June 24, 2013
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
M.E., Defendant-Appellant, and R.P., Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-125-11.
Joseph E. Krakora, Public Defender, attorney for appellant M.E. (Arthur David Malkin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent R.P. (Robert McGuigan, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin A. McLaughlin, Designated Counsel, on the brief).
Before Judges Fisher, Alvarez, and Waugh.
Defendant M.E. (Mary) appeals the Family Part's September 2, 2011 order finding that she had abused and neglected her son E.P. (Ethan), as well as the April 25, 2012 order approving a permanency plan calling for Ethan to live with his father, defendant R.P. (Ron), in Florida. We affirm.
We discern the following facts and procedural history from the record on appeal.
Mary and Ron are the biological parents of Ethan, who was born in October 1999. Ethan is Ron's only child. Mary has two older daughters who are not involved in this case. Ethan currently resides with Ron in Florida.
Mary first came to the attention of the Division in 2003, when it received a report alleging neglect of Mary's children. Between 2003 and 2008, the Division received seven additional referrals involving allegations of abuse and neglect.
In 2009, the Division sought care and supervision of Ethan and one of his sisters in response to another such referral.Ethan then moved to Florida to live with Ron and remained in his care until May 2010, when Ethan was returned to Mary, who had completed parenting skills and anger management classes. The 2009 case was closed in July 2010.
On January 20, 2011, the Division received a referral that Mary had been arrested for violating a restraining order by threatening her daughters' father, R.R. The underlying restraining order had been issued in June 2007 when Mary allegedly stabbed R.R. The warrant leading to her arrest in January 2011 was issued when she allegedly tried to run R.R. over with a car and threatened to kill him.
Mary brought Ethan with her to court on January 20. At the request of court staff, Division worker Carolina Cardenas came to the courthouse and spoke with Ethan. He told her he had not witnessed the alleged incident. Ethan also told her he got along with both his parents.
When Cardenas asked if she could do anything to help Ethan or his mother, Ethan responded that his mother had trouble controlling her anger, which he related to depression following the death of her father. Ethan told Cardenas that Mary yelled when angry or depressed, but did not "get physical."
Ethan also told Cardenas he had not attended school since the start of January. He explained that Mary had tried unsuccessfully to transfer him from his school in Paterson to a school in Elmwood Park, where his uncle lived.
Cardenas then spoke with Mary, who told her that she had made arrangements for her brother to pick Ethan up from the courthouse and to care for him while she was incarcerated. She said she had given her brother temporary custody through a notarized letter. When asked about Ethan's schooling, Mary explained that she was transferring Ethan to the Elmwood Park school system because she feared that Ron would find Ethan in the Paterson school and "kidnap" him, which she alleged he had done three times before.
Cardenas also asked Mary if she had been diagnosed with mental illness. Mary said she had not, but acknowledged having received counseling in the past. She said she did not take or need medication. When Cardenas spoke to Mary again the following day, Mary admitted that, in 2007, her sister had informed staff at a clinic in the Dominican Republic that she was bipolar. She also clarified that she had received counseling in 1999 due to stress.
Following further investigation, the Division concluded that the allegation of abuse or neglect was unfounded because Mary had actually made proper arrangements for Ethan to stay with her brother while she was incarcerated. The Elmwood Park school confirmed that Ethan had been enrolled there, but had not started classes due to the school's testing schedule. Ethan's last day of school in Paterson was January 6, and he began classes in Elmwood Park on January 24. Ethan remained with Mary's brother pending her release from jail.
On January 29, the Division was notified that Mary had suddenly removed Ethan from her brother's house. Her brother reported that "at 6 am [Mary] came to his house ringing the doorbell like a crazy lady demanding [Ethan]." He expressed concern about Ethan's safety and said that Mary was not in her "right mind." He added that Ethan made a gesture that Mary was "crazy" as he was leaving the house with her.
When a Division worker met with Mary at her home, she expressed surprise that her brother did not want Ethan to return to her. She also told the worker that Ethan would attend school in Elmwood Park, and that she was willing to cooperate with her brother to keep Ethan in that school if he was willing to do so without judging her. Ethan told the worker that he was happy to be home and that he was not afraid of Mary.
The Division received a referral from Mary's sister on February 5. She reported that Mary "went into crisis" and that Ethan was in her care. According to the sister, Mary dropped Ethan off at her home on February 4 so that she could address mental health problems at a hospital in Paterson.
Later that day, Division workers tried to speak with Mary at the hospital, but were informed that she was "very agitated and irritable and would not be able to meet with the workers at [that] time." The workers then interviewed Mary's sister, who reported that Mary left Ethan with her because she was "sick in the head, " had a history of bipolar disorder, and did not get along with her family. Mary's sister told the workers that Mary was always arguing with the family and talking to herself. She explained that she and her husband had assisted crisis workers in finding Mary and taking her to the hospital for treatment.
On February 9, the Division applied for emergent custody, care, and supervision of Ethan. At the emergent hearing, the deputy attorney general (DAG) representing the Division outlined the background of the Division's interactions with Mary and the reasons it was seeking emergent relief. She also explained that Ethan could not remain with Mary's sister because she had two other foster children and was not licensed for an additional child. The DAG informed the judge that Ethan had lived in Florida with Ron in the past, and that the Division's plan was to have Ron come to New Jersey to pick up Ethan and take him to Florida. The judge entered an order to show cause and gave the Division temporary custody.
Ethan remained with Mary's sister while arrangements were made for him to move to Florida. He was transferred to a school near the sister's home.
On the March 1 return date, the judge transferred physical custody of Ethan to Ron, but continued legal custody with the Division. Mary, who had been released from the hospital, had received a public defender application prior to the hearing, but did not attend the hearing and was not represented by counsel. Later in March, Ethan moved to Florida to live with Ron.
The fact-finding hearing took place on May 25 and June 29. Mary attended with assigned counsel. The Division's permanency worker, Jorge Falconi, testified to the facts outlined above. He emphasized the Division's concerns about Ethan missing school and attending three different schools between early January and March due to Mary's actions. According to Falconi's pre-hearing report to the court, Ethan had started school in Florida in March and was earning "mainly A's and B's."
On September 2, the trial judge entered an order finding that Mary had abused or neglected Ethan within the meaning of N.J.S.A. 9:6-8.21(c). Although he found that the Division had provided insufficient evidence with regard to Mary's mental health, he found that Falconi's testimony provided evidence of "instability in [Ethan's] life based upon, occasioned by, created by [Mary's] behavior and her decisions." The judge relied on the fact that Mary appeared to be "in a very disturbed state" when she went to her brother's house at 6:00 a.m. demanding her son. He observed that Ethan had missed a total of about three weeks of school while in Mary's care, which he found to be proof of educational neglect.
While [Ethan] was being shunted back and forth between living with [Mary], then living with the uncle, then living with [Mary] again, then living with [Mary's] sister alternately between Paterson, Elmwood Park and back to Paterson, all of those educational issues and several of the residential placements were occasioned not by court orders but by [Mary's] decisions and actions.
While it appears that [Ethan] loves his mother and doesn't fear her, there certainly has been in this Court's view a lack of a minimum degree of appropriate care and supervision by [Mary], resulting in the tumultuous nature of [Ethan's] life and educational neglect which meets the definition under the statute of an abused or neglected child. Repeatedly placing and removing the child from both the uncle and [Mary's] sister under stressful, even aggressive conditions has certainly placed the child at risk of harm, both physical and emotional.
And the educational neglect has been proven by a preponderance of the credible evidence. The judge also noted the earlier removal of Ethan in 2009 due to abuse and neglect. He continued legal custody of Ethan with the Division and physical custody with Ron. In addition, the judge ordered Mary to attend a psychological and psychiatric evaluation.
At the dispositional hearing on March 2, 2012, Robert Kanen, Psy.D., testified about his November 2011 psychological evaluation of Mary. He reported that, during his evaluation, Mary "showed no evidence of mental illness even though she was diagnosed with bipolar disorder in 2006. She didn't show evidence of drug or alcohol problems. She did not show evidence of significant parenting deficits at that time." However, he expressed concern that "the report of domestic violence in January, 2011, . . . indicated . . . that [Mary] continued to have problems controlling her temper particularly when she's challenged or upset." Accordingly, he recommended in the report only that Mary complete another anger management course.
Kanen, who had not had the hospital records from Mary's involuntary commitment in February 2011 when he prepared his November report, testified that he revised his opinion regarding Mary's capability to parent Ethan after reviewing them.
