DCPP VS. F.A., SR. AND C.P., IN THE MATTER OF F.A. (FN-09-0208-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-4966-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
F.A., SR.,
Defendant-Appellant,
and
C.P.,
Defendant.
_________________________
IN THE MATTER OF F.A.,
a Minor.
_________________________
Argued November 21, 2019 – Decided February 21, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0208-17.
Ryan Thomas Clark, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Ryan Thomas Clark, on the briefs).
Sara M. Gregory, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Stephanie M. Asous, Deputy
Attorney General, on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Nancy P. Fratz, of
counsel and on the brief).
PER CURIAM
Defendant F.A. (Forest)1 appeals the May 22, 2018 order terminating
litigation in the Title Nine case, and the underlying April 20, 2017 order that he
abused or neglected his son, F.A. (Frankie)2 by exposing the child to danger that
posed a substantial risk of harm. We reject Forest's contention there was
inadequate proof; the record contained substantial, credible evidence he placed
1
We use initials and pseudonyms to maintain the confidentiality of the parties
and their child. R. 1:38-3(d)(12).
2
The order found that defendant C.P. (Carol) also abused and neglected Frankie.
She did not appeal.
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Frankie at a substantial risk of harm by failing to exercise appropriate care or
supervision regarding his living conditions. We affirm.
I.
We glean these facts from the fact-finding hearing. Forest and Carol are
the parents of Frankie, who was born on January 31, 2015. On September 15,
2016, Officer Seminario of the Union City Police responded to a domestic call
about a dispute between Forest and Carol. Carol told the officer she and Forest
lived there with Frankie. He testified the living conditions in the apartment were
"deplorable." There was "filth and clutter" everywhere. Ibid. He saw mice and
there was dog feces on the floor. There was no food in the refrigerator, and none
for the baby. The officer observed open containers of alcohol. Frankie was only
wearing a diaper. He testified the apartment had a bad odor of urine, and his
partner could not stay inside. He observed roaches in the child's room. Forest
confirmed to the officer that he lived there. Regarding the condition of the
apartment, Carol told the officer "this [is] how it always is."
The officer called the Division of Child Protection and Permanency (the
Division). The caseworker reported that when she arrived, there were four
garbage bags in the kitchen with two or three "rats" running between the garbage
bags. There was half eaten food on the counter, no sheets on the crib, and no
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milk or food for the child. However, Frankie had on a clean pamper, there was
no foul stench on the child, and no marks or bruises. The caseworker did not
find safety concerns. Because Forest already had left the apartment, the
caseworker advised Carol to clean it up.
On September 28, 2016, Officer Nunez of the Union City Police
responded to a call that there was a verbal dispute between Forest and Carol. He
testified the apartment was "[d]isgusting"; the place was "in shambles." He tried
"to stay away from the walls because [he did not] want anything sticking on
[him]." The child was dressed in a diaper that was "full" and had a blanket. The
Division found the failure to provide for basic needs was "[n]ot [e]stablished,"
but kept the case open for services.
The Division caseworker attempted to visit the family, making three
unsuccessful visits between October and November 2016. On November 15,
2016, Officer Pena of the Union City Police responded to a reported verbal
dispute between Carol and Forest. When he arrived, Forest was just leaving the
apartment. What the officer observed in the apartment was "[f]ilth." The officer
testified there were "garbage bags overflowing in the kitchen" and the smell
"was putrid. It was horrible. It was a bad garbage smell." All of this debris
could be reached by the child. "[I]t was easily accessible for [Frankie], just to
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pick up garbage . . . . [And] [a]t that age, kids put things in their mouth." The
child was only wearing a diaper. Forest was trying to leave because he had an
outstanding warrant.
The officer contacted the Division. The caseworker observed "the
countertops in the kitchen were filthy, . . . it was dirty. The floor was dirty[,]"
and there were "at least two big black [garbage] bags on the floor mat of the
kitchen." However, the child was clean and there was a little food in the
refrigerator. The caseworker advised Carol to clean up. Forest admitted to the
caseworker he was residing in the apartment with Carol at that time.
On November 28, 2016, when the caseworker returned, Carol was not
there because she was incarcerated—although she was to be released that
night—and the maternal grandmother was taking care of Frankie. The
caseworker testified that the grandmother "was able to have food for the baby,
diapers," "she cleaned the house," and the paternal grandmother also helped care
for the baby. The apartment was clean.
