DCPP VS. S.S. AND V.S., IN THE MATTER OF H.S., C.S., AND T.H. (FN-15-0228-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2182-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.S.,
Defendant-Appellant,
and
V.S.,
Defendant.
________________________
IN THE MATTER OF H.S.,
C.S., and T.H., minors.
________________________
Submitted February 23, 2021 – Decided March 23, 2021
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FN-15-0228-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Catherine W. Wilkes, Assistant Deputy
Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Nicholas Dolinsky, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (David B. Valentin, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
S.S. appeals from an order entered by the Family Part on August 10, 2016,
which found that she abused or neglected the minor child H.S. 1 pursuant to
N.J.S.A. 9:6-8.21(c). We reverse and remand the matter to the trial court for
further proceedings.
I.
S.S. is the biological mother of three children: H.S., who was born in July
2009; C.S., who was born in October 2010; and T.H., who was born in
September 2013. V.S. is the biological father of H.S. and C.S., and S.H. is the
1
We use initials to identify the parties to protect the identity of the children. R.
1:38-3(d)(11).
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biological father of T.H. The Division of Child Protection and Permanency
(Division) first became involved with the family in 2012, when V.S. contacted
the Division and expressed concerns about S.S.'s ability to care for H.S. and C.S.
V.S. informed the Division that he had moved to North Carolina after he and
S.S. separated, and he expressed concerns about defendant's issues with
substance abuse and mental health.
The Division found the allegations of neglect were unfounded and noted
that S.S. reported that she had been referred for outpatient mental health services
as a result of a psychiatric screening. The Division opened a case to monitor the
family and provide services. S.S. attended outpatient mental health services and
was referred for treatment after testifying positive for marijuana. Following a
custody hearing in August 2012, V.S. returned to North Carolina with his
daughter H.S., and S.S. remained in New Jersey with C.S.
Following the initial referral in 2012, the Division received a series of
referrals including allegations that V.S. had sexually abused one of his siblings
while he and his siblings were minors. The sibling expressed concern for the
minor children, and the Division made a referral to North Carolina Child
Protective Services. S.S. told the Division that V.S. was in the process of being
registered as a sex offender in North Carolina because he was found to have
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child pornography on his computer, however, she did not believe that H.S. was
unsafe in his care.
In 2014, S.S. expressed concern that H.S. may have been sexually abused
while she was in the care of V.S. In April 2014, the trial court awarded S.S. sole
legal and residential custody of H.S. It appears that at some time, S.S. and the
three children began living with S.H.
Thereafter, the Division received several Child Protective Service (CPS)
referrals which included allegations of physical abuse of the children by S.S.
and S.H., and environmental neglect based on unsanitary conditions in the home.
The Division determined that the allegations of physical abuse by S.S. and S.H.
were "not established" and many of the allegations of environmental neglect
were unfounded. The Division referred the family for services, including in-
home counseling.
In early 2016, the Division received additional CPS referrals in early 2016
with allegations of physical abuse based on physical discipline by S.S. and S.H.,
as well as ongoing concerns regarding unsanitary conditions in the home. On
March 28, 2016, workers from Preferred Children's Services and Family
Preservation Services (FPS) informed the Division they would be terminating
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services due to the ongoing issues in the home, and S.S. and S.H. 's failure to
make progress toward their goals.
The same day, Division caseworker Jarret Grisanti conducted an
unannounced visit to the home, which he described as "very dirty and unkempt."
Grisanti informed S.S. the Division was concerned that services had been
terminated due to a lack of progress and he discussed the unsanitary nature of
the home.
Grisanti noted that during their discussion, S.S. raised her voice indicating
the service providers had done nothing to help and only criticized her.
According to Grisanti, at one point during the visit, S.S. became frustrated and
took "a handful of candy [which had been] laying on the living room television
stand and [threw] it . . . all over the kitchen floor."
