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Department of Children and Families, Division of Youth and Family Services v. E.P

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 2, 2012

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
v.
E.P., RESPONDENT-APPELLANT.

On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 08-0075.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 16, 2012

Before Judges Axelrad and Sapp-Peterson.

E.P. appeals from the final agency determination of the Department of Children and Families finding she committed an act of neglect by providing inadequate supervision to her four children, thereby creating a substantial risk of harm to the children. The finding of neglect resulted in the inclusion of E.P.'s name in the Central Registry, under N.J.S.A. 9:6-8.10a. We affirm.

E.P. is the mother of four children, who, in 2007, ranged in age from thirteen to two. In September 2007, the Cumberland County Health Department received notice that E.P.'s youngest child had elevated levels of lead in his blood. It sent Elaine Webster, Cumberland County's public health nurse, to interview E.P., who was staying at her parents' home in Leesburg. Webster found the home to be a "little cluttered." E.P. told Webster that she and her children were not living in the Leesburg home but were instead living with her boyfriend in Pennsville. A lead inspection conducted on the same day as Webster's visit confirmed the presence of lead in the Leesburg home, and Webster counseled E.P. on how to reduce the presence of lead dust in the home. She conducted a second visit the following month and reported no unusual or unacceptable conditions.

On November 30, 2007, two Cumberland County sheriff's officers served a levy upon the Leesburg home. While approaching the home, the officers detected a fecal odor. Upon entering the home, the officers observed trash, dog feces, and a kitchen floor covered in a brown film. In the master bedroom, located on the second floor, the officers saw several two-liter bottles containing yellow liquid. On the third floor, they observed a cat litter box filled with feces in the hallway. They further observed child-sized beds without sheets that were also covered in animal feces. In addition, the officers found a dog inside of a closed animal carrier.

C.S., E.P.'s mother, was the only person present on the premises at the time the officers were conducting their levy. She told the officers she resided in the home with her husband, C.K., her daughter, E.P., and her daughter's four children. Concerned about the welfare of the children in light of their observations, one of the officers, John Schweibinz, contacted the Division of Youth and Family Services (Division).

That same day, in response to the referral, Division case worker Idaly Rodriguez visited the Leesburg home. E.P. answered the door and allowed Rodriguez access. Rodriguez observed the same unsanitary conditions witnessed by the officers. E.P. told Rodriguez she had been homeless for some time and had been living in different locations on and off, including her parents' Leesburg home. She indicated she had been there approximately two and one-half weeks but the children, who at the time were visiting their respective fathers pursuant to court-ordered visitation, were not living there because of issues with lead paint. She explained they were living at the home of her exparamour. E.P. also told the caseworker she had been dealing with housing issues for three years because she was without sufficient income to pay rent, and she had applied for welfare services but was denied assistance.

Rodriguez then interviewed C.S., who acknowledged the presence of lead in the home. She explained she was disabled, which affected her ability to keep her home clean, but she also indicated she assumed most of the child care responsibilities for her daughter's children because of E.P.'s party habits. Her husband, C.K., was also present in the home at the time. He indicated the children had been at the Leesburg home for approximately one week but they were not there often because of the lead level in the home.

Rodriguez also interviewed the three oldest children. They all stated they occasionally stayed at their grandparents' home but were not living there permanently because of the presence of lead in the home. They explained that sometimes they stayed at their mother's boyfriend's apartment or slept in the camper next to the apartment because the apartment was small, with only two bedrooms.

The Division completed its investigation and substantiated the allegations of neglect against E.P., based upon its determination that E.P. knowingly subjected her children to known health and safety hazards, lead-based paint, and unsanitary conditions at her parents' home.

E.P. appealed the Division's finding, and the matter was transferred to the Office of Administrative Law as a contested case and assigned to an administrative law judge (ALJ) for a hearing. N.J.S.A. 52:14B-1 to -15. The witnesses who testified included Sheriff's Officer Schweibinz, Rodriguez, Webster, E.P., her parents, her current paramour and her ex-paramour. The parties jointly stipulated to the following facts:

1. Respondent, E.P., is the biological mother of B.H. (female, d.o.b. 10/27/94), J.H. (female, d.o.b. 5/3/96), J.S. (male, d.o.b. 11/26/02) and Z.S. (female, d.o.b. 8/22/05).

2. At some point in 2007, E.P. and her four children resided with E.P.'s mother, C.K., at 115 High Street, Leesburg, N.J.

3. During this period, E.P.'s children began showing symptoms of lead [poisoning].

4. The Cumberland County Department of Health conducted a lead paint investigation of 115 High Street, Leesburg, N.J. on [or] about September 24, 2007. The home was determined to contain lead[-]based paint and was deemed unfit for children to reside therein.

5. In addition to the lead[-]based paint, the home at 115 High Street, Leesburg, N.J. was unsanitary. On or about November 30, 2007[,] the Division's investigators observed the home to have "clutter of clothing, trash, food, feces, piles of dirty dishes and piles of dirt" throughout the home. The investigators observed "about a dozen cats" and numerous dogs living in the home. In addition, approximately nine [two-]liter bottles filed with urine were observed.

6. If the children were residing at 115 High Street, Leesburg, N.J., the parties stipulate that the home presented a substantial risk of harm to the children's health, safety and well being based upon the unsanitary living conditions and the existence of lead[-]based paint.

7. The Division substantiated E.P. for neglect based upon its belief that E.P. had allowed her children to reside in the unfit and hazardous living conditions at 115 High [Street], Leesburg.

As part of the ALJ's findings of fact, the ALJ determined:

2. At some point in 2007, and within weeks of November 30, 2007, E.P.'s four children resided at 115 High Street, Leesburg, New Jersey.

3. During this period, E.P.'s children began showing symptoms of lead poisoning due to their exposure to lead-based paint at 115 High Street, Leesburg, New Jersey.

4. The presence of lead-based paint and the unsanitary living conditions at 115 High Street, Leesburg, New Jersey, presented a substantial risk of harm to the children's health, safety and well-being.

On appeal, E.P. raises the following points for our consideration:

POINT I

THE APPELLATE DIVISION SHOULD REVERSE [THE DIVISION'S] SUBS[T]ANTIATION OF NEGLECT BECAUSE THE DIVISION AND ALJ MISINTERPRETED AND MIS[]APPLIED THE GROSS NEGLIGENCE STANDARD UNDER N.J.S.A. 9:6-8.21(c).

A. [THE DIVISION] FAILED TO ESTABLISH THAT E.P.'S CONDUCT ROSE TO THE LEVEL OF GROSS NEGLIGENCE OR RECKLESSNESS.

1. THE SUPREME COURT HAS RECENTLY REAFFIRMED THAT [THE DIVISION] MUST ESTABLISH GROSS NEGLIGENCE OR RECKLESSNESS TO SUBSTANTIATE A FINDING OF NEGLECT.

2. THE UNCONTROVERTED EVIDENCE IN THIS CASE DOES NOT DEMONSTRATE THAT E.P. HAD ACTED GROSSLY NEGLIGENT OR RECKLESSLY REGARDING HER CHILDREN'S EXPOSURE TO LEAD PAINT AT THEIR GRANDPARENTS' HOUSE.

3. THE EVIDENCE REGARDING THE CHILDREN'S EXPOSURE TO UNSANITARY CONDITIONS AT THEIR GRANDPARENT[S'] HOME ALSO DOES NOT SUPPORT [THE DIVISION'S] FINDING THAT E.P.'S CONDUCT CONSTITUTED GROSS NEGLIGENCE.

POINT II

THE APPELLATE DIVISION SHOULD REVERSE [THE DIVISION'S] SUBS[T]ANTIATION OF NEGLECT BECAUSE [THE DIVISION] FAILED TO ESTABLISH[,] THROUGH SUFFICIENT CREDIBLE EVIDENCE UNDER [N.J.S.A.] 9:6-8.21(c)(4)(a)[,] THAT E.P. WAS FINANCIALLY ABLE TO PROVIDE MORE APPROPRIATE HOUSING FOR HER CHILDREN.

A. UNDER SUBSECTION (A) of N.J.S.A. 9:6-8.21(c)(4), IN ORDER TO SUBSTANTIATE A FINDING OF NEGLECT, [THE DIVISION] MUST PROVE THAT THE PARENT WAS FINANCIALLY ABLE TO PROVIDE FOR THE CHILDREN OR WAS OFFERED FINANCIAL ASSISTANCE.

B. [THE DIVISON] IMPROPERLY ADOPTED THE ALJ'S FINDINGS[,] ERRONEOUSLY APPLYING SUBSECTION (B) RATHER THAN SUBSECTION

(A) OF THE STATUTE.

C. THE SUBSTANTIAL CREDIBLE EVIDENCE ESTABLISHES THAT E.P. DID NOT HAVE THE FINANCIAL MEANS TO SECURE APPROPRIATE HOUSING, NOR DID [THE DIVISION] OFFER E.P. ASSISTANCE WITH OBTAINING SUCH HOUSING.

Our review of an agency's final decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Ordinarily, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

"[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). In that regard, as a reviewing court, we give "due regard to the opportunity of the one who heard the witnesses" to judge their credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "Agencies, however, have no superior ability to resolve purely legal questions[.]" Greenwood, supra, 127 N.J. at 513.

E.P. initially argues that we "must evaluate the evidence presented de novo to determine whether the statutory requirements have been satisfied and E.P.'s conduct rises to the level of gross negligence." However, the essence of her appeal primarily challenges the factual findings by the ALJ, which were adopted by the Director. E.P. does not argue that if those facts are true, the charge of neglect would not have been sustained as a matter of law. Our limited standard of review requires that we accord deference to those factual findings that are supported by substantial credible evidence in the record as a whole. See, e.g., Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001); Rudbart v. Bd. of Review, 339 N.J. Super. 118, 125 (App. Div. 2001).

A charge of neglect under N.J.S.A. 9:6-8.21c will be upheld where the Division establishes, by the preponderance of the evidence, that a parent or guardian has, among other acts, impaired or has created the risk of imminent danger to the child 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 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.] [N.J.S.A. 9:6-8.21c(4).]

E.P. asserts the Division failed to establish that her conduct rose to the level of gross negligence. We disagree.

In G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-81 (1999), the court analyzed the "minimum degree of care" language set forth in N.J.S.A. 9:6-8.21c. G.S. involved an overdose administered to a child by his caregiver at a health facility. Id. at 166. After a mother dropped her child off at the facility and provided the caregiver directions for the child's medication, the caregiver incorrectly administered the entire bottle of "crushed pills" without obtaining clarification on the correct dosage. Id. at 168. This caused an overdose and resulted in the child's hospitalization. Ibid.

The Court explained, under the statute, "something more than ordinary negligence is required to hold the actor liable[,]" for example, "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. This standard is intended to balance a parent's constitutional right to raise his or her own children with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety[,]" and aims to subject a parent to liability "for injuries produced by the parent's failure to protect the child." Id. at 179-80.

A parent or guardian "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. Ultimately, the Court determined the caregiver in G.S. failed to exercise a minimum degree of care, as she knew, or should have known, of the grave dangers associated with prescription medications, and she "utterly disregarded the substantial probability that harm would result from her actions." Id. at 183.

Subsequent cases have emphasized that a parent's awareness of the dangers inherent in a situation should be the focus of the minimum degree of care standard. See, e.g., Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 310 (2011) (holding a mother who left her four-year-old son in her home alone, when she thought her mother, the boy's grandmother, was home, was negligent but the conduct did constitute to a failure to exercise a minimum degree of care); N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (holding a finding of abuse or neglect was proper because a father was aware of the inherent dangers of leaving his ten-month-old child on a bed, with no railings, based on the father's placing blankets around the child as a buffer); N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (finding a mother's decision to let her children walk to their home from a play area in their complex, as she watched with an unobstructed view, only to result in them being locked inside of their home, did not rise to the level of willful or wanton misconduct to constitute a failure to exercise a minimum degree of care). Ultimately, the determination of whether a parent has neglected a child is fact-specific. G.S., supra, 157 N.J. at 181-82.

Here, few facts were in dispute. In her joint stipulation of facts, E.P. acknowledged that (1) she and her children resided in the Leesburg home at some point in 2007; (2) while living in the Leesburg home, her children began exhibiting signs of lead poisoning, and following a September 24, 2007 inspection, it was determined the Leesburg home contained lead paint; (3) in addition to the presence of lead paint, the grandparents' house was unsanitary on November 30, 2007, because of trash, feces, bottles of urine, food, dirt, numerous pets, and dirty dishes and clothes scattered throughout the house; and

(4) if the children were residing at the grandparents' house, the house presented a substantial risk to their health, safety, and well-being based on the lead and unsanitary conditions. The only disputes were whether the children were actually living at their grandparents' house and E.P.'s financial ability to provide adequate housing or her ability to provide alternative housing.

During the November 5, 2010 hearing before the ALJ, E.P. acknowledged she stated to Rodriguez, when interviewed on November 30, 2007, that "'she has been staying at the [grandparents'] home on and off for approximately two weeks[.]'"

Additionally, Sheriff's Officer Schweibinz testified he spoke to C.S. that same day, and C.S. told him C.K., E.P., and E.P.'s four children lived in the home. Rodriguez testified she interviewed C.K., as well as E.P.'s three older children, all of whom stated that the children had, at times, been living at the Leesburg home. The ALJ credited the testimony of these witnesses. While the ALJ's findings did not pinpoint the exact dates the children were staying in the Leesburg home, there was substantial credible evidence to support the finding they were living there "on and off" for two weeks leading up to and including November 30, 2007. This credibility assessment is entitled to our deference. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

E.P. asserts the grandparents' statement that the children "stayed there" did not necessarily equate to a long-term residency. Long-term residency is not the issue. Rather, the question for resolution was whether, with full knowledge that there were lead issues along with unsanitary conditions, E.P. impaired or created the risk of imminent danger to the physical, mental, or emotional condition of her children by continuing to expose her children to the deplorable conditions at her parents' home in November 2007, specifically on or within close proximity to November 30, 2007. Having stipulated that if the children were found to have been living in the Leesburg home, a substantial risk of harm to the children's health, safety, and well-being had occurred, the Director's findings were supported by substantial credible evidence in the record.

Moreover, the fact that subsequent testing revealed lower levels of lead paint does not alter the outcome, as that fact is not inconsistent with the children living at the Leesburg home on and off after E.P. learned of the presence of lead paint in September 2007. Weighed against the testimony from the Division's witnesses, the ALJ was entitled to find that the witnesses' testimony on the issue of where E.P. and her four children were living on November 30, 2007, and the weeks leading up to that date, more persuasive than evidence of reduced levels of lead paint present in E.P.'s children. While the children may not have been exposed to lead paint and unsanitary conditions on a daily basis, E.P.'s knowing exposure of her children to such conditions at any time, when other acceptable options were available to her, created a risk of harm to the children's health.

A court does not have to wait until a minor is actually harmed or neglected before it can act for the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 344 (2010); see also G.S., supra, 157 N.J. at 175 ("A parent or guardian can commit child abuse even though the resulting injury is not intended . . . . The intent of the parent or guardian is irrelevant.").

The fact that E.P. has married, is employed, and has purchased a home, while positive, does not negate the risk of future harm to her children occasioned by exposure to lead paint or other unsanitary conditions at her parents' home. E.P.'s acknowledgement that she delayed the September 2007 visit by the public health nurse in order to clean her parents' home, over the course of three days, is evidence from which it may be inferred that she was aware of the unsanitary conditions at the Leesburg home and that those conditions were ongoing. It may also be inferred it was the scheduled visit by the public health nurse that motivated E.P. to clean her parents' home, rather than her own personal need to assist her parents, one of whom is disabled, in maintaining the home where she and her four children had taken refuge. Moreover, there was no evidence that the lead paint conditions had been abated. Further, even if the children were not living at the Leesburg home on a daily basis, knowingly exposing the children to these conditions by mere visits created a risk of harm to their health and well-being and amounts to a failure to exercise a minimum degree of care. G.S., supra, 157 N.J. at 183.

We also find no merit to E.P.'s contentions that the Director failed to consider the impact upon E.P. of placing her name in the Central Registry. Such a consideration is not relevant to the determination of whether E.P. committed neglect. "[T]he inquiry should focus on the harm to the [children] and whether that harm could have been prevented had [E.P.] performed some act to remedy the situation or remove the danger." Id. at 181. During her trial testimony, E.P. acknowledged she could have remained living with her boyfriend in his Pennsville home, even though it was too small for anything other than serving as a temporary home, until she entered a shelter on December 3, 2007, but she declined to do so.

Finally, E.P. contends the Division's allegations relate to housing conditions and the ALJ's initial decision should have been based upon whether the Division proved subsection (a) of the neglect statute but was instead based upon subsection (b), which E.P. argues relates to supervision. See, e.g., T.B., supra, 207 N.J. at 303 (applying N.J.S.A. 9:6-8.21(c)(4)(b) where parent left child at home without supervision); see also G.S., supra, 157 N.J. at 172-73 (applying N.J.S.A. 9:6-8.21(c)(4)(b) where caregiver failed to exercise a minimum degree of care in supervising minor). Implicit in that contention is the charge that the ALJ did not adhere to proper legal principles in reaching its decision and had he done so, the charge of neglect could not have been sustained because E.P lacked the financial resources to provide adequate housing. As such, the ALJ's finding of neglect under subsection (b) represented an end run around subsection (a), upon which the Division substantiated its charge of neglect and prosecuted the matter before the ALJ.

We initially observe that at the time the hearing commenced, defense counsel argued that one of the issues the court was required to find was whether E.P. had the financial resources to secure adequate housing for her children. Under direct examination, E.P. was questioned extensively about her financial resources in relation to her ability to secure housing.

Nonetheless, when written submissions were submitted, defense counsel did not raise, as an issue, the Division's failure to establish the second prong under subsection (a). Further, after the ALJ issued his initial decision where he expressly referenced subsection (b), E.P. did not, in her exceptions filed with the Director, raise the issue of the Division's failure to prove the second prong of subsection (a) or the ALJ's reliance upon subsection (b) as a basis for finding abuse or neglect. We can only surmise the decision to forego any reference to this issue at that time was based upon E.P.'s testimony that other than November 22, 2007, Thanksgiving Day, her children never returned to the Leesburg home of her parents after she was made aware of the presence of lead paint in the home in September 2007.

Because the ALJ discredited this testimony and that of her witnesses on this issue, the ALJ should have proceeded to address whether the Division proved that E.P.'s failure to provide the housing was not because she was financially unable to do so or had no other reasonable means to do so. Rather than engage in this analysis, the ALJ converted the issue into whether E.P.'s conduct "in allowing her children [to] be exposed to lead[-]based paint and unsanitary living conditions amounted to grossly and wantonly creating negligent conduct" under N.J.S.A. 9:6-8.21c(4)(b).

The definition of "allow" includes: "To sanction the presence of[.]" Webster's II New College Dictionary 31 (3rd ed. 2005). The facts here unquestionably support the ALJ's conclusion that E.P. sanctioned the presence of her children in her parents' home on and off during November 2007. The failure to make a specific finding as to E.P.'s financial ability to provide adequate housing and, ultimately, a finding of neglect under subsection (a) does not, however, warrant reversal in light of E.P.'s testimony that she had alternative housing to which she could have resorted during this time period. Specifically, E.P. testified that she had moved her "seven[-]sleeper camper from [her] parents' home" to next door to her boyfriend's two-bedroom home in Pennsville where "everybody still had room and a bit of privacy." Thus, whether E.P. had other reasonable means of providing adequate housing was not disputed. Therefore, the facts supported a finding of neglect based upon subsection (a) notwithstanding the ALJ's failure to make this finding. Although we agree that subsection (b) is directed to supervision by the parents, E.P.'s knowing exposure of her children to the deplorable conditions within her parents' home, conditions about which she had notice and for which she was also aware posed the risk of harm to her children, also demonstrates poor supervision.

Affirmed.

20120702

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