DCPP VS. C.Z. AND E.Z.IN THE MATTER OF A.Z., J.Z., AND C.Z. (FN-21-142-14, WARREN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4907-14T1
A-4908-14T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.Z. AND E.Z.,
Defendants-Appellants.
IN THE MATTER OF
A.Z., J.Z., and C.Z.,
Minors.
___________________________________
Argued June 1, 2017 – Decided June 21, 2017
Before Judges Fuentes, Carroll and Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Warren
County, Docket No. FN-21-142-14.
Clara S. Licata, Designated Counsel, argued
the cause for appellant C.Z. (Joseph E.
Krakora, Public Defender, attorney; Ms.
Licata, on the briefs).
Beth Anne Hahn, Designated Counsel, argued the
cause for appellant E.Z. (Joseph E. Krakora,
Public Defender, attorney; Ms. Hahn, on the
briefs).
Sara M. Gregory, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Ms. Gregory, on the brief).
Lisa M. Black, Designated Counsel, argued the
cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms. Black,
on the brief).
PER CURIAM
Defendant E.Z. (Erica)1 is the biological mother and defendant
C.Z. (Conor) is the biological father of three minor children:
A.Z. (Alice), born in June 2006; C.Z. (Christopher), born in March
2009; and J.Z. (James), born in August 2010. In these consolidated
appeals, defendants challenge the April 30, 2014 Family Part order
finding that they abused or neglected the children pursuant to
N.J.S.A. 9:6-8.21(c)(4)(a).
In New Jersey Division of Child Protection and Permanency v.
L.W., 435 N.J. Super. 189 (App. Div. 2014), we held that
homelessness resulting from a parent's poor planning did not
support a finding of abuse and neglect under N.J.S.A.
1
We use pseudonyms for the reader's convenience and to protect
the privacy of the children.
2 A-4907-14T1
9:6-8.21(c)(4)(a). Because we find L.W. squarely controlling, we
reverse.
I.
The family first came to the attention of the New Jersey
Division of Child Protection and Permanency (the Division) in June
2011, when the Division received referrals expressing concerns
about defendants' supervision of Alice and Christopher. Upon
visiting defendants' residence in Phillipsburg to investigate,
defendants informed the Division of their difficult financial
situation. Specifically, defendants stated they received $716 per
month in food stamps, $433 in aid from the Temporary Assistance
for Needy Families ("TANF") program, $1080 from the Section 8
Housing Assistance program (which completely covered their rent),
and that the children had medical insurance coverage. The Division
determined the allegation of abuse or neglect was unfounded.
The Division received another referral in July 2011,
reporting that defendants negligently failed to supervise their
children. The referral was investigated and determined to be
unfounded.
The Division received additional referrals on April 29, 2012,
and May 3, 2012, alleging that defendants engaged in inappropriate
conduct that put the family at risk of eviction, and were verbally
abusing the children. When the Division visited the family, Conor
3 A-4907-14T1
admitted "his children's medical insurance had lapsed[,]" even
though both Alice and Christopher needed to see specialists for
their disorders of sex development (DSDs).2 Erica confirmed the
lapse, but indicated she was "in the process" of re-activating the
coverage. Conor further conceded the family was at risk of losing
their electricity because their utility bill was delinquent, but
he hoped to satisfy the required balance when Erica was paid at
the end of the week. The Division also learned that Alice would
be repeating kindergarten because she missed seventy-four days of
school. The allegations of abuse or neglect were unfounded, but
the Division remained involved with the family to monitor the
children's medical appointments.
The Division received another referral in October 2012,
reporting the family had moved to a different residence in
Phillipsburg, but had lost power five days earlier due to Hurricane
Sandy and an unpaid balance on their gas utility bill. The
Division ultimately paid the bill after Conor's attempts to contact
2
The record and briefs refer to the disorder as hermaphroditism,
but "experts, patients and families" no longer use that term;
"[i]ncreasingly, this group of conditions is being called
disorders of sex development (DSDs)." Nat'l Inst. of Health, U.S.
Nat'l Library of Med., Intersex, MedlinePlus,
https://medlineplus.gov/ency/article/001669.htm (last updated
June 5, 2017).
4 A-4907-14T1
various social service agencies for assistance proved
unsuccessful.
