Opinion
DOCKET NO. A-2725-13T4
03-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.F., Defendant-Appellant. IN THE MATTER OF S.K., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-329-12. Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.F. appeals from a February 15, 2013 Family Part order determining that she abused or neglected her four-month-old daughter, and from a June 24, 2013 Family Part order finding she abused or neglected her two-year-old daughter, pursuant to N.J.S.A. 9:6-8.21c(4). Defendant also appeals from a January 15, 2014 order dismissing Title 9 litigation after the Division of Child Protection and Permanency ("the Division") filed a guardianship complaint pursuant to N.J.S.A. 30:4C-12. We affirm.
I.
Defendant is the biological mother of Samantha, born November 2009, and Martha, born September 2011 and died February 2012. On February 2, 2012, the Division received a referral from the North Bergen Police Department following the death of four-month-old Martha. Martha died from positional asphyxiation, or obstruction of the airway, after defendant placed the infant on the couch to sleep on top of a down comforter, laying on her back. Defendant went to sleep in her bedroom and Martha's father, V.F., fell asleep on the couch adjacent to where Martha was sleeping. When the parents awoke at least six hours later, they found the child wedged between the armrest of the couch and the cushion. The record indicates there was a ninety-minute delay from the time defendant and V.F. discovered Martha was not breathing and when they called 9-1-1.
Pseudonyms will be used for the minors in this case for ease of reference.
Defendant is also the mother of a third child, born December 4, 1999, but that child is in the legal and physical custody of her biological father and is not part of this litigation.
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Additionally, the police described defendant's apartment as "extremely untidy and dirty," with "piles of clothing, boxes, plastic [Tupperware], paperwork, toys, and garbage throughout the apartment." An officer also observed "cat feces on the rug next to the couches in the living room, as well as, strong odor of urine" from various animals kept in the house.
At the conclusion of the fact-finding hearing, the trial judge found by preponderance of the evidence that defendant and Martha's father abused or neglected Martha because both parents failed to exercise a minimum degree of care "when they placed her to sleep on a couch which led to the death of the child." Citing defendant placing the child on the couch adjacent to where V.F. was resting, the judge concluded that a reasonable person would know that V.F. would likely be falling asleep, as that was his usual routine after coming home late from work. Therefore, the baby would be left effectively unattended.
Six months after Martha's death, the Division received a second referral from the police. On August 16, 2012, a neighbor found Samantha, then two years and nine months old, wandering the hallway of defendant's apartment building and called the police. The officers observed the door to defendant's apartment was partially open and they knocked "several times" without a response. They then entered the residence, called out, and found defendant asleep on the couch. The officers informed defendant that Samantha had been found outside the apartment and returned the child to her. Defendant stated she fell asleep on the couch while watching television, with Samantha laying on her side with her back against defendant.
Samantha could open the door "with ease," and demonstrated this to a Division investigator. The door to the apartment had "multiple locks and a latch at the very top of the door" that Samantha was unable to reach. However, this latch was not in place when Samantha left the apartment.
Defendant's apartment building had four floors and an unattended lobby, with a front door made of glass with a lever that a child could reach. Additionally, the roof was accessible from the fourth floor. Defendant's apartment was located on the second floor.
Following the second fact-finding hearing, the trial judge found by preponderance of the evidence that defendant "was grossly negligent and failed to exercise appropriate supervision of the child which allowed the child to exit the apartment."
Throughout these proceedings, defendant was required to submit to numerous random urine screens for drugs, and failed to comply with many of them. The screens that defendant did complete, however, did not indicate illegal drug use. The trial court eventually ordered a hair follicle test, and defendant tested positive for cocaine.
On January 15, 2014, the court granted the Division's request to dismiss the Title 9 litigation because it had filed a guardianship complaint.
On appeal, defendant contends that (1) the Division produced insufficient evidence to support a finding that defendant abused or neglected Martha or Samantha; and (2) the trial court erred by dismissing the Title 9 litigation and instead should have allowed the case to continue as a Title 30 action (not raised below). Having reviewed the record, we conclude that the judge's fact-finding decisions were supported by sufficient credible evidence and are consistent with the applicable law. We further conclude that the trial judge properly dismissed the Title 9 litigation.
II.
Our review of the Family Part's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We owe a special deference to the trial court's fact finding because of its expertise in family matters, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and the opportunity it had to observe witnesses' credibility first-hand. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).
However, we review the trial court's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Consequently, we only disturb a family court's findings if "'they are so wholly insupportable as to result in a denial of justice[.]'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Applying these standards, we find no basis to disturb the trial judge's findings of fact or the judge's legal conclusions.
A.
Title 9 provides that abuse or neglect may occur when a child's "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of" a parent's failure "to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]" N.J.S.A. 9:6-8.21c(4)(b). A parent may fail "to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). The Division must prove its allegations by a preponderance of the evidence at a fact-finding hearing. N.J.S.A. 9:6-8.46b(1).
Importantly, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). When there is an absence of actual harm, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013).
We reject defendant's contention that the evidence does not support the trial court's finding of abuse or neglect concerning Martha's death.
The record shows that defendant's pediatrician instructed her that the proper sleeping position for the baby was on her back on a firm surface. Defendant also knew of Martha's developmental capabilities. Specifically, defendant was aware that Martha had strong legs, could inch backwards, was able to roll herself over using her "tummy mat," and that she had recently removed herself from a baby swing. The trial judge's finding that defendant abused or neglected Martha is, therefore, supported by sufficient credible evidence.
Defendant attempts to distinguish the death of Martha from New Jersey Division of Youth & Family Services v. A.R., 419 N.J. Super. 538, 540-46 (App. Div. 2010), where the court found a father neglected his child when he placed the child on a bed in front of a radiator and the child suffered burns. In A.R., the father placed a blanket between the child and the radiator, which the court found indicated the father was aware of the foreseeable risk. Id. at 545-46. Defendant asserts that her action of placing Martha on the couch to sleep did not constitute gross negligence because she was unaware of the foreseeable risks. We disagree with defendant.
B.
We also reject defendant's contention that the evidence does not support the trial court's finding of abuse or neglect concerning the incident where two-year-old Samantha was found wandering in the hallway of her apartment building. Defendant asserts that her failure to latch the top lock, which would have prevented Samantha from leaving the apartment, failed to amount to gross negligence and that the evidence did not prove the imminent danger and risk of harm that is required in the absence of actual harm.
Defendant attempts to analogize the incident involving Samantha to the facts in New Jersey Division of Youth & Family Services v. T.B., 207 N.J. 294 (2011). In that case, a mother left her sleeping child home alone because she believed the child's grandmother, who was routinely home at that time and whose car was in the driveway, was home. Id. at 297-98. The Supreme Court found that the mother was "plainly negligent," but not grossly negligence or reckless, and that what occurred was "totally out of the ordinary." Id. at 309-10. We find defendant's argument unpersuasive.
Because Samantha was unharmed, the Division was required to present proof of "imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21c(4)(b), -8.46b). The record supports the trial judge's finding of abuse or neglect. As the trial judge recognized, there are numerous dangers and risks that could befall a two-year-old child who leaves her apartment and wanders the halls of an apartment building, including falling down the stairs, leaving the building, going onto the roof, or meeting a nefarious stranger. Additionally, the trial judge properly considered the circumstances that led to the previous finding of abuse or neglect as to the deceased child, as support for the risk of harm to Samantha.
C.
Finally, defendant challenges, for the first time on appeal, the termination of the Title 9 proceedings and the Division's filing of a guardianship complaint. Defendant argues that the court should have permitted the case to continue as a Title 30 proceeding, citing the following exception provided for in the statute:
The Division . . . shall not be required to file a petition seeking the termination of parental rights if:
c. The [D]ivision is required to provide reasonable efforts to reunify the family but the [D]ivision has not provided to the family of the child, consistent with the time period in the case plan, such services as the [D]ivision deems necessary for the safe return of the child to his [or her] home.
[N. J.S.A. 30:4C-15.3c.]
When an issue is not properly raised below, we ordinarily decline to address it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). If we do elect to address the issue, we review it for plain error. This requires us to disregard an error "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
In this case, we choose to examine the waived issue and conclude that defendant has failed to show plain error. The Division offered substantial services to assist in reunification between defendant and Samantha, but defendant consistently failed to comply. Filing the guardianship complaint is not "clearly capable of producing an unjust result," R. 2:10-2, and the Division had the right to do so. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 264 (App. Div. 2009) (stating that statute "confer[s] sole authority upon [the Division] to determine whether a Title 30 action should be filed"), certif. denied, 201 N.J. 153 (2010); N.J.S.A. 30:4C-15(a), (f). We also note that reunification remains a possible outcome of the guardianship proceedings, depending upon the facts and circumstances.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION