October 29, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
IN THE MATTER OF A.M., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-247-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2012
Before Judges Axelrad and Sapp-Peterson.
C.P. (Shirley), a Pennsylvania resident, appeals from a June 8, 20ll order of the Family Part, entered after a fact-finding hearing, of abuse and neglect. Specifically, the court found Shirley improperly abandoned her great niece A.M. (Annie), then nine years old, to the child's mother J.M. (Jane) without the Division's approval. At trial, the Law Guardian opposed the finding of abuse or neglect against Shirley and joins in the appeal. As we are not convinced the order is supported by substantial, credible evidence in the record, we reverse.
The record reflected that Shirley is Annie's legal guardian. She took custody of the child immediately after her birth on June 17, 2001, pursuant to a private agreement with Jane, codified in an order of September 18, 2001 (FD-07-2152-02-V). At the time of the child's birth, Jane tested positive for marijuana. Jane resides in Newark and is the mother of three other children, none of whom are in her care. Shirley moved with Annie from New Jersey in May 2008, and cared for her at her home in Easton, Pennsylvania, where her boyfriend, daughter, and two grandchildren also resided. Shirley works the night shift at Newark Beth Israel Medical Center.
On February l6, 2011, the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services (the Division) received a referral from the Pennsylvania Child Protective Services (CPS), advising that Shirley had brought Annie to New Jersey and left her with Jane the previous night. The Division proceeded with an emergency removal of Annie, and on February 22, 2011, filed a verified complaint against Jane and Shirley pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, alleging abuse or neglect, and seeking custody, care or supervision of Annie. Following testimony by the Division investigator, the court ordered the matter to proceed as a Title 9 abuse and neglect action as to Shirley for abandoning Annie to the care of Jane, and ordered continued custody of the child with the Division.
At a review hearing on March 15, 2011, Shirley and the investigator testified. At the factfinding hearing on June 7, 2011, the Division presented the testimony of the investigator and intake caseworker. Shirley was present with counsel and was sworn in, but she did not testify. On June 8, 2011, the court articulated the following oral findings and conclusions regarding Shirley:
The Court . . . will substantiate as to [Shirley], and will not substantiate as to [Jane].
The basis for the substantiation as to [Shirley] . . . the Court finds, by a preponderance of the evidence, that she did abandon the minor, that other options available to her included her appearing before a court of competent jurisdiction in order to have the custody order vacated.
The memorializing order stated:
[T]he court hereby determines by a preponderance of the evidence that the defendant [Shirley] abused or neglected the child(ren) [Annie] in that [Shirley] who was the legal custodian of [Annie] for the past nine years, abandoned the child by bringing her to New Jersey and leaving her in the care of her mother without sufficient provisions. [Shirley] had other options including appearing in a Court of competent jurisdiction to surrender the child.
This appeal ensued.
Shirley and the investigator testified that Annie has been diagnosed with bi-polar disorder, attention deficit hyperactivity disorder, and oppositional defiance disorder. Shirley testified that when Annie was five or six years old, she began to display aggressive, hostile and disruptive behaviors at school and at home. Numerous times she attacked teachers at school, at times so severely they were sent to the hospital. The police were called to Shirley's home on several occasions because of Annie's behavior, as she attacked Shirley, Shirley's two-year-old grandson, and Shirley's sister (Jane's mother).
Shirley related that there were times when she would come home from working her evening shift and "everything is destroyed."
Annie had to be hospitalized numerous times in Pennsylvania and New Jersey because of suicidal and violent episodes and other emotional breakdowns. Shirley further explained that Annie received in-home counseling; she went to a therapeutic foster home for a short time; she was prescribed an assortment of behavior-controlling and mood-stabilizing medications in different hospitals; and she was placed in a foster hospitalization school where the focus was more on emotional support than academic. According to Shirley, Annie would do well for a while but nothing would help consistently. When Annie would not get her way, she would start acting out. As Shirley described:
[Annie], she can be loving. Don't get me wrong. She's not always acting out. She can be real loving, and calm as the Pennsylvania DYFS people have seen. She sits down, and she can conver[se] with her. As soon as something [doesn't] go your way she destroys every[thing] . . . she's acting a little sweet, you know, when she gets mad, she gets mad. It's like a hurricane. She tore . . . the door off the hinges, holes all in the wall. The DYFS in Pennsylvania know this. They have seen her in action. They [saw] -- they [were] there one time when she had it, and she destroyed a whole house . . . then when she calms down, she calms down. And she's just like nothing happened. But it does happen . . . it could trigger when you tell her no sometimes.
Shirley testified that CPS told her to return Annie to her mother, so that is what she did, "thinking it would be okay."
The investigator testified at the February hearing that the Division's records reflected Shirley dropped Annie off at Jane's house because she was "fed up" and could no longer care for her. She explained that there was visitation in place prior to Shirley dropping Annie off and Annie had visited her mother on several prior weekends. She testified that Jane had suffered from mental health issues and had tested positive for marijuana at a court hearing the prior month, so the Division had a concern for the safety of Annie in Jane's care. She further related that Annie had to be removed from her foster placement and taken to a crisis center because she threw around the furniture in the house, threatened a family member with a knife, and expressed suicidal tendencies.