On April 16, 2016, due to concerns about the unsanitary condition of the
home and additional referrals regarding S.S. and S.H.'s physical disciplinary
practices, the Division filed a verified complaint against S.S., S.H., and V.S.
pursuant to N.J.S.A. 30:4C-12 seeking custody, care, and supervision of the
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three children. 2 The Division thereafter amended the complaint and deleted the
request for custody.
On April 19, 2016, the Family Part judge entered an order, with the
consent of S.S. and S.H., which granted the Division care and supervision of the
children. Among other things, the judge ordered S.S. to participate in mental
health treatment and comply with other services. The judge also ordered S.S.
and S.H. to show cause why the children should not remain under the Division's
care and supervision. On May 6, 2016, S.S. called Grisanti and reported that
T.H. had thrown a cup that hit H.S. in the face and caused her to sustain a "black
eye."
On May 10, 2016, the return date established in the order to show cause,
the judge ordered that the children would remain under the Division's care and
supervision and in the physical custody of S.S. and S.H. Among other things,
the judge ordered S.S. and S.H. to participate in psychological evaluations and
required S.H. to attend anger management counseling.
2
In 2014, V.S. was substantiated for sexual abuse of H.S. while the child was
in his custody and has no contact with his children. At the time the Division
filed its initial complaint and during the trial court proceedings, V.S. remained
incarcerated in a federal correctional facility and was deemed a dispositional
defendant.
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Later that day, Grisanti investigated H.S.'s injury. He spoke with H.S.'s
school counselor on the phone and then visited the family's home where he
interviewed S.S. and S.H. about the incident. S.S. said T.H. had thrown a plastic
cup that struck H.S., and she showed Grisanti the hard-plastic toddler's cup.
Grisanti photographed the cup and asked to speak to H.S. privately.
Initially, H.S. provided Grisanti with the same explanation for her injury
that S.S. had provided. She then whispered that S.S. had actually thrown the
cup at her. H.S. said she did not know what caused S.S. to throw the cup but
she thought "her mother was mad about something[.]" H.S. was not sure,
however, what her mother "was mad about."
After speaking with H.S., Grisanti told S.S. what H.S. said about the
injury. S.S. admitted she lied. She said she was concerned the Division would
remove the children if it learned she caused the injury. S.S. told Grisanti that it
was an accident and she did not want to lose her children over something she
did accidentally.
S.S. said she had taken the cup from C.S. and was going to refill it. She
stated that she began to yell at the children because they were running and
jumping on the couches in the living room. She said she was waving her arms
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trying to get the children to stop. She claimed the cup accidently flew out of her
hands and struck H.S.
Based on this new information about H.S.'s injury and the previous
allegations of physical abuse, the Division removed the children from the
custody of S.S. and S.H. on an emergency basis. 3 On May 12, 2016, the Division
filed an amended complaint against S.S., S.H., and V.S. seeking custody of the
children alleging that the children were abused or neglected. In the complaint,
the Division cited "N.J.S.A. 9:6-8.21 et. seq., N.J.S.A. 30:4C-12, and Rule 5:12-
1 et seq."
The judge entered an order dated May 12, 2016, which granted the
Division temporary custody of the children. On June 10, 2016, the judge ordered
that the children would remain under the Division's custody, care, and
supervision. Among other things, the judge ordered S.S. to participate in a
psychiatric evaluation and referred her for anger management counseling.
In July and August 2016, the judge conducted the fact-finding hearing on
the Division's allegation that S.S. had abused or neglected H.S. by throwing a
cup in her direction and hitting her in the eye. At the hearing, the Division
3
The Division conducted a "Dodd" removal, which is an emergency removal
of a child without a court order pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -
8.73.
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presented testimony from Grisanti and Dr. Steven Kairys, the Chairman of
Pediatrics and Director of the Child Protection Center at Jersey Shore University
Medical Center, who was qualified as an expert in pediatrics and child abuse.
Dr. Kairys testified that on May 12, 2016, at the Division's request, he
conducted a physical examination of H.S. and interviewed her. He stated that
during the interview, H.S. told him how she sustained the injury. H.S. stated
that the children had been yelling and making a fuss and that S.S. "got mad and
threw a cup that . . . hit her under the eye."
Dr. Kairys testified that his physical exam revealed that H.S. suffered a
"clear bruise injury," which covered a "relatively extensive" part of the area
under her eye. He stated that based on his interview with H.S. and his physical
examination, the bruise was an inflicted injury, which he said was "a definition
of physical abuse."
Dr. Kairys explained that "inflicted injury" is a term used to describe
injuries that are done to you by someone else, while "accidental injuries" occur
when you fall or do something that hurts yourself. He further explained that
inflicted injuries can be unintentional, but they are still categorized as inflicted
because someone other than the victim caused the injury.
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During cross-examination, S.S.'s attorney asked Dr. Kairys whether he
was aware that S.S. claimed the cup slipped out of her hand accidentally and the
injury to H.S. was the result of this accident. Dr. Kairys stated that he was not
aware of those claims but said "it took a fair amount of force to cause this injury.
So, if something slipped out of your hand, I don't think it would have the velocity
or impact to do that."
S.S.'s attorney then asked Dr. Kairys if a hand injury could cause a person
to lose their grip on an item they are holding. He replied that a hand injury could
cause a person to lose his or her grip. He stated that, if this had occurred, the
cup would not have been thrown with "enough velocity or force to produce this"
kind of injury.
Dr. Kairys also stated that it would have been prudent to have H.S.'s eye
examined after the injury to ensure the eye had not been damaged. He
acknowledged, however, that there was nothing wrong with H.S.'s vision when
he examined her a week later, there was no damage to the eye itself, and the
injury would leave H.S. with no permanent deformities.
Grisanti testified that he is Permanency Case Manager with the Division,
and he had been working with the family since December 2015. Grisanti
described his investigation of H.S.'s bruise. He confirmed that H.S. did not
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believe S.S. was mad at her when she threw the cup and acknowledged that S.S.
claimed it was accidental. He stated, however, that it was the Division's position
that if a caregiver inflicts an injury on a child, it is considered abuse or neglect
even if the resulting injury was unintentional.
Grisanti further testified that he was not aware that S.S. had an injury to
her hand before the incident, but noted that during subsequent conversations,
S.S. claimed the injury was the reason the cup came out of her hand. He said
that on a prior visit to the home, he observed S.S. drop a light bulb. He also said
that on another occasion, he saw S.S. pick up candy and throw it on the floor in
frustration.
S.S. and the Law Guardian for H.S. did not present any testimony or
evidence. S.S.'s attorney then argued that the injury was an accident and did not
rise to the level of abuse or neglect.
The Division's attorney argued that Dr. Kairys's testimony indicated this
was not a situation where the cup slipped out of S.S.'s hand. The Division's
attorney asserted that the severity of the injury indicated that S.S. threw the cup
towards where the children were sitting. The Division's attorney asserted that
under the circumstances, S.S. failed to exercise a reasonable degree of care for
H.S.
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The judge placed her decision on the record. She found H.S. was an
abused or neglected child under N.J.S.A. 9:6-8.21(c) because S.S. threw the cup
which injured H.S. The judge noted that Dr. Kairys "unequivocally stated" that
H.S. would not have sustained the injury if the cup had merely slipped out of
S.S.'s hand, as she claimed. The judge stated that Dr. Kairys had testified that
the injury was "caused with force" and his testimony on this issue was
"uncontroverted and unopposed."
The judge further found that S.S. caused the injury when she "intentionally
[threw] a cup towards where her children were located on the couch. It hit H.S.
in the eye and caused a significant black eye to her." The judge rejected S.S.'s
claim that she inflicted the injury accidentally because she had previously
injured her hand.
In assessing the credibility of S.S.'s claim, the judge noted that initially,
S.S. had not been truthful with the Division or H.S.'s school when she reported
the cause of H.S.'s injury. The judge also considered Dr. Kairys' opinion that
H.S.'s eye should have been examined promptly after the injury, which did not
occur. The judge memorialized her findings in an order dated August 10, 2016.
In October 2019, the judge conducted a hearing and approved the
Division's permanency plan, which called for the termination of S.S. and V.S.'s
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parental rights, following by adoption. The Division then filed a complaint for
termination of parental rights, and the judge entered an order dated December
19, 2019, terminating this litigation. This appeal followed.
On appeal, S.S. argues that the August 10, 2016 order should be reversed
because there is insufficient credible evidence to support the judge's finding that
H.S. was an abused or neglected child under N.J.S.A. 9:6-8.21(c)(2). She also
argues that the judge did not have authority to make findings of abuse or neglect
under N.J.S.A. 9:6-8.21(c)(4) because the Division did not cite that subsection
of the statute in its complaint.
II.
The scope of our review of a decision of the Family Part in an abuse or
neglect proceeding is strictly limited. N.J. Div. of Youth & Fam. Servs. v.
I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). The trial court's factual
findings are binding on appeal if they are "supported by adequate, s ubstantial
and credible evidence." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v.
Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)).
Moreover, deference to the trial court's findings of fact is especially
appropriate "when the evidence is largely testimonial and involves questions of
credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return
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of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, a trial judge's
decision on a purely legal issue is subject to de novo review on appeal. Crespo
v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
As noted, S.S. argues that the Division failed to present sufficient
evidence to support a finding that H.S. was an abused or neglected child under
N.J.S.A. 9:6-8.21(c)(2). That subsection of the statute provides that a child is
abused or neglected when a parent or caretaker "creates or allows to be created
a substantial or ongoing risk of physical injury to such child by other than
accidental means which would be likely to cause death or serious injury or
protracted disfigurement, or protracted loss or impairment of the function of any
bodily organ[.]" Ibid.S.S. contends there is no evidence that she created a substantial or ongoing
risk of physical injury to H.S. According to S.S., H.S. told Grisanti that S.S.
had never thrown anything at her before or used physical discipline. She notes
that Grisanti acknowledged that the Division did not have any prior allegations
that S.S. had physically abused the children.
As stated previously, in its amended complaint, the Division alleged that
H.S. was an abused or neglected child and cited "N.J.S.A. 9:6-8.21 et seq.,
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N.J.S.A. 30:4C-12, and Rule 5:12-1." The Division did not cite N.J.S.A. 9:6-
8.21(c)(2) as a basis for its allegation of abuse or neglect.
However, in the complaint, the Division alleged that the children were
abused or neglected because "the parents created or allowed to be created a
substantial or ongoing risk of physical injury to such [child] by other than
accidental means which would be likely to cause death or serious or protracted
disfigurement, or protracted loss or impairment of the function of any bodily
organ[.]" The language of the complaint tracks the language in N.J.S.A. 9:6-
8.21(c)(2).
Moreover, in the amended complaint, the Division did not cite or
specifically allege that H.S. was an abused or neglected child under N.J.S.A.
9:6-8.21(c)(4). That subsection of the statute provides that a child is abused or
neglected if the child's
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, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court[.]
[Ibid.]
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On appeal, the Division and the Law Guardian argue that the judge
essentially made a finding that H.S. was an abused or neglected child under
N.J.S.A. 9:6-8.21(c)(4). They assert that the evidence showed that by throwing
the plastic cup in the direction of the children and striking H.S., S.S. failed to
exercise "a minimum degree of care" and "unreasonably" inflicted or allowed
"to be inflicted harm, or substantial risk thereof . . . ." Ibid.The term "minimum degree of care" is not defined in N.J.S.A. 9:6-8.21(c);
however, the term has been defined as "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). The difference between mere negligence and gross or
wanton misconduct "turns on an evaluation of the seriousness of the actor's
misconduct." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305
(1970)). Although gross or wanton misconduct requires more than simple
negligence, "it can apply to situations ranging from 'slight inadvertence to
malicious purpose to inflict injury.'" Id. at 178-79 (quoting McLaughlin, 56 N.J.
at 305).
The defendant's conduct is "considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result." Id. at 178 (citing
McLaughlin, 56 N.J. at 305). If defendant's conduct is intentional and
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demonstrates a reckless disregard for the child's safety, "whether the actor
actually recognizes the highly dangerous character of her conduct is irrelevant.
Knowledge will be imputed to the actor." Ibid.Here, the judge found that H.S. was an abused or neglected child under
N.J.S.A. 9:6-8.21(c) but the judge did not state whether she based her findings
under subsection (c)(2) or (c)(4) of N.J.S.A. 9:6-8.21. The judge concluded that
H.S. did not sustain her injury by "accidental infliction." The judge found that
S.S. acted intentionally in throwing the cup which caused the injury to H.S.'s
eye.
However, the judge did not make the additional findings required under
N.J.S.A. 9:6-8.21(c)(2). She did not find that S.S. "created or allowed to be
created a substantial or ongoing risk of physical injury to" S.S. that "would be
likely to cause death or serious or protracted disfigurement, or protracted loss
or impairment of the function of any bodily organ." N.J.S.A. 9:6-8.21(c)(2).
In addition, the judge did not make findings required under N.J.S.A. 9:6-
8.21(c)(4). She did not find that S.S.'s physical condition had been "impaired"
or was "in imminent danger of becoming impaired" as a result of S.S.'s failure
"to exercise a minimum degree of care" resulting from the unreasonable
infliction of harm or a "substantial risk thereof." The judge found that S.S. had
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acted intentionally but did not find that S.S.'s conduct was "grossly or wantonly
negligent."
Because the judge did not identify the specific section of N.J.S.A. 9:6-
8.21(c) that she was relying upon for her decision, and did not make the specific
findings required to determine that H.S. was an abused or neglected child under
either N.J.S.A. 9:6-8.21(c)(2) or (4), we reverse the court's order of August 10,
2016, and remand the matter to the trial court for reconsideration and issuance
of a new decision.
In view of our decision, we need not consider S.S.'s contention that the
Division failed to present sufficient evidence to support a finding that H.S. was
an abused or neglected child under N.J.S.A. 9:6-8.21(c)(2), or her contention
that the judge erred by relying on Dr. Kairys' opinion that H.S.'s injury was an
inflicted rather than accidental injury.
III.
S.S. further argues that the judge could not make findings of abuse or
neglect under N.J.S.A. 9:6-8.21(c)(4) because the Division did not amend its
pleading to add a cause of action under this section of the statute. As noted, in
the amended complaint, the Division included factual allegations that tracked
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the language of N.J.S.A. 9:6-8.21(c)(2). The Division did not, however, cite
N.J.S.A. 9:6-8.21(2) or N.J.S.A. 9:6-8.21(c)(4).
Furthermore, in the amended complaint, the Division alleged facts
concerning H.S.'s injury. Prior to the hearing, the Division provided S.S.'s
attorney with a copy of Dr. Kairys' report of his physical examination of H.S.,
which states, among other things, that H.S. had a large bruise to her left eye
which was "very consistent with being hit by an object such as a cup." Dr.
Kairys concluded that the injury was the result of "[p]hysical abuse."
The Division did not specifically allege that H.S. was an abused or
neglected child under N.J.S.A. 9:6-8.21(c)(4) because S.S. failed to exercise a
minimal degree of care for H.S. The Division did not claim that, by throwing
the cup in H.S.'s direction, S.S. had engaged in conduct that was" grossly or
wantonly negligent, but not necessarily intentional." G.S., 157 N.J. at 178.
We are convinced that S.S. had insufficient notice that at the fact-finding
hearing, the Division would be seeking a determination that H.S. was an abused
or neglected child under N.J.S.A. 9:6-8.21(c)(4). Therefore, on remand, the
Division should be afforded the opportunity to amend its complaint to include a
specific allegation of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4). If the
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Division amends it complaint, the parties should be afforded the opportunity to
present additional testimony or evidence on that claim.
Reversed and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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