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New Jersey Division of Youth and Family Services v. A.P


March 2, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-0184-08.

Per curiam.



Argued February 8, 2012 -

Before Judges Lihotz and St. John.

Defendant A.P. appeals from a May 6, 2009 order determining she "was neglectful" in allowing her mother, C.P., to care for her child, K.P. Following a hearing, the trial judge concluded the preponderance of the evidence proved the allegations of neglect advanced by the Division of Youth and Family Services (the Division). The trial judge found A.P. "left [the] child in the maternal grandmother's care" and "the maternal grandmother was taking [five types of] medication that made her drowsy[, had] no appropriate sleeping arrangements for the child, and [had placed the] shoes on [the] child backward[s.]" The trial court entered an order finding A.P. had neglected K.P. as defined by N.J.S.A. 9:6-8.21c(4). We reverse.

These facts were presented to the court during the fact finding hearing. Jill Miller, a Division Family Service Specialist, testified as to the facts gathered by the Division and reported in its file. Miller had not conducted the initial investigation. A.P. testified on her own behalf.

On May 30, 2008, the Division received a referral expressing concern for two-year-old K.P.'s safety. The referent stated A.P. left the child in the care of C.P., who suffered from "severe mental conditions" requiring regular psychiatric care, had a history of "cutting herself," her medications caused her to fall asleep, and she believed C.P. could not safely care for K.P.

The informant's call prompted the Division to conduct an investigation. In the past, both C.P. and A.P. had received services after the Division's intervention. In 1995, C.P. surrendered the care of her children, including A.P., to a relative because of her mental illness and in 2006, services were extended to A.P. to aid her care of K.P.

The Division's investigation report recorded that A.P. "works a lot" and "didn't have another place for her [child] to go," so she allowed her mother to care for K.P., believing she "had been cleared to care for children by her physician." A.P. maintained she never observed her mother falling asleep and was unaware of allegations to the contrary. The report also included A.P.'s statements suggesting she was considering placing K.P. for "open adoption" because her work schedule and home responsibilities precluded her from spending quality time with the child.

C.P. told the Division she could not recall when she began caring for K.P., but had been doing so for a while and her doctor had cleared her to do so. She recalled no problems and felt confident in the care she provided. On a typical day, C.P. stated she and K.P. rise between six and seven o'clock in the morning, eat breakfast, play until lunchtime, K.P. naps after lunch and when she wakes, the two spend time outside, followed by dinner.

C.P. confirmed she suffered from Schizophrenia Effective Disorder for which she takes prescribed medications, including Ativan (one milligram three times per day), Haloperidol (five milligrams twice per day and fifteen milligrams at bedtime), Remeron (thirty milligrams at bedtime), Lunesta (three milligrams at bedtime), and Lamictal (twenty-five milligrams three times per day). C.P. demonstrated she kept her medications secured and out of reach of the child and had appropriate food and clothing for the child. She denied she had fallen asleep while caring for K.P., but acknowledged the medications "made her drowsy."

The report noted the one-bedroom apartment "was untidy" and its carpet "was stained and dirty." The case worker did not see a crib set up in the apartment, stating the bedroom contained a queen-sized bed. She wrote of one concern, noting the child remained nonverbal, uttering only noises to communicate. Otherwise, K.P. was mobile, had no marks or bruises, was clean, seemed happy, and was dressed appropriately but for the fact that her shoes had been placed on the incorrect feet. K.P. demonstrated a strong bond to C.P. and had no fear of strangers. Finally, when A.P. arrived, K.P. became very excited and ran to greet her mother.

The Division executed an emergency removal of K.P., N.J.S.A. 9:6-8.29 and -8.30, and placed her in the care of a maternal great-aunt. On June 4, 2008, the Division filed a verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, alleging K.P. was a neglected child. The Family Part judge, after concluding the removal was necessary to prevent imminent danger to the child's life, safety, or health, granted the Division's request for care, custody and supervision of K.P. N.J.S.A. 30:4C-11.2. K.P. was initially placed in a foster home and later moved to the home of a relative.

