The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2436-13T3
NEW JERSEY DIVISION OF CHILD APPROVED FOR PUBLICATION
PROTECTION AND PERMANENCY,
June 8, 2015
Plaintiff-Respondent,
APPELLATE DIVISION
v.
J.C.,
Defendant-Appellant,
and
C.M.,
Defendant.
_____________________________________
IN THE MATTER OF
T.M., a minor.
__________________________________________
Submitted May 4, 2015 – Decided June 8, 2015
Before Judges Sabatino, Simonelli, and
Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FN-07-456-12.
Joseph E. Krakora, Public Defender, attorney
for appellant (Beth Anne Hahn, Designated
Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Thomas Ercolano, III, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor T.M. (Lisa M.
Black, Designated Counsel, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D.
Following a Title Nine fact-finding hearing, a Family Part
judge determined that defendant J.C. (Jenny)1 abused or neglected
her then three-year-old son, T.M. (Tom). The judge found that
on July 19, 2012, Jenny drank alcohol and remained in her
bedroom through the following morning with the bedroom door
closed, while Tom was in the next room unsupervised, wearing a
dirty diaper, with the apartment door ajar.
On appeal, Jenny claims that the Division of Child
Protection and Permanency (Division) failed to prove that she
neglected her child. The Division and the child's Law Guardian
urge us to affirm the judge's finding. Because Tom was not
injured and Jenny's conduct did not rise to the level of gross
negligence or reckless disregard for Tom's safety, we reverse.
1
We employ pseudonyms to protect the privacy of the parties and
for ease of reference.
2 A-2436-13T3
I.
The Division first became involved with this family in
August 2010, when it received a referral that Tom, who was then
one year old, was living with Jenny and her mother, D.C.
(Denise), in unsanitary conditions. The allegations were
substantiated and the Division began to provide services for the
family. It is not disputed that Jenny attended all recommended
evaluations including psychological evaluations with Drs. Briana
Cox and Mark Singer, a psychiatric evaluation with Dr. Samiris
Sostre, a substance abuse evaluation with Catholic Charities,
and a neuropsychological evaluation with Dr. Jonathan Mack.
Jenny told Dr. Cox that she smoked marijuana before Tom was
born and drank alcohol occasionally. Cox recommended that Jenny
submit to a substance abuse evaluation and a urine screening.
Dr. Sostre concluded that Jenny had no acute symptoms of mood
disorder, anxiety disorder, or psychiatric disorder that would
require treatment and no psychiatric care was indicated. Dr.
Mack recommended individual counseling by a psychologist and
parent training. Neither Cox, Sostre, nor Mack made any finding
of alcohol abuse.
Jenny submitted to a substance abuse evaluation with
Catholic Charities on April 5, 2011. On several occasions in
the report, the following comment is repeated:
3 A-2436-13T3
Client reports that she was 21 years of age
when she first drank alcohol and will have
an occasional social drink. Client reports
one experimental use of marijuana when she
was age 19, no more since that time.
Catholic Charities did not diagnose Jenny with a drug or alcohol
disorder. Rather, it deferred diagnosis without further
explanation.
In August 2011, Jenny submitted to a drug screen that was
negative for drugs and positive for alcohol. After she again
tested positive for alcohol in January 2012, the Division filed
an order to show cause on March 8, 2012, seeking care and
supervision of Tom pursuant to Title Thirty, N.J.S.A. 30:4C-12.
The Family Part judge granted the application and told defendant
that the Division wanted her to comply with the recommendations
contained in Dr. Mack's report, specifically that she engage in
counseling, cooperate with a home health aide, and receive
parenting skills training. Defendant agreed.
Defendant returned to court on April 2, 2012 for a hearing
on the return of the order to show cause. The caseworker told
the judge that defendant's parenting class would begin on the
following day and counseling within a few weeks. Although there
had been no diagnosis of any alcohol-related disorder by any of
Jenny's evaluators, the deputy attorney general (DAG) advised
the court of an "update" that the Division had arranged for
4 A-2436-13T3
Jenny to participate in an alcohol treatment program that was
scheduled to begin on April 12, 2012. The DAG then requested
that Jenny submit to a urine screen in the courthouse that day
to screen for alcohol, even though the DAG was not sure the
courthouse urine screens could detect alcohol. The judge asked
Jenny if she would submit to the on-site urine screen. She
replied that she would prefer to wait until her treatment began
in ten days.
Jenny then asked why she was being required to participate
in more services than were originally proposed at the March 8,
2012 hearing. Without questioning the basis of the DAG's
recommendation, the judge told Jenny that the Division had
alleged that she was "involved with using alcohol and [her]
drinking