DCPP VS. T.K. AND R.L., IN THE MATTER OF A.K. AND Z.E. (FN-07-0428-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-0052-17T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.K.,
Defendant-Appellant,
and
R.L.,
Defendants.
________________________________
IN THE MATTER OF A.K. and Z.E.,
Minors.
________________________________
Submitted December 6, 2018 – Decided February 11, 2019
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0428-15.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jennifer M. Kurtz, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Joseph J. Maccarone, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Danielle Ruiz, Designated
Counsel, on the brief).
PER CURIAM
Defendant T.K. (Tiffany) 1 appeals from an August 18, 2017 order
terminating litigation after two Family Part judges found she abused or
neglected her son, A.K. (Alex), on two occasions, and approved a permanency
plan for the termination of her parental rights to Alex and her daughter, Z.E.
(Zelda), followed by adoption. We affirm.
Tiffany has been involved with the Division of Child Protection and
Permanency (Division) since she was twelve. Tiffany suffered from stress,
1
We use pseudonyms and initials to protect the privacy and identity of the
family and parties, and because it allows for ease of reference when family
members have similar initials. R. 1:38-3(c)(12). By doing so, we mean no
disrespect.
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anxiety and bipolar disorder associated with traumatic life experiences. She also
has experienced financial and housing instability, as well as substance abuse
issues. Tiffany transitioned from foster care to the Division's independent living
services when she reached adulthood.
Tiffany gave birth to Alex on February 28, 2015. She lived with Alex in
a "Mommy and Me" residential program that provided her with shelter and
stability. At that point, the Division's independent living stipend was Tiffany's
sole source of financial support. On April 7, 2015, she went to the Division
office to get her stipend. A week before, Tiffany told her Division worker that
Alex was throwing up milk and she had taken him to the emergency room twice.
When asked whether she scheduled a doctor's appointment for Alex, as the
Division recommended, Tiffany said she did not. The Division helped her
schedule an appointment.
Tiffany returned to the Division office on April 9, 2015, ostensibly to sign
herself off of Division services and supervision because she planned to go on
welfare. The worker at the front desk noticed Alex was wet and provided a
change of clothes. When asked why Alex was wet, Tiffany explained he was
allergic to the brand of diapers supplied by the residential program and she did
not know where to buy diapers. The Division worker asked what the doctor
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recommended at Alex's recent appointment. Tiffany reported the only advice
the doctor provided was to give Alex more milk. The worker called the doctor,
who explained on speaker phone to Tiffany and the Division worker that Tiffany
had been given a long list of instructions including giving Alex more formula.
A Division worker asked Tiffany how she planned to support herself and Alex.
Tiffany did not have a plan. Due to the Division's concern that Tiffany was
unable to fully repeat what the doctor had told her, and what the Division
perceived as a lack of sufficient child care knowledge, the Division offered to
place a parent aide at the residential program to monitor Tiffany and Alex.
However, Tiffany resisted both this offer and signing an authorization allowing
the Division to speak to the residential program.
The Division later learned Tiffany faced a one-week suspension for non-
compliance with the residential program. On April 13, 2015, the Division filed
a complaint and an order to show cause, and the trial court granted the Division
temporary custody of Alex. On July 30, 2015, following a hearing, the trial
court found Tiffany was unable to adequately care for Alex and removed him
from her custody and placed him with a resource parent, C.B. A fact-finding
hearing was conducted on July 30, 2015, during which the Division worker
testified, and Division records and a report from the residential program were
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admitted into evidence. After the hearing, the judge placed his findings on the
record. The judge determined Tiffany had placed Alex at substantial risk of
harm by a preponderance of the evidence. The basis of the finding was Tiffany
was unable to care for Alex in a supervised setting, refused additional support
that was offered, was suspended from the program, and, without any form of
financial assistance, attempted to sign herself off of Division services without
an adequate plan for Alex's care. Additionally, she lacked basic childcare
knowledge and was unable to recite the pediatrician's recommendations. Alex
remained in his resource home and services were ordered for Tiffany.
Zelda was born on March 8, 2016. At that time Tiffany was engaging in
services, and, on August 26, 2016, the Division returned Alex to her care.
Tiffany resided at a transitional living facility. Shortly after the reunification,
she was evicted from the facility. Tiffany then went to live with a friend, L.E.,
and the Division believed the children were safe there. Soon after Tiffany and
Alex were reunified, Tiffany called C.B. and asked her to take Alex on the
weekends. C.B. agreed, and on October 11, 2016, the Division received a
referral that Tiffany and her children were sleeping in Penn Station and Tiffany
was abusing alcohol and drugs. The Division conducted a visit on November
28, 2016 and noticed Alex did not look well. Tiffany said Alex had recently
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come from C.B.'s house. In late November 2016, Tiffany called C.B. and asked
if she could pick up Alex because he would not stop crying. C.B. did so and ,
upon seeing he was sick, took him to the emergency room, where he was
diagnosed with pneumonia. Alex stayed with C.B. for several weeks. Tiffany
did not visit Alex and offered no financial support for his care despite C.B.'s
request.
On December 17, 2016, L.E. called the Division to report she had not seen
Tiffany and Zelda for several days. The Division paid an unannounced visit to
L.E. and Tiffany's apartment on December 21, 2016 and found Tiffany and
Zelda, who appeared to be safe. On December 29, 2016, a Division worker
exchanged text messages with Tiffany, who reported L.E. had kicked her out
and asked if the Division were coming to take her kids. The Division believed
Tiffany was homeless because L.E.'s apartment was her only known source of
stable housing. During this exchange, L.E. called the Division to report she had
been taking care of Zelda for three days and Tiffany had not contacted her. L.E.
also explained she did not kick Tiffany out and she did not know where Tiffany
was.
Meanwhile, on the same day, a woman named J.W. appeared at the
Division's office and introduced herself as Tiffany's wife. J.W. expressed
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concern for Zelda and mentioned she often took care of her. She reported Alex
had been with C.B. for weeks and Tiffany often left Zelda in the care of different
people.2 Upon receiving this information, the Division executed an emergency
removal of both Alex and Zelda.
A Division worker called Tiffany and informed her the Division would be
removing both her children. Tiffany hung up on the Division worker and
minutes later appeared at the Division office. Tiffany told the front desk
personnel the Division was going to "have to find me and the baby." A Division
worker called L.E. to ensure she did not give Zelda to Tiffany. Division
workers, along with police officers, arrived at L.E.'s apartment and safely
removed Zelda. Later that day, the Division removed Alex from C.B.'s house.
Both children received physicals, and Alex was found to be healthy, while Zelda
was suffering from eczema. On January 3, 2017, the trial court granted the
Division temporary custody, care, and supervision of the children and placed
both children with C.B.
On June 23, 2017, a different Family Part judge conducted the second fact-
finding hearing. Both C.B. and a Division supervisor testified for the Division.
2
The trial judge relied on this conversation only for the purpose of learning
why the Division acted, not the truth of the matter asserted.
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Tiffany called no witnesses. The trial judge found C.B.'s testimony regarding
her care of Alex in November and December 2016 credible. He also found the
Division supervisor credible and admitted into evidence the Division's report
chronicling its concern over Alex and Zelda's safety and Tiffany's psychological
evaluation.3 The trial judge found Tiffany left Alex with C.B. for an extended
period of time and did not check in on him or provide C.B. with any financial or
material assistance to care for Alex.
The court also found Tiffany did not adequately plan for her children and
left them in the care of individuals without providing any indication how long
the children would be left with such caregivers and did not provide any resources
for the caregivers. The judge determined this supported a finding Tiffany
neglected Alex, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), because she failed to
exercise a minimum degree of care. Because there was little evidence
concerning Zelda, the trial judge did not make a finding Tiffany neglected her.
Nevertheless, both Alex and Zelda remained in the Division's custody and the
trial judge approved the Division's plan to seek termination of Tiffany's parental
3
The trial judge excluded several hearsay statements in the Division's report
and a psychological evaluation, because they contained uncorroborated
allegations of Tiffany's behavior from out-of-court declarants.
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rights to both children followed by adoption. On August 18, 2017, the trial judge
dismissed the FN litigation. This appeal followed.
On appeal, Tiffany argues both the 2015 and 2017 findings she abused or
neglected Alex were error. She submits the 2015 trial judge relied on Tiffany's
youth, inexperience as a mother, and poverty to find she abused Alex, and failed
to identify any particular conduct indicating she failed to exercise a minimum
degree of care. Additionally, she argues C.B.'s 2017 testimony was not credible
and the judge had no basis to conclude she abused or neglected Alex.
We defer to a trial court's findings of fact and credibility determinations
if they are sustained by "adequate, substantial, and credible evidence" in the
record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).
As a general rule, with respect to the exclusion or admission of evidence, we
afford "[c]onsiderable latitude . . . [to a] trial court in determining whether to
admit evidence, and that determination will be reversed only if it constitutes an
abuse of discretion." N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J.
Super. 478, 492 (App. Div. 2016) (quoting State v. Kuropchak, 221 N.J. 368,
385 (2015)). We owe no special deference to the trial court's rulings here
because they essentially involved the application of legal principles and did not
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turn upon contested issues of witness credibility. See Manalapan Realty, LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We first address the 2015 finding and affirm. Tiffany was found to have
abused or neglected Alex pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). The statute
defines a neglected child as:
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 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 . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
The basis of the court's 2015 finding was Tiffany failed to meet the
standard of care imposed by this statue, even in a supervised setting. She refused
additional support offered by the Division; was suspended from the residential
program; without having any other form of financial assistance or housing,
rejected Division services without an adequate plan for Alex's care; lacked basic
childcare knowledge; and was unable to recite the pediatrician's
recommendations. Defendant argues the court's finding should be reversed
because no gross negligence or recklessness was proven by a preponderance of
evidence.
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Our Supreme Court has said the standard for abuse and neglect is met
when a parent's conduct is at least "grossly or wantonly negligent." G.S. v Dep't
of Human Servs., 157 N.J. 161, 178 (1999). 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 [to] adequately . . . supervise the child or recklessly creates a
risk of serious injury to that child." Id. at 181. In making this determination,
courts analyze the harm to the child and whether the harm could have been
prevented. Id. at 182. The Division must show substantial and imminent danger
or substantial risk of harm to the child, but need not wait until the child is
harmed. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v.
A.L., 213 N.J. 1, 22-23 (2013).
While the court's rationale could have been more clearly articulated, it is
implicit the court's finding was based upon Tiffany taking steps that would have
unnecessarily rendered her and Alex homeless and without financial or other
resources. We are satisfied these actions by Tiffany created a substantial risk of
harm to Alex.
Regarding the 2017 finding of abuse and neglect, Tiffany argues the
judge's decision should be reversed because it was so wide of the mark as to be
clearly mistaken, and the elements of imminent danger and parental fault are
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absent. The basis of the 2017 finding was that Tiffany left Alex with C.B. for
an extended period of time and did not check in on him or provide C.B. with any
financial or material assistance to care for Alex. The court found Tiffany did
not adequately plan for her children and left them in the care of individuals,
providing neither an indication of how long the children would be left with them
nor any resources. The judge determined this supported a finding Tiffany
neglected Alex, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), because she failed to
exercise a minimum degree of care. We disagree.
The court specifically found Tiffany's practice of dropping off Alex at
C.B.'s house on weekends did not constitute abuse or neglect. Rather, the court
found Tiffany abused or neglected Alex because Tiffany left Alex for several
weeks in November and December 2016 without providing baby supplies or
financial assistance to C.B. C.B. agreed to this arrangement initially, but
complained it was inconsiderate and unfair when the period of time became
weeks rather than weekends. The record does not fully support a finding that
Alex was placed at a risk of harm as a result of Tiffany's failure to exercise a
minimum degree of care. The record demonstrates he was safe in C.B.'s care
even if C.B. was dissatisfied with Tiffany's failure to provide financial support.
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No additional findings were made by the court. Hence, we reverse as
unsupported the court's June 23, 2017 finding of abuse and neglect.
In light of our disposition, we instruct the Division to remove from its
records all references to abuse or neglect being "established" as a result of the
December 29, 2016 investigation, consistent with this opinion.
Affirmed.
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