DCPP VS. C.H. AND L.H. IN THE MATTER OF K.H. AND S.H. (FN-07-0444-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-3440-16T3
A-3441-16T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.H. and L.H.,
Defendants-Appellants.
______________________________
IN THE MATTER OF K.H. and S.H,
Minors.
Argued May 14, 2018 – Decided June 8, 2018
Before Judges Rose and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0444-15.
Carol N. Willner, Designated Counsel, argued
the cause for appellant C.H. (Joseph E.
Krakora, Public Defender, attorney; Carol N.
Willner, on the brief).
Clara S. Licata, Designated Counsel, argued
the cause for appellant L.H. (Joseph E.
Krakora, Public Defender, attorney; Clara S.
Licata, on the brief).
Diane L. Scott, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Jason W.
Rockwell, Assistant Attorney General, of
counsel; Diane L. Scott, on the brief).
Danielle Ruiz, Designated Counsel, argued the
cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Danielle
Ruiz, on the brief).
PER CURIAM
In these consolidated appeals, L.H. ("mother") and C.H.
("father") (collectively, "defendants") appeal from an August 19,
2015 Family Part order, finding they abused or neglected their
daughters, K.H. and S.H.,1 by failing to ensure they attended
school regularly. The fact-finding order was perfected for appeal
by a March 8, 2017 order terminating the litigation. We affirm.
I.
We derive the salient facts from the record developed at the
fact-finding hearing. Defendants are the biological parents of
K.H., born in April 2001, and S.H., born in August 2005.
Defendants' history with plaintiff Division of Child Protection
and Permanency ("Division") began in January 2003, following a
1
We use initials to protect the identity of those involved and to
preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
2 A-3440-16T3
referral for inadequate supervision. Father was substantiated for
neglect. In February 2010, the Division again substantiated
neglect, following a referral that father had assaulted mother and
was admitted to a psychiatric ward. Apparently, K.H., then nine
years old, and S.H., then five years old, had been left home alone.
In October 2014, the Division received a referral that S.H.
had "been absent for [thirteen] of the [eighteen] school days in
October 2014." Three months later, the Division closed the case,
finding the children were healthy and "safe in the care of their
natural parents."
Pertinent to this appeal, on February 26, 2015, the Division
received a referral that S.H. was absent from school for fourteen
days between October 2014 and January 2015. Because S.H. was
unable to read at her grade level, she had been placed on home
instruction, but mother interfered with the sessions, at times
refusing to allow the tutor to enter the family's residence.
On March 4, 2015, after three previous attempts, Division
caseworker Rachel DuBois met with the family at their home. Mother
initially refused to speak with DuBois, became agitated, and left
the room. The caseworker spoke with father who indicated his wife
was "crazy," and exhibiting "strange" behavior. DuBois instructed
father to ensure both girls attended school regularly. Mother
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later returned and inquired about the purpose of the caseworker's
visit. Unable to answer many of the questions posed by DuBois,
mother "appeared to be confused or lacked insight."
DuBois spoke with S.H., who could not recall the last time
she attended school, but "appeared to be clean and . . . dressed
appropriately." K.H. refused to speak with the caseworker, but
presented as "clean and healthy." Father promised DuBois he would
take S.H. for a school services evaluation.
DuBois returned to the home in April 2015 because K.H. had
not attended school after father had taken S.H. for her evaluation.
Between January and April 2015, K.H. missed thirty-four of seventy-
five school days, and S.H. only received five days of home
instruction. The parents' reasons for their daughters' absences
were not plausible.
Specifically, mother claimed she kept K.H. home from school
because "she does [not] like people interviewing her kids." Mother
also told the caseworker she did not permit S.H.'s instructor to
enter the home because mother was sick from January through April.
Father stated he was "afraid of [mother]" and unable "to enforce
any rules." The children had not seen a physician for more than
a year. The caseworker expressed concerns about the mental health
of both parents.
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Accordingly, on April 23, 2015, the Division filed a complaint
and order to show cause for care and supervision of K.H. and S.H.
The judge granted the Division's application and ordered
defendants to comply with mental health evaluations and services
provided by the Division, and to ensure that their daughters attend
school.
On April 27, 2015, defendants and K.H. met with Division
psychologist Alison Strasser Winston, Ph.D. Dr. Winston did not
testify at the hearing, but the parties stipulated to the admission
of her report, subject to redaction of any diagnoses. K.H. told
Dr. Winston that mother was not mentally stable and "needs help
[but] she keeps refusing." Mother presented as paranoid and denied
having mental health issues. Dr. Winston concluded mother had
"not been proactive in ensuring that her children attend school,
nor d[id] she seem overly concerned about . . . the impact of
their poor attendance." Father told Dr. Winston he had been
diagnosed with schizophrenia in 2009, which remained unaddressed.
