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New Jersey Division of Youth and Family Services v. J.H. and A.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
J.H. AND A.H., SR., DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF A.M.H., JR., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FN-11-101-09 and FG-11-22-11.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2012

Before Judges Reisner, Yannotti and Hoffman.

Defendants J.H. and A.H. appeal from an order entered by the Family Part in protective custody litigation brought by plaintiff Division of Youth and Family Services (Division),*fn1 finding that defendants abused or neglected their child, A.M.H., Jr. (A.J.). The Division cross-appeals from an order entered in that case, which denied its motion to be relieved of its obligation to make reasonable efforts to reunify the family. J.H. and A.H. also appeal from a May 24, 2011 order entered in the subsequently-filed guardianship action, terminating their parental rights to the child. For the reasons that follow, we affirm the orders challenged by defendants in their appeals, and dismiss the Division's cross-appeal as moot.

I.

The following is a brief summary of the relevant facts and procedural history. A.J. was born in August 2008. On January 18, 2009, defendants brought A.J. to the emergency room at Robert Wood Johnson Hospital (Robert Wood) because in the previous weeks, the child had decreased movement of his legs, decreased formula intake, a low-grade fever, and was vomiting, crying, irritable and not sleeping. A.J. was admitted to the pediatric intensive care unit. The staff noted that A.J. had low muscle tone in his legs and a palpable mass over his spine. An MRI revealed the presence of an epidural mass, possibly related to infection.

At defendants' request, A.J. was transferred to Children's Hospital of Philadelphia (CHOP) on January 24, 2009. A review of the MRI taken at Robert Wood indicated that a small lesion was pressing on A.J.'s spinal cord, which raised a concern as to a possible infection. On January 25, 2009, an emergency laminectomy, spinal decompression, and biopsy were performed. A CHOP oncologist determined that the biopsy sample was most consistent with a rare, benign fatty tumor.

After the surgery, A.J.'s condition improved somewhat. On January 29, 2009, A.J. was given physical therapy to address his poor muscle tone. The therapist extended A.J.'s extremities, noting that he had cried during the therapy but had been consolable. Later that day, after A.J. experienced increased pain with passive range of motion of his lower extremities, medical personnel prescribed pain medication.

During a physical therapy session on February 3, 2009, a hard mass was observed on the child's right elbow. X-rays revealed that A.J. had a "[c]hronic fracture-dislocation of the right elbow" and an "old healed fracture of the left radius." CHOP radiologist Richard I. Markowitz, M.D. (Dr. Markowitz) reviewed the x-rays and reported that the findings were "highly suspicious" for unsuspected or repetitive trauma.

On February 4, 2009, A.J. underwent a full skeletal survey, which revealed that he had sustained twelve to fourteen fractures, including fractures to the ribs, right humerus, left humerus, left radius, right tibia (ankle and shin), and left tibia (ankle), but otherwise had normal bone structure and density. Pediatrician Sarah Methe Frioux, M.D. (Dr. Frioux) determined that A.J.'s rib fractures likely occurred before January 8, 2009, but after December 26, 2008, and that it was not possible to date the other fractures accurately. Defendants were confronted with the results of the skeletal survey, and denied any wrongdoing. They offered no explanation as to how A.J. sustained the injuries.

On February 5, 2009, CHOP reported to the Division that A.J. had multiple, unexplained "bone fractures." Division investigator Gary Byrne (Byrne) responded to the referral. Dr. Frioux told Byrne that A.J. had up to fourteen healing fractures that were "highly suggestive of abuse," but CHOP had not yet ruled out other causes for the fractures or determined the cause of the paraspinal mass.

Byrne spoke with defendants, who denied any knowledge as to how A.J. had sustained the injuries. Defendants claimed that other people had taken care of A.J., including three persons who resided with them for several weeks in November 2008, until defendants asked them to leave for stealing and heavy drinking.

J.H. denied any domestic violence and drug or alcohol use, but admitted she was on disability for post partum depression. A.H. denied any domestic violence and current drug use, but noted that he was unemployed, having been recently fired for sexual harassment. A.H. also indicated that he had been charged with simple assault of his stepfather, and was being treated for depression.

On February 9, 2009, Dr. Frioux informed Byrne that CHOP had ruled out a genetic bone disease, sometimes referred to as brittle bone disease, because A.J. had no clinical features suggestive of the disease and there was no family history of bone fragility. CHOP also determined that A.J.'s paraspinal mass had resulted from trauma caused when he was "slammed down" on a hard surface in a sitting position. In addition, Byrne was told that two dime-sized burns in A.J.'s throat were caused by drinking overheated formula.

