May 29, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
J.W.C., Defendant-Appellant. IN THE MATTER OF M.D., J.D., T.D., S.D., E.D. AND T.D., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-175-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Eden F. Feld, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.D., J.D., T.D., S.D., E.D. and T.D. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
Before Judges Ostrer and Mantineo.
Following a fact-finding hearing,  the Family Part determined defendant J.W.C. (Jennifer) had abused or neglected the six children under her care when she affirmatively ignored the Division's "Safety Case Plan" (safety plan) and allowed her children to live in a home with no electricity when other safer options were available, N.J.S.A. 9:6-8:21c(4)(b). Jennifer appeals from the confirming order. We affirm.
Jennifer is step-mother to six minor children under her care, M.D. (age 17); J.D. (age 14); T.D. (age 10); S.D. (age 7); E.D. (age 6); and T.D. (age 4). The family initially became known to the Division in 2009 as a result of allegations of physical abuse and domestic violence committed by the children's father, R.D. (Randy) upon both Jennifer and the children. The Division provided services to the family and the case was closed in June 2011. The instant matter concerns two referrals made in July and August 2011, when the Division was notified the children were living without electricity in the family home.
We discern the following facts from the transcript of the fact-finding hearing. Five individuals testified at the hearing: Division intake worker Cyndi Cruz; caseworker Cheryl Collins; police officer Harry Pizzico; Jennifer; and Randy. The Division also introduced documentary evidence that included the Division's investigation summary, screening summary, two safety plans and a police report.
On July 15, 2011, the Division received a referral stating the children had been living in Jennifer's home without electricity. The referent also cited concerns with the mother's inappropriate behavior and poor parenting skills, alleging Jennifer would often leave the children home alone, was frequently out partying and would invite teenage boys over and engage in sex with them, occasionally, in the presence of the children. The Division dispatched a caseworker to investigate the allegations. The caseworker spoke with Jennifer and confirmed that the home was without electricity. Jennifer explained she was waiting for the electric company to replace the meter that had been partially ripped off her home.
On July 18, 2011, the caseworker returned to Jennifer's residence to determine if the electricity had been restored. The caseworker noted the meter had been fully removed from the house since her last visit only three days earlier. The caseworker called the electric company and a representative confirmed the meter had been removed as the result of an unpaid balance.
The caseworker returned to Jennifer's residence on July 19, 2011, and found Jennifer and the children again at home. Jennifer indicated that she was waiting for the electric company to restore service, but added that she had a friend who was going to put the meter back on the house. Jennifer acknowledged there was an unpaid balance of $2, 209 owed to the electric company and conceded she did not currently have the money needed to pay the bill, but was working towards that end. With this admission, the caseworker referred Jennifer to the Division's program that would help restore the electric service by paying a percentage of her utility bills. The caseworker explained that in order to qualify for this program, Jennifer would need to enter a Division safety plan, which Jennifer did.
The safety plan stipulated several minimum requirements: the children were to reside with their maternal step-grandmother and were not permitted to return to the family home until electricity had been restored; and Jennifer was to complete psychological and drug evaluations.
The Division received a second referral on August 16, 2011, from the local police department. The referral was made after Randy reported to the police that he saw his two eldest daughters at a nearby Wawa at 11:00 p.m. They were seated in the truck usually driven by Jennifer. The girls were with two young men, "beer bottles [were] thrown out of the window" and the group was "carrying on, partying. . . ." Randy was also concerned because he has recently suspended the registration of the truck, which was in his name.
After receiving this information, officers were dispatched to the family home. The officers knocked on the front door several times but received no answer. The officers then walked into the backyard where they observed a barbeque grill smoldering, indicating recent use. The officers also observed through a sliding glass door a young child asleep in a chair. After several minutes of knocking, Jennifer answered the door and told the officers that she was in the process of putting the children to bed. The officers observed at least six children in the home. The officers advised Jennifer she could not remain in the home with her children while there was no electricity. Jennifer acknowledged the children were not supposed to be at the house and agreed to take them to her mother's house. The officers notified the Division of the incident the following day.
