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New Jersey Division of Youth and Family Services v. S.M


April 11, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-56-10.

Per curiam.



Argued March 7, 2011

Before Judges Rodriguez, Grall and LeWinn.

C.M. is the maternal grandmother of K.T., A.M., K.J. and J.J. She appeals from the March 15, 2010, compliance review hearing order dismissing her from the litigation initiated by the Division of Youth and Family Services (DYFS) based on the abuse and neglect of K.T., A.M., K.J. and J.J.*fn1 We modify the order as to A.M. only.

K.T. was born in May 2004, when her birth mother S.M. and her birth father J.T. were both fifteen years old. At that time, S.M. was living at home with her parents. Three months later, C.M. filed an application to gain custody of K.T. because S.M. was doing "teenager things" and "running the streets."

C.M., S.M. and J.T. appeared before Judge Frederic S. Kessler. He ordered that the three would share legal custody of K.T., but that C.M. would have residential custody.

A.M. was born in November 2006, while S.M. still lived at home. S.M. and A.M.'s father, T.H., were seventeen years old at the time. When S.M. moved out a year later, she left A.M. with C.M. because she did not want to separate her two daughters. No court order was ever obtained concerning A.M.'s custody.

K.T. and A.M. remained with C.M., who was solely responsible for them. Meanwhile, S.M. moved in with her boyfriend, D.J., and gave birth to K.J. in May 2008.

Two months later, C.M. sought a temporary restraining order against S.M. C.M. explained to the court that S.M. had physically attacked her and her husband; had a history of mental instability; and "cuts herself all over" when she gets angry.

C.M. feared for the safety of her husband, her children, her grandchildren and herself.

On July 28, 2008, Judge Robert J. Mega issued a final restraining order: (a) barring S.M. from C.M.'s home and workplace; (b) prohibiting her from communicating with C.M. or her husband; (c) prohibiting parenting time with K.T.; (d) providing that residential custody of K.T. would remain with C.M.; and (e) directing S.M. to undergo mental health evaluation and treatment within ten days. S.M. ignored these directives.

In March 2009, DYFS received a referral regarding alleged incidents of domestic violence and substance abuse by S.M. and D.J. Neglect was substantiated against D.J., but not against S.M. DYFS implemented a case plan.

DYFS received a second referral on September 24, 2009, when S.M., who was eight months pregnant by D.J., came to the emergency room after being kicked in the stomach. Although doctors instructed her to remain at the hospital overnight for observation, she went home.

C.M.'s husband suffered a stroke on October 3, 2009. C.M. stayed with him overnight at the hospital, leaving K.T. and A.M. in S.M.'s care. Two days later, a counselor aide with Catholic Charities, went to S.M.'s residence to perform a random urine screen pursuant to the March 2009 case management plan. When the counselor knocked on the door, five-year-old K.T. answered. K.T. said that her mother was not home and she did not know where her mother was. The counselor saw an infant, K.J., behind K.T., and began yelling for S.M. When S.M. did not answer, the counselor entered the house and found A.M. and K.J. unattended. She immediately contacted DYFS and the police.

Before the police arrived, S.M. came out of the basement. She explained that she had gone down there to fix a switch. According to the counselor, about twenty-to-twenty-five minutes elapsed between when she knocked on the door and the time S.M. exited the basement.

S.M. called C.M., who drove to the house to retrieve K.T. and A.M. The police prevented her from taking the girls and insisted that she wait for DYFS.

A DYFS intake worker interviewed K.T., who told her that S.M. had left her alone twice--once for a short time and once for a long time. There were knives around the house, but K.T. put them away because she knew children should not play with them. She had tried to feed K.J., but could not find any juice.

C.M. admitted to the intake worker that K.T. and A.M. were not supposed to be with S.M., but explained that she only left them there because her husband was in the hospital. At the intake worker's request, C.M. drove all three children to the DYFS office. There, C.M. was informed that K.T. and A.M. would be taken into DYFS custody as part of an emergency removal pursuant to the Dodd Act, N.J.S.A. 9:6-8.29. DYFS also filed the present action and order to show cause against C.M., S.M. and the three birth fathers of the children.

In November 2009, S.M. gave birth to a fourth child, J.J., who tested positive for methadone. D.J. is the birth father of J.J. After a three-week hospital stay for drug withdrawal, DYFS assumed physical custody of J.J. Meanwhile, DYFS learned that K.J. had not been receiving medical care and needed seven immunizations to be current. More troubling, K.T. had an unusual medical condition that required immediate attention.

DYFS filed an order to show cause and second verified complaint for protective services, in order to add J.J. On the return date, Judge Kessler ordered that: (1) DYFS would assume physical custody of J.J. upon his release from the hospital; (2) K.T. was to reside at the home of J.T., her birth father, with the understanding that when he was not physically present, the paternal grandparents would provide her with care and supervision; and (3) A.M. and K.J. would remain in DYFS placements.