My conclusion was, after reviewing the hospital records and the description of the incident and her functioning at the time of the hospitalization, which indicated that she was exhibiting bizarre behavior, was paranoid, and was described as having a manic episode this contributed to the involuntary commitment. My conclusion was that because of that incident and not being in psychiatric treatment that she was not capable of providing her child with a permanent, safe, and secure home.
Kanen had also performed a psychological evaluation of Ron in January 2012. He found no evidence of mental illness, substance abuse, or antisocial behavior. He testified that he "found [Ron] to be stable and responsible and a competent parent, who was committed to raising his child." Kanen concluded that Ron would be "capable of providing [Ethan] with a permanent, safe, and secure home."
On March 5, the judge found that Mary "continue[d] to be at risk for another psychiatric episode, making it unsafe to reunite [Ethan] with her at [that] time." On April 25, he entered an order finding that "[Ethan] has been living with his father for over a year and he is thriving. Furthermore, [Mary] is not receiving regular psychiatric care, and is not regularly taking medication to treat her mental illness, placing her at risk for further psychotic episodes." The order approved the Division's plan that Ethan remain with his father, transferred legal custody of Ethan to Ron, and terminated the litigation. This appeal followed.
On appeal, Mary argues that the Division failed to prove abuse or neglect as defined by N.J.S.A. 9:6-8.21(c)(4). She also contends that the judge erred in granting Ron custody of Ethan.
The Division filed its complaint pursuant to Title Nine, N.J.S.A. 9:6-8.21 to -8.73, which is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid.
Title Nine provides in relevant part that an abused or neglected child includes one
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) inproviding the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and "reckless disregard for the safety of others." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J.Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306.
The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). At a fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). The Supreme Court has made it clear that
[b]oth the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted "with scrupulous adherence to procedural safeguards, " [N.J. Div. of Youth & Family Servs.] v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. [N.J. Div. of Youth & Family Servs.] v. J.Y., 352 N.J.Super. 245, 265 (App. Div. 2002). As concisely stated by the court in J.Y., "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b).
N.J. Div. of Youth & Family Servs. v. G.M
198 N.J. 382
As we recently stated in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J.Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010):
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J.Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J.Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
The issue before the trial judge was whether Mary's conduct in early 2011 subjected Ethan to abuse or neglect as defined in N.J.S.A. 9:6-8.21(c). There was no allegation, and certainly no proof, that Mary's purpose was to harm Ethan. Instead, the Division's contention was that the effect of her conduct was harmful to him.
As the Supreme Court held in T.B., supra, 207 N.J. at 305-06, proof of mere neglect does not satisfy the requirements of the statute. There must be willful, wanton, or reckless conduct. Ibid.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.
Under Title Nine, the adjudication of abuse or neglect also involves consideration of the likelihood of "further injury" to the child. N.J.S.A. 9:6-8.8(a). The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.
We cannot use the facts adduced at the dispositional hearing to sustain the decision reached at the fact-finding hearing. However, we are satisfied that there was sufficient credible evidence in the record to support the judge's conclusion, based upon his finding of educational neglect, that Ethan was subject to abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c).
New Jersey parents are required to ensure that their children either "regularly . . . attend the public schools of the district" in which they reside or receive "instruction equivalent to that provided in the public schools." N.J.S.A. 18A:38-25. Attendance is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 641 (2003) (LaVecchia, J., dissenting). A parent who fails to comply with the attendance requirements "shall be deemed a disorderly person." N.J.S.A. 18A:38-31.
Mary's erratic behavior during the relevant period deprived Ethan of several weeks of school and led to several sudden changes in his school and residence. Looking at the events as a whole and in the context of their relationship to Mary's erratic behavior, we defer to the Family Part judge's expertise and affirm.
With respect to the issue of Ethan's placement with his father, we have reviewed Mary's arguments in light of the applicable law and the record on appeal, and find them to be without merit and not warranting extended discussion in a written opinion R 2:11-3(e)(1)(E) We add only the following
The core issue at a dispositional hearing is "whether the child may be safely returned to the custody of the parent from whom the child was removed" NJ Div of Youth & Family Servs v. ND 417
N.J.Super. 96 107 (App Div 2 010) Because the trial judge relied upon sufficient credible evidence in the record that Ethan could not be safely returned to reside with his mother at the time the Title Nine case was closed we affirm that decision Affirmed