The Division concluded that the charges of physical abuse had been substantiated. A.J. remained at CHOP, where the physicians considered and ruled out the possibility that A.J.'s fractures were caused by a vitamin deficiency, or rickets. A skin biopsy confirmed that A.J. did not have a collagen disorder. Lab tests for calcium, phosphorus, vitamin C, copper, and parathyroid hormones were all normal. A.J.'s vitamin D level was within normal range, and he did not have any physical signs of rickets.

In addition, a CHOP pathologist determined that A.J.'s paraspinal mass was not a benign tumor, but rather a collection of ruptured blood vessels caused by trauma. The consensus of CHOP's physicians was that A.J.'s fractures, spinal abnormality, low muscle tone and poor feeding, resulted from non-accidental trauma.

On February 20, 2009, the Division filed a verified complaint and order to show cause, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, seeking temporary custody of A.J. (the Title Nine case). The court entered an order awarding the Division temporary legal and physical custody of the child. The court found that it would be contrary to A.J.'s welfare to return him to defendants, noting that the child had multiple unexplained injuries that at least prima facially occurred while he was in defendants' care. The child was placed in the care of A.H.'s cousin and her husband, where he remained throughout the litigation.

The court later conducted a fact-finding hearing in the case. At the conclusion of the hearing, the judge found that the Division had established by a preponderance of the evidence that defendants had abused or neglected A.J. by inflicting non-accidental injuries and failing to exercise a minimal level of care regarding the child. The judge rejected defendants' theory that A.J.'s injuries were caused by rickets or brittle bone disease.

The judge stated that, while the Division had satisfied the preponderance of the evidence standard, he chose not to make his findings by clear and convincing evidence. The judge stated that the dating of two of the fractures indicated that they might have occurred while A.J. was hospitalized. The judge said, however, that the possibility that the two of the fractures may have occurred in the hospital did not change his opinion that the child had been abused or neglected.

The judge entered an order dated May 6, 2010, memorializing his findings. On June 18, 2010, the Division filed a motion requesting that the judge make his findings of abuse and neglect by clear and convincing evidence. The judge denied the motion.

The judge later held hearings on the Division's permanency plan for termination of defendants' parental rights, followed by foster-parent adoption. On July 1, 2010, the judge refused to approve the plan, and directed the Division to explore kinship legal guardianship (KLG).

On August 4, 2010, the judge determined that the Division's plan was not acceptable because the Division had not established that it had given good faith consideration to alternatives to termination of parental rights, including KLG. The judge stated, however, that the Division could file a guardianship complaint at its discretion.

The Division thereafter filed a motion for relief from its obligation to make reasonable efforts to reunify A.J. with defendants. The judge considered the motion and noted that the Division had made the effort to obtain jurisdiction over defendants so that they could be required to undertake services, and it would be unfair to have done "all of that . . . for nothing." The judge entered an order dated October 6, 2010, denying the motion.

On October 22, 2010, the Division filed its guardianship complaint, seeking termination of J.H.'s and A.H.'s parental rights to A.J. On January 5, 2011, the judge filed an order terminating the Title Nine case. J.H. and A.H. filed notices of appeal from the court's May 6, 2010 and January 5, 2011 orders, and the appeals were docketed as A-2949-10 and A-2950-10. We consolidated the appeals for purposes of sharing transcripts, but required appellants to file separate briefs.

Thereafter, the judge in the guardianship case conducted a trial on the Division's complaint over ten days, from May 4 to 17, 2011. On May 24, 2011, the judge filed a lengthy opinion in which he concluded that the Division had established by clear and convincing evidence all four prongs of the "best interests" test under N.J.S.A. 30:4C-15.1(a) for termination of J.H.'s and A.H.'s parental rights.

The judge entered final judgment on May 24, 2011. J.H. and A.H. thereafter filed notices of appeal, and the appeals were docketed as A-5420-10 and A-5421-10. We consolidated these appeals for purposes of sharing transcripts, but required separate briefs for each appellant. We thereafter consolidated the appeals with the previously-filed appeals from the orders entered in the Title Nine case.

II.