Ian Marshall, M.D., Chief of Pediatric Endocrinology at Robert Wood Johnson Medical Center testified at a subsequent hearing that he had treated K.T. since November 2004, when he had diagnosed her with two diseases. The first is McCune-Albright Syndrome (MAS), an extremely rare genetic disorder, characterized by skin pigment disorder, fibrous dysplasia and precocious puberty. The second is fibrous dysplasia, a breakdown in normal bone tissue in her skull, hands, arms and legs. Because of the dysplasia, K.T. was at a higher risk for lesions to the skull that could lead to paralysis and irreversible blindness. These conditions require routine examinations by pediatric orthopedists and ophthalmologists.

Further, because K.T. manifested signs of puberty ever since she was five-months-old, she could experience an early growth spurt followed by a premature cessation of growth. It is, therefore, necessary for K.T. to be examined by an endocrinologist every three-to-six months.

According to Marshall, C.M. brought K.T. to appointments on a regular basis, took her for laboratory and radiological testing, and followed up with specialists in orthopedics and ophthalmology. She communicated with Marshall by telephone when necessary and always followed his instructions.

K.T. failed to appear at her December 2008 appointment. In late December 2008 or early January 2009, Marshall called C.M.'s cell phone and spoke to a woman who he believed was C.M. He explained that he wanted to prescribe Letrozole for K.T., and sent a prescription to a pharmacy that the woman designated. Marshall did not see K.T. again until November 24, 2009 when her foster parents brought her in for an appointment.

K.T. showed signs of a significant growth spurt and some breast development. K.T. had no obvious skeletal problems, but Marshall determined that there was an imminent danger of harm to K.T. from the unmonitored bone lesions in her skull. Although Marshall admitted that he never fully explained to C.M. the risks of MAS, he believed he made it clear that K.T. needed to see him every three to six months.

C.M. testified that she took K.T. to see Marshall every three-to-four months for five years. Although S.M. sometimes came with her, C.M. was primarily responsible for keeping the appointments. She believed that no particular care was required because of the condition, just routine check-ups. No one ever explained the consequences of a missed appointment.

C.M. explained that she was solely responsible for her husband's care after his stroke in October 2008. She was also responsible for K.T., A.M. and her own two minor children. Consequently, C.M. accepted S.M.'s offer to take K.T. and A.M. to their doctors' appointments. She advised S.M. of K.T.'s December 2008 appointment with Marshall and loaned her car for that day. When C.M. subsequently asked about the appointment, S.M. told her that she had been late and had rescheduled. Believing that S.M. was capable of handling this responsibility, C.M. did not ask S.M. about the appointment again.

S.M. knew that K.T. has MAS and offered to take K.T. to the doctor in order to help out. Even though she knew of K.T.'s December 2008 appointment, she did not take her to it. S.M. also failed to attend the re-scheduled appointment. She did not take K.T. to any appointments between December 2008 and October 2009 and lied to her mother about her failure to do so. She blamed this lapse on her drug use during that period.

Around December 2008, S.M. was alone at C.M.'s house when C.M.'s cell phone rang. S.M. answered and spoke to Marshall who had called to give K.T. a prescription, presumably Letrozole. Although Marshall did not explain why the new medication was needed, S.M. obtained the prescription.

After reading a brochure attached to the prescription that listed the side effects, S.M. became concerned and phoned J.T. He also worried about the side effects and suspected that Marshall might be using K.T. "like a guinea pig." They decided that K.T. should not take the medication. S.M. threw it away and never told C.M. about Marshall's call or the prescription.

At the conclusion of the hearing, Judge Kessler found Marshall to be a particularly credible witness. The judge explained that actual harm to K.T. resulting from the missed appointments was irrelevant because without regular visits to a specialist, MAS posed a serious risk to K.T.'s physical and emotional health. The judge found neither C.M. nor S.M. to be credible, noting their demeanor as well as the inconsistencies between their testimony and other evidence.

Judge Kessler found that C.M.'s failure to exercise a minimum degree of care in providing for K.T.'s medical needs constituted abuse or neglect. The judge issued an order of disposition continuing DYFS's physical and legal custody of A.M., K.J., J.J. and giving J.T. physical and legal custody of K.T. The judge reserved decision on DYFS's motion to dismiss C.M. from the litigation, finding the issue of C.M.'s status as a psychological parent needed further consideration.

During the colloquy about C.M.'s status and DYFS's obligation to provide services to her, C.M.'s attorney noted:

[DYFS] would have to assess whether . . . or not [DYFS] should amend the complaint to add any other children who are in her care and that . . . harm as to one may create risk of harm as to other children in the home or a concern about risk of harm.

At the time of the hearing, C.M. had two minor daughters and another grandchild living at home. DYFS had recently initiated an investigation in connection with the birth of that grandchild to C.M.'s thirteen-year-old daughter.

It was not until a month later, at a compliance review hearing on March 15, 2010, before Judge Robert A. Kirsch, that C.M.'s attorney requested the judge dismiss his client from the case. C.M. was not present but was available by telephone. Without contacting C.M. but with DYFS's and the Law Guardian's consent, the judge dismissed C.M. The judge also dismissed J.T. and K.T. with the parties' consent "as K.T. [was] in the physical and legal custody of her birth father [J.T.]"

On appeal, C.M. contends that the judge erred in finding that she neglected K.T. We disagree.

When DYFS seeks to remove children from the custody of their parent or guardian, it must adhere to the procedural safeguards established in Title 9, N.J.S.A. 9:6-8.21 to -8.106, which governs the adjudication of abuse and neglect cases. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261-62 (App. Div. 2002). The standard of proof at a fact-finding hearing is preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

The purpose of abuse and neglect proceedings is "to provide for the protection of children . . . who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. A court may find that a child is abused or neglected, if DYFS has established, by a preponderance of the evidence, that the child's 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 . . . 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).]

Because a child's safety is the paramount concern, a judge "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). A finding of abuse may be substantiated by the "likelihood of future harm." 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).

When reviewing abuse and neglect orders, we afford great deference to the trial court's conclusions of law and findings of fact, particularly when those findings are based on the judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We are bound by those factual findings that are supported by adequate, substantial and credible evidence in the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

Here, Judge Kessler's finding of a potential harm to K.T. was not based on C.M.'s failure to administer prescribed medication. Instead, it was based on her abdicating responsibility for K.T.'s medical needs by delegating them to S.M. Moreover, C.M. did not make any particular inquiries as to how K.T.'s treatment was going, although the child still lived in her home and relied on her for parental care. As Judge Kessler pointed out, even if S.M. deceived C.M., C.M.'s actions still constituted neglect. The determination is supported by the record.

C.M. also contends that she was improperly dismissed from the case. As in the trial court, she argues that she had a right to participate because she was K.T. and A.M.'s maternal grandmother, psychological parent and custodian when DYFS removed A.M. C.M. alleges that she requested the dismissal only because she was frightened by DYFS's threats of investigation made after Judge Kessler denied her prior motion to dismiss. That claim is not supported by the record. C.M.'s argument is based on the statement made by her attorney during a colloquy with the judge quoted above, which she mistakenly attributes to the deputy attorney general.

In G.M., the Supreme Court held that "upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be." 198 N.J. at 387-88. A parent or guardian is statutorily defined as any person "who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." N.J.S.A. 9:6-8.21(a).

C.M. was K.T.'s legal guardian and also had residential custody of both K.T. and A.M. at the time of their removal. Pursuant to G.M., C.M. was therefore entitled to have the judge make the determination required by G.M. We conclude that this was not Judge Kirsch's error, but C.M.'s error. Moreover, any fault attributable to the judge was invited and is barred from consideration on appeal.

"'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)). Invited error is a doctrine "'based on considerations of fairness and preservation of the integrity of the litigation process.'" Ibid. (quoting Brett, supra, 144 N.J. at 503). We will review, however, where the error results in a "fundamental miscarriage of justice." Id. at 342 (internal quotations omitted).

In M.C. III, the defendant appealed a finding of abuse and neglect by arguing that the trial court had improperly admitted certain documentary evidence. Id. at 336-37. Because the defendant had not objected to the admission of the documents, the Supreme Court held that the defendant's argument was barred by the doctrine of invited error. Id. at 339-42. The Court noted that "by consenting to the admission of the documents, defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." Id. at 341.

Here, C.M. not only consented to the dismissal, she requested it. She knew for more than a month that DYFS wanted to dismiss her from the case, yet she chose not to attend the March 15, 2010 hearing. Instead, she directed her counsel to request a dismissal. Further, she made no claim of coercion to Judge Kirsch, and her claim on appeal is not supported by the record.

With respect to K.T., we conclude that granting C.M.'s request does not constitute a fundamental miscarriage of justice. The finding of neglect related to C.M.'s relinquishment of responsibility for K.T.'s serious medical condition to a person who was either not equipped or not inclined to address it at a time when C.M. was also required to deal with her husband's hospitalization and the other children in her care. As to K.T., no one questioned J.T.'s fitness as a parent or the assistance available to him from his parents. He has been involved in K.T.'s life since her birth and K.T. is receiving good care in his custody. Thus, the invited error did not lead to a result inimical to the purpose of the abuse and neglect law.

A.M.'s case is quite different. First, there is no finding that C.M. neglected A.M. Second, her birth father T.H. has only recently participated in the litigation. Although he claims to be a fit and willing father, that matter remains to be determined. DYFS is still pursuing the goal of termination of his parental rights, and, in the interim, A.M. has been separated from C.M. who apparently has been her primary caregiver since birth. A.M. refers to C.M. as "Mommy;" and appears to believe that C.M. is her actual mother. It is not clear that C.M. would not be granted custody of A.M. at a disposition hearing if she participated. In A.M.'s case, placement in foster care without first considering whether she could be safely returned to A.M. is inimical to the purpose of the abuse and neglect law and likely to lead to a fundamental miscarriage of justice because the child is at risk of loss of all connection with her family.

Therefore, we sua sponte modify the March 15, 2010 order of dismissal as to A.M. only, so that C.M. may participate in the dispositional phase of this matter as to that child. In all other respects, the order is affirmed.

Affirmed as modified.

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