DCPP VS. C.M. AND A.T. IN THE MATTER OF A.M.  (FN-02-327-13, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1274-14T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
C.M.,
Defendant-Appellant,
and
A.T.,
Defendant-Respondent.
______________________________________________
IN THE MATTER OF A.M., a minor.
______________________________________________
Argued May 4, 2017 – Decided July 25, 2017
Before Judges Lihotz, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FN-02-327-13.
Allison C. Williams argued the cause for
appellant C.M. (Williams Law Group, LLC,
attorneys; C.M., on the pro se brief).
Julie B. Colonna, Deputy Attorney General,
argued the cause for respondent New Jersey
Division of Child Protection and Permanency
(Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Ms. Colonna,
on the brief).
Sunshine, Atkins, Minassian, Tafuri,
D'Amato, Beane & Buckner, PA, attorneys for
respondent A.T., join in the brief of New
Jersey Division of Child Protection and
Permanency.
Noel C. Devlin, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Mr. Devlin, of counsel and on the
brief).
PER CURIAM
In this Title Nine action, defendant C.M. (father) appeals
from the January 10, 2014 order finding he abused and neglected
his son, A.M. (Adam), ten-years of age at the time of the
subject incident, in violation of N.J.S.A. 9:6-8.21(c)(4)(b).1
Although Adam's mother, A.T. (mother), is named as a defendant,
the Division of Child Protection and Permanency (the Division)
did not allege she abused or neglected the child. The father is
also the father of M.M. (Molly or baby). Molly's mother is the
father's current wife, K.W. (stepmother).
1
We employ the use of initials for the parties and other
family members, and a fictitious name for defendants' son, in
order to protect their privacy.
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Specifically, as set forth in the order, following a fact-
finding hearing, the Family Part found the father
"systematically isolated the minor child, [Adam], out of an
irrational and medically unsupported fear that [Adam] would
spread germs to his baby sister, [Molly]." The father contends
the court's conclusions are not supported by the evidence. We
agree, and reverse the finding he abused and neglected Adam.
I
The pertinent evidence adduced at the fact-finding hearing
revealed the following. At the time of their divorce in 2007,
the parties agreed to share joint physical custody of Adam. The
father had physical custody of Adam every Wednesday from after
school until Friday morning, and every alternate weekend from
Friday evening to Sunday evening. In 2011, the father married
the stepmother; their child, Molly, was born in January 2013.
On March 26, 2013, a counselor at Adam's school contacted
the Division advising Adam had reported he no longer wanted to
visit with his father because he confined the child to his
bedroom during parenting time. Kimberly Roberts, the Division
investigator who received the referral, interviewed Adam, the
father, the mother, the stepmother, and other family members.
Roberts testified Adam advised that, since Molly was born,
he had been required to remain in his bedroom when in his
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father's home because his father was a "germaphobe." Adam
reported the reason he was confined to his room was his father's
concern Adam might contaminate Molly with his germs, so the
father endeavored to limit contact between Adam and Molly as
much as possible. If Adam needed anything, he was required to
ring a cow bell and his father or stepmother would respond.
Adam claimed he ate all meals in his bedroom, as well.
Each meal was put on a tray and placed outside of his closed
bedroom door. His father then let Adam know his meal was on the
other side of the door. Adam retrieved his meals after his
father retreated a sufficient distance down the hall.
On a few occasions, Adam was able to eat outside of his
room, but was required to sit on the opposite side of the table
so that he would not breathe on his father and spread his germs
to Molly. Although able to hold Molly on a few occasions,
generally he was permitted to touch only her feet to keep his
germs from contaminating the baby.
Adam also complained he was required to take a shower and
put on fresh clothes when he arrived at his father's home from
school. Adam acknowledged there were times he was allowed to
leave his room to play sports with his father outside, but such
breaks were only twenty minutes in duration. If on rare
occasion he was permitted to leave his room and venture into
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other parts of the house, he was required to sit in only one
particular chair and was prohibited from touching most objects,
including doorknobs and the refrigerator. At the conclusion of
her interview, Adam stated he did not wish to return to his
father's home because, while there, he felt like a "caged
animal."
Roberts also interviewed the father and stepmother.
According to Roberts, they confirmed Adam's allegations.
Roberts also interviewed Adam and Molly's pediatrician, who
informed Roberts the baby was healthy. However, the doctor
commented the father and stepmother were "extremely cautious"
about the baby, and at a recent appointment asked him many
questions about the measures they should implement to prevent
Molly from getting sick. The doctor informed Roberts he had
advised the parents not to expose Molly to large crowds, persons
with illnesses, or school age children who may be carrying
illnesses.
After the investigation concluded, the Division filed a
complaint and order to show cause why it should not have care
and supervision of Adam, pursuant to N.J.S.A. 9:6-8.21 and
N.J.S.A. 30:4C-12. In April 2013, the court granted the
Division's order to show cause, and Adam's mother was granted
physical custody; the father was permitted supervised visitation
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only. In May 2013, the court entered an order stating the
supervised visits between the father and Adam were not to occur
unless the child wanted to see his father. The father has not
had visitation with Adam since June 2013.
The Division called social worker Sean Conlon, L.C.S.W., as
its expert on child abuse and neglect. Conlon evaluated Adam in
May 2013, who told Conlon essentially what he had reported to
Roberts. Conlon testified Adam sustained "some" emotional abuse
because his father caused him to be isolated and restricted.
Conlon did not qualify or define what "some" emotional abuse
meant.
Conlon also noted the child was disappointed his father
rejected his explanation of how he had sustained a minor injury
to his chin, shoulder, and chest during their last visit in
March 2013; required he be supervised when interacting with the
baby; was not proud of him; and cursed on occasion. We note
none of these acts is before us. The basis for the finding the
father abused and neglected Adam is he unreasonably confined the
child to his bedroom.
Adam testified, appearing on closed circuit television. In
contrast to what Adam allegedly informed Roberts and Conlon,
significantly, Adam testified he was confined to his room only
when he was sick and for "the week after." He rang the cow bell
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only three times; once to inquire if dinner was ready and twice
to ask for water. When he was not ill, he sat at the dinner
table, although he did have to sit at the opposite end of the
table where his father sat so he would not breathe on him and
make him ill.
Adam further testified he had to stay in his room if he did
not want to do his homework, or was otherwise being punished.
We note here the unlikelihood Adam was banished to his room as a
form of punishment if he was otherwise restricted to his room.
In addition, Adam testified he was not forbidden from touching
all doorknobs in the house, just the one to his father's and
stepmother's bedroom. However, he was sent to his room on one
occasion as punishment for touching the door to the
refrigerator.
Adam's response to other questions revealed he was not
confined to his room. He testified when he got home from
school, he showered and changed his clothes. He then did his
homework, which he did in his room "sometimes" but "sometimes
[he] didn't." After he completed his homework, he played or
watched television. Adam did not have a television in his
bedroom, and thus had to have ventured out of his room to watch
television. Adam also stated his television privileges were
restricted if he needed to be punished. It is improbable he was
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prohibited from watching television as a form of punishment if
expected to remain in his bedroom at all times.
In a journal Adam maintained, he wrote he was not allowed
out of his room for "1 month since beginning of 3/13/13." This
date was a Wednesday, and Adam had parenting time on this day
and on the following day. It is not disputed he was not in his
father's home again until the following Thursday, March 21,
2013, where he remained - except when at school - through
Sunday, March 24, 2013, the last time he was in his father's
home. Adam's claim he was confined to his bedroom for a month,
commencing on March 13, 2013, is clearly unfounded.
The father's pertinent testimony was as follows. He
disputed informing Roberts that all of Adam's allegations were
accurate. The father testified the child was not confined to
his room, unless he were ill or being punished. However, Adam
was restricted from touching the baby when he was ill, or was
required to wash his hands before touching her. When Adam had a
bad cold in February, he was prohibited from opening the
refrigerator door, using the remote control, and touching the
doorknob of the nursery. The father noted Adam was defiant at
times and kissed the baby's hand when he was ill, which
concerned the father because the baby then put her hand in her
mouth.
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It is not disputed that during his last visit to the
father's home, which commenced the evening of Thursday, March
21, 2013 and ended on Sunday, March 24, 2013, Adam was
recovering from a stomach virus. In fact, Adam had to stay home
from school on Wednesday, March 20, 2013, because he was too ill
to attend. Adam did return to school the following day,
Thursday, March 21, 2013, but was still exhibiting some
symptoms.
Believing the child still might be contagious, the father
confined Adam to his room from the time he arrived at his home
early Thursday evening. The father also restricted Adam to his
room after school on Friday. Because confined to his bedroom,
Adam ate dinner on Thursday and Friday evening in his room, as
well. Otherwise, Adam never had any meals in his bedroom,
except on the few occasions he was sent to his room as
punishment for some transgression and had to eat in his room.
The stepmother testified, disputing many of the statements
Roberts attributed to her. It is not necessary to address the
stepmother's testimony in depth, although we briefly summarize
that testimony the court credited and, in fact, found
corroborative of the child's testimony.
The stepmother stated Adam became ill with a bad cold in
February 2013, and often wiped his nose with his hands and did
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not cover his mouth when he coughed. Adam's pediatrician told
the stepmother to keep the child out of the common areas of the
house and to limit his contact with common items.
Accordingly, while he was sick, Adam was limited to using
only the telephone in his bedroom; could not kiss the baby; was
required to ask his father or stepmother to change the channel
on the television remote control; and was prohibited from
touching the refrigerator door. If he wanted food from the
refrigerator, he had to ask the stepmother or father to retrieve
what he wanted. In addition, when the stepmother's mother
visited, her mother slept on one of the two couches in the
living room; Adam was restricted from using that particular
couch.
The court found Adam, Roberts, and Conlon's testimony
credible and credited those portions of the stepmother's
testimony we summarized. The court did not find the father
credible, even though some of his testimony was consistent with
the child's.
On the substantive question, the court found the father
abused and neglected the child by isolating him, specifically,
by confining him to his room whether he was sick or well, and
that such isolation caused the child emotional harm. Although
not the basis for finding he abused and neglected the child, the
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court also found fault with the father for making the child take
a shower when he came home from school; forcing Adam to sit in a
seat furthest from him at the dinner table those "few" times
Adam ate a meal outside of his room; prohibiting Adam from
touching the refrigerator, the remote control, and the doorknobs
in the home; restricting the child to sitting on only one chair
in the living room; and limiting Adam's contact with the baby.
II
On appeal, the father asserts the following arguments for
our consideration:
POINT I: THE EVIDENCE AT THE FACT-FINDING
HEARING DID NOT ESTABLISH ABUSE OR NEGLECT
BUT ACTUALLY WAS CORROBORATIVE OF C.M.'S
DEFENSE THAT A.M. WAS NOT EMOTIONALLY ABUSED
OR NEGLECTED.
POINT II: THE JUDGE ERRED BY DENYING C.M.'S
RECUSAL MOTION WHICH SOUGHT THE JUDGE'S
RECUSAL BECAUSE SHE HELD AN IMPROPER EX
PARTE MEETING WITH A.M. WHICH CONSTITUTED
PREJUDICIAL ERROR.
We defer to the factual findings of the Family Part, but
only if "supported by adequate, substantial, and credible
evidence" in the record. N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 552 (2014). But even if a court's factual
findings are supported by adequate, substantial, and credible
evidence, we owe no special deference to the trial court's
"interpretation of the law and the legal consequences that flow
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from established facts." Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). A reviewing court is
compelled to reverse if the trial court failed to consider all
the controlling legal principles, or reached a determination
that "could not reasonably have been reached on sufficient
credible evidence present in the record after considering the
proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345
(App. Div. 1996).
N.J.S.A. 9:6-8.21 provides:
"Abused or neglected child" means . . . (4)
. . . 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
. . . (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)(b).]
The case G.S. v. Dep't of Human Servs., 157 N.J. 161 (1999)
is instructive on what constitutes "a minimum degree of care":
The phrase "minimum degree of care" denotes
a lesser burden on the actor than a duty of
ordinary care. If a lesser measure of care
is required of an actor, then something more
than ordinary negligence is required to hold
the actor liable. The most logical higher
measure of neglect is found in conduct that
is grossly negligent because it is willful
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or wanton. Therefore, we believe the phrase
"minimum degree of care" refers to conduct
that is grossly or wantonly negligent, but
not necessarily intentional.
[Id. at 178.]
"Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result."
Ibid. "[A]ctions taken with reckless disregard for the
consequences" are encompassed within "willful or wanton"
conduct. Ibid. "Essentially, the concept of willful and wanton
misconduct implies that a person has acted with reckless
disregard for the safety of others. . . . [A] person is liable
for the foreseeable consequences of her actions, regardless of
whether she actually intended to cause injury." Id. at 179.
Therefore, "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. Courts must look at "the dangers and risks associated
with the situation" when determining whether the parent failed
to exercise a minimum degree of care. Id. at 181-82.
Here, there is evidence Adam told Roberts and Conlon he was
confined to his bedroom for the duration of his parenting time.
However, the court found credible Adam's testimony, which was
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markedly different from what he imparted to Roberts and Conlon.
Adam's testimony was he was confined to his room only when he
was ill, needed to complete his homework, or was being punished.
Other portions of his testimony exposed the fact he was not
confined at all in the manner he reported to Roberts and Conlon.
Accordingly, the court's finding the father abused and neglected
Adam because he restricted the child to his room for the
duration of his parenting time is not supported by the credible
evidence, warranting reversal.
Certainly, what the child reported during his testimony
would not have merited a finding of abuse and neglect.
Confining a child to his bedroom because he is sick, being
disciplined, or needs to complete a task, such as homework, is
not a grossly or wantonly negligent act. The reasonableness of
restricting a child to his room for any one of these reasons is
so eminently obvious an analysis or discussion on this point is
unwarranted.
Although the court's conclusion the father abused and
neglected the child was based upon the child's alleged
confinement during his parenting time, but for the occasional
outing to other parts of the house, the court was critical of
the father in other respects. For the sake of completeness we
briefly address these points.
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The court chided the father for requiring Adam to shower
and change his clothes when he came home from school, and for
imposing restrictions on how he was to contact the baby and
handle various objects in the house. However, it must be borne
in mind that, during the subject three-month period, the father
and the stepmother were responsible for caring for a newborn.
There is unrefuted evidence Adam had a bad cold in February and
a stomach virus in March 2013. The father and stepmother
understandably wanted to shield the baby from these illnesses
and limit the baby's exposure to Adam.
Moreover, corroborating the father's and stepmother's
concern, the baby's pediatrician told the new parents to keep
the baby from large crowds, persons with illnesses, and school
age children who may carry illnesses. The measures these new
parents implemented were consistent with this advice, aimed at
reducing the spreading of germs in an effort to protect the
baby. More important, none of these measures was so unduly
burdensome that it can be said the father was grossly or
wantonly negligent in his care of this child.
Reversed.
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