At the factfinding hearing, the Division's attorney represented that Shirley had an open case with CPS involving Annie, and when Annie made threats against her, she contacted the agency and requested services, possibly seeking to have the child removed from her home, but she did not receive the requested services. In addition, when Shirley brought Annie to New Jersey, Jane was in recovery and participating in a two-week rehabilitation program at Newark Beth Israel Medical Center.
The investigator testified that Shirley dropped Annie off at Jane's house after caring for her for nine years, with the "clothes on her back, and her medication[,]" stating she "couldn't handle her anymore." When Shirley was contacted, she responded that she had been advised by CPS to bring Annie to New Jersey and CPS would close its case in Pennsylvania; she was not aware there would be a problem with dropping Annie off at Jane's house. Shirley acknowledged she had not contacted the Division; however, she had contacted CPS and had received that agency's approval. The investigator explained:
[S]he was advised by Pennsylvania staff that it wouldn't be a problem for her to bring her to New Jersey . . . and, basically, her initial reason was that she couldn't handle her behaviors anymore at home, and her responsibilities of having two jobs, and not having the hours to - to care for her. And the other - she had other children in the home, too, so she felt like  the other children were at risk with [Annie's] behaviors in the home.
On cross-examination, the caseworker acknowledged Annie told her she did not want to live with Shirley. Moreover, she had trashed her room and clothes before Shirley brought her to New Jersey. The investigator also acknowledged that Annie's allegations of physical abuse by Shirley's boyfriend against her were investigated by CPS and deemed unfounded. Shirley gave Jane $65 with instructions to purchase food.
The intake caseworker testified that Shirley provided Jane with Annie's medications, organized and marked so Jane would know how to administer them. She confirmed Jane's attendance at the Newark Beth Israel Medical Center program.
On appeal, Shirley argues: (1) Annie was not an abused or neglected child because she was never harmed or at risk of harm; (2) Shirley did not abandon Annie and she did not fail to exercise a minimum degree of care in entrusting Annie to the care of Jane; and (3) there is no value to placing Shirley's name on the Central Registry as she does not pose a risk to the general public or other children. The Law Guardian joins in these arguments, contending it was error for the trial court to make a finding of abuse and neglect under the circumstances of this case. Based on our review of the record and applicable law, we agree.
Abuse or neglect cases fall under Title 9, which places the safety of children as the paramount concern. N.J.S.A. 9:6-8.8, and -8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). The judge has a duty to conduct a fact-finding hearing to determine whether the Division has proved abuse or neglect by a preponderance of the evidence.
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.44, -8.46(b).
N.J.S.A. 9:6-8.21 defines an "[a]bused or neglected child," in pertinent part, as
(4)  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 . . . 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 . . . ;
(5) or a child who has been willfully abandoned by his parent or guardian[.] [N.J.S.A. 9:6-8.21c.]
"Abandonment" is defined as:
Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.
"[T]he proper focus of an inquiry under N.J.S.A. 9:6-8.21 is on the harm to the child." Dep't of Human Servs. v. G.S., 157 N.J. 161, 180 (1999). Moreover, a parent or guardian's "conduct must be evaluated in context based on the risks posed by the situation." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011).
For nine years and under extremely difficult circumstances, Shirley provided food, shelter, love, and a great deal of nurturing to her great niece Annie. She tried her best to raise the adolescent and address Annie's significant psychiatric and emotional problems, withstanding physical attack, destruction of her home, and a merry-go-round existence of never knowing when Annie would act out and possess a threat to herself or others. Shirley sought, and apparently obtained, some assistance from CPS, but not enough, and CPS was apparently unwilling to place Annie outside of Shirley's home.
Meanwhile, Annie's aggressive behavior intensified with age and even hospitalizations were insufficient to address her severe mental and emotional problems. To make matters worse, Annie did not want to continue to live with Shirley. By the time Annie was nine years old, Shirley was at her wit's end. She was concerned about her safety and the safety of the grandchildren in her care. In addition, she had maintained contact with Jane, who had been visiting with Annie, and did not believe she would be exposing the child to physical or moral risks by dropping her off at Jane's house in New Jersey. When the caseworker went to Jane's to pick up Annie, she was fine, showed no evidence of harm, and there was sufficient food in the house.*fn1
Perhaps most critical was Shirley's testimony at prior hearings and her representations to Division workers, uncontradicted by testimony from a CPS worker, about the instruction by a CPS worker to drop Annie off in New Jersey at Jane's house and have the Division take over the case. It would have been preferable for Shirley to have contacted the Division herself and to have turned Annie over directly to that agency rather than to Jane. That being said, however, we are not convinced Shirley subjected Annie to significant risk of harm such as to constitute abandonment or abuse or neglect within the intendment of the statute or case law. Nor are we convinced Shirley, who voluntarily gave up nine years of her life to care for her great niece, should be placed on the Central Registry of Child Abusers.