Dcpp v. J.R. and M.M., in the Matter of L.M. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-0217-23
A-0607-23
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.R. and M.M.,
Defendants-Appellants/
Cross-Respondents.
____________________________
IN THE MATTER OF L.M.,
a minor,
Cross-Appellant.
____________________________
Argued September 24, 2024 – Decided October 15, 2024
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0140-23.
Catherine W. Wilkes, Assistant Deputy Public
Defender, argued the cause for appellant/cross-
respondent M.M. (Jennifer Nicole Sellitti, Public
Defender, attorney; Catherine W. Wilkes, of counsel
and on the briefs).
David Anthony Gies, Designated Counsel, argued the
cause for appellant/cross-respondent J.R. (Jennifer
Nicole Sellitti, Public Defender, attorney; David
Anthony Gies, on the briefs).
Jennifer Marie Sullivan, Assistant Deputy Public
Defender, argued the cause for minor/cross-appellant
(Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Jennifer Marie Sullivan,
of counsel and on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Mary L. Harpster, on the brief).
PER CURIAM
In these consolidated appeals of this Title Nine matter, defendants J.R. 1
and M.M. appeal from an August 7, 2023 Family Part order determining it was
"established"2 they educationally neglected their daughter, L.M. in violation of
1
We use initials and pseudonyms to protect the privacy of the family. R. 1:38-
3(d)(12).
2
Because the Division's finding was "established," not "substantiated," the
parties were not placed on the Central Registry. N.J.A.C. 3A:10-7.7(a)
A-0217-23
2
N.J.S.A. 9:6-8.21(c)(4)(a). The Law Guardian agrees and cross-appeals.
Because Title Nine is not a strict liability statute, we vacate and remand.
I.
We summarize the facts from the record developed at the fact-finding
hearing. J.R. and M.M. are the parents of L.M., born in 2009. The Division of
Child Protection and Permanency ("DCPP" or "Division") became involved with
the family in January 2017 due to a call from L.M.'s former pediatrician to
express concerns then-seven-year-old L.M. might not be receiving appropriate
medical care. The doctor reported L.M. had conflicting diagnoses of vasculitis
and serum sickness. The doctor stated she had referred the family to University
Hospital for care in September 2015 and had L.M. removed as her patient
because J.R. and the doctor did not get along. Despite this, a year later, J.R.
started contacting the doctor's practice and "harassing" them to schedule an
appointment. In her report to DCPP, the doctor questioned whether L.M. had
been treated during that period. She also reported the family was Brazilian and
spoke Portuguese.
When DCPP investigator, Nicole Crank, spoke with the parents to
complete a child welfare assessment, J.R. alleged she had taken L.M. to multiple
doctors without success and had been told L.M.'s diagnosis was vasculitis
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complex disease and not serum sickness. Because J.R. and M.M. spoke almost
no English, after the first interview, DCPP either brought a translator or had one
assist by phone. J.R. also reported Mountainside Hospital had diagnosed L.M.
with autism, but another doctor had rejected that diagnosis.
Investigator Crank requested Dr. Medina, at the Child Protection Center
("CPC"), review L.M.'s medical records and make recommendations to assist
the family. J.R. then provided the Division with L.M.'s medical records. A
subsequent report by Dr. Medina recommended L.M.'s medical records be
provided to all doctors and for the Division to assist the family in locating
Portuguese-speaking health providers and specialists. The family's case was
closed in June 2017 without those actions being completed.
In December 2021, L.M.'s school nurse contacted the Division to report
that L.M. could not attend school unless her parents provided medical
documentation confirming their claim that L.M. was allergic to the two required
immunizations. The school reported L.M. was classified as autistic. DCPP
advised L.M. was "diagnosed with Serum sickness and/or Vasculitis" and she
could not receive immunizations or take medications because she would have a
reaction. However, DCPP also informed the nurse it would not get involved and
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coded the referral "Information & Referral" to document it in their internal
system.
In March 2022, the school again contacted DCPP to report that L.M.'s
parents had not provided proof that she could not be vaccinated and therefore,
L.M. had missed over fifty days, and the school was taking the parents to truancy
court. The Division requested an update after truancy court and again declined
to get involved.
In September 2022, L.M.'s school again contacted the Division to report
L.M. had not attended school since December 14, 2021, but she did not have to
repeat the grade. The school reported J.R. had a truancy court hearing scheduled
in November 2022 because L.M. now had seventy-nine absences. The school
claimed J.R. refused to name the doctor who declined to administer L.M.'s
immunizations and referred the school to her attorney.
