DCPP VS. J.C., L.C. AND J.R.IN THE MATTER OF E.C., JU.C., A.R. AND J.R.(FN-09-0360-14, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1168-15T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant,
and
L.C. and J.R.,
Defendants.
_____________________________________________
IN THE MATTER OF
E.C., Ju.C., A.R., and J.R., minors.
_____________________________________________
Submitted May 16, 2017 – Decided July 7, 2017
Before Judges Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FN-09-0360-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Victor E. Ramos, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Jodie E. Van Wert, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor E.C. (Todd
Wilson, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor J.C. (Catherine
Davila, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors A.R. and J.R.
(Nancy P. Fratz, Assistant Deputy Public
Defender, on the brief).
PER CURIAM
This appeal is from an order entered on March 7, 2014,
following a fact-finding hearing on allegations of abuse or
neglect conducted pursuant to Title Nine, N.J.S.A. 9:6-8.44.
The order memorializes the judge's determination that J.C.'s
children were abused or neglected, as defined in N.J.S.A. 9:6-
8.21(c)(4)(b).1 It became appealable as of right on October 5,
2015, when the judge entered a final order granting the Division
1
Initials are used to maintain confidentiality consistent with
Rule 1:38-3(d)(12).
2 A-1168-15T1
of Child Protection and Permanency's (Division) unopposed
request to dismiss its complaint. See N.J.S.A. 9:6-8.70.2
J.C. has five children, four of whom were removed from her
care on an emergency basis in November 2013 pursuant to N.J.S.A.
9:6-8.29. At the time, J.C.'s eldest son, L.C., Jr., was
eighteen years old and confined in a Detention Center in
Massachusetts for sexual assault of his younger half-sister A.R.
J.C.'s second-eldest son, E.C., was nearly sixteen and serving a
term of probation imposed as a consequence of a delinquency
adjudication in Connecticut for sexual conduct with his
siblings. J.C.'s only daughter, A.R., was twelve, and A.R.'s
brother, Ja.R., was nine.
Three months after the family moved to New Jersey, the
juvenile probation department brought J.C.'s family to the
Division's attention. E.C.'s probation had been transferred
from Connecticut to New Jersey, and the Division contacted the
family at the probation department's request.
2
J.C.'s notice of appeal identifies the March 7, 2014 order
only. Although the parties have referred to evidence, arguments
and rulings in subsequent proceedings, we do not address them
because they were not before the judge in the fact-finding
hearing and are not properly before us now. Silviera-Francisco
v. Bd. of Educ. of the City of Elizabeth, 224 N.J. 126, 140-41
(2016).
3 A-1168-15T1
Simone Coombs was in charge of the Division's
investigation. She and a caseworker went to J.C.'s home on
November 8, 2013. J.C. and all of the children except E.C. were
present. Although the father of J.C.'s three oldest sons, was
not residing with his family, he lived nearby and was present.
Coombs and her co-worker divided the task of conducting
individual interviews at J.C.'s home. After those interviews,
Coombs took the family to the prosecutor's office, where the
children, including E.C., were interviewed separately.
During their separate interviews, E.C.'s siblings confirmed
that J.C. worked and E.C. supervised them from the time they
returned home after school until their mother returned from
work. On material matters, the children's accounts were
consistent. E.C. had a cellphone and a phone number he could
call to contact J.C. at work in an emergency. Their uncle,
E.P., sometimes checked on them when they were home but did not
stay with them the whole time. The boys did their homework or
played videogames, and A.R. went into the bathroom and stayed
there alone. E.P. arrived at J.C.'s home while Coombs and her
co-worker were there, but, on the objection of J.C.'s attorney,
the judge ruled that Coombs could not discuss E.P.'s statements
in her testimony.
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During A.R.'s interview, she disclosed that she had
attempted to slit her wrists three weeks earlier. She also
reported prior hospitalizations due to her mental health.
Later, J.C. confirmed A.R.'s hospitalizations and advised that
her daughter had received counseling in Connecticut for
depression and bipolar disorder.
During his interview, E.C. admitted sexually assaulting
A.R. and being on probation.
During her interview, A.R. reported repeated and regular
assaults by her oldest brother, L.C., and separate one-time
incidents involving E.C. and Ju.C., during which each brother
placed his penis in her mouth. By A.R.'s account, she told her
mother about what L.C. and E.C. had done. J.C. confirmed that
E.C. and Ju.C. had sexually assaulted A.R.
Importantly, E.C. admitted to being on probation and
knowing he was not to be with A.R. without supervision. Upset
and crying, he explained that he watched his siblings because
his mother told him to do that.
More importantly, J.C. acknowledged that the terms of
E.C.'s probation required him to be supervised when with A.R.
She explained that E.P. provided that supervision, but the
children's earlier disclosures contradicted her on that point.
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Following J.C.'s interview at the prosecutor's office, she
was placed in a holding cell. Because the Division had to care
for the children in J.C.'s absence, Coombs spoke with J.C. in
the holding cell to inquire about A.R.'s medical needs. That is
when J.C. disclosed her daughter's prior hospitalizations and
counseling.
