DCPP VS. C.C.-R. AND E.R., IN THE MATTER OF N.R. (FN-13-0043-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2373-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
C.C.-R.,
Defendant-Appellant,
and
E.R.,
Defendant.
______________________________
IN THE MATTER OF N.R.,
Minor.
______________________________
Submitted March 5, 2019 – Decided August 5, 2019
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FN-13-0043-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Fabiola E. Ruiz-Doolan, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Joann M. Corsetto, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor N.R. (Noel C. Devlin, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant C.C.-R. (Clair)1 appeals from the Family Part's December 14,
2017 order finding that she abused or neglected her daughter N.R. (Nancy) under
N.J.S.A. 9:6-8.21(c) (Title Nine) based on her neglect of Nancy's medical needs,
the presence of gasoline fumes in the home, which placed Nancy at a substantial
risk of harm, and Clair's subsequent involuntary commitment rendering her
unable to provide for Nancy's needs. 2 On appeal, Clair argues that plaintiff, the
1
To protect privacy interests and for ease of reading, we use initials and
fictitious names for the parents and children. R. 1:38-3(d)(12).
2
Despite the Family Part's finding, it ordered that Clair not be placed on the
state Child Abuse Registry.
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Division of Child Protection and Permanency (Division) failed to establish by a
preponderance of the evidence that she possessed adequate mental capacity to
be culpable under the Title Nine. We affirm, substantially for the reasons
expressed in Judge Teresa Kondrup- Coyle's oral decision placed on the record
on the same date she entered the order under appeal.
Clair is the biological mother of Nancy, who was nine years old at the
time of the Division's initial investigation. On July 1, 2016, the Division
received a referral from E.R. (Eduard), Nancy's biological father, who was
concerned about Nancy's safety as a result of the home she shared with Clair in
Neptune, which he described as being "in disarray," as well as about Clair's
mental health. Eduard, who had been residing in Oklahoma since 2009, stated
that Nancy had been diagnosed with ADHD and that Clair had not taken her to
the doctor and had forbidden Eduard from doing so.
On that same day, a Division caseworker reported to Clair's home to
investigate. During the caseworker's interview with Clair, she "appeared
paranoid" but coherent. Clair stated that Nancy was homeschooled but was
unable to produce any school-related paperwork or curriculum. When asked if
Nancy had any special needs or developmental delays, Clair explained that she
had speech delays due to hearing issues, but would not provide the name of
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Nancy's pediatrician due to privacy concerns. The caseworker asked several
times for the pediatrician's name and informed Clair that the information would
be kept private, but was unsuccessful in obtaining it, as Clair offered only that
"[Nancy] was receiving the appropriate medical care . . . ." The caseworker
asked Clair to see the rest of her home, where he did not observe anything of
note aside from a lawnmower and other lawn supplies in one of the bedrooms.
The caseworker also spoke to Eduard, who reiterated his concern for Nancy's
well-being and stated that Clair has struggled with her mental health since
Nancy's birth, during which Clair nearly died.
Later that month, the caseworker contacted the Neptune Board of
Education, which had no registration for Nancy on file. Approximately one
week after that, on July 14, 2016, caseworkers again visited Clair's home. Clair
again refused to share information regarding Nancy's pediatrician, expressing
privacy concerns, but showed the caseworker an up-to-date immunization and
medical exam record for Nancy, which also showed the name of the pediatric
practice group Nancy visited. Caseworkers asked Clair again about Nancy's
education and developmental delays. Clair stated that Nancy was receiving an
adequate education, dismissed concerns over her developmental delays as
shyness, and declined the Division's offers for Nancy to undergo physical and
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psychological evaluations, again citing privacy concerns and stating that she
would prefer to schedule those appointments without the Division's
involvement.
When a caseworker contacted Nancy's pediatrician later that day, he was
advised that Nancy was last seen in August of 2012 and was no longer a patient
as she had not been there in four years. During that August 2012 appointment,
Nancy's pediatrician documented her developmental delay. Previously, in May
2011, the pediatrician also noted Nancy's developmental delay and documented
concerns with her limited vocabulary. As a result of that visit, Nancy was
referred to a specialist to work on these issues, which Clair refused twice.
Caseworkers visited Clair's home again for a second time on July 14,
2016, and advised Clair that she needed to call Perform Care, a program that
would address Nancy's developmental delays, while the workers were present.
Clair became argumentative and started speaking about privacy concerns, but
then agreed to call and was told that Perform Care could only help Nancy after
she received a diagnosis from a pediatrician or specialist. After the Division
caseworker spoke to Clair about making a pediatrician appointment for the next
day and stated that Nancy had not been to the pediatrician since 2012, Clair
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"became combative once again," but then agreed to call the pediatrician the next
morning.
The next morning, Clair called the caseworker and stated that she
attempted to make a pediatrician appointment but the doctor could not see Nancy
until the next week. When asked, Clair would not provide the day and time of
Nancy's appointment. The caseworker then advised Clair that the Division
would be filing a complaint for the care and custody of Nancy.
On July 27, 2016, a caseworker made an unannounced visit to Clair's home
and immediately noticed "a strong odor of gasoline." The caseworker also
noticed "a hole in the ceiling of one of the rear bedrooms that exposed the inside
of the home straight to the outside," mold that "appeared black," and "padlock
and deadbolt style locks on the inside of each one of the interior doors going to
each room." The locks were on "every single bedroom, bathroom" and other
door, and the windows were covered with paper.
The caseworker attempted to investigate the gasoline odor and observed a
lawnmower in the laundry room that is connected to the kitchen, but the odor
did not appear to be coming from it. In a bedroom connected to the living room,
the caseworker experienced "an extremely strong odor of gasoline," and
observed a lawnmower, other gardening tools, and "a red container of gasoline
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in a bag, [which Clair] stated that she keeps . . . in the home as well." Clair
opened the sliding door to remove the gasoline can, which revealed a fire pit
that was approximately four feet from the home and appeared to have just been
put out. Clair was unable to provide a reason why a fire pit had been burning
during the day and placed the gasoline can less than a foot away from the pit
before the caseworker moved it. The caseworker also asked Clair to remove the
lawnmower as it was unsafe for her and Nancy to breathe the fumes, and Clair
stated that she did not smell anything and did not want to leave the lawnmower
outside for fears of vandalism.
At that point, the caseworker contacted the police and fire department.
The fire chief concluded that the home needed to be completely ventilated and
Kevin Devlin, the Deputy Coordinator of Emergency Management and a
HAZMAT technician, opined that it was not safe for the family to remain in the
home at that time. The fire chief also stated that the department had been called
to Clair's home previously when she was burning household items in an illegal
fire pit. Fire department workers were also concerned that the ho me contained
black mold.
Immediately after that, a screener from Monmouth Medical Center arrived
to the home to assess Clair after police officers agreed she "appeared to be
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paranoid and delusional." The screener opined that Clair should be fully
evaluated at the hospital, at which point workers advised Clair that the Division
would be taking custody of Nancy. The Division conducted a Dodd removal
that same day.3 Nancy was placed in a Division-approved resource home and
Clair was involuntarily committed for psychiatric treatment after being
diagnosed with bipolar disorder and psychosis, and later transferred to
involuntary inpatient treatment.
On July 29, 2016, the Division filed a verified complaint and order to
show cause for custody of Nancy. The Division noted its concern with Nancy's
well-being due to Clair's paranoia, Nancy's struggles to form sentences and
interact with people other than her parents, and lack of medical care or adequate
education. Judge Kondrup-Coyle granted the Division's application that day and
ordered Clair to submit to a psychological and psychiatric evaluation following
her hospitalization and that any evaluations related to Nancy be arranged on an
expedited basis.
3
A Dodd removal is an emergency removal of a child from a parent's custody
without a court order, as authorized by the Dodd Act, N.J.S.A. 9:6-8.29. N.J.
Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210, 215 n.2 (App.
Div. 2017).
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Nancy underwent a psychological evaluation on August 8, 2016. The
psychologist found that Nancy presented with "many functional challenges
which appear to be due to a likely disorder on the Autis[m] Spectrum." Nancy
also presented signs of Obsessive-Compulsive Disorder, Posttraumatic Stress
Disorder, and "developmental delays." The doctor was also concerned about the
"impact of [Clair's] mental health issues/modeling on [Nancy's] functioning."
The doctor found Nancy's communication abilities to be "very limited" as she
was "largely nonverbal," and noted reports of Nancy having "extreme fear
reactions" to strangers or being approached even in a benign manner.
Clair underwent a psychological evaluation on August 16, 2016. The
doctor diagnosed Clair with an Unspecified Psychotic Disorder, concluded that
Clair "continue[d] exhibiting symptoms of paranoia and thought disorder that
have impeded her capacity to sufficiently assess her environment and allow her
daughter to receive relevant medical and educational services." He did not
recommend her as an "independent caretaker" for Nancy and referred her for
treatment to support her emotional stability. Specifically, the doctor directed
that Clair be admitted to "an outpatient partial hospitalization program" in which
she could receive treatment that would enable her to "demonstrate appropriate
reality orientation."
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A nonconsecutive three-day factfinding hearing followed. Officer
Kristopher Daly testified for the Division and described the state of Clair's
home, including the strong odor of gasoline, on the day Nancy was removed.
Kevin Devlin also testified for the Division regarding the consequences of the
black mold found at Clair's home and the events that transpired on the day it was
discovered. At the end of the first day of the hearing, the trial judge addressed
Eduard's request to have custody of Nancy transferred to him in Oklahoma ,
which she granted.4
On the second day of the hearing, Division caseworker Michael Grisanti
testified for the Division and described the poor condition of Clair's home and
the items found inside, the difficulties he experienced while attempting to talk
to Clair, and the Division's concerns regarding Nancy's lack of medical care and
Clair's mental health. Finally, on the third day of the hearing, Division
caseworker Stacy Jackson, who became involved in the case after Nancy was
placed in her non-relative resource home, testified for the Division. Jackson
indicated that at that point, Clair had not complied with seeking any mental
health treatment in response to the court's previous order, had not indicated that
4
At the conclusion of the litigation, on December 14, 2017, the judge entered
an order relinquishing jurisdiction to Oklahoma, where Nancy resided with he r
father.
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she would take psychiatric medication, and did not appear to understand the
results of her psychological evaluation. Jackson also stated that she visited
Clair's home in November 2016 and February 2017 and the conditions that led
to Nancy's removal had not yet been ameliorated. After that, Clair represented
to Jackson that the issues had been taken care of, but did not allow Jackson to
visit the home and verify that was true. When Jackson visited the home in
September 2017, she discovered a letter on the door stating that Clair had been
evicted. Jackson had since experienced difficulty in getting in touch with Clair.
Jackson also testified that Nancy had been receiving various services in
Oklahoma, including having an individualized education plan (IEP) and
undergoing occupational therapy, individual therapy, and an autism evaluation.
Nancy was "doing wonderful[ly] in her father's care" and the guidance counselor
at Nancy's school indicated that she had been doing "very well" especially in
light of what she had experienced while residing with Clair. Nancy had also
begun visiting a pediatrician. Clair presented no witnesses on her behalf.
At the conclusion of the hearing, Judge Kondrup-Coyle placed her
decision on the record. The judge found all of the witnesses to be credible and
that Clair put Nancy at a substantial risk of harm and failed to exercise a
minimum degree of care based upon on the state of her home at the time of
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Nancy's removal. The judge found that regarding those risks of harm, Clair "was
conscious enough and understood it enough" in spite of her mental health
struggles. The judge noted Nancy's developmental delays, lack of medical care,
that she was dressed inappropriately for the weather on the day of her removal,
and that the windows in Clair's home were covered in black paper with "no light
coming in." To the trial judge, "[t]he simple fact that [Clair] failed to follow -up
on [Nancy's] medical needs is enough . . . in this case. That was an affirmative
decision. Everything else is just, quite frankly, added on."
On December 14, 2017, the judge issued an order memorializing her
finding by a preponderance of the evidence that Clair abused or neglected Nancy
under Title Nine. The judge's decision was based on her conclusions that Clair
failed to follow up both on Nancy's medical needs for four years and the 2012
recommendation for an evaluation to determine whether Nancy had any
developmental delays; the condition of Clair's home including the presence of
gasoline and toxic fumes that placed Nancy at risk of harm; and Clair's
involuntary commitment, as a result of which she was not able to provide for
Nancy's needs. This appeal followed.
On appeal, Clair argues the following points:
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POINT I:
CLAIR'S CONDUCT WAS NOT WILLFUL OR
WANTON WITHIN THE PURVIEW OF TITLE 9.
CLAIR'S SERIOUS MENTAL ILLNESS
PREVENTED HER FROM TAKING CARE OF
NANCY WHICH WARRANTED THE DCPP'S
INVOLVEMENT UNDER N.J.S.A. 30:4C-12.
A. CLAIR'S MENTAL ILLNESS
PREVENTED HER FROM HAVING THE
AWARENESS OF AN ORDINARY PERSON.
B. NANCY WAS NOT IN IMMINENT
DANGER OF IN A SUBSTANTIAL RISK OF BEING
HARMED.
POINT II:
NANCY WAS A CHILD IN NEED OF SERVICES
UNDER N.J.S.A. 30:40C-12 (ISSUE NOT RAISED).
Our standard of review on appeal is well-settled. We are bound by the
Family Part's factual findings if supported by sufficient credible evidence. N.J.
Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div.
2010). We accord particular deference to the family court's fact-finding because
of the court's "special expertise" in family matters, its "feel of the case," and its
opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154
N.J. 394, 412-13 (1998).
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Under N.J.S.A. 9:6-8.21(c)(4), an abused or neglected child is:
[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[.]
The Division "must prove that the child is 'abused or neglected' by a
preponderance of the evidence, and only through the admission of 'competent,
material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute requires a
court to consider harm or risk of harm to the child, as opposed to the intent of
the abuser, because "[t]he main goal of Title [Nine] is to protect children 'from
acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs.,
157 N.J. 161, 176 (1999) (quoting Stave v. Demarest, 252 N.J. Super. 323, 330
(App. Div. 1991)).
We turn first to Clair's argument that her "conduct was not willful or
wanton" and her "serious mental illness prevented her from taking care of
Nancy." In general, the mental illness of a parent may create an environment in
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which the parent is incapable of safely caring for his or her children. N.J. Div.
of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001).
Nonetheless,
[m]ental illness, alone, does not disqualify a parent
from raising a child. But it is a different matter if a
parent refuses to treat his [or her] mental illness, the
mental illness poses a real threat to a child, and the
other parent . . . is unwilling or incapable of following
court orders to shield [his or] her child from that
danger.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 450-51 (2012).]
However, a parent need not "act with a willful or purposeful intent to
commit child abuse" in order to be found culpable under Title Nine. G.S., 157
N.J. at 177. Proof that a parent's "actions were inadvertent and she did not intend
to harm" a child does not preclude a finding of abuse or neglect. Ibid. 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 adequately to supervise the child or
recklessly creates a risk of serious injury to that child." Id. at 181. "At the very
least, a minimum degree of care means that a parent's conduct must be 'grossly
negligent or reckless.' In contrast, a parent's negligent conduct is not sufficient
to justify a finding of abuse or neglect under [Title Nine]." N.J. Div. of Child
Prot. & Permanency v. Y.N., 220 N.J. 165, 180 (2014) (citation omitted). See
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also Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207
N.J. 294, 307 (2011) (holding that a parent who "acts in a grossly negligent or
reckless manner" may place a child at risk of future danger, but "where a parent
is merely negligent there is no warrant to infer that the child will be at future
risk"). Here, as the trial judge found, Clair's mental illness did not prevent her
from being aware of the risk of harm to Nancy, and Clair's actions were more
than "merely negligent."
Moreover, although Clair's mental health issues alone cannot form the
basis of a finding of abuse and neglect, the other facts present in this case,
including Nancy's lack of proper medical care and lack of education, and the
presence of toxic fumes and mold in Clair's home, were supported by the record
and the testimony at the hearing and formed the basis of the trial judge's
decision. We therefore affirm substantially for the reasons set forth by Judge
Kondrup-Coyle in her oral decision. As to Clair's remaining arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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