We turn first to defendants' appeal from the trial court's judgment terminating their parental rights to A.J. Both appellants contend that the Division failed to establish the four prongs of the "best interests" test under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

Under N.J.S.A. 30:4C-15.1(a), the Division may file a petition to terminate parental rights on the grounds of the "best interests of the child" if:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

The four statutory factors are not "discrete and separate" but rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The Division must prove each of the four factors by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

The scope of our review of a trial court's decision to terminate parental rights is limited. Id. at 605. (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "Particular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Furthermore, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, supra, 154 N.J. at 413).

A. Prong One

Under this prong, the Division must establish that the child's safety, health, or development has been or will continue to be endangered or harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1); I.S., supra, 202 N.J. at 170. The harm shown "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.

Here, the trial judge determined that the Division had established that A.J.'s safety, health or development had been harmed by his relationship with defendants. The judge stated that there were four bases for this conclusion: (1) the burns in A.J.'s throat from excessively-hot formula; (2) the child's broken bones; (3) the "unfitness to parent" that caused the broken bones; and (4) "the unfitness to parent aside from the physical abuse." The judge stated that A.H. caused the physical harm to the child, and J.H. knew of the physical abuse and "looked the other way." The judge determined that both defendants were equally responsible for the physical harm, and both were responsible for their own psychological unfitness to parent.

Defendants contend that that the Division failed to present clear and convincing evidence establishing that the child's bone fractures were due to physical abuse. They note that in the Title Nine case, the judge determined that the evidence regarding the child's physical injuries met the preponderance of evidence standard but not the clear and convincing standard.

Defendants contend that the evidence regarding the pre-removal injuries presented in the Title Nine case was essentially the same as that presented at the guardianship trial, and it was error for the judge in the latter proceeding to find that the evidence "suddenly rose" to the "exacting" clear and convincing standard. We are not persuaded by these arguments.

In New Jersey Division of Youth & Family Services v. R.D., 207 N.J. 88, 93, 120 (2011), the Court held that determinations made in the adjudication of a Title Nine case cannot be given collateral estoppel effect in the later-filed guardianship case unless the parties were placed on notice that the Title Nine proceedings were to be conducted under the higher evidentiary standard, and appropriate accommodations were made for the fundamentally different natures of both proceedings.

The Court in R.D., did not, however, hold that the Division had only one opportunity to litigate the issue of whether a parent caused harm. Indeed, the Court specifically noted that, "if the proofs only satisfy the preponderance of the evidence standard, the Title Nine court may still make its abuse or neglect findings for purely Title Nine purposes and without preclusive effect in a later Title Thirty [action]." Id. at 120 n.12.

Thus, the determination of the judge in the Title Nine case that the Division's evidence that A.J.'s fractures were caused by defendants' abuse or neglect only met the preponderance of evidence standard did not preclude the judge in the guardianship action from finding that the Division had established prong one of the "best interests" standard by clear and convincing evidence. We are satisfied that the record supports that finding.

At the trial, the Division presented testimony from Dr. Markowitz, who specializes in pediatric radiology. He explained that rickets is a systemic disease which is primarily caused by a vitamin D deficiency. The disease interferes with normal bone growth and results in changes in the shape or structure of bones. Dr. Markowitz said that rickets affects the growing ends of a child's bone, and is most evident in bones that grow fastest, such a knees, wrists, shoulders, and ribs.

Dr. Markowitz reviewed the x-rays of A.J.'s skeletal study and stated that they did not depict any radiographic signs of rickets. He stated that the x-rays depicted eleven to twelve healing fractures, some of which were in locations that were highly specific for child abuse. Dr. Frioux also testified that A.J.'s fractures resulted from inflicted trauma. She explained that fractures in children suffering from rickets are "actually very rare," and typically occur at the growth plates, not the ribs. Dr. Frioux could not precisely date the fractures, but estimated that they had occurred before A.J.'s admission to Robert Wood on January 18, 2009.

Defendants presented testimony from David M. Ayoub, M.D. (Dr. Ayoub), a board-certified radiologist. He reviewed the x-rays and stated that some of the x-rays revealed evidence of healing rickets. Dr. Ayoub opined that A.J. was suffering from rickets, which contributed to his bone fragility. He stated that, because there were no findings of grossly abnormal bone mineralization, he believed that A.J. "most likely suffered most of his injuries from physical manipulations by caregivers during his long hospitalization."