On September 30, 2022, DCPP intake worker Chrissy Fitts contacted J.R.
and planned to meet with her the following week. When Fitts arrived to meet
with J.R., Fitts was unaware that a DCPP representative had picked up L.M. and
transported her to the hospital. The next day, J.R. sent the caseworker a text
message advising her to contact the family's lawyer.
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Almost a month later Fitts met with J.R. and her attorney on a video
conference. J.R. reported she could not get a doctor to submit a note for the
school, but she hoped L.M. could return to school after seeing her doctor for a
wellness visit. A few days later, Fitts noted that J.R. was still waiting for the
doctor's note and J.R. had informed her that her lawyer was taking care of
everything. Fitts also interviewed L.M., who told her that she was doing well.
Fitts noted L.M. was "well dressed" and "clean." Fitts documented L.M. was
also "safe in the care of her parents," and was scheduled to meet with her doctor
"regarding an excuse vaccine letter." Fitts then recommended "[t]ermination of
[DCPP] involvement."
J.R. attended two truancy court hearings in November and December 2022
and received options for in-home schooling or returning to school with an
exemption letter from L.M.'s pediatrician. J.R. declined homeschooling. J.R.
failed to attend the January 2023 truancy court hearing and was fined $250.
Additionally, in January, J.R. told Fitts that L.M.'s doctor would not give
her a note regarding her daughter's vaccine allergy. She informed Fitts she had
found a Brazilian pediatrician, Dr. Polina DaSilva, at Beth Israel Hospital and
wanted this doctor to issue a letter so L.M. could attend school. The next day,
DCPP called the hospital and discovered Dr. DaSilva was no longer seeing
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children at the clinic. Although Dr. DaSilva had apparently seen L.M. on
November 7, 2022, DCPP made no attempts to obtain those medical records or
find out what had occurred at that visit.
In January 2023, DCPP received another referral from L.M.'s school. Fitts
attempted to assist the family by scheduling an allergist appointment for L.M.
to confirm what allergies she had and assess whether she could have the
vaccines, but J.R. refused to take L.M. and stated she wanted to take L.M. to her
own doctor and she would schedule an appointment.
The record shows L.M. had missed ninety days of school from September
5, 2022, until the school unenrolled her on February 17, 2023. Fitts testified
that she repeatedly spoke with J.R. or M.M. to discuss arranging in-home
schooling for L.M., however, J.R. only wanted L.M. to attend in person and
M.M. "went along with whatever [J.R.] was saying."
At the end of February 2023, Fitts and the Division held a family team
meeting with J.R., M.M., and school personnel. Before the meeting ended, J.R.
agreed to take L.M. to the doctor so she could return to school and to also
provide in-home instruction in the meantime. J.R. re-registered L.M. for school
the same day. When Fitts followed up towards the end of March, L.M. still had
not been to the doctor or began home-schooling. For the first time, J.R. told
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Fitts that L.M. was spending her days at the library doing arts and crafts with
the staff.3
On April 11, 2023, the Division filed for and received care and supervision
of L.M. as she was still not back in school, and the parents had refused in-home
services. On April 17, 2023, six days after filing the complaint, DCPP received
a letter from Dr. DaSilva regarding L.M.'s vaccine allergy. The letter stated
vaccinations would be administered one at a time, with a break between, due to
L.M.'s medical history. The record shows L.M. received her first vaccination
on May 1, 2023. On May 3, 2023, the court held the return on the order to show
cause hearing. DCPP advised that after waiting a month to determine if there
was a reaction, L.M. was due to receive her second shot.
At the June 26, 2023 case management conference, L.M.'s attorney
reported L.M. was back at school and scheduled to graduate. The child's
attorney reported L.M. was "doing excellent and passing all her classes." The
school was considering declassifying her as special needs so that she no longer
needed an Individualized Education Program ("IEP"). L.M. would also be
3
At trial, J.R. asserted she had hired a tutor to work with L.M. at home from
June 2022 through May 2023.
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attending high school in the fall. DCPP reported L.M. had received the last
required vaccine.
DCPP informed the court of its finding that J.R. and M.M. were
established for "educational neglect" and asked the court to dismiss the case
after the Title Nine abuse or neglect fact-finding was concluded because L.M.
was up to date on her vaccinations and on track to graduate on time. The court
then took testimony on July 26 and July 31, 2023, using an interpreter to
translate for the parents. DCPP called caseworker Fitts as its only witness. J.R.
testified in her own defense. Neither M.M. nor the Law Guardian called any
witnesses.
On August 7, 2023, the trial court issued an order that J.R. and M.M. had
educationally neglected L.M. In an oral statement of reasons, the court made
findings.
The court relied on the testimony of caseworker Fitts, which it found to
be "relatively credible" although it acknowledged "she did not have the
command of the Division's file" and she had "points [she] could not explain why
her recollection differed from that in the investigative summary." In contrast,
the court found J.R. "did not listen to the questions asked regardless of who was
asking them," and her testimony was "replete with inconsistencies." The court
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found J.R.'s testimony regarding the hiring of a tutor "to be entirely
unbelievable" since she could not remember the tutor's name, did not mention
the tutor to the Division or the school—despite allegedly hiring the tutor for
almost a year, and L.M. herself never mentioned a tutor and only said she did
arts and crafts at the library.
The court found educational neglect under Title Nine "relies on the harm
to the child by depriving them of the physical ability to attend school" and "falls
into the realm of strict liability," namely that the reason why the child is not in
school or similarly educated appear to be immaterial. The court held a finding
pursuant to the statute "is not dependent on the reasonable efforts of the
Division. The finding falls squarely upon the action or inactions of the parent."
Although the court could not determine if J.R. asked for or accepted help from
DCPP, the court found DCPP informed J.R. that L.M. needed to be vaccinated
or she needed to get a doctor's note.
The court further found J.R. made "multiple efforts to secure a doctor for
L.M." in 2014 and 2017, then "fell off again until 2021 when J.R. located Dr.
DaSilva," who provided her with the note necessary to re-enroll L.M. in school.
The court found J.R. was "a resourceful parent who utilized her community to
assist her daughter." The court found J.R.'s language barrier was an issue in
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2014 and 2017 but was not a barrier when she sought a doctor by reaching out
to other Brazilian mothers. The court found L.M.'s more than one hundred
absences from school was "in and itself" educational neglect. The court
expressed sympathy for L.M.'s medical situation but determined that J.R. had
"the power to secure either the vaccine or a note, which she ultimately did." The
court determined that since M.M. acquiesced to J.R.'s "command of [L.M.]'s
schooling," his failure to act made him responsible for L.M.'s educational
neglect. The court determined homeschooling was never "a viable option"
because the parents only spoke Portuguese and the child was autistic. The court
concluded J.R.'s only options were to have L.M. vaccinated or obtain a doctor's
note.
This appeal followed.
II.
Ordinarily, we defer to the Family Court's factual findings, as long as they
are supported by substantial credible evidence in the record. N.J. Div. of Youth
& Fam. Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Fam.
Servs. v. M.M., 189 N.J. 261, 279 (2007). "Where the issue to be decided is an
'alleged error in the trial judge's evaluation of the underlying facts and the
implications to be drawn therefrom,' we expand the scope of our review." N.J.
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Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). We also
accord no deference to the trial court's legal conclusions, which we review de
novo. N.J. Div. of Child Prot. & Perm. v. D.C.A., 256 N.J. 4, 19 (2023); State
v. Smith, 212 N.J. 365, 387 (2012); see also Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The fact-finding hearing is a critical element of the abuse and neglect
process . . . ." N.J. Div. of Youth & Fam. Servs. v. P.C., 439 N.J. Super. 404,
413 (App. Div. 2015). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) defines an
"abused 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 [the
child's] parent . . . to exercise a minimum degree of care
. . . in supplying the child with adequate . . . education,
. . . though financially able to do so or though offered
financial or other reasonable means to do so . . . .
[(emphases added).]
The statute does not require a child to experience actual harm. N.J. Dep't of
Child. & Fams., Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166, 178
(2015). However, "in a case where there is no such proof, the critical focus is
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on evidence of imminent danger or substantial risk of harm." N.J. Dep't of
Child. & Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013).
Further, "[t]o find abuse or neglect, the parent must 'fail[] . . . to exercise
a minimum degree of care.'" E.D.-O., 223 N.J. at 179 (second alteration in
original) (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). A "minimum degree of care"
encompasses "conduct that is grossly or wantonly negligent, but not necessarily
intentional." Id. at 188 (quoting G.S. v. Dep't of Hum. Servs., Div. of Youth &
Fam Servs., 157 N.J. 161, 178 (1999)). Wanton negligence is conduct that is
engaged in with the parent's knowledge that injury is likely to result. Ibid. Mere
negligence does not trigger the statute. Dep't of Child. & Fams., Div. of Youth
& Fam. Servs. v. T.B., 207 N.J. 294, 306-07 (2011); G.S., 157 N.J. at 172-73.
"[W]hether a parent's conduct is negligent or grossly negligent requires an
evaluation of the totality of the circumstances." E.D.-O., 223 N.J. at 170. In
undertaking this analysis, our Supreme Court has warned that we "must avoid
resort to categorical conclusions." Id. at 180. Thus, whether a parent failed to
exercise a minimum degree of care involves a "fact-sensitive" analysis "and
must be resolved on a case-by-case basis." Id. at 192.
Moreover, parents are required to ensure their children either regularly
attend the public schools of the district in which they reside or receive
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instruction equivalent to that provided in the public schools. N.J.S.A. 18A:38-
25; see also Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568,
641 (2003) (holding attendance of a school-age child is compulsory). 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.
To prove abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(a), the Division
must establish by a preponderance of the evidence that the harm or imminent
risk of harm to a child is the result of a parent's reckless disregard for the child's
safety or wellbeing. N.J. Div. of Child Prot. & Perm. v. S.D., 453 N.J. Super.
511, 518 (App. Div. 2018) (citing N.J. Div. of Child Prot. & Perm. v. A. B., 231
N.J. 354, 369 (2017)). Our Supreme Court has linked truancy to child neglect
in finding "'[t]he 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.'" Id. at 518-19 (quoting Doe v.
G.D., 146 N.J. Super. 419, 431 (App. Div. 1976)), aff'd sub nom., Doe v.
Downey, 74 N.J. 196, 199 (1977); N.J. Div. of Youth & Fam. Servs. v. M.W.,
398 N.J. Super. 266, 285-86 (App. Div. 2008) (noting a parent had harmed her
children through educational neglect, among other forms of abuse, because she
had left them with her cousin who locked them in a basement for an extended
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period of time and deprived them of beds, food, a toilet, and the physical ability
to attend school).
III.
With these legal principles in view, we turn to the arguments raised on
appeal. J.R., M.M., and the Law Guardian challenge the trial court's legal
conclusions that "similar to Title [Eighteen], Title [Nine] falls into the realm of
[s]trict [l]iability." They contend the court's determination that L.M. missing
one hundred days of school was per se Title Nine educational neglect was error.
They also posit the finding was made without consideration of the totality of the
circumstances, including the potential risk to L.M. of the vaccines and the
difficulties brought about by the parents' language barrier.
Our Supreme Court has held Title Nine "is not a strict liability statute."
N.J. Div. of Child Prot. & Perm. v. Y.N., 220 N.J. 165, 181 (2014) (citing
N.J.S.A. 9:6-8.2(c)(4)(b)) (abuse or neglect cannot be premised solely on harm
to a child without the consideration of the reasonableness of the parent 's
conduct). The Court noted the Legislature had "pointedly included [that
standard of care] as a prerequisite to a finding." Ibid.More recently, our Court held in Title Nine cases, "[a]bsent proof of actual
impairment, 'the critical focus is on evidence of imminent danger or substantial
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risk of harm.'" N.J. Div. of Child Prot. & Perm. v. B.P., 257 N.J. 361, 376 (2024)
(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013)). The
danger to a child must be imminent, and "the mere possibility of the child being
impaired is [in]sufficient." B.P., at 379. In B.P., the mother of a newborn left
her infant in the hospital after providing evasive information to the Division,
despite having indicated an intent to care for her child. Id. at 366-67. The Court,
in overturning our affirmance of the trial court's finding that this conduct
violated Title Nine, noted "these facts might not present an ideal scenario for a
newborn child, [but] they do not prove that [the child] was abused or neglected
as defined in the statute." Id. at 380.
L.M.'s education is compulsory. See N.J.S.A. 18A:38-25. That does not
automatically mean that L.M.'s extended period of absence must lead to a
finding of Title Nine neglect. The dispositive question is whether L.M.'s
missing school, considering the family's particularized circumstances,
constituted educational neglect under the law. We note the trial court expressed
its sympathy for L.M.'s medical condition. However, the court did not conduct
a sufficient inquiry to determine: whether that situation impacted the
reasonableness of her absences; why it took so long for the family to get the
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right medical care; what assistance was given to the family; and whether the
totality of the circumstances constituted abuse and neglect.
We therefore vacate the August 7, 2023 order and remand to the trial court
to conduct the required analysis within sixty days of the date of this opinion.
We express no opinion as to the merits of the case.
Vacated and remanded for proceedings in accordance with this opinion.
We do not retain jurisdiction.
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