On December 7, 2016, the caseworker arrived for a scheduled visit.
Carol's sister would not let her in the apartment even though the caseworker had
observed Carol go in and out of the apartment. Officer Alvarado responded to
the Division's request for assistance, and they eventually gained access to the
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apartment. The officer testified that "[i]mmediately upon walking into the
home[,] [he] saw several trash bags filled to the top and a horrid smell of urine
and dirt." He described "the floors were littered with dead bugs and flies
everywhere." The bed in the main bedroom was just a mattress which "was
black from filth." "[T]he floor was covered in trash, dead bugs, wrappers,
food[,]" and the baby had access to that room. He testified the baby's crib "was
urine soaked." There was no "viable food" in the refrigerator. There was dog
urine in the kitchen. The child was dirty also. He testified the child "didn't look
like he had been bathed in a couple of days and, . . . he didn't look well fed."
The caseworker's testimony confirmed these conditions. There were
garbage bags and a bag of dirty diapers. Urine and feces were on the floor.
There was no edible food in the refrigerator. The child was not dressed. He had
small marks that may have been bite marks on his back, neck and buttocks.
The Division conducted an emergency "Dodd removal" 3 of Frankie that
night. Two days later, the Family Part judge approved the Division's custody,
care and supervision of the child.
Forest was not present in the apartment on December 7, 2016, because he
was incarcerated from November 28, 2016, to December 16, 2016. The Division
3
Removal is authorized by N.J.S.A. 9:6-8.29.
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filed an order to show cause and verified complaint against Carol and Forest,
seeking a finding of abuse and neglect under N.J.S.A. 9:6-8.21 and N.J.S.A.
30:4C-12, and custody of the child. The fact-finding hearing was conducted on
April 20, 2017.
The Family Part judge found that the Division had proven abuse and
neglect of Frankie by Forest and Carol under Title Nine. The court found the
Division's witnesses were credible. With respect to Forest, the court found he
"frequented the apartment, he was in and out and he stayed there on occasion
. . . . He was in and out a lot." He supported Carol and the child by buying
diapers and food.
The court found the apartment was in "terrible shape."
[T]his child was in serious danger. Danger of putting
something in his mouth including dead flies, feces,
urine[-]soaked materials, eating garbage and there was
plenty of it because the pictures are very telling.
The court rejected the notion the conditions were due to poverty.
Although "poverty may have been a factor in lack of food and a broken tile,"
there were cleaning implements there but not used, and one did not "need to be
poor or rich to take the garbage out." The court found this was a "serious, serious
neglect issue," not a poverty issue. Ibid. The court found the conditions did not
arise "over a day or two." Rather, the court concluded both parents "neglected"
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the child and that the "child was in serious danger of substantial harm and were
it not for the Division removing the child, the child will continue to be in that
danger and at tremendous risk." Forest had "custody. He had responsibility for
that child and getting some food and diapers wasn't enough." Instead, Forest
"was willing to leave his baby in there."
The court found the Division had not proven the child's alleged medical
condition—scabies—was caused by the condition of the apartment. The court
concluded "the whole scabies issue[] is irrelevant."
The court's April 20, 2017 fact-finding order provided that Forest and
Carol:
maintained the home in deplorable conditions with
garbage, debris, feces, urine soaked material and dead
bugs within reach of the child and for the [sic] all the
reasons stated on the record. The above placed the
child in serious danger and posed a substantial risk of
harm to the child.
Despite the apartment not being under the lease
of either parent or the primary residence of [the father],
the above finding stands as both had access and
knowledge of the conditions of the home.
In May 2018, the litigation was dismissed after a complaint for termination of
parental rights was filed.
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Forest appeals the Title Nine order and the order that terminated this
litigation, arguing that they were not supported by substantial credible evidence
in the record. He contends when he left the child in the care of Carol, the
apartment was clean just nine days prior to the child's removal. He argues the
trial court erroneously entered evidence in the record consisting of hearsay
statements and medical opinions of a medical expert, who was not called as a
witness at trial.
II.
We note our general deference to Family Part judges' fact-finding because
of their "special jurisdiction and expertise in family matters . . . ." Cesare v.
Cesare, 154 N.J. 394, 413 (1998). We will uphold fact-finding that is supported
by sufficient, substantial and credible evidence in the record. See N.J. Div. of
Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, we will not
hesitate to set aside a ruling that is "so wide of the mark that a mistake must
have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.