Dr. Winston found father was passive and unassertive.
On April 28, 2015, S.H. and K.H. did not attend school. Based
on Dr. Winston's evaluation and the children's absences from
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school, the Division executed an emergency Dodd removal. 2 The
trial court upheld the removal, finding defendants had failed to
comply with its April 23, 2015 order. Following the children's
removal, their attendance improved and they were "thriving."
At the August 19, 2015 fact-finding hearing, the Division
presented DuBois as its sole witness. Certain documents, including
Division reports and assessments, Dr. Winston's psychological
evaluation, police reports and the children's school records were
admitted into evidence. Defendants did not testify or present any
witnesses.
In an oral decision, the judge determined the Division
"prove[d] by a preponderance of the evidence that both . . . mother
and father failed to provide a minimum degree of care in supplying
the children with their education." In doing so, the judge found:
[T]here is nothing in the evidence, . . . to
mitigate that or to in any way, diminish the
level of proofs that the Division provided to
the [c]ourt by way of the oral testimony and
physical evidence that would in any way
. . . prevent this [c]ourt from weighing the
Division's evidence and concluding that the
Division proved the elements that are required
that the parents neglected the education of
their children as required by the statute.
2
A Dodd removal is an emergent removal of a minor without a court
order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,
26 n.11 (2011).
6 A-3440-16T3
The judge also found the testimony of DuBois and the
documentary evidence credible. A memorializing order was entered
on the same date, and this appeal followed.
On appeal, defendants do not dispute their daughters'
excessive absences from school. Further, mother does not dispute
Dr. Winston's determination that the girls were emotionally
impaired by her mental illness because they believed mother needed
them to stay at home with her. Rather, defendants contend they
do not have the mental capacity to act recklessly or with gross
negligence in failing to provide an education for K.H. and S.H.
The Division and law guardian urge us to affirm the court's order.
II.
Our task as an appellate court is to determine whether the
decision of the Family Court is supported by substantial credible
evidence in the record and is consistent with applicable law.
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular
deference to "the family courts' special jurisdiction and
expertise . . . ." Id. at 413. Unless the judge's factual findings
are "so wide of the mark that a mistake must have been made[,]"
they should not be disturbed, even if we would not have made the
same decision had we heard the case in the first instance. N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)
7 A-3440-16T3
(quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.
Super. 65, 69 (App. Div. 1989)). "It is not our place to second-
guess or substitute our judgment for that of the family court,
provided that the record contains substantial and credible
evidence to support" the judge's decision. N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citation
omitted).
A.
Through the admission of "competent, material[,] and relevant
evidence," the Division must prove by a preponderance of the
evidence that the child was abused or neglected. N.J.S.A. 9:6-
8.46(b). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) defines
an "abused or neglected child" as a child under eighteen years of
age:
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 . . . education . . . though
financially able to do so or though offered
financial or other reasonable means to do so
. . . .
In New Jersey, parents are required to ensure their children
either regularly attend the public schools of the district in which
they reside, or receive instruction equivalent to that provided
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in the public schools. N.J.S.A. 18A:38-25. Attendance of a school
age child is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch.
Bd. of Educ., 176 N.J. 568, 641 (2003). Indeed, a parent who
fails to comply with the attendance requirements "shall be deemed
to be a disorderly person . . . ." N.J.S.A. 18A:38-31. "The
reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a)
concerns parental encouragement to truancy of a school age child,
or other interference with normal educative processes." Doe v.
Downey, 74 N.J. 196, 199 (1977) (quoting Doe v. G.D, 146 N.J.
Super. 419, 431 (App. Div. 1976)).
Applying these standards, we affirm the trial court's
undisputed finding of educational neglect. Although the judge did
not specifically find K.H. and C.H. suffered actual harm as a
result of defendants' neglect, a court "need not wait to act until
a child is actually irreparably impaired by parental inattention
or neglect." N.J. Dep't of Children & Families, Div. of Youth &
Families Servs. v. A.L., 213 N.J. 1, 23 (2013) (quoting In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence
of actual harm, a finding of abuse and neglect can be based on
proof of imminent danger and substantial risk of harm." Ibid.;
see N.J.S.A. 9:6-8.21(c)(4)(b). That is clearly the case here
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because the poor attendance records of both K.H. and S.H. placed
them at serious risk of suffering an educational deficit.
Instead, defendants argue, for the first time on appeal, that
their mental illness precludes a finding of educational neglect.
Considering this argument pursuant to the "plain error" standard,
we are satisfied it was not "of such a nature as to have been
clearly capable of producing an unjust result." R. 2:10-2.
In particular, the existence of a mental illness, whether
known or unknown, does not preclude a finding of child abuse or
neglect under Title 9. The language in N.J.S.A. 9:6-8.21(c)(4)
concerning failure "to exercise a minimum degree of care" has been
interpreted by our Supreme Court as referring to "conduct that is
grossly or wantonly negligent, but not necessarily intentional"
and "reckless disregard for the safety of others . . . ." Dep't
of Children & Families, N.J. Div. of Youth & Family Servs. v.
T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human
Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth
& Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div.
2012).
Although it is clear that the phrase implies more than simple
negligence, it can apply to situations ranging from "slight
inadvertence to malicious purpose to inflict injury." McLaughlin
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v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). "Where an ordinary
reasonable person would understand that a situation poses
dangerous risks and acts without regard for the potentially serious
consequences, the law holds him or her responsible for the
injuries" caused. G.S., 157 N.J. at 179 (citing McLaughlin, 56
N.J. at 305 and Fielder v. Stonack, 141 N.J. 101, 123 (1995)).
Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result.
McLaughlin, 56 N.J. at 305. Because risks that are recklessly
incurred are not considered unforeseen perils or accidents in the
eyes of the law, actions taken with reckless disregard for the
consequences also may be wanton or willful. Ibid.; Egan v. Erie
R.R. Co., 29 N.J. 243, 254-55 (1959). As long as the act or
omission that causes injury is done intentionally, whether the
actor actually recognizes the highly dangerous character of his
or her conduct is irrelevant. See McLaughlin, 56 N.J. at 305.
"Knowledge will be imputed to the actor." G.S., 157 N.J. at 178.
We reject defendants' arguments that they lack sufficient
mental capacity to understand failing to educate K.H. and S.H.
posed a serious risk to their well-being. The record reflects
both parents expressed awareness that their children were required
to attend school, as evidenced by their conversations with school
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officials, DuBois, and Dr. Winston. Further, defendants did not
present any evidence at the hearing that they lacked the capacity
to understand their educational responsibility to their children.
See G.S., 157 N.J. at 177 (recognizing "Title 9's primary concern
is the protection of children, not the culpability of parental
conduct").
B.
We next address defendants' claims that their respective
attorneys were ineffective primarily for failing to present
evidence that they lacked the mental capacity to understand they
exposed their children to harm. "[A] defendant has a right to
[the effective assistance of] counsel when a complaint is filed
against him or her charging abuse and neglect and threatening the
individual's parental rights." N.J. Div. of Youth & Family Servs.
v. B.H., 391 N.J. Super. 322, 345 (App. Div. 2007) (citing N.J.S.A.
9:6-8.43(a)). In determining whether that right has been violated,
we apply the test "as set forth . . . in Strickland [v. Washington,
466 U.S. 668 (1984)]." Id. at 346; see N.J. Div. of Youth & Family
Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the
Strickland test in parental termination cases). Specifically,
"(1) counsel's performance must be objectively deficient i.e., it
must fall outside the broad range of professionally acceptable
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performance; and (2) counsel's deficient performance must
prejudice the defense i.e., there must be 'a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" B.R., 192 N.J. at 307(quoting Strickland, 466 U.S. at 694).
To establish the elements of an ineffective-assistance-of-
counsel claim,
appellate counsel must provide a detailed
exposition of how the trial lawyer fell short
and a statement regarding why the result would
have been different had the lawyer's
performance not been deficient. That will
include the requirement of an evidentiary
proffer in appropriate cases. For example,
if the failure to produce expert or lay
witnesses is claimed, appellant will be
required to supply certifications from such
witnesses regarding the substance of the
omitted evidence along with arguments
regarding its relevance.
[Id. at 311.]
Here, defendants failed to furnish certifications from any
expert regarding their respective mental conditions. Thus,
defendants have failed to establish the elements of an ineffective-
assistance-of-counsel claim. See N.J. Div. of Youth & Family
Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010)
(rejecting the defendant's ineffective-assistance-of-counsel
claim in part because he "fail[ed] to provide certifications
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. . . relating the substance of the omitted testimony" from the
expert witnesses his trial counsel never procured). Defendants'
remaining ineffective-assistance-of-counsel arguments lack
sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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