANT'S ATTORNEY]: Is that it?
THE COURT: That's it?
MS. RUSSO: I'm not sure exactly, Judge, what you're saying. Are you . . . saying that the Division had probable cause to investigate but that you're not finding abuse and neglect?
THE COURT: No. I am finding that there was . . . probable cause to do the investigation and that, by a preponderance of the evidence, there was sufficient basis for the Division to believe that these children were at risk of abuse or neglect.
MS. RUSSO: Uh-huh. But are you finding that there was abuse and neglect? That is what you need to find, I believe, -
THE COURT: Uh-huh.
MS. RUSSO: - if I'm not mistaken.
THE COURT: That is correct.
MS. RUSSO: Okay. I'm confused.
THE COURT: Don't be confused. Okay?
The initial finding is that, by a preponderance of the evidence, -
MS. RUSSO: Uh-huh.
THE COURT: - the Division clearly had the ability and should have conducted and continued to conduct its investigation.
And then on a second tier level, I am finding that there was an act of abuse and/or neglect, even though the initial allegations were unsubstantiated.
MS. RUSSO: Uh-huh.
THE COURT: That thereafter, the actions of this Defendant were such as to rise to that level. Her lack of candor in outlining where those children were at any time empowered the Division to do everything that they did. I find that - her failure to provide any information -
MS. RUSSO: Uh-huh.
THE COURT: - with respect to the location of those children -
MS. RUSSO: Rises to the level of abuse and -
THE COURT: It does.
MS. RUSSO: Okay.
THE COURT: Okay?
MS. RUSSO: Now I understand, Judge. Thank you.
THE COURT: You're welcome.
Thus, the trial judge found that DYFS had probable cause to conduct an investigation, and that S.B.'s failure to provide information regarding the location of her children constituted an act of abuse or neglect.
Abuse and neglect proceedings are governed by N.J.S.A. 9:6- 8.21 to -8.73. N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child as:
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 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 (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.
In G.S. v. Dep't of Human Serv., 157 N.J. 161, 178 (1999), the Court held:
The phrase "minimum degree of care" [in N.J.S.A. 9:6-8.21(c)(4)] denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
The Court also stated that "the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court held that this standard had been satisfied in G.S., where a parent had given her autistic child a full bottle of medication, which was seventy-eight times the indicated dosage. Id. at 182. In the present matter, it is clear that defendant's failure to fully cooperate with the Division's investigation raised legitimate concerns for the children's welfare. Nevertheless, defendant's failure to cooperate, which resulted in her incarceration, does not, by itself, support a finding of abuse or neglect. Moreover, the evidence presented during the fact- finding hearing did not establish that S.B. failed to exercise a minimum degree of care for her children's welfare; there was no evidence that S.B.'s conduct caused harm to her children; and there was no evidence that S.B. unreasonably exposed the children to a substantial risk of harm. The evidence, therefore, was insufficient to establish that S.B. abused or neglected her children.