DCPP VS. B.H.IN THE MATTER OF T.H. AND B.H.(FN-07-0462-14, 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NOT FOR PUBLICATION WITHOUT THE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-3759-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
B.H.,
Defendant-Appellant.
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IN THE MATTER OF T.H. and B.H.,
Minors.
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Submitted October 17, 2017 – Decided October 27, 2017
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0462-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Beth Anne Hahn, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Natalie Behm, Deputy Attorney General, on the
Brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for the minors (Charles
Ouslander, Designated Counsel, on the brief).
PER CURIAM
Defendant appeals from the July 7, 2014 Family Part order
determining she abused or neglected her daughter, Tracey1, within
the meaning of N.J.S.A. 9:6-8.21(c). Defendant argues this finding
should be vacated as not supported by a preponderance of the
evidence and her name should be removed from the Central Registry,
N.J.S.A. 9:6-8.11. After reviewing the record in light of the
contentions raised on appeal, we affirm.
I.
Defendant is the mother of Tracey, as well as two older
daughters who lived with defendant and Tracey at the time of the
incidents leading to the order under review. The whereabouts of
Tracey's biological father were unknown at the time. Tracey has
a history of behavioral issues and running away.
In February 2014, Tracey, who was fourteen years old, ran
away from home and was missing for six days. On February 19,
2014, Tracey was found at school and taken to the hospital for a
psychological evaluation. On February 24, the hospital determined
Tracey was ready for discharge, but the hospital could not get in
1
We refer to T.H. by a pseudonym for anonymity and ease of
reference.
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touch with defendant, so it called the Division of Child Protection
and Permanency (Division). Defendant had no contact with the
hospital during Tracey's stay; however, she later claimed that her
boyfriend talked to hospital staff on her behalf. Defendant failed
to visit Tracey during her eight-day stay in the hospital.
On February 26, defendant met with Division workers for two
hours. Defendant flatly refused to pick up Tracey from the
hospital and bring her home. Defendant stated Tracey would just
run away again if defendant brought her home, and said she was
safer at the hospital than on the streets. Defendant also felt
Tracey needed residential care rather than in-home services. The
Division offered in-home services for Tracey at that meeting and
defendant refused those services. Defendant also failed to
cooperate with the Division's request that she provide the names
of family or friends who may have been willing to care for Tracey,
insisting that "no one will be willing to take her in."
When the hospital discharged Tracey, it recommended "an after
school program for continued therapy and medication management."
The hospital discharge summary stated Tracey "was awake,
alert, . . . pleasant and cooperative to interview." The discharge
summary also stated Tracey "denied thoughts to harm herself or
others . . . ."
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On February 27, the Division obtained emergency custody of
Tracey and placed her in a foster home. The Division also
substantiated defendant for neglect and inadequate supervision.
On March 4, 2014, the Division brought an order to show cause for
emergency custody of Tracy, which the court granted.
At a July 7, 2014 fact finding hearing, the court found
defendant refused in-home services for Tracey, refused to care for
Tracey, refused to find relatives to care for Tracey, and refused
to even visit with Tracey when she was in the hospital. In finding
"abuse and neglect," the court reasoned defendant had a
responsibility to care for Tracey once the hospital released her,
and defendant failed to do so.
The Division eventually placed Tracey in residential
treatment. Her biological father was located and began therapeutic
visits with Tracey. When the court terminated litigation in March
2016, Tracey lived with her biological father, who had physical
custody.
This appeal followed, with defendant arguing the trial court
erred in finding that she abused and neglected her daughter through
negligent supervision and abandonment, and that a finding of abuse
and neglect is contrary to public policy.
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II.
At a fact finding hearing, the judge must determine whether
a child has been abused or neglected. N.J.S.A. 9:6-8.44. Our
scope of review is limited. "The general rule is that findings
by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference is
appropriate because trial judges have the opportunity to see and
hear the witnesses and evaluate the credibility and weight to be
afforded their testimony. Id. at 412 (citing Pascale v. Pascale,
113 N.J. 20, 33 (1988)). Deference to family court fact finding
is particularly appropriate because of the family court's special
jurisdiction and expertise in family matters. Id. at 413. We do
not interfere unless the trial judge's findings are "so wide of
the mark that the judge was clearly mistaken." N.J. Div. of Youth
& Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re
Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993)).
Abuse cases are fact sensitive and are examined on a case-
by-case basis. N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 33 (2011). The standard for a finding of abuse or neglect
is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
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N.J.S.A. 9:6-8.21(c)(4) states, an "[a]bused 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 or guardian . . . to
exercise a minimum degree of care . . . ." That phrase "refers
to conduct that is grossly or wantonly negligent, but not
necessarily intentional." G.S. v. N.J. Div. of Youth & Family
Servs., 157 N.J. 161, 178 (1999). A parent or guardian "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.
Under N.J.S.A. 9:6-8.21(c)(5), an "[a]bused or neglected
child" is also "a child who has been willfully abandoned by his
parent or guardian . . . ." Abandonment is elsewhere defined:
Abandonment of a child shall consist in any
of the following acts by anyone having the
custody or control of the child: (a) willfully
forsaking a child; (b) failing to care for and
keep the control and custody of a child so
that the child shall be exposed to physical
or moral risk without proper and sufficient
protection; (c) failing to care for and keep
the control and custody of a child so that the
child shall be liable to be supported and
maintained at the expense of the public, or
by child caring societies or private persons
not legally chargeable with its or their care,
custody and control.
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[N.J.S.A. 9:6-1.]
"Abandonment requires a finding that parents, although
physically and financially able to care for their children,
willfully forsook their parental responsibilities. The concept
of abandonment entails a willful surrender or intentional
abdication of parental rights and duties." In re Guardianship of
K.L.F., 129 N.J. 32, 39 (1992) (citations omitted). "The word
'willfully' in the context of this statute means intentionally or
purposely as distinguished from inadvertently or accidentally."
State v. Burden, 126 N.J. Super. 424, 427 (App. Div.), certif.
denied, 65 N.J. 282 (1974).
Here, the record contains substantial, credible evidence to
support a finding of abuse and neglect under both N.J.S.A. 9:6-
8.21(c)(4) and (5). Not only did defendant fail to "exercise a
minimum degree of care," she clearly and explicitly refused to
care for her child at all. First, she refused to visit Tracey in
the hospital, and then she refused to pick up Tracey at the
hospital for three days, after the hospital cleared her for
discharge. She also failed to cooperate with Division or hospital
workers who attempted to contact her. Defendant, in effect,
"abandoned" her daughter, leaving her at the hospital and forcing
the Division to assume care, custody and control. See N.J.S.A.
9:6-1. The Family Part judge correctly found a parent is not
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allowed to abandon a child merely because that child is difficult
to control or has mental health issues, since neither circumstance
mitigates the fundamental responsibility of a parent to provide
care for his or her child. But for the Division's intervention,
defendant left Tracey without a safe and secure place to stay,
thereby exposing the child to an actual and imminent risk of harm.
In essence, defendant "willfully forsook [her] parental
responsibilities." In re Guardianship of K.L.F., supra, 129 N.J.
at 39.
Defendant's appellate arguments lack sufficient merit to
warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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