Jennifer testified that on August 15, 2011, she had a barbeque from approximately 3 p.m. to 11 p.m. with eight friends while her children were with her niece, Amanda. Amanda had returned the children to the family home later that night at 11:30 p.m., as she was unaware of Jennifer's involvement with the Division and the safety plan in place. Jennifer testified that after the children arrived home, she planned to take them to her mother's but was interrupted by the police officers.
The court also heard testimony from the caseworker who was dispatched to Jennifer's residence on August 16, 2011, after the police referral. The caseworker testified when she arrived she could hear movement from within the house, but no one answered the door. After several minutes of unsuccessful knocking, the caseworker called the police. The record indicates the gas and water for the home had also been shut off at this time.
When Jennifer finally answered the door, she was dressed in a shirt and shorts, and had a towel around her waist, claiming that she had been in the shower and did not hear the door. Jennifer denied the children were in the home, stating they were at her cousin's home forty-five minutes away. When the caseworker asked to speak with Jennifer's cousin to verify the information, Jennifer claimed her cousin's phone's battery was dead. Jennifer then left to go to a Wawa. The caseworker noted, however, that Jennifer's car was headed away from the closest Wawa, which was located across the street from the home. Suspicious of Jennifer's conduct, the caseworker attempted to follow Jennifer in her own vehicle. When the caseworker realized that Jennifer was not at Wawa, she promptly returned to Jennifer's residence. When Jennifer failed to return home, the caseworker called her cell phone. Jennifer answered and stated the children would be at her mother's house within twenty minutes.
The caseworker proceeded to the grandmother's house only to find the children already there. The caseworker suspected Jennifer was lying about the whereabouts of the children earlier and that they were, in fact, in the home in violation of the safety plan. She suspected this because no more than twenty-five minutes had elapsed between her arrival at the grandmother's house and Jennifer's trip to Wawa, not nearly enough time for the children to make the forty-five-minute trip from their cousin's home.
Based on the officer's observation of the children in the home at 11:45 p.m. on August 15, 2011, and Jennifer's suspicious behavior on August 16, 2011, the caseworker concluded that the children were "in the home" in violation of the agreed upon safety plan and therefore substantiated the allegations of the referral.
The court found the officer and caseworker credible and concluded Jennifer's testimony was inconsistent and "totally incredible." The court opined the neglect at issue was not the fact that the home was without electricity, but rather that Jennifer had entered into a safety plan which she knowingly and willingly violated, stating:
[T]he negligence that we're talking about here . . . was not the fact that the electricity had been cut off, but the fact that [Jennifer] took the children to the home. . . . [C]ontrary to the safety plan that had been entered into. It is not because there was no electricity in the home that the Division substantiated this matter.
The court entered an order finding the Division had demonstrated by a preponderance of the evidence that Jennifer neglected the children by violating the safety plan on August 15, 2011, placing the children at a substantial risk of harm, N.J.S.A. 9:6-8.21(c)(4).
Defendant makes the following arguments on appeal:
THE TRIAL COURT'S DETERMINATION AGAINST APPELLANT THAT HER CHILDREN WERE SUBJECT TO "ABUSE AND NEGLECT" UNDER N.J.S.A. 9:6-8.21 ET SEQ. MUST BE REVERSED BECAUSE IT WAS NOT SUPPORTED BY CREDIBLE EVIDENCE.
THE TRIAL COURT'S FINDING OF "ABUSE AND NEGLECT" MUST BE REVERSED BECAUSE [THE DIVISION] DID NOT DEMONSTRATE THAT APPELLANT VIOLATED THE STANDARD OF CARE OWED UNDER N.J.S.A. 9:6-8.21(C)(4).