During the hearing, the Division introduced an October 9, 2003 case note record of a call C.P. placed to the Division wherein she explained she had recently been hospitalized as a result of "mental anguish" caused by the "violent behavior" of then thirteen-year-old A.P. C.P. was being discharged from the hospital and sought A.P.'s removal from her home. The Division also offered hospital records from 1992 to 1995 related to C.P.'s prior psychiatric treatment.

Miller admitted the Division had not sought confirmation of C.P.'s current condition or mental health treatment and did not inquire whether she was under a doctor's care. She agreed the investigation report included no references to suggest C.P. "acted inappropriately," spoke "incoherently," "act[ed] irrationally," or fell asleep during the interview. Finally, Miller confirmed the Division removed K.P. believing C.P. was "an inappropriate caregiver" based on her self-report that her medications cause drowsiness; the Division had previously substantiated A.P. suffered abuse or neglect when primarily in her care; and because there were no sleeping arrangements for K.P. Miller also admitted the Division did not consider extending an alternate childcare resource to A.P., stating that on the day of the removal, A.P. was anxious to return to work and "didn't have time for that[.]"

A.P. testified. She stated she sought C.P.'s assistance to provide care for K.P. while she worked Thursday through Sunday from noon to 2 a.m. A.P. asserted she visited her child two to three times each week before she started work and directly cared for her from Monday to Wednesday. A.P. defended her choice to allow her mother to care for K.P., stating she observed her mother, who had recently left her job, function "normally." C.P. spoiled K.P. "a little bit[;]" was patient; "always kept her in sight[;]" "kept her well fed[;]" and complied with her dietary needs just as A.P. had directed. She also testified the child slept in a portable crib in C.P.'s apartment. A.P. noted she never had a concern about the care C.P. provided and, until May 30, 2008, no one suggested K.P. should not be left in C.P.'s care.

At the conclusion of the hearing, the trial judge found "by a preponderance of the evidence that [A.P.] was neglectful of [K.P. because] the grandmother's admission that she's taking medication that makes her drowsy." The trial judge also included these limited findings:

I am not making a finding as to [C.P.'s] mental stability or her mental health because I don't believe I can on the record before me. I have nothing that says that on the day in question or even on the week in question, she was not mentally stable. The medications may have made her stable . . . . [T]here's not enough before me for me to jump to that conclusion. So even though there was an admission in 2006 about her mother's mental capacity, I don't find that that goes through to 2008.

However, [C.P.'s] admission that she was on five types of medication, some of which she took during the day, and that she's drowsy[, she stated "]who wouldn't be made drowsy by them,["] that is of concern. The fact that the worker noted there was a queen-size bed, did not note that there was a portable crib; she was obviously in the same room where the bed was and didn't note the crib. There may have been a crib. Even going on . . . [A.P]'s hearsay discussion that at some point in time [with] a Division worker [who] said a portable crib may have been okay a year earlier or some time earlier, that doesn't mean there was one at this point in time when this child was admittedly basically living with her grandmother. There is no crib there. The fact that she says there is a crib, I find not credible. And in light of her discussion today that she doesn't . . . recall her mother being with her, relatively recently here in the courthouse, that impacts on my credibility ruling in that regard.

The other thing is not as monumental but the fact of the matter that the child had shoes on backwards, sure, a child might put . . . shoes on backwards. But the person who is in charge of that child should fix them because having the wrong shoes on the wrong feet can cause damage. So I am concerned that [A.P.] left the child in her mother's care and I find that that was neglectful.

On July 9, 2009, the Division dismissed its Title Nine complaint after filing a complaint for guardianship, but halted this course when, pursuant to the terms of a consent order, physical custody of K.P. was returned to A.P. The Division withdrew its guardianship complaint and reinstated the Title Nine action, which was closed shortly thereafter.

Defendant appeals from the interlocutory order concluding she had abused or neglected K.P., arguing the Division's proofs were insufficient to sustain the trial court's findings. The Division, joined by the Law Guardian, defends the trial court's findings that A.P., by leaving K.P. with her grandmother without questioning C.P.'s capacity in light of her significant past history of mental illness, coupled with C.P.'s admissions regarding the tranquillizing effect of her medications and the failure to provide a crib, posed "a substantial risk of harm" to the minor child.

As a threshold matter, factual findings that undergird a trial court's judgment should not be disturbed unless "'they are so wholly insupportable as to result in a denial of justice,'" and must "be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (internal quotation marks omitted) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about the witnesses" who testify). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.

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.

Still, even in those circumstances we will accord deference 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 (2007) (alteration in original) (internal quotations and citations omitted).]

This matter pits the constitutionally protected parental right "to raise a child and maintain a relationship with that child, without undue interference by the state," E.P., supra, 196 N.J. at 102 (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)), against "the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In such a dispute, the court must insure: "'(1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, commensurately, (2) that no parent should lose custody of his/her child without just cause.'" N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 175 (App. Div. 2005) (citing N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002)).

"New Jersey's scheme for the protection of children against abuse or neglect is codified in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 108 (2011). See N.J.S.A. 9:6-8.21 to -8.73.

"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.' N.J.S.A. 9:6-8.8; see [Dep't of Human Servs. v. G.S., 157 N.J. 161, 177 (1999)] ('Title [Nine]'s primary concern is the protection of children, not the culpability of parental conduct.' (citation omitted)); cf. S. 1217 (Sponsor's Statement), 196th Leg. (N.J. 1974) (declaring that children have "the right of protection from physical abuse and neglect" and that purpose of Title Nine is to ensure children's 'rights will be adequately protected by the appropriate courts and social service agencies')." [Dep't of Children & Families v. T.B., 207 N.J. 294, 303 (2011) (alterations in original) (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011)).]

The Legislature has also defined the role of the Division in "protecting the health and welfare of the children of this state." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). See also N.J.S.A. 30:4C-2(a) (defining the Division as the State agency charged with the responsibility for the "care, custody, guardianship, . . . and protection of children"); N.J.S.A. 30:4C-4 (enumerating the powers granted by the Legislature to the Department of Children and Families). Title Nine permits the Division to immediately remove a child from a parent's care when there is an "imminent danger to the child's life, safety or health," prior to applying for a court order. N.J.S.A. 9:6-8.29a. The well-being of children is the paramount concern of the statutes and the guidepost directing the Division's efforts. N.J.S.A. 9:6-8.8a.

Here, the Division alleged removal was warranted because K.P. was a neglected child, relying on N.J.S.A. 9:6-8.21c(4)(b), which states: 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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

The statute encompasses a parent's omissions and failures to act, resulting in the impairment of a child's physical and emotional well-being. N.J.S.A. 9:6-8.9a, d. Thus, in certain circumstances, a parent's failure to prevent or address harm to a child may rise to statutory neglect as defined in N.J.S.A. 9:6-8.21c(4). See G.S., supra, 157 N.J. at 176-77.

The Supreme Court has recently examined N.J.S.A. 9:6-8.21c(4)(b) to discern what constitutes a parent's "failure . . . to exercise a minimum degree of care." T.B., supra, 207 N.J. at 305 (alteration in original). Mere negligence does not trigger the statute. Ibid.; see also G.S., supra, 157 N.J. at 177-78. Rather, proving a parent's "'fail[ure] to exercise a minimum degree of care'" refers "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). "'Whether a parent . . . failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation'" presented. Id. at 306 (quoting G.S., supra, 157 N.J. at 181-82). The Division need not prove actual harm, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986), and the "[c]courts 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).

Nevertheless, the "failure . . . to exercise a minimum degree of care" at least requires grossly negligent or reckless conduct. T.B., supra, 207 N.J. at 305. Reaffirming its conclusion in G.S., the Court stated:

"We recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care, and do not attempt to describe them. . . . Ultimately, we leave it to [the Division] and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child." [Id. at 306 (quoting G.S., supra, 157 N.J. at 182).]

Following our examination we determine the three discrete factual findings made by the trial judge were insufficient to constitute a failure to exercise a minimum degree of care. We also note the trial judge's conclusion that A.P. "was neglectful" applied the incorrect legal standard. We find the Division's proofs do not meet its burden to show by a preponderance of the credible evidence that A.P.'s actions or omissions rose above mere negligence. Accordingly, we set aside the trial court's conclusion of neglect as unsupported.

We spend little time on the fact K.P.'s shoes were on the wrong feet. At argument, the Division conceded this trivial event was not competent to prove neglect.

We also find insignificant the trial judge's reliance on the Division worker's comment noting the absence of a crib in C.P.'s apartment. Without discussing the trial judge's rejection of A.P.'s assertion that her mother used a portable crib, we nevertheless do not ascribe neglect because the two-year-old likely was not sleeping in a crib. The investigating caseworker included this reference in her report, unaccompanied by further explanation of whether she inquired regarding the child's sleeping arrangements. Perhaps a crib is the most preferred sleeping place for a two-year-old, but we will not conclude it is so necessary that its absence, or the alternate possibility that C.P. and the child slept in her queen-sized bed, substantiates neglect as defined under N.J.S.A. 9:6-8.21c(4)(b).

Finally, we turn to the trial court's finding K.P. was a neglected child because her grandmother admitted "she was on five types of medication, some of which she took during the day, and . . . who wouldn't be made drowsy by them[.]" The record is devoid of which medications caused drowsiness. We take note that Lunesta is an aid designed to induce sleep, but this like several other prescriptions, were taken only at night. No proof showing C.P. was impaired or compromised in her ability to care for the child was offered. When interviewed, C.P.'s conduct spoke otherwise: she was appropriate and coherent; recited the child's daily routine exhibiting nothing to suggest she was irrational, illogical, or even sleepy; and evinced she complied with the child's dietary restrictions. Other objective evidence contradicted the finding C.P.'s medication made her an inappropriate caregiver. K.P. was clean, dressed appropriately, well-fed, physically active, happy and bonded to her grandmother. C.P. had secured her medications out of the child's reach, no physical hazards were revealed in the apartment, and the child had no signs of bruising or past injury. Finally, the child's limited speech alone does not evince C.P.'s lack of attention or another risk of harm.

During oral argument before us, the Division and the Law Guardian urged us to place weight on C.P.'s past history of mental illness and the Division's earlier substantiated finding she had abused or neglected her children. Although we agree these facts may be considered as C.P.'s past history raises questions regarding her current status, we reject the invitation to find them dispositive.

The objective observations support this finding. We recognize C.P. suffered significant mental illness resulting in depression, paranoia, and suicidal ideations in 1992 to 1995. She later experienced a limited relapse requiring hospitalization in 2003. However, as the trial court noted, "I have nothing that says that on the day in question or even on the week in question, [C.P.] was not mentally stable." No evidence shows C.P.'s mental health conditions were improperly controlled as the Division chose not to obtain C.P.'s recent diagnosis, course of treatment, or even investigate her condition. The Division chose to rely on fifteen-year-old hospital records, making it impossible to determine whether C.P.'s current condition or medications impacted her ability to care for her granddaughter. Whether C.P.'s conditions or her use of prescribed medications posed a risk of harm to the child required benefit of expert testimony.

A final note. The trial judge's conclusion A.P. "was neglectful" suggests a finding of mere negligence, not the requisite "grossly negligent or reckless conduct" required by the statute. T.B., supra, 207 N.J. at 300.

For all of these reasons the trial court's May 6, 2009 order must be vacated. The conclusion of neglect is not supported by the competent credible evidence in the record.



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