DCPP VS. S.N. AND H.M. Â IN THE MATTER OF U.N.(FN-09-356-13, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 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NOT FOR PUBLICATION WITHOUT THE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-0409-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
S.N.,
Defendant-Appellant,
and
H.M.,
Defendant.
_________________________________________
IN THE MATTER OF U.N.,
A Minor.
_________________________________________
Submitted March 7, 2017 – Decided July 13, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-356-13.
Joseph E. Krakora, attorney for appellant
(John A. Albright, Designated Counsel, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Alaina
M. Antonucci, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Charles
Ouslander, Designated Counsel, on the brief).
PER CURIAM
Defendant S.N. (Susan)1 appeals from the fact-finding
determination that she abused or neglected her eight-year-old
adopted son U.N. (Upton) through inadequate supervision,
establishing inconsistent discipline and poor boundaries, and
failing to follow advice to seek psychological/psychiatric
treatment for him. The Law Guardian on behalf of the child urges
us to affirm and, after a thorough review of the record and the
trial judge's findings, we affirm substantially for the reasons
reflected in the October 4, 2013 written decision of Judge
Bernadette N. DeCastro.
In 2011, Upton had immigrated to the United States from
Pakistan, and was adopted by Susan and her husband, H.M. (Harry).2
1
We use first name pseudonyms to protect the privacy of parties
and the minor child and for convenience. We mean no disrespect.
2
Despite being named as a defendant, Harry was not an alleged
perpetrator of the abuse or neglect against Upton as Susan was his
primary caretaker at the time of the Division's initial involvement
2 A-0409-15T1
The Division of Child Protection and Permanency (Division) first
became involved with the couple in March 2012, when it received a
referral that Upton arrived at school with facial injuries. The
Division's investigation determined that the allegations of abuse
or neglect were unfounded because Upton fell off his bike.
In October 2012, the Division received another referral that
Upton arrived at school with two scratches on his cheek. The
Division's investigation disclosed that the scratches were the
result of Upton running away from Susan. A short time later, the
police were able to locate Upton and he was returned to Susan's
care. The Division determined that the allegation of physical
abuse was unfounded.
A third referral was made in November 2012, when the school
nurse reported concerns about the type of supervision that Upton
received at home because he arrived at school with facial
scratches. The Division's investigation disclosed that the
injuries occurred when Upton, while accompanied by Susan, hit the
side of his face when jumping on stairs. Of more concern to the
Division was finding that Upton had a habit of leaving home without
with the family and the incidents thereafter, which gave rise to
this appeal. A few months prior to the Division's initial
involvement, Harry was partially paralyzed and substantially
disabled due to a stroke and heart attack, respectively. He passed
away in March 2014.
3 A-0409-15T1
permission to play in the neighborhood and engage with strangers.
The Division found that allegations of physical abuse were
unfounded, but recommended Upton receive a psychological
evaluation due to concerns over his behavior.
Dr. Jermour A. Maddux, Psy. D., subsequently evaluated Upton.
He opined that Upton's reported lying, stealing, and running away
from home were "the result of inadequate supervision, poor
boundaries, inconsistent discipline and an unstable attachment."
Dr. Maddux "strongly recommended that [Upton] be referred
immediately to individual psychological therapy with an expert in
treating children with conduct disorders residing in permissive
home environments." He also recommended that Upton's parents be
active participants with Upton's therapy, and receive parenting
skills training concerning behaviorally disturbed children.
Following Dr. Maddux's evaluation, the Division received the
fourth and fifth referrals concerning Upton. An anonymous person
informed the Division that Upton was roaming the neighborhood
streets alone at night, most often past midnight, and stealing
mail from mailboxes and spraying an unknown solvent on cars.
Jersey City police made another referral that Upton ran away from
home and returned, and that he has a history of running away.
During the Division's subsequent investigation, Susan acknowledged
that she could not sleep or go to the bathroom without Upton
4 A-0409-15T1
leaving the house, and she was so overwhelmed that she was
contemplating sending Upton back to the Pakistani orphanage from
where he was adopted. Susan also mentioned that a stranger
allegedly sexually assaulted Upton on an occasion when he left the
home without permission.
Susan agreed to be evaluated by Dr. Maddux, who opined that
"her psychological functioning put [Upton's] psychological health
in sure danger of becoming impaired[]" because her parental
judgement is controlled by fear of guilt and Upton's threats. Dr.
Maddux recommended that "[Susan and Upton] be referred to a program
or service that works with the parent and the child[.]"
Additionally, he recommended that Susan "[c]onsider out of home
individual parenting training specifically for caregivers of
behaviorally-disturbed children[,]" which would help Susan develop
a methodology for parenting that would improve Upton's behavioral
issues. Dr. Maddux further opined that due to Upton's history of
physically assaulting Susan and Upton's threats to harm himself
and her, "another adult figure reside with the family to provide
caregiving assistance[,]" and that Susan be given information
regarding "Mobile Crisis Response[.]"
A sixth referral was received after Susan's arm was placed
in a sling because Upton had pushed her. When she went to a local
hospital for emergency care, she left Upton at home with Harry.
