DCPP VS. S.B. IN THE MATTER OF I.A.B. (FN-07-0240-15, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2051-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
S.B.,
Defendant-Appellant.
_______________________________________
IN THE MATTER OF I.A.B., a minor.
________________________________________
Submitted May 2, 2017 – Decided August 14, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0240-15
Joseph E. Krakora, Public Defender, attorney
for appellant (Eric R. Foley, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Joseph J. Maccarone,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Danielle Ruiz,
Designated Counsel, on the brief).
PER CURIAM
In this Title 9 action, defendant S.B. 1 appeals from the
Family Part's February 24, 2015 fact-finding order determining
that, within the meaning of N.J.S.A. 9:6-8.21(c), she abused or
neglected her son, I.A.B. (Ian), who was born on October 30, 2014.2
Prior to Ian's birth, plaintiff New Jersey Division of Child
Protection and Permanency (Division) substantiated defendant for
causing the death of her other child, I.B. (Ida), for which she
was charged criminally. After her arrest, defendant was released
on bail, subject to conditions that prohibited her from having
custody or contact with her newborn son, unless otherwise ordered
by the Family Part.
After Ian was born, the Division substantiated defendant for
abuse or neglect because defendant could not care for Ian under
the Law Division's order and she exposed him to an imminent risk
of harm based upon defendant's alleged role in her daughter's
death. The Division initiated this action and, at the conclusion
of the fact-finding hearing, a Family Part judge found that the
Division proved Ian was an abused or neglected child because
1
We use initials and pseudonyms to protect the identity of the
child that is the subject of this action.
2
S.N. (Seth), Ian's father, was a party to the Title 9 action.
He is not a party to this appeal.
2 A-2051-15T1
defendant exposed him to a substantial risk of imminent harm and
there were no safe plans for his care.
On appeal, defendant contends that the Division failed to
prove that Ian was abused or neglected as a result of her exposing
him to a substantial risk of harm because she had not been
convicted of any crime and had made adequate plans for her newborn
son. We disagree and affirm.
At the fact-finding hearing held on February 24, 2015, the
Division called Patricia Reynolds, one of its caseworkers, who was
the only witness to testify for either party. Prior to her
testimony, the court admitted into evidence various Division
records without objection. Those records consisted of Division
investigation summaries, as well as Ida's hospital records and the
Law Division's October 29, 2014 order memorializing its July 7,
2014 oral decision setting forth defendant's bail restrictions.
The facts adduced from the caseworker's testimony and the documents
admitted into evidence were undisputed and are summarized as
follows.
The Division received a referral on September 16, 2013,
regarding bruising observed on three-year-old Ida's body, which
led to an investigation of defendant for physical abuse. Ida
initially reported to her daycare provider that her mother had hit
her, but then stated the bruising occurred when she and defendant
3 A-2051-15T1
had fallen while getting out of a car. The next day, a Division
investigator interviewed Ida and observed the bruises. When
questioned about the bruising, Ida said "mommy" and then began to
cry.
The investigator also met on several occasions with
defendant, who provided inconsistent reasons for the bruising on
Ida's body. She denied causing bruising to Ida's arm and initially
stated she did not know where the bruising came from, then stated
it was the result of Ida scratching a rash, but later admitted
that she caused the bruising when she grabbed Ida's arm as they
crossed a street. Defendant also explained that bruises on Ida's
face were caused by a fall, but also attributed them to beads the
child wore while sleeping. She denied using corporal punishment,
but conceded she would sometimes "pop" Ida on the buttocks or
hand. The Division determined that the allegations of defendant
causing her daughter's bruising had been "established" by its
investigation.3
3
Allegations that a child has been abused or neglected can
either be "substantiated," "established," "not established," or
"unfounded." N.J.A.C. 3A:10-7.3(c). In order for an allegation
to be either "substantiated" or "established," the Division must
show by a preponderance of the evidence that the child at issue
met the definition of "abused or neglected." Ibid.
4 A-2051-15T1
On September 20, 2013, Ida was brought to the hospital in
cardiac arrest, and she was pronounced dead shortly after her
arrival. Hospital personnel notified the Division of her death,
and it eventually learned from the medical examiner's office that
the child's death was deemed "suspicious." After an autopsy, the
police charged defendant with aggravated manslaughter. The
Division learned that Ida's death was caused by "blunt force trauma
to [her] torso, chest and [and that she sustained a] laceration
to her liver." Ultimately, the Division substantiated defendant
for having caused her daughter's death.
After defendant's arrest, she appeared for a bail hearing on
July 7, 2014, and because she was pregnant at the time, the Law
Division imposed the restriction against her having custody or
contact with her child after she delivered. The day before Ian's
birth, the court entered an order memorializing its July 7 bail
restrictions. The order provided that defendant was prohibited
from having any contact with the anticipated newborn as a condition
of her bail, subject to any visitation ordered by the Family Part.
When the Division learned about the restriction placed on
defendant, it began to make arrangements for the baby's placement,
working with defendant to find a suitable home with relatives.
During discussions with a Division caseworker, defendant denied
having caused her child's death. Despite defendant's suggestions
5 A-2051-15T1
and the Division's efforts, various relatives had to be ruled out
from being caregivers for Ian for a variety of reasons.4
After Reynolds testified, counsel for the parties presented
their closing arguments. In her closing statement, counsel for
defendant argued that "there was no risk of harm to [Ian] posed
by [defendant]" because the bail restriction ordered "she not have
custody of any child, nor any unsupervised contact [with] any
child. . . . The issuance of that condition of bail in that court
order at that time eliminated any substantial risk of harm that
[defendant] posed to [Ian]." Moreover, counsel contended that
defendant "had a plan in place" in which "she presented both her
sister, . . . her mother, . . . and a paternal relative" to care
for Ian and that "[t]his [action] would be appropriately proceeding
under Title 30 and not under Title 9."
The Family Part judge rejected defendant's arguments and
entered a fact-finding order that stated Ian was at a "substantial
4
Reynolds stated Ian was not placed with Seth because he had a
criminal trial pending and, in any event, he did not offer to take
his child. Moreover, defendant did not want the child placed with
the father. Additionally, the Division could not place the child
with his maternal grandmother because defendant was living in the
home with her mother. Although defendant offered to move in with
her sister, so the child could stay with the grandmother, the
sister's lease prevented her from allowing defendant to live with
her. Finally, a paternal aunt expressed willingness to care for
the child, but she was a "chain smoker." Accordingly, the Division
considered her a "last resort."
6 A-2051-15T1
risk of harm due to the death of the older child in the home" and
the fact that defendant was "facing criminal charges related to
the death of the child." Addressing defendant's arguments about
her having a plan for Ian, the judge stated in his oral decision
that "[c]onsidering the nature of the seriousness of the charges,
[the] prior substantiation, the fact that the order provides that
a [f]amily [c]ourt [j]udge has to determine the conditions of
visitation," he was concerned about allowing defendant to make
arrangements for placement of the newborn child with family members
that would create a "likelihood that there's going to be a
violation of [the bail] order."
After the fact-finding hearing, the judge approved the
Division's permanency plan for termination of parental rights
followed by adoption and, on December 10, 2015, it entered an
order terminating the abuse or neglect litigation as the Division
had filed its guardianship complaint.
On appeal, defendant argues that the criminal charge "had not
yet resulted in a conviction" and "the record does not and cannot
demonstrate any correlation between the death of [Ida] and any
neglect [by defendant]." Accordingly, she argues, the criminal
charge "cannot form the basis of" an abuse and neglect finding.
Moreover, defendant avers the court's reliance on the bail
restriction is misplaced, as defendant "had a plan to have a
7 A-2051-15T1
relative care for [Ian] at the time of his birth in anticipation
that she would continue to face the bail restriction." Defendant
contends the court failed to explain how "the existence of the
criminal charges, the bail restriction and prior Division
involvement with another child" placed [Ian] at an imminent risk
of harm. We disagree.
We begin our review by recognizing it is limited and narrow.
In recognition of the special expertise of Family Part judges in
matters of parental abuse and neglect, we defer to findings
supported by substantial credible evidence in the record. N.J.
Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).
We intervene, however, to ensure fairness if the judge's
"conclusions are 'clearly mistaken or wide of the mark.'" Id. at
226-27. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 104 (2008)). "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. Div. of Youth & Family 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)). The trial judge's
interpretation of the law and the application of such legal
conclusions to the facts are subject to plenary review. See
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
8 A-2051-15T1
378 (1995). In our review, we consider the totality of the
circumstances in abuse or neglect proceedings. N.J. Div. of Youth
& Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011).
"New Jersey's child-welfare laws balance a parent's right to
raise a child against 'the State's parens patriae responsibility
to protect the welfare of children.'" N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting N.J. Dep't
of Children & Families v. A.L., 213 N.J. 1, 17-18 (2013)). "The
adjudication of abuse or neglect is governed by Title 9, which is
designed to protect children who suffer serious injury inflicted
by other than accidental means." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014) (citing
G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999)); see also
N.J.S.A. 9:6-8.21 to -8.73. Title 9 is intended to safeguard
children who have been abused or are at risk of imminent harm.
A.L., supra, 213 N.J. at 18, 22. "To that end, Title [9] provides
for the civil prosecution of a parent or guardian who abuses or
neglects a child." Y.N., supra, 220 N.J. at 178 (citing N.J.S.A.
9:6-8.33).
N.J.S.A. 9:6-8.21(c)(4) provides that a child is "abused or
neglected" when his or her
physical, mental, or emotional condition has
been impaired or is in imminent danger of
becoming impaired as the result of the failure
9 A-2051-15T1
of his [or her] parent or guardian, as herein
defined, 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 . . . .
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." Dep't of Children and Families v.
E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S., supra, 157 N.J.
at 181). Therefore,
the primary question under Title 9 is whether
[the child] . . . "ha[d] been impaired" or was
in "imminent danger of becoming impaired" as
a result of [his or her parent's] failure to
exercise a minimum degree of care by
unreasonably inflicting harm or allowing a
"substantial risk" of harm to be inflicted.
[A.L., supra, 213 N.J. at 22 (second
alteration in original) (quoting N.J.S.A. 9:6-
8.21(c)(4)(b)).]
"Accordingly, Title 9 initially looks for actual impairment
to the child. . . . [W]hen there is no evidence of actual harm,
the focus shifts to whether there is a threat of harm." E.D.-O.,
supra, 223 N.J. at 178. "[T]he standard is not whether some
10 A-2051-15T1
potential for harm exists." Id. at 183 (quoting N.J. Dep't of
Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App.
Div. 2009)). "[A] finding of abuse and neglect [must] be based
on proof of imminent danger and a substantial risk of harm." Id.
at 178 (quoting A.L., supra, 213 N.J. at 23). "Predictions as to
probable future conduct can only be based upon past performance.
. . . We cannot conceive that the Legislature intended to
guarantee parents at least one chance to . . . abuse each child."
N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472,
482 (App. Div. 2010) (quoting J. v. M., 157 N.J. Super. 478, 493
(App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied,
207 N.J. 188 (2011). "[A] court need not wait until a child is
actually harmed by parental inattention or neglect before it acts
in the welfare of such child." N.J. Div. of Youth & Family Servs.
v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied,
200 N.J. 505 (2009). Nor does harm to the child need to be
intentional in order to substantiate a finding of abuse or neglect.
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 344
(2010).
"Strict adherence to the statutory standards . . . is
important because the stakes are high for all parties concerned."
Y.N., supra, 220 N.J. at 179. Consequently, whether a parent has
11 A-2051-15T1
engaged in acts of abuse or neglect is considered on a case-by-
case basis and must be "analyzed in light of the dangers and risks
associated with the situation," N.J. Dep't of Children & Families
v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S.,
supra, 157 N.J. at 181-82), and evaluated "at the time of the
event that triggered the Division's intervention." E.D.-O.,
supra, 223 N.J. at 170.
At a fact-finding hearing, N.J.S.A. 9:6-8.44, the Division
must prove abuse or neglect by a preponderance of the evidence,
and "only competent, material and relevant evidence may be
admitted." N.J.S.A. 9:6-8.46(b)(2); see also P.W.R., supra, 205
N.J. at 32 (holding the State bears the burden to present proofs
to establish abuse or neglect, as defined in the statute); N.J.
Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24
(App. Div. 2004) (explaining the State must "demonstrate by a
preponderance of the competent, material and relevant evidence the
probability of present or future harm" to the minor child), certif.
denied, 182 N.J. 426 (2005). Proof of exposing a child to an
imminent danger and a substantial risk of harm includes evidence
of a parent's abuse or neglect of another child. N.J.S.A. 9:6-
8.46(a)(1) ("[P]roof of the abuse or neglect of one child shall
be admissible evidence on the issue of the abuse or neglect of any
other child of . . . the parent or guardian . . . ."). A
12 A-2051-15T1
risk of harm may be shown "not only from [a parent's] past
treatment of the child in question but also from the quality of
care given to other children in [his or her] custody." N.J. Div.
of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573-74
(App. Div. 2010) (quoting J. v. M., supra, 157 N.J. Super. at
493).
Applying these guiding principles, we conclude that the
Family Part judge's finding of abuse or neglect was supported by
substantial credible evidence of the harm caused by defendant to
her deceased older child and defendant's inability to provide for
her newborn son's care. We find defendant's arguments to the
contrary to be without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only
the following brief comment regarding the impact of a defendant's
bail condition on the determination of whether a child was abused
or neglected.
A condition of pretrial release that restricts a parent's
contact with his or her child is subject to revision or vacating
by the Family Part. See R. 3:26-1(b); R. 5:12-6(a); see also S.M.
v. K.M., 433 N.J. Super. 552, 558 (App. Div. 2013). Contrary to
defendant's argument, the Family Part judge here did not rely on
the existence of the bail condition in determining that defendant
abused or neglected her son. Rather, the judge properly considered
13 A-2051-15T1
the effect of the Law Division's order on defendant's ability to
be available to care for her son or have a safe plan for his care.
Absent an application by defendant or any of the other parties to
modify the restriction, see e.g. S.M., supra, 433 N.J. Super. at
554, the court's consideration of the restriction as entered by
the Law Division was proper.
Affirmed.
14 A-2051-15T1