The judge rejected Dr. Ayoub's testimony. The judge noted that it was undisputed that A.J. never presented with any clinical signs indicating he was suffering from rickets. Indeed, A.J.'s pediatrician testified that she never observed any symptoms of the disease. The judge also refused to credit the testimony of William Manion, M.D. (Dr. Manion), a forensic pathologist, who testified about the cause of A.J. paraspinal mass. The judge noted that Dr. Manion had only given "a cursory review of the file and another expert's report" when formulating his opinion.

The judge found Dr. Markowitz's testimony more credible and persuasive. The judge pointed out that Dr. Markowitz had reviewed the x-rays and opined that they did not show any signs of rickets. The judge also found that Dr. Frioux's testimony on these issues was credible. The record therefore supports the court's findings that A.J.'s bone fractures were the result of inflicted trauma, not rickets, and that the injuries occurred while A.J. was in defendants' care.

The record also supports the court's finding that defendants harmed A.J. by burning his throat. The January 10, 2009, report of Robert Wood's emergency room staff indicates that A.J. had white patches on the back of his throat and roof of his mouth. Three days later, Helen Flores, M.D. (Dr. Flores), saw A.J. Dr. Flores stated that A.J. had what she believed was a burn in his mouth, which she suspected was caused by being fed overheated formula. Dr. Flores counseled defendants not to heat the formula in a microwave. Furthermore, J.H.'s aunt D.C. testified that J.H. yelled at A.H., telling him that she told him not to feed A.J. formula that had been heated in the microwave. A.H. did not respond.

In addition, the record supports the court's determination that A.J. also was harmed by defendants' unfitness to parent. Barry A. Katz, Ph.D. (Dr. Katz), and Maureen Santina, Ph.D. (Dr. Santina), performed psychological evaluations of defendants. Dr. Katz and Dr. Santina found that both defendants were unable to safely parent A.J. despite the numerous services provided to them.

In his March 2011 evaluation of A.H., Dr. Katz noted that A.H. continued to deny having committed any acts of domestic violence, even though he had been arrested several times and the police had been called to the home for a domestic violence incident earlier that month. A.H. also minimized his issues with anger, even though he had been fired from jobs for that behavior.

Dr. Katz found that, despite having undergone counseling and anger management, A.H. continued to engage in domestic violence. He said that A.H. was not capable of parenting A.J., and the prognosis for his doing so in the foreseeable future was "bleak to dismal."

In his March 2011 evaluation of J.H., Dr. Katz noted that J.H. fit the profile of a victim of domestic violence. He wrote that, after having been provided with nine months of domestic violence counseling and other services, J.H.'s prognosis for effective parenting had worsened, and there were no other services that could help her overcome her deficits. Dr. Katz concluded that J.H. could not adequately protect A.J. from harm, because if he were in danger from A.H., there was a high likelihood she would not seek appropriate care but would instead "default back to a pattern of denial and minimization."

We therefore conclude that the record supports the judge's finding that the evidence clearly and convincingly showed that A.J.'s health, safety and development had been harmed by his relationship to defendants.

B. Prong Two

The second prong of the best interests standard relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. Under this prong, the Division must show that the parent is "unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2).

There are two ways to establish the second prong. Under the first approach, the Division must "show not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348 (citing N.J.S.A. 30:4C-15.1(a)(2)). The "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Ibid. (citing In re Gardianship of J.C., 129 N.J. 1, 10 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 606-07 (1986)).

Alternatively, the Division can establish the second prong by establishing "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49 (citing N.J.S.A. 30:4C-15.1(a)(2)). Under this approach, the Division can establish this prong "if it can show 'that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting K.H.O., supra, 161 N.J. at 363).

Defendants argue the judge erred by finding, under the first alternative, that they were unwilling to overcome the harm to A.J. because they were compliant with all services and maintained an appropriate and loving relationship with their son. However, Dr. Katz's testimony fully supported the court's determination that defendants would not be capable of parenting A.J. in the foreseeable future, despite their participation in services.

Defendants further argue the judge erred by finding, under the second alternative, that A.J. would suffer harm if removed from his foster parents. They argue that a "more favorable relationship with the foster family can never justify termination of parental rights," particularly when they did not contribute to the delay.

Here, Dr. Katz and Dr. Santina opined that A.J. would suffer enduring harm if removed from his foster parents. Furthermore, while A.J.'s placement has been continued due to the delay in concluding this matter, the delay was primarily due to the complex nature of the case, occasioned in large part by the very serious injuries sustained by A.J. Moreover, given the nature of A.J.'s injuries, the Division provided reasonable visitation and proper reunification services.

We are convinced that, under the circumstances, the judge did not err by considering the effect of A.J.'s removal from his foster parents in deciding that the Division clearly and convincingly established the second prong. The record supports the judge's finding that A.J. will suffer substantially if the bond with his foster parents is severed.

C. Prong Three

The third prong of the "best interests" test requires the Division to undertake reasonable efforts to provide services to help the parent correct the circumstances that led to the child's placement outside the home, and to consider alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3).

Here, the judge found that the Division made "reasonable efforts" to remedy the circumstances that led to A.J.'s removal from the home. The record supports that finding. As the judge pointed out, the Division provided services to defendants, including domestic violence counseling, parenting and anger management classes, substance abuse assessments, substance abuse treatment for A.H., as well as supervised and therapeutic visitation. The judge additionally found that the Division had "thoroughly explored" alternatives to termination of parental rights. The judge determined that there was no alternative to termination of parental rights.

Defendants argue that the judge erred by failing to consider KLG as an alternative to termination of parental rights. They contend that KLG should have been considered for "other relatives," including J.H.'s father. KLG is not, however, an option where adoption is feasible and likely, N.J.S.A. 3B:12A-1(c), and KLG "cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004).

Here, A.J.'s foster parents expressed their strong and unequivocal desire to adopt A.J., who had been in their care since he was six-months old, even though the option of KLG had been explained to them and they had participated in mediation toward that end. KLG was not available as an alternative to termination of parental rights in this case because adoption by the foster parents was feasible and likely. N.J.S.A. 3B:12A-1(c).

Thus, the judge did not err in failing to consider KLG as to "other relatives," or in failing to determine whether KLG was in A.J.'s best interest. We are satisfied that the record supports the judge's finding that the Division clearly and convincingly established prong three of the "best interests" test.

D. Prong four

Prong four requires the Division to prove that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This "prong serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). In this case, the judge found that there was "no relationship left" between A.J. and defendants, and someone other than defendants would have to assume responsibility for raising A.J. The judge found that "termination of parental rights will do much more good than harm."

We are satisfied that the record supports the judge's findings. Dr. Katz and Dr. Santina testified that neither J.H. nor A.H. were capable of parenting A.J., and placement of the child with them would expose him to severe physical and psychological harm. Moreover, the bonding evaluations showed that A.J. had an ambiguous attachment to defendants. Therefore, separation of A.J. from defendants would not cause him harm, whereas severing A.J.'s relationship with his foster parents would cause the child to suffer severe and enduring psychological harm.

We have considered defendants' other arguments regarding the trial court's order terminating their parental rights, and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

We conclude that the judge correctly found that the Division had clearly and convincingly established all four prongs of the "best interests" test in N.J.S.A. 30:4C-15.1(a). Accordingly, we affirm the order terminating defendants' parental rights to A.J.

III.

We turn to defendants' appeals from the orders entered in the Title Nine case. Defendants argue that because there was no evidence that their conduct was "willful and wanton," the judge erred by finding that A.J. was an abused or neglected child under N.J.S.A. 9:6-8.21(c)(4). We do not agree.

An abused or neglected child is defined in part as: a child less than 18 years of age whose parent . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 . . . 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 [N.J.S.A. 9:6-8.21(c).]

The failure to exercise a "minimum degree of care" does not require intentional conduct, but requires at least "grossly negligent or reckless conduct." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). During a child abuse or neglect hearing, proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child . . . . [N.J.S.A. 9:6-8.46(a)(2).]

Here, the judge found that defendants abused or neglected A.J. Proof of willful or wanton conduct was not required. T.B., supra, 207 N.J. at 306. The judge's findings are binding on appeal where, as here, they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (citing Cesare, supra, 154 N.J. at 413).

In its cross-appeal, the Division argues that the judge in the Title Nine case erred by denying its motion for relief from its obligation to make reasonable efforts to reunify A.J. with defendants. As we have explained, after the judge's ruling, the Division continued to make efforts to reunify the family. In the guardianship case, the judge found that the Division satisfied its obligation to make reasonable efforts to address the circumstances that led to the child's placement outside the home. In view of our determination affirming the order terminating defendants' parental rights, the issue raised in the Division's cross-appeal is moot.

Accordingly, the order at issue in A-5420-10 and A-5421-10 terminating defendants' parental rights is affirmed as to both defendants. The order at issue in A-2949-10 and A-2950-10 also is affirmed as to both defendants and the Division's cross-appeal is dismissed as moot.


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