July 15, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
A.F., Defendant-Appellant, and S.B., and J.M., Defendants. IN THE MATTER OF J.M., Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically May 7, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-267-11.
Michael S. Harwin, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).
Ann Avram Huber, Deputy Attorney General, argued the cause for respondent, New Jersey Division of Youth and Family Services (Jeffery S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Huber, on the brief).
Damen J. Thiel, Designated Counsel, argued the cause for minor J.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).
Before Judges Alvarez, Waugh and St. John.
A.F. (Amy) appeals from the May 10, 2011 order of the Family Part finding abuse or neglect based on Amy's statutory "abandonment" of her niece J.M. (Jane). See N.J.S.A. 9:6-1. Amy was Jane's guardian pursuant to a kinship legal guardianship order entered in 2002. See N.J.S.A. 3B:12A-6; N.J.S.A. 30:4C-87. At trial, the Law Guardian opposed any finding of abuse and neglect against Amy and joins in the appeal. We are not convinced the order is supported by substantial, credible evidence in the record and thus reverse.
On December 17, 2010, sixteen-year-old Jane and her baby were living with Amy. Jane's pregnant older sister was visiting. During a phone call with her stepfather, Jane misunderstood something he said and concluded that her biological mother had died. As a result, she began to scream at her own baby and physically attacked her older sister. Jane attempted to kick her sister while they struggled, saying she wanted her to lose the baby. Amy called the police, who took Jane to a nearby hospital. Although unclear from the record, we conclude that the officers intended to have Jane screened for possible commitment because they suspected she might be suffering from post-partum depression.
In any event, Amy asked the police to contact the Division on her behalf because she did not want Jane discharged to her home. The following day, Jane was released from the hospital and went to stay with a cousin. She called the Division to request assistance in finding a place to live.
This was not the first time that Amy found Jane's conduct unmanageable. In 2009, Amy sought the Division's intervention, but Jane was terminated from the program in which the Division enrolled her, and she did not respond to in-home counseling the Division provided. When offered homemaker services and additional in-home counseling on this occasion, Amy declined because she understood such services required her presence in the home, and she feared it would cause her to lose her job. Amy believed that Jane was involved with drugs, was "run[ning] the streets, " and sorely in need of mental health services and medication.
When contacted by the hospital about taking Jane home upon her release, Amy asked medical personnel to call the Division. When the Division asked Amy if she would take Jane back, Amy insisted she would not do so without additional treatment and services for Jane. As the worker explained it, Amy was adamant that she did not want Jane to return before she could "get help."
The Division proceeded with an emergency removal and filed a verified complaint for custody, care, and supervision of Jane on December 21, 2010, along with an order to show cause. See N.J.S.A. 9:6-8.21; N.J.S.A. 30:4C-12. At the return on the order to show cause, the judge approved the emergency removal and granted custody to the Division.
At the April 2011 fact-finding hearing, the judge observed that "maybe what [Amy] should have done was just have [the Division] come in, sit down with her, work with her on what services could be put in place, and get [Jane] the services that she needed rather than to deposit the child on the doorstep of [the Division]." Nonetheless, on May 10, 2011, the judge rendered his opinion that Amy had abused or neglected Jane in violation of N.J.S.A. 9:6-8.21(c)(5). He determined that Amy's refusal to pick Jane up from the hospital, or to allow her back into her home, constituted abandonment pursuant to N.J.S.A. 9:6-1. This appeal followed.
On appeal, Amy raises the following points for our consideration:
THE TRIAL JUDGE'S FINDING THAT [AMY] ABUSED AND OR NEGLECTED HER CHILD MUST BE REVERSED BECAUSE [AMY] DID NOT ABANDON HER CHILD IN ACCORDANCE WITH N.J.S.A. 9:6-1(a)
THE TRIAL JUDGE'S FINDING THAT [AMY] ABUSED AND OR NEGLECTED HER CHILD MUST BE REVERSED BECAUSE [AMY] DID NOT ABANDON HER CHILD IN ACCORDANCE WITH N.J.S.A. 9:6-1(b)
THE TRIAL JUDGE'S FINDING THAT [AMY] ABUSED AND OR NEGLECTED HER CHILD MUST BE REVERSED BECAUSE [AMY] DID NOT ABANDON HER CHILD IN ACCORDANCE WITH N.J.S.A. 9:6-1(c)
THE TRIAL JUDGE'S FINDINGS ARE NOT ENTITLED TO DEFERENCE BECAUSE THE TRIAL JUDGE'S RULING WAS BASED ON THE LAW AND NOT ON ANY CREDIBILITY FINDINGS
The Law Guardian joins in these arguments, adding that the order was issued in error because the trial judge "improperly applied the law in finding that [Amy] had abandoned [Jane] under N.J.S.A. 9:6-8.21(c)(5) and N.J.S.A. 9:6-1."
Amy's contentions all concern the trial judge's construction of the relevant statutes. Briefly, abuse and neglect cases fall under Title 9. 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). A judge conducting a fact-finding hearing must determine whether the Division has proved abuse or neglect by a preponderance of the evidence, keeping in mind that the safety and well-being of children are the paramount concern. 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).
An abused or neglected child is defined 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.
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 [his or her] or their care, custody and control.
We focus on the "harm to the child." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 180 (1999). We observe that the conduct of a parent or guardian is assessed "in context based on the risks posed by the situation." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011).
Nothing in the record indicates the Division ever expressed concern about the quality of care Amy provided to Jane between 2002 and December 2010. Clearly, as the trial judge recognized, Amy did the best she could over many years. The trial judge did not doubt Amy's "good faith in this situation."
It was Amy's refusal to take Jane back into her home, unless the Division provided significant services greater than those offered in 2009, that made the judge reach the conclusion that abandonment had occurred. The last three years before the incident that triggered this application were undoubtedly difficult and frustrating for Amy. In her view, her efforts at obtaining help in 2009 were fruitless. Even the Division worker acknowledged that Amy's position, which never wavered, was that Jane desperately needed services beyond those the Division had previously extended and that she simply could not return home until she received such services because her conduct was beyond Amy's ability to control
The trial judge suggested that the preferable scenario would have been for Amy and Division personnel working out Jane's treatment plan together However given that matters had reached such a crisis point that Jane unprovoked attacked her pregnant sister that option was not realistic for this family
Amy's conduct in attempting to force the Division to intercede did not expose Jane to a significant risk of harm such as would constitute abandonment or abuse or neglect within the intent of the statute or relevant case law Although in the most literal sense she caused Jane to be supported for a brief time at the public expense in-home services or an out-of-home program placement would also have been at the public expense While Amy could have found a better way of handling the crisis her conduct in this one instance after eight years of care does not warrant the conclusion that she abandoned Jane and therefore abused and neglected her nor does it warrant Amy's placement in the Central Registry of Child Abusers