Coombs provided the only testimony at the fact-finding
hearing, and her testimony was based on observations made during
the interviews she conducted and summaries of statements made by
J.C. and members of her family to Coombs and her co-worker. The
judge ruled, quite properly, that statements made by J.C. and
E.C. were admissible as statements against interest, N.J.R.E.
803(c)(25). She further ruled that the statements made by the
children during their interviews were admissible pursuant to
N.J.S.A. 9:6-8.46(a)(4), as "previous statements made by the
child relating to any allegations of abuse or neglect." While
not sufficient to establish abuse or neglect without
corroboration, the children's statements were corroborated by
E.C.'s and J.C.'s statements against interest.
The judge who presided over the fact-finding hearing
determined that the Division proved neglect pursuant to N.J.S.A.
9:6-8.21(c)(4)(b). In pertinent part, the statute defines the
operative term "[a]bused or neglected child" to include
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a child less than 18 years of age . . . 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 . . . in providing the child
with proper supervision or guardianship, by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk
thereof . . .
A parent "fails to exercise [the requisite] 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."
G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181
(1999). "[T]he phrase 'minimum degree of care' refers to
conduct that is grossly or wantonly negligent, but not
necessarily intentional." N.J. Div. of Child Prot. & Perm. v.
E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S., supra, 157 N.J.
at 178). Thus, the parental failure must be accompanied by
"knowledge that injury is likely to, or probably will, result."
Ibid. The essential elements must be established by a
preponderance of the evidence. Id. at 178.
The judge found that J.C. was, by her own admissions, well
aware of E.C.'s prior conduct, A.R.'s fragile state of mind, and
the condition of E.C.'s probation designed to protect A.R. The
judge further found that J.C. was aware of the risk of serious
7 A-1168-15T1
harm to E.C.'s well-being she created by directing him to
supervise A.R. and his other siblings in violation of a
condition of his probation.
On appeal, J.C. raise seeks reversal on three grounds.
I.
THE TRIAL COURT'S FINDING OF CHILD NEGLECT
MUST BE REVERSED BECAUSE IT IS NOT BASED ON
SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD
BELOW AND BECAUSE THE COURT ERRED IN ITS
EVALUATION OF THE UNDERLYING FACTS AND
IMPLICATIONS TO BE DRAWN THEREFROM.
A. DCPP'S FAILURE TO SUBMIT [E.C.'S]
PROBATION RECORD WAS INSUFFICIENT
TO ESTABLISH THAT [J.C.] HAD PLACED
[A.R.] OR THE OTHER CHILDREN AT
SUBSTANTIAL RISK OF HARM BECAUSE IN
ITS ABSENCE IT IS NOT CLEAR WHETHER
[E.C.] REQUIRED ADULT SUPERVISION
IN THE PRESENCE OF [A.R.], WHETHER
ANY OTHER RESTRICTIVE PROVISIONS
APPLIED OR WHETHER [E.C.'S]
PROBATION AND ITS CONDITIONS
CONTINUED TO BE IN PLACE WHEN [E.C.]
AND THE FAMILY RELOCATED TO NEW
JERSEY.
B. [J.C.] DID NOT FAIL TO PROVIDE
[A.R.] PROPER SUPERVISION OR
GUARDIANSHIP THEREBY PLACING HER OR
THE OTHER CHILDREN AT A SUBSTANTIAL
RISK OF HARM WHERE [J.C.] EXERCISED
A MINIMUM DEGREE OF CARE BY TAKING
THE CAUTIONARY ACT OF OBTAINING THE
ASSISTANCE OF [THEIR UNCLE] TO
MONITOR THE CHILDREN FOR THE TIME
THEY RETURNED FROM SCHOOL TO THE
TIME WHEN [J.C.] RETURNED FROM THE
JOB THAT INSURED THE PROVISION OF
THE CHILDREN'S BASIC NEEDS.
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C. THE CHILDREN WERE NOT PLACED AT
AN IMMINENT DANGER OF IMPAIRMENT
WHERE, [THEIR UNCLE] AT A BARE
MINIMUM CHECKED IN ON THEM, THE
INCIDENT THAT RESULTED IN [E.C.'S]
PROBATION TRANSPIRED FIVE TO SIX
YEARS AGO WITHOUT RECURRENCE,
[A.R.'S OTHER BROTHERS] WERE
PRESENT AT HOME TO INSURE [A.R.] WAS
NOT ALONE WITH [E.C.], AND [J.C.]
AND THE FAMILY HAD ENGAGED IN
SERVICES TO ADDRESS THE PAST
INCIDENT THAT TRANSPIRED AGAINST
[A.R.] UNBEKNOWNST TO [J.C.]
We have considered J.C.'s arguments in light of the record
of the fact-finding hearing and the judge's decision. We have
also considered the arguments presented by the law guardian for
Ju.C., who is the only one of J.C.'s children who supports
reversal rather affirmance of the order under review. We
affirm, because the Division's competent evidence adequately
supports the judge's decision, Rule 2:11-3(e)(1)(A), and the
arguments presented in support of reversal have insufficient
merit to warrant any discussion beyond what the judge said in
her oral opinion of March 7, 2014, Rule 2:11-3(e)(1)(E).
Affirmed.
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