5 A-0409-15T1
In the ensuing investigation, the Division also learned that Upton
sustained a broken leg from being hit by a car. Susan also advised
that Upton threatened to kill himself with a knife, and repeatedly
hits her injured arm. Upton was removed from the home by a Dodd
removal3 after Susan refused the Division's request to take or
subsequently go with Upton to the hospital due to his suicidal
ideations because she did not want to leave her disabled husband
alone at home.
After Upton's removal, the Division amended a previously
filed verified complaint and filed an order to show cause seeking
custody of Upton because Susan placed him at risk of harm, pursuant
to N.J.S.A 9:6-8.21(c)(4)(a) or (b), by failing to seek
psychological counseling for his emotional and behavioral issues
as recommended by Dr. Maddux, and not seeking
psychological/psychiatric assistance when he expressed suicidal
ideations. In addition, the Division sought a finding of abuse
or neglect against Susan for leaving Upton with an inappropriate
caretaker, her disabled husband, when she went to the hospital due
to her injured arm.
3
A Dodd removal refers to the emergency removal of a child from
the home without a court order, pursuant to the Dodd Act, which,
as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. Former Senate
President Frank J. "Pat" Dodd authored the Act in 1974. N.J. Div.
of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2
(App. Div. 2010).
6 A-0409-15T1
Following an October 2, 2013 fact-finding hearing, Judge
DeCastro found that Susan abused or neglected Upton "by subjecting
him to a substantial risk of harm by failing to seek psychological
treatment for her child's behavioral issues." The judge reasoned
that Susan's failure to follow Dr. Maddux's recommendation in
February 2013, that she seek individual psychological therapy for
Upton due to a high potential of harm, resulted in an escalation
of his highly harmful behavior. Upton continued to run away from
home and interact with strangers, he was aggressive towards others,
broke his leg from a car accident, was allegedly sexually abused,
and threatened suicide. Judge DeCastro furthered noted that Susan
ignored the substantial risk of leaving Upton with her husband,
who could not supervise the child because he was primarily
bedridden, amounted to "wanton and reckless" conduct because Susan
was aware of Upton's dangerous conduct, thereby breaching her
"minimum duty of care." Almost two years later, another judge
issued an order terminating the Title Nine litigation because the
Division filed a complaint seeking termination of parental rights,
which was granted. That proceeding is not the subject of this
appeal.
To prevail in a Title Nine proceeding, the Division must show
by a preponderance of the competent, material, and relevant
evidence that the parent or guardian abused or neglected the
7 A-0409-15T1
affected child. N.J.S.A. 9:6-8.46(b). "This includes proof of
actual harm or, in the absence of actual harm, the Division [is]
obligated to present competent evidence adequate to establish the
child was presently in imminent danger of being impaired
physically, mentally or emotionally." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 158 (App. Div. 2014) (citation
omitted).
Title Nine provides a child is "[a]bused or neglected" if he
or she is 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 . . . 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).]
The term "'minimum degree of care' refers to conduct that is
grossly or wantonly negligent, but not necessarily intentional."
G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citing
Miller v. Newsweek, 660 F. Supp. 852, 858-59 (D. Del. 1987)). A
parent "fails 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
8 A-0409-15T1
serious injury to that child." Id. at 181. When determining
whether a child is abused or neglected, the focus is on the harm
to the child, and whether that harm should have been prevented had
the guardian performed some act to remedy the situation or remove
the danger. Id. at 182.
"Abuse and neglect cases 'are fact-sensitive.'" Dep't of
Children & Families, Div. of Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 180 (2015)(quoting Dep't of Children & Families,
Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011)).
We give considerable deference to the family court's factual
determinations because it has "the opportunity to make first-hand
credibility judgments about the witnesses who appear on the stand
. . . [and] 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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the
trial court's conclusions are so 'clearly mistaken' or 'wide of
the mark' should an appellate court intervene and make its own
findings to ensure that there is not a denial of justice." Ibid.
(quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,
605 (2007)).
Susan contends that Judge DeCastro's finding of abuse and
neglect was not supported by substantial evidence, noting a lack
9 A-0409-15T1
of objective evidence that she was willful or wanton with respect
to Upton's imminent safety. Susan maintains that Dr. Maddux did
not conclude she was the cause of Upton's behavioral issues, and
her rejection of Dr. Maddux's parenting strategy for her own
methods, is a clear indication that she was not grossly negligent.
She contends that leaving Upton in Harry's care for two hours
while she sought urgent medical care for her arm does not establish
that she was grossly negligent or reckless, or placed him in
imminent and substantial danger. She further argues that her
decision not to seek emergency attention concerning Upton's threat
to kill himself, did not create a substantial risk of harm because
she reasonably perceived that the threat was not legitimate.
Here, the record amply supports Judge DeCastro's findings.
She found that despite Susan's admission of being overwhelmed in
trying to care for Upton, Susan failed to pursue any of the
recommendations by Dr. Maddux to address Upton's significant
behavioral issues. While Susan did not cause Upton's behavioral
issues, we agree with Judge Decastro that Susan's disregard of the
Division's assistance constitutes abuse or neglect under the law.
Affirmed.
10 A-0409-15T1