The Division then held a budget meeting with defendants and
learned they: (1) received $657 in food stamps, (2) earned $800
monthly income, and (3) received a monthly $40 voucher from the
Universal Service Fund ("USF") to pay the gas bill. Erica also
informed the Division that the children had seen their primary
care physician, but she had not yet scheduled follow-up
appointments with the children's urologists or endocrinologists.
The Division concluded that its investigation "revealed no
concerns of abuse or neglect."
On June 2, 2013, the Phillipsburg Police Department received
an anonymous phone call alleging that Conor was yelling at the
children and had smacked James on the back of the head with an
open hand. A police officer went to the home but observed "no
signs of abuse or neglect." The officer "reported that there were
no concerns but he had to call it into the Division because of the
allegations. He reported that there were no marks or bruises on
the children and they looked happy."
Two days later, a Division caseworker "spent the morning with
the family creating a budget and calling local and government
agencies to get funding for the family." The Division was informed
that the electricity had been turned off on May 21, 2013.
5 A-4907-14T1
Defendants reported that Erica earned $460 per month working at
Walmart, and they received $600 per month in food stamps.
Defendants further reported that they fell behind because of a
lack of day care. Consequently, because Erica was the higher wage
earner, Conor quit his job at McDonalds to care for the children.
Notably, the caseworker "informed the family that they might need
to move [due] to the high electric and gas fees that they reported
were not told to them prior to moving in to the home."
The caseworker went to the children's school and observed
they appeared happy and dressed appropriately. At that time,
Alice was in kindergarten and Christopher was in the three-year-
old class. A school counselor reported that the children's
attendance had been "a major issue" because Alice had forty-eight
unexcused absences and Christopher had forty-one. The counselor
described both children as "polite and nice," and stated they were
performing acceptably in school and their attendance issues would
not prevent them from advancing to the next grade level. The
counselor "also reported that she has met with [Erica] and they
are supposed to meet in the beginning of the school year 2013-2014
to try and rectify any issues." When questioned by the caseworker
about the school absences, Erica responded that "there were missed
days because the children needed to go to the doctor which they
gave the school notes for and [] they only have one car and she
6 A-4907-14T1
would come home late from working overnights." Erica further
advised "that she and her husband are working to correct the
absences for next year."
Finally, the caseworker reported that James "was dressed
appropriately and seemed to be in good spirits. His weight and
hygiene looked good." The caseworker's assessment of the home was
that it "was clean and neat" and "free of safety hazards."
Additionally, "[t]he parents appeared to be engaged with the
children and care for them in a well manner. The parents appeared
to show appropriate affection to each other and the children. The
worker has no concerns at this time."
The present controversy commenced on December 11, 2013, when
Conor contacted the Division to report that the family would be
homeless by the end of the week. Conor indicated that the family
had been living in Allentown, Pennsylvania, but they were evicted
on November 25, 2013; that they unsuccessfully sought help from
the Lehigh County Welfare agency and the Salvation Army; that
Alice had not been in school for about three weeks; and that they
were temporarily residing with Erica's sister, Christine.
Upon arriving at Christine's home, the Division caseworker
observed it "was clean and free of any safety concerns" and "[a]ll
of the children appeared well cared for and were free of any
visible signs of injury." Conor explained that both he and Erica
7 A-4907-14T1
had applied for, and obtained, jobs with Amazon. However, Connor's
employment with Amazon was rescinded due to his criminal conviction
for a weapons offense in 2004. As a result, defendants could no
longer afford the Allentown apartment where they had moved to be
closer to their employment with Amazon. Erica further advised
that they could not receive public housing assistance because they
owed around $200 in unpaid rent, which they believed was "not
worth repaying" since they would then be placed on a waiting list
that could take months, and they needed housing immediately.
One week later, the Division met with the family to provide
the children with clothing and toys for Christmas. Defendants
indicated they changed their address to Christine's residence in
Phillipsburg to receive financial assistance and food stamps and
re-establish residency in New Jersey. However, on December 27,
2013, and January 4, 2014, Conor left two telephone messages with
the Division stating defendants had failed to secure housing and
were denied food stamps because of a $600 overpayment they received
when they moved to Allentown. On January 6, 2014, the Division
received a Related Information (RI) referral from Conor's mother
reporting the family was facing homelessness and expressing
concerns about defendants' mismanagement of money and expenses.