Super. 65, 69 (App. Div. 1989)). The court's interpretation of the law or its legal
conclusions are reviewed de novo. See State in Interest of A.B., 219 N.J. 542,
554-55 (2014).
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N.J.S.A. 9:6-8.21 defines an "[a]bused or 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 . . . 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, or (b) in providing the
child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted
harm, or substantial risk thereof . . . or by any other acts
of a similarly serious nature requiring the aid of the
court.
[N.J.S.A. 9:6-8.21(c)(4).]
Whether a parent has committed abuse or neglect "must be 'analyzed in
light of the dangers and risks associated with the situation.'" N.J. Div. of Youth
& Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting N.J.
Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)).
"The 'paramount concern' of Title [Nine] is to ensure the 'safety of the children,'
so that 'the lives of innocent children are immediately safeguarded from further
injury and possible death.'" N.J. Div. of Child Prot. & Permanency v. A.B., 231
N.J. 354, 368 (2017) (quoting N.J.S.A. 9:6-8.8).
In order to prove abuse or neglect under N.J.S.A. 9:6-8.21(c)(4), the
Division must "establish by a preponderance of the evidence that: (1) the child's
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physical, mental, or emotional condition has been impaired or is in imminent
danger of becoming impaired; and (2) the impairment or imminent impairment
results from the parent's failure to exercise a minimum degree of care." A.B.,
231 N.J. at 369. "[A] guardian 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 serious injury to that child."
Ibid. (quoting G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs.,
157 N.J. 161, 181 (1999)). In making this evaluation, the court should "account
for the surrounding circumstances, given that [a]buse and neglect cases are fact-
sensitive." Id. at 369-70 (citations omitted) (quoting Dep't of Children &
Families, Div. of Child Prot. & Permanency v. E.D.–O., 223 N.J. 166, 180
(2015)). The question is whether the defendant's conduct "recklessly creates a
risk of serious injury to the child." N.J. Dep't of Youth & Family Servs. v. J.L.,
410 N.J. Super. 159, 169 (App. Div. 2009) (quoting G.S., 157 N.J. at 181).
Forest argues the Division did not prove that he was aware of the
apartment's condition on December 7, 2016, because he was incarcerated at that
time. He contends the Division's records documented the apartment was clean
on November 28, 2016, which was the day he began incarceration. He argues
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that evidence was inconsistent with the court's finding he placed his son at
substantial risk of harm.
There was ample credible evidence in this record to support the Family
Part judge's finding that Forest was residing at the apartment with frequency,
not the least of which is that both Carol and Forest told that to the officers. He
was there enough to be fully aware of the condition of the apartment, which
exposed the child to danger. And, he was willing to leave the child there. There
was no evidence he made any arrangements with his mother, Carol's mother or
anyone else to clean the apartment or care for the child before, during or after
his incarceration.
We agree with the Family Part judge that although poverty played a part
in the couple's lack of food and supplies, the dirty condition of the apartment
could be remedied as evidenced by its condition when Carol was in jail. There
was no explanation why on multiple occasions, there should be urine and dog
feces on the floor or garbage littered about. It was Forest's responsibility as well
as Carol's to make the apartment safe for the child. His incarceration did not
exonerate him from responsibility; there was evidence the conditions were long
standing and he did nothing about it.
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The record established that Forest failed to make decisions that would
keep Frankie safe, which placed the child in imminent danger of harm. We are
satisfied the Family Part judge took the evidence into consideration in reaching
the abuse and neglect finding under Title Nine. The cases are clear that "[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).
Forest argues the Family Part judge made an erroneous evidentiary ruling
by allowing in evidence—over his objection—the hearsay statements and
medical opinions of a medical expert, who was not called to testify at the fact-
finding hearing, and then by relying on them. He claims this "may have unduly
affected the trial court's findings and conclusions."
The general rule as to the admission or exclusion of evidence is that
"[c]onsiderable latitude is afforded a trial court in determining whether to admit
evidence, and that determination will be reversed only if it constitutes an abuse
of discretion." State v. Feaster, 156 N.J. 1, 82 (1998).
Here, the court expressly held that the Division had not proven a
connection between the child's alleged medical condition and the environment
in the apartment. Thus, the issue about the admissibility of the medical report
is not relevant. Moreover, given the conditions at this apartment, if the report's
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admission were erroneous, it was not reversible error as there was more than
enough evidence to support the court's findings and conclusions without it .
Affirmed.
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