BECAUSE THE TRIAL COURT'S FINDING OF "ABUSE/NEGLECT" AGAINST APPELLANT WAS ERRONEOUS AS A MATTER OF LAW, HER NAME SHOULD BE EXPUNGED FROM THE CENTRAL REGISTRY OF CHILD ABUSERS.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). In general, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
In reviewing the decision of the trial court the question is not whether this Court would have come to a different conclusion were it the trial tribunal. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433 (App. Div. 2002). We will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
Without dispute, "[p]arents have a constitutionally protected right to maintain a relationship with their children." Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). That right is not entirely unrestricted and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citations omitted). Title Nine is a comprehensive legislative scheme designed to accomplish that objective. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346 (2010).
In a Title Nine case, the Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Title Nine defines an "abused or neglected child" as:
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 (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[.]
"[A] failure to provide for a child's needs, when a parent is capable of doing so, can support actionable neglect where a child's condition has been demonstrated to be impaired or in imminent danger of being impaired." P.W.R., supra, 205 N.J. at 35. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" before determining a violation of the statute. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).
Jennifer contends that the Division did not prove by a preponderance of the evidence that she abused or neglected the children. She argues the trial court failed to properly analyze the statutory definition of abuse or neglect as it "failed to articulate how the children were 'abused and neglected' as defined by statute."
We are not persuaded. Jennifer was advised as a part of the safety plan that, for the welfare of her children, she could not stay in the family home with the children while there was no electricity. Yet on multiple occasions over a period of thirty days, there were reports of the children being in the home. The trial judge relied upon the police officer's testimony and substantiated the abuse and neglect allegation based on the events of August 15 and 16. The court found the officer's version of the events credible while finding Jennifer incredible. The court determined Jennifer had been less than truthful with caseworkers and had failed to adhere to the safety plan in any meaningful way. Further, we can infer from the incident on August 15, where the children were observed in the home late at night, that the children were at the home on other occasions in violation of the safety plan. Moreover, the record reflects Jennifer was offered "other reasonable means" to provide adequate shelter by moving the children to her mother's house. However, Jennifer chose not to utilize the safer options at her disposal. Rather, she continually brought the children back to her home which had no electricity; affirmatively and defiantly disregarding the agreed-upon safety plan.
While we recognize that a parent's lack of income is not sufficient, standing alone, to justify a finding of abuse or neglect, Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986), here, contrary to Jennifer's contentions, the judge did not premise her findings on her inability to provide electricity. Rather, the judge found Jennifer continually exposed the children to the dangers inherent in living in a home with no utilities when there was a safer option readily available. Jennifer notes, and we agree, that an isolated instance of occupying a house without electricity is not abuse or neglect. However, this is not a case where the allegation of abuse is predicated upon insufficient household utilities but rather is premised upon Jennifer's continual disregard of the Division's safety plan.
"'[A]n ordinary reasonable person' would understand the perilous situation in which the [children] were placed[.]" Div. of Youth & Family Servs. v. A.R., 419 N.J.Super. 538, 546 (App. Div. 2011) (quoting N.J.S.A. 9:6-8.21(c)) (holding that leaving an infant on a bed with blankets as a buffer to prevent the child's movement and closing the door amounted to gross negligence). Here, Jennifer was housing six children, three of whom were under five years of age at the time, in a home in the middle of summer with no electricity. It is clear Jennifer understood the perils existing in a home without utilities as she agreed to comply with a safety plan recognizing these dangers. Nevertheless, Jennifer failed to take appropriate measures to protect the children by continually bringing them back to an unsuitable home fraught with dangers and recklessly creating a risk of serious injury to the children.
We conclude there was sufficient credible evidence in the record to support the trial court's determination that Jennifer had neglected her children We see no reason to disturb the findings reached
Div of Youth & Family Servs v CS 367 N.J.Super 76 112 (App Div) certif denied 180 N.J. 456 (2004)