The next day, the Division caseworker contacted Conor, who
confirmed that the family could not stay with Christine any longer
8 A-4907-14T1
and had traveled to Jersey City where they unsuccessfully sought
to enter a shelter. Conor also informed the caseworker that
defendants had obtained the paperwork to enroll Alice in school
but had not yet returned it. After futilely attempting to secure
housing, the Division paid for the family to stay a night at a
hotel. The caseworker met with the family at the hotel, and noted
"[t]he children all appeared to be in good spirits and did not
show any signs of visible injury." While there, Conor explained
to the caseworker that "he and Erica did not want to live off the
system anymore" and "tried to make it on their own." This decision
prompted them to leave their Section 8 housing in Phillipsburg and
move to Allentown to commence employment at Amazon.
On January 8, 2014, the caseworker contacted the Section 8
Housing program in Phillipsburg to determine the family's status,
only to learn they were ineligible because defendants failed to
follow up with the necessary documentation in August 2013, and did
not challenge this determination by the appeal deadline. These
failures rendered them ineligible to receive benefits for three
years. After receiving this information, the Division executed
an emergency removal of the children due to defendants' inability
to provide basic needs such as food and shelter for them. At that
time, it was learned that the boys were behind on their
immunizations. Alice was given a flu shot, the children were all
9 A-4907-14T1
updated on their immunizations, and then brought to Division-
approved foster homes.
On January 10, 2014, the Division filed a complaint alleging
the children were abused or neglected by defendants and seeking
custody of the children. On that same date, the court continued
custody of the children with the Division; appointed a law
guardian; and directed the Division to continue to provide
assistance in locating a shelter for the family. On January 29,
2014, the court ordered legal and physical custody of the children
to remain with the Division, and granted defendants two hours of
unsupervised visitation with the children each week.
The court conducted a fact-finding hearing on April 29 and
30, 2014. Division caseworker Emil Ahmed testified about the
Division's history with the family as discussed above, and the
Division introduced relevant documents, including the eviction and
Section 8 letters.
Erica testified on her own behalf that while the family was
living in Phillipsburg she earned $9.20 per hour working about
twenty-five hours per week at Walmart. Prior to that, she worked
approximately the same number of hours at Burger King, where she
earned $7.25 per hour. During this period, they paid $114 per
month in rent, with the balance subsidized by Section 8 housing
assistance. Before receiving Section 8 benefits, defendants had
10 A-4907-14T1
lived in the projects in Phillipsburg. Also, the family has
received food stamps since the children were born. Erica testified
that, even when defendants were receiving these welfare benefits,
they still had difficulty paying the family's bills.
According to Erica, she and Conor decided to move the family
to Allentown because they secured full-time jobs at Amazon's
Breinigsville, Pennsylvania warehouse facility, which initially
paid $10 per hour and then increased to $11.50 per hour. She
explained that they "wanted to be off the system," by which she
meant, "[w]e didn't want to have [] food stamps or anything. We
wanted to do it ourself." As a result, defendants opted not to
pursue the continuation of their Section 8 benefits.
The job with Amazon began at the end of August 2013, and
Erica continued working there until she was laid off on December
9, 2013. Erica testified that Conor worked there two weeks before
being laid off because of his criminal background. Consequently,
defendants were no longer able to afford the $675 per month rent
plus utilities at the new Allentown apartment. On November 25,
2013, they returned to Phillipsburg, and initially stayed with
Erica's sister Christine while they searched for new housing. They
attempted to again get food stamps, but were told they were
ineligible until they were back in New Jersey for six months. They
also tried to enroll Alice in school, but were unsuccessful because
11 A-4907-14T1
the school required proof of residency, such as utility bills,
which they could not provide.
Erica described the children's disorders of sex development,
for which Alice had undergone multiple surgeries, Christopher
minor surgery, and James faced future surgery. All three children
were missing chromosome 15, which affected their immune system and
led them to "get sick a lot." This also resulted in Alice's
frequent absences from school. Erica conceded, however, she often
did not get home from work until 2:00 a.m. and "was really tired
and didn't get up in the morning," nor did Conor, who stayed up
all night with James when he was a baby.
In an oral decision immediately following counsel's
summations, the judge stated "the main issue in this case is . . .
the family's homelessness." She found "[t]here was no evidence
. . . or [] testimony presented as to why [] defendants could not
comply with the requirements of the Section 8 Housing [Authority]"
in July 2013, prior to their move to Allentown. The judge noted
that defendants received a $600 overpayment in food stamps before
they moved, and did not find credible Erica's testimony that she
believed she was entitled to receive it. The judge determined
that by November 2013, defendants fell behind on their Allentown
rental payments "despite the considerable amount of income that
was coming into the home, plus a month's worth, in September, of
12 A-4907-14T1
food stamps." The judge also criticized defendants for using a
$7000 income tax refund they received in 2013 to purchase a car
for $2000, to buy clothing and furnishings for the children, and
to set aside $1000 of it to pay Conor's $40 biweekly child support
obligation.
Ultimately, the judge found "the facts in [L.W.] are
completely distinguishable from the facts in this case." The
judge elaborated:
So, it was beyond poor planning. It was
[] defendants' deliberate and purposeful
noncompliance with Section 8 Housing, as well
as their receipt of food stamps . . . for a
time period when they were not to receive it
that then precluded them from getting the
assistance that they then did need, for
whatever reason, in January [] 2014. And why
they were precluded from availing themselves
[of] many services that normally would have
been made available to them.
So, the [c]ourt does find that their
actions do rise to the level of gross neglect.
That this is beyond poor planning in which
this family found themselves homeless [] in
December [] 2013 and January [] [2014]. That
they did have the financial capability,
certainly in November [] 2013, to pay for the
housing that they had at that point in time,
in view of the income that came into the home,
and in view of the tax refund that was
receiv[ed], in view of their ability to plan
as indicated by taking $1000 aside and not
even making a lump sum payment on the child
support, but making the biweekly payments.
And that it does rise to the level of
willful and wanton neglect. And that, in
13 A-4907-14T1
accordance with . . . [N.J.S.A.] 9:6-
8.21(c)(4), that these children were in
imminent danger; that their physical, mental,
or emotional condition was in imminent danger
of becoming impaired as a result of the
failure of their parents to exercise a minimum
degree of care in supplying the children with
adequate shelter, although financially able to
do so or though offered financial or other
reasonable means to do so.
Again, they were financially capable to
do so for a period of time. And the reason
why the offered financial assist[ance] or
other social service assistance was not
available to them was because of their
simpl[e] noncompliance with those programs
from the past.
In addition, I find that they also failed
to provide the appropriate education[],
specifically with regard to [Alice], with the
understanding that the history of her absences
and tardies and the fact that she had to repeat
a grade, even though she advanced to first
grade. That she was no longer in the
Pennsylvania school system [] as of at least
November 25, if not earlier, and that an
appointment wasn't even made for her to be
enrolled in the New Jersey school system until
December 19, almost [] a month thereafter.
On May 21, 2015, the trial court entered an order terminating
the child protection services litigation. This appeal followed.
II.
On appeal from the court's fact-finding order, Erica argues
that the Division failed to prove she neglected her children by a
preponderance of the evidence. In a similar vein, Conor contends
that there was insufficient evidence to support the finding that
14 A-4907-14T1
he was reckless or grossly negligent in failing to provide the
children with adequate shelter, medical care, or education, and
that the children were not at substantial risk of harm or facing
imminent danger.
We begin with a review of the applicable legal principles
that guide our analysis. We defer to the trial court's factual
determinations "unless 'they are so wholly insupportable as to
result in a denial of justice,'" and so long as "they are
'supported by adequate, substantial and credible evidence.'" In
re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 483-84 (1974)). The trial court is best suited to assess
credibility, weigh testimony, and develop a feel for the case.
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342
(2010). Special deference is accorded to the Family Part's
expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, "'[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference.'" N.J. Div. of Youth & Family
Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)), certif. denied, 190 N.J. 257 (2007).
An abused or neglected child is defined as:
15 A-4907-14T1
[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 . . . 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
Here, the finding of abuse and neglect centers on defendants'
purported "failure . . . to exercise a minimum degree of care,"
in supplying the children with adequate shelter and education.
Our Supreme Court has held that:
The phrase "minimum degree of care" denotes a
lesser burden on the actor than a duty of
ordinary care. If a lesser measure of care
is required of an actor, then something more
than ordinary negligence is required to hold
the actor liable. The most logical higher
measure of neglect is found in conduct that
is grossly negligent because it is willful or
wanton. Therefore, we believe the phrase
"minimum degree of care" refers to conduct
that is grossly or wantonly negligent, but not
necessarily intentional.
[N.J. Div. of Youth & Family Servs. v. T.B.,
207 N.J. 294, 305 (2011) (quoting G.S. v.
Dep't of Human Servs., 157 N.J. 161, 177-78
(1999)).]
In turn, "'willful and wanton misconduct implies that a person
has acted with reckless disregard for the safety of others. Where
an ordinary reasonable person would understand that a situation
16 A-4907-14T1
poses dangerous risks and acts without regard for the potentially
serious consequences, the law holds him responsible for the
injuries he causes.'" Id. at 306 (citations omitted) (quoting
G.S., supra, 157 N.J. at 179). "[W]here a parent or guardian acts
in a grossly negligent or reckless manner, that deviation from the
standard of care may support an inference that the child is subject
to future danger. To the contrary, where a parent is merely
negligent there is no warrant to infer that the child will be at
future risk." Id. at 307.
In L.W., supra, 435 N.J. Super. at 191, we reversed a trial
court's finding that L.W. neglected her two young children by
failing to provide housing. In that case, as here, L.W. had been
the subject of several prior referrals to the Division. Id. at
191-93. The proofs at the fact-finding hearing established that
L.W. had moved to Georgia with her fiancé, but then returned to
New Jersey. L.W. testified that she moved to a shelter and then
took the children to live with her fiancé in his transitional
housing in a Newark hotel. She also unsuccessfully sought
employment and welfare benefits. After exploring all options, and
unable to locate housing, she contacted the Division to seek help
for the children so they would not be living "out on the street."
Id. at 192-93. The Division caseworker noted that the children
were clean, well-fed, and well-clothed. Id. at 192.
17 A-4907-14T1
The trial court "found that [L.W.] did not have housing for
her children due to her 'unbelievably poor planning.'" Id. at
193. The judge also "criticized L.W. for following her fiancé in
spite of the effect on her children," and also found her "to be
irresponsible for leaving permanent housing in Georgia to come to
New Jersey without the means to return." Ibid.
In reversing, we noted "[i]t is well-settled that poverty
alone is not a basis for a finding of abuse or neglect." Id. at
195 (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div.
1976), aff’d sub nom., 74 N.J. 196 (1977). We concluded:
[L.W.'s] poor planning is at least in
part a side-effect of poverty. She sought
housing through government agencies. She
sought employment to no avail. Like many
people, she formed a bond with her fiancé and
tied her family welfare to his ability to
provide housing. Ultimately, he was unable
to provide housing for the children, so [L.W.]
did what was in their best interest by coming
to the Division for help instead of subjecting
her children to further homelessness. We
agree with the first judge who reviewed this
matter that by seeking help from the Division,
[L.W.] "did the responsible thing." The
Division, as a child welfare agency, has a
primary mission to help families stay together
and to assist parents to raise safe and
healthy children. See N.J.S.A. 30:4C-11.3
(citing a general policy to reunify families
absent imminent threat to a child's safety).
Although there was insufficient evidence
to sustain a finding of neglect under Title
Nine, the Division may still provide services
to [L.W.] and her family with her consent
18 A-4907-14T1
pursuant to N.J.S.A. 30:4C-11, or may seek a
court order to provide services in the best
interest of the children pursuant to N.J.S.A.
30:4C-12. See N.J. Div. of Youth & Family
Servs. v. I.S., 214 N.J. 8, 15 (2013) (stating
that the Legislature intended N.J.S.A. 30:4C-
12 to authorize the court to "award care,
supervision, and even custody" to the Division
"when children need services and a parent
cannot provide that help for no fault–based
reason"), cert. denied, ___ U.S. ___, 134 S.
Ct. 529, 187 L. Ed. 2d 380 (2013).
It is important that impoverished,
homeless parents feel free to call on the
Division in times of need, without fear of
being found neglectful for "poor planning."
. . . For the many people who live on or over
the edge of homelessness in New Jersey, the
Division may be their last resort; it provides
a way to find safe housing for their young
children, even at the cost of the parent's
temporary separation from those children.
Such a parental sacrifice to promote the
welfare of their children should be
encouraged.
[Id. at 196-97.]
The parallels between L.W. and the present case are striking,
and the principles we espoused there are no less applicable here.
In the present case, the Division received several referrals
regarding the family, and each allegation of abuse and neglect was
investigated and determined to be unfounded. It is undisputed
that at all times the family lived on the brink of poverty.
Defendants first lived in the projects in Phillipsburg before
moving upon securing Section 8 housing. While residing in
19 A-4907-14T1
Phillipsburg, Erica was only able to obtain low-paying, part-time
jobs at Burger King and Walmart. Similarly, Conor worked for a
time at McDonald's, but his criminal conviction prevented him from
obtaining more gainful employment. Like many low-income families,
defendants found the cost of daycare prohibitive, and Conor assumed
the role of caretaker for the three young children while Erica
worked.
The evidence is undisputed that at the time defendants moved
to Allentown to commence working full-time jobs with Amazon, they
had been in Section 8 housing in Phillipsburg for four years and
had been receiving food stamps and TANF benefits since Alice was
born. Indeed, the Law Guardian's brief "acknowledges that this
family lived below the poverty line for many years – they were
receiving food stamps, rental assistance and vouchers to help pay
the utilities since their oldest child was born." Seeing no end
to this vicious cycle of subsistence living, defendants chose to
terminate their affiliation with Section 8 and cease their reliance
on food stamps and other forms of public assistance and "tried to
make it on their own." We are loathe to characterize this decision
as anything other than laudable. The full-time jobs both
defendants searched for and obtained with Amazon provided them
with earnings that far surpassed those they had in Phillipsburg.
Certainly, defendants' decision to take these higher-paying jobs
20 A-4907-14T1
was a reasonable step in attempting to break away from the cycle
of dependence that previously ensnared them.
Unfortunately, in retrospect, defendants' decision to
terminate their reliance on public assistance proved detrimental
after Conor's employment with Amazon was quickly rescinded and
Erica was laid off in early December, 2013, apparently through no
fault of her own. However, hindsight's twenty-twenty vision should
not serve to distort a parent's reasonable judgment at the time.
The record simply does not show that defendants acted with gross
or wanton negligence, knowing that injury was likely, or recklessly
disregarding that possibility. G.S., supra, 157 N.J. at 178.
Moreover, the record does not contain any evidence of a time
or instance when the children were at a substantial risk of harm.
As in L.W., here the Division caseworker invariably observed that
the children were well-cared for, clean, and properly nourished.
Nor were there any findings of drug or alcohol abuse or domestic
violence on the part of the parents that exposed any of these
children to imminent danger or a substantial risk of harm. Absent
proof that defendants' actions placed the children in imminent
danger of being impaired physically, mentally, or emotionally,
N.J.S.A. 9:6-8.21(c), we are constrained to conclude the court's
finding cannot be sustained, even accepting the Family Part's
21 A-4907-14T1
findings of fact and credibility determinations, because the
record only demonstrated some potential for harm.
As in L.W., defendants acted responsibly in contacting the
Division in December 2013, when the family was at risk of becoming
homeless. As we noted in L.W., a finding that a parent has not
abused or neglected a child, which requires a dismissal of the
Title Nine action, N.J.S.A. 9:6-8.50(c), does not prevent the
Division from protecting a child in need of services to ensure his
or her safety and welfare. L.W., supra, 435 N.J. Super. at 196;
see also N.J. Dep't of Children & Families v. A.L., 213 N.J. 1,
30-34 (2013). Here, while we agree that the Division's initial
actions were proper, it should have proceeded under Title 30 in
its efforts to protect the children and provide services to the
parents.
We agree with the trial court that Alice's frequent absences
from school present a cause for concern. However, Alice's absences
during her initial year of kindergarten largely came when she was
under six years of age and thus not subject to compulsory education
requirements. N.J.S.A. 18A:38-25. While certainly the following
year there were several unexcused absences, Alice's absence
between November 25, 2013 and December 19, 2013, coincided with
the period when defendants were attempting to establish proof of
residency, which they were informed by school officials was a
22 A-4907-14T1
prerequisite for Alice's enrollment. Indeed, in its brief the
Division concedes that "the issues of educational and medical
neglect, standing alone, may not support a finding of neglect."
In any event, the record confirms that defendants are now well
aware of their obligation to ensure the children's educational
needs are met, and the consequences that may well befall them
should they fail to honor that obligation.
In sum, the absence of substantial evidence of abuse or
neglect requires us to vacate the April 30, 2014 fact-finding
order. Additionally, we direct the Division to remove defendants'
names from the Central Registry maintain pursuant to N.J.S.A.
9:6-8.11, in relation to the events that were the subject of that
order.
Reversed.
23 A-4907-14T1