On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-0124-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011
Before Judges Cuff, Lihotz and St. John.
The Law Guardian, on behalf of minor children U.G., age three (who we fictitiously name Una) and T.C., age one (who we fictitiously name Theo), appeals from the Family Part's November 9, 2010 order, entered following a hearing concluding the Division of Youth and Family Services (the Division) failed to sustain its burden of proof in this proceeding. The court dismissed the Division's complaint and proposed to return the minor children to their mother V.G. (who we fictitiously name Violet). The Law Guardian argues the court erroneously concluded the Division could not maintain custody of the children pursuant to N.J.S.A. 30:4C-12, absent a finding of abuse and neglect, despite the "ongoing and serious concerns for the children's safety." Further, the Law Guardian maintains the court erred as a matter of law in concluding the evidence did not meet the statutory standard for neglect pursuant to N.J.S.A. 9:6-8.21. We agree and reverse the November 9, 2010 order, remanding for further proceedings consistent with this opinion.
These facts are substantially undisputed. As a child, Violet was in foster care as a result of her parents' substance abuse issues. At age thirteen, she was diagnosed with bi-polar and attention deficit hyperactivity disorders. At nineteen, Violet gave birth to her first child, who was adopted by Violet's foster mother. In 2003, at approximately age twenty-two, Violet was convicted of a Tier Two sex offense, as a result of a five-month sexual liaison with a fifteen year-old girl. Violet served thirty months in a correctional facility and remains subject to community supervision for life as a sex offender. The Division first became involved with Violet in October 2007, after she was paroled. Violet gave birth to X.G. (who we fictitiously name Xander). While living with her infant in a shelter, Violet's score on a mental health assessment suggested concern for her ability to parent Xander, prompting shelter personnel to notify the Division. Following an investigation, the Division found it unnecessary to remove Xander, but directed Violet to undergo psychiatric care. She agreed to attend monthly counseling sessions and medication monitoring.
Following Una's birth in 2008, Violet was informed by her parole officer, Officer Reed, that the initial conditions of her release precluded her from being alone with anyone under age eighteen, even her own children, until she participated in an assessment and was cleared to care for the children. Violet requested her friend D.M. (who we fictitiously name Della) to care for Xander and Una.*fn1 Della has three sons, who at the time were ages twelve, ten, and nine. Una and Xander went to live in Della's home and thereafter, Violet visited them twice a month.
On September 14, 2009, the Division investigated an anonymous allegation of abuse filed regarding Della.*fn2 After learning Violet was a registered sex offender and pregnant, the Division opened a new file in her name. Della told the Division she filed for custody of Una and Xander and was assigned a January 11, 2010 court date. The Division took no action to remove the children from Della's care.
During her visits, Violet began noticing bruises and other marks on Una and Xander. In October 2009, she noted Xander had two black eyes, a cut lip, and a swollen face. She explained she photographed these injuries and took Xander to a hospital emergency room. Violet asserted medical providers told her to "just follow-up" with Xander's pediatrician if the injuries did not heal. Violet questioned Della about Xander's injuries;
Della responded Xander had a problem with "balance" and was "always . . . falling around the house." Violet returned the children to Della's care. She did not disclose her concerns to the Division during meetings held on November 9 and December 17, 2009.
On December 17, 2009, Violet agreed to a case plan for the children's care. She told the Division that Una, Xander, and the baby, when born, would be placed in Della's custody and care. She advised the Division she had no abuse and neglect concerns for the children. On December 19, 2009, Violet participated in a psychological assessment to determine whether she could safely have custody of her expected baby.
On Christmas Day 2009, Violet again noticed marks on Xander's neck and face. After Violet questioned Della about the injuries, she accepted Della's explanation that one-year old Una caused the injuries to her thirty-month old brother, and took no further action. However, Della gave a conflicting story to Xander's father, stating Xander had fallen down the steps.
Violet gave birth to Theo in January 2010. As planned, Theo left the hospital with Della. Shortly thereafter, Violet granted Della residential custody of Xander and Una, retaining joint legal custody of the three children along with liberal supervised parenting time. When asked why she did not raise the issue of Xander's injuries during a January 11, 2010 custody hearing, Violet explained "she did not want her children to be split and placed in foster care[.]"
On January 13, 2010, Officer Reed informed the Division Violet had successfully completed a Living With Children Assessment. Judith E. Rosenstein, a psychotherapist who performed the evaluation, determined Violet exhibited "a low level of risk for reoffending[,]" and she recommended Violet be permitted to have custody of Theo and enjoy "unsupervised weekends as well as holidays with her other biological children," conditioned on her attendance at weekly sex-offender therapy. The record contains no information regarding whether Violet followed these recommendations.
During a February 1, 2010 visit, Violet saw a "gash" on Xander's forehead. She photographed the injury and questioned Della about its cause. Della explained Xander fell down the stairs and she intended to take him to the doctor later that day. Satisfied with this explanation, Violet again took no action.
Violet conversed with her Division caseworker, Danushka Dasir,*fn3 on February 7, 17, 18, 23 and 24. The February 18 case notes reflect the first time Violet mentioned concerns for Theo's care. Also, on February 24, Violet stated she had noticed bruises on Xander and had taken pictures.
On February 25, 2010, Della called 911 and Xander was rushed to the hospital. Della stated Xander had fallen down the basement steps twelve hours earlier and suffered a bleeding head wound. Della alleges she contacted the Division and the child's physician and was told she could wait until the following day to obtain medical care. Shortly after midnight, she found Xander face down in the toilet and unable to breathe. Shortly after arriving at the hospital in the early hours of February 25, 2010, thirty-two-month-old Xander died from these injuries. The hospital records state the child suffered from:
2nd -- 3rd degree burns at the center of the forehead; 3 inch deep laceration at the left eyebrow; right eyebrow area 3 inch deep laceration; left leg distal various contusions; lacerations to the scrotum and penis; healed laceration to the forehead; forehead swollen with hematoma; [a deformed] left wrist[;] and multiple healed lacerations.
The Division executed an emergency removal of Una and Theo. Della was charged with murder and endangering the welfare of a minor.
Caseworker Patricia Arroyo spoke to Violet in February and April 2010. Violet insisted she mentioned her concerns for Xander to Dasir sometime in January and on February 18. Arroyo requested copies of the photographs Violet had taken in October and December 2009, along with the records from October 2009 emergency room admission. Violet provided the photographs but said she could not locate the emergency room discharge slip because she had moved.
Since Xander's death, Violet married on October 2, 2010,*fn4
and is currently disabled. Una and Theo remain in custody of the Division, under the care of a resource family.
The Division filed a complaint seeking custody, care and supervision of Una and Theo on March 2, 2010. On five days spread over five months, the Family Part judge conducted a factfinding hearing.*fn5 The Division presented testimony from its caseworkers, Arroyo and Dasir, who related the Division's involvement with Violet, Della, and the children. The Division also presented ...