Opinion
DOCKET NO. A-2679-13T3
03-21-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.B., Defendant-Appellant. IN THE MATTER OF B.B. and N.K., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Jared I. Mancinelli, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica E. Fliegelman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-149-13. Joseph E. Krakora, Public Defender, attorney for appellant (Jared I. Mancinelli, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica E. Fliegelman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant K.B. (Mother) appeals the trial court's order finding that she abused or neglected her minor daughters B.B. and N.K. (the minor children), whom she repeatedly left alone in the home with her adult son, whom she knew was violent, had serious untreated mental illness, and abused illegal drugs. The court found she placed the minor children at imminent risk of substantial harm. We affirm.
I.
The following is based on the testimony and records admitted into evidence at the fact-finding hearing. On September 18, 2012, the Division of Child Protection and Permanency (the Division) received an anonymous referral expressing concern for the minor children, because C.M., Mother's adult son, was also living in the home, and was allegedly abusing drugs and acting violently.
The Division had been involved with the family since 2001.
That same day, a Division caseworker visited the home, accompanied by two police officers. The caseworker explained to Mother why she was there, and spoke with the minor children privately. B.B., then fifteen years old, told the caseworker the following about the adult son. C.M. "talks to himself a lot" and throws "tantrums." C.M. smokes marijuana in the house, and B.B. had found a bag of marijuana in the house. C.M. kept kitchen knives in the basement, and threw a box cutter. Earlier that summer, C.M. threatened to "kill everyone" in the house, causing the minor children to stay at friends' houses for days. B.B. did not feel safe in the home, because she never knew when C.M. might "go off." Mother had kicked C.M. out of the house before, but he always convinced Mother to allow him to move back in. Mother was "passive and worn down," and was protective of C.M. despite his behavior.
The caseworker then spoke with N.K., then ten years old, about C.M. N.K. began crying when asked about C.M. N.K. said she was scared of C.M. because he has a "psychiatric problem" and is "crazy." N.K. believed he might one day hurt her and he had made threats against family members. She and B.B. were often alone in the house with him.
Mother told the caseworker the following. C.M. was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). C.M. was not currently taking medication or receiving any type of treatment. C.M. was previously hospitalized for psychiatric reasons three years earlier; she had previously kicked him out but he always finds his way back in; and C.M. has nowhere else to go. Mother was aware he kept knives in the basement for "protection."
When the caseworker spoke with C.M., he eventually admitted that he kept knives in the basement, claiming it was to protect himself from his father who he alleged was a registered sex offender. C.M. also confirmed that he had thrown a box cutter in anger in the presence of the minor children, but claimed that he did not intend to cause them harm. He further admitted to throwing temper tantrums about twice a month. He confirmed that he was home alone with B.B. and N.K. all the time due to Mother's work schedule. He admitted there was a great deal of tension in the home, and that it might be healthier for everyone if he was not living there.
That night, Mother agreed to ensure that C.M. would no longer be left alone with the minor children, and to have C.M. undergo a psychiatric evaluation.
The caseworker attempted to follow up with Mother two days later on September 20, 2012, but her calls went unanswered. The caseworker did make contact with Mother's adult daughter C.C.M. At trial, C.C.M.'s testimony included the following. C.M. had punched C.C.M. in the face. C.M. once tried to push B.B. down a flight of stairs. Mother kicked him out of the home, but Mother soon allowed him to return. At one point, C.C.M. wanted to pursue a restraining order against C.M., but Mother dissuaded her.
Later on September 20, the caseworker returned to the home with three police officers, and met with the minor children. B.B. said C.M. had two knives in the basement; that she had taken the knives to Mother; but Mother did not seem to do anything about it. B.B. said Mother often tried to ignore C.M. and did little about his behavior. N.K. also admitted knowledge of the knives C.M. kept in the basement.
The caseworker then met with Mother to advise that the Division believed it was necessary to have a Safety and Protection Plan restricting C.M.'s access to the home and his contact with the minor children. Mother agreed to ask C.M. to leave, but she refused to sign the Safety and Protection Plan without consulting a lawyer.
Mother then asked C.M. to leave and give her his key to the home. C.M. became enraged and began to yell that this was all Mother's fault. Mother told the caseworker that by making C.M. leave, the Division had just made the minor children's life miserable, but the minor children contradicted that. The police officers arranged for C.M. to be involuntarily admitted to a medical center. As the screaming C.M. was being escorted out of the home to an ambulance, he spit in the direction of the caseworker. C.M. did not surrender his key at this time.
The next day, on September 21, 2012, a doctor from the medical center told the caseworker that C.M. denied having suicidal or homicidal thoughts. Accordingly, the doctor said C.M. would be discharged shortly.
The caseworker then contacted Mother and again inquired if Mother would sign the Safety and Protection Plan. Mother again said she would not sign until the document could be reviewed by a lawyer. As a result, the caseworker informed Mother the Division would have to implement 24-hour homemaking services, so that a Division "homemaker" was in the home to ensure C.M. did not regain access to the home or the minor children.
The homemaker and then the caseworker went to the home. Mother called the minor children downstairs and told the caseworker that C.M. had never threatened to burn down the house. The caseworker told Mother that one of her daughters had confirmed the allegation, and that the decision to involuntarily commit C.M. was based on more than that threat. When the caseworker asked the homemaker if C.M. had been to the house, Mother yelled at the homemaker, "oh, so you're a spy, that's what you're here to do spy?" The homemaker said C.M. had not yet returned to the home.
The Division substantiated Mother for neglecting B.B. and N.K. and putting them at substantial risk of harm. On September 26, 2012, the Division filed a complaint seeking care and supervision of the minor children. The trial court held a fact-finding hearing on February 21, 2013 and May 28, 2013. The Division presented the testimony of the caseworker and C.C.M., and introduced Division records. The Division detailed its unsuccessful attempts to locate and subpoena C.M., who had allegedly since moved out of State. Mother called B.B. to testify. The trial court credited the caseworker, and found that C.C.M. and B.B. corroborated many of their earlier statements, despite some attempts to minimize C.M.'s behavior, which the court discredited.
The trial court issued its decision on June 7, 2013, finding Mother had abused or neglected the minor children. The protective services litigation continued to ensure that the minor children received the required services. On January 7, 2014, the trial court terminated the litigation because the conditions had been remediated.
Mother appeals the finding of abuse or neglect.
II.
We must "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Accordingly, a reviewing court will not disturb a family court's abuse or neglect findings as long as they are "supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We must hew to that standard of review.
III.
Under N.J.S.A. 9:6-8.21(c)(4), a child is abused or neglected if her
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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]"Thus, 'a finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm.'" Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (citation omitted). "[C]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986).
[Ibid. (emphasis added).]
Mother contends that the statutory requirements of imminent danger and substantial risk of harm were not met, because the harm no longer existed after C.M. allegedly moved out of the State. Mother argues that imminent danger and risk of harm must be evaluated as it exists at the time of the fact-finding hearing. Mother relies on our decision in N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405 (App. Div. 2014). However, our Supreme Court in E.D.-O. explicitly rejected that argument, E.D.-O., supra, 223 N.J. 185-90, and effectively overruled our decision in M.C. Id. at 175; see N.J. Div. of Child Prot. & Permanency v. M.C., 223 N.J. 160 (2015) (remanding our decision in M.C. for reconsideration in light of E.D.-O.).
We note that the Supreme Court decided E.D.-O. and M.C. after Mother submitted her brief.
Mother does not seriously dispute that an imminent danger and a substantial risk of harm to the minor children existed at the time the Division intervened.
On appeal, Mother does not challenge the admissibility of any of the evidence at trial, nor claim she lacked the requisite mental state.
The trial court found that Mother neglected the minor children and placed them at substantial risk of harm when she allowed her adult son, C.M., "who suffers from tremendous mental illness, abuses marijuana, and presents with volatile and violent behavior to her and her minor children, to remain in the home." The court found that Mother was aware that C.M. was "violent, paranoid and psychiatrically unstable," to the extent that Mother called him a "monster." Mother was also aware that C.M. was abusing marijuana, but she took no action to stop his drug use in the home. She repeatedly told C.M. to leave the house, only to allow him to return time and time again. Despite her knowledge that her adult son was mentally ill and violent, she regularly left her minor children alone in the home with him, allowed him to terrorize the household, and left the minor children living in fear. The court concluded that Mother placed the minor children at substantial risk of serious harm, willfully disregarded the minor children's safety, and thus neglected them.
The trial court's findings were "supported by adequate, substantial, and credible evidence in the record." G.L., supra, 191 N.J. at 605. Mother does not contend otherwise, and provides no reason to disturb the factual findings of the trial court. Mother routinely left the minor children alone with C.M., knowing he was unstable, violent, abused illegal drugs, refused to take medication for his mental illness, and created a dangerous and unstable environment in the home. Further, although Mother asked him to leave, she had repeatedly let him back into the home, and her comments to the caseworker and the homemaker illustrated the risk she might do so again.
Because the above evidence was sufficient, we need not determine whether we may consider Mother's refusals to sign the Safety and Protection Plan until it was reviewed by a lawyer.
"A parent has the obligation to protect a child from harms that can be inflicted by" another adult residing in the home. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447-51 (2012) (terminating parental rights where the mother failed to "protect[] her children from their unstable and potentially violent father, who refused to seek appropriate treatment to curb his drug abuse and address his mental illness"). "The determinative issue is whether" the parent's "relationships with third-parties [threatens] harm to the child." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281-83, 289-90, 293 (2007) (terminating parental rights where the father left the child on at least five occasions in the sole care of the mentally-challenged mother who created an unstable and dangerous environment). "Failing to protect a child against risk of harm by another can constitute neglect of the child." N.J. Div. of Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 399-400 (App. Div. 2015) (finding neglect where the mother left the child, who had been "crying and whining and not sleeping at night," with her "untrustworthy and impatient [boyfriend] about whom she knew very little").
As the Supreme Court stated in M.M., supra, "[w]e recognize the predicament of the [mother] who is seeking to accommodate all of [her] loved ones. However, the best interests of the [minor children] must take precedence." 189 N.J. at 293. We conclude the evidence was sufficient for the Family Part to find by a preponderance of the evidence that Mother neglected her minor children.
IV.
Mother also argues the trial court erred when it stated in its written opinion and fact-finding order that neglect had been proven "by a clear and convincing evidence standard." We agree with the Law Guardian that the fact-finding order must be amended to remove that standard.
As the trial court also stated, in a Title Nine fact-finding hearing, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence." N.J.S.A. 9:6-8.46(b). By contrast, in Title Thirty termination of parental rights proceedings, courts must apply the more rigorous clear and convincing evidentiary standard. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 113 (2011). However, "a Title Nine court that reasonably foresees its proceedings ripening into a subsequent Title Thirty proceeding may seek to short-circuit the duplication of presenting proofs in a later Title Thirty proceeding" by applying the clear and convincing standard in the Title Nine proceeding. Id. at 120.
Nonetheless, before doing so, the Title Nine court "must provide [clear and unequivocal] advance notice to the parties that . . . it will make its findings using the higher Title Thirty 'clear and convincing evidence' standard"; the "court must [also] make clear to the parties that . . . the determinations made in [the Title Nine proceeding] may have preclusive effect on the final, permanent relief arising out of a Title Thirty proceeding"; and the "court must relax the time deadlines and, to the extent necessary, use in the Title Nine proceeding the admissibility of evidence standards applicable to Title Thirty proceedings." Id. at 120-21.
Here, the trial court had not provided the required advance notice, given the warnings, or fulfilled the other prerequisites for applying the clear and convincing standard before mentioning that standard at the end of the Title Nine proceeding. "[U]nless the parties are on notice that the Title Nine proceedings are to be conducted under the higher, clear and convincing evidence standard constitutionally required for Title Thirty proceedings and appropriate accommodations are made for the fundamentally different natures of these disparate proceedings," no "collateral or preclusive effect" may be given to the Title Nine proceeding "in any subsequent and related Title Thirty proceedings." Id. at 93.
However, any error was harmless. The Division has not filed a Title Thirty proceeding seeking termination of Mother's parental rights. "[A]lthough we agree with defendant that the judge erred in utilizing the higher standard of proof without advance notice, defendant has not been and may never be harmed by the consequences of that error." N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 224 (App. Div. 2011). Because the "judge found there was clear and convincing evidence of abuse or neglect he undoubtedly would have reached that conclusion by a less strict burden of persuasion." Ibid.
We recognize that in referencing the clear and convincing standard, the trial judge may only have intended to signal its conclusion that the Division's evidence was so strong that the agency went above and beyond its burden of proving its case by a preponderance. However, in the context of a Title Nine case, including that standard in the order was problematic because, in a future proceeding, it may be inaccurately construed as having a preclusive effect. Therefore, we modify the trial court's fact-finding order to the extent it states that its findings were made by clear and convincing evidence, and remand to that court for the limited purpose of correcting its fact-finding order to state that its findings were made by a preponderance of the evidence. We affirm in all other respects.
Affirmed as modified, and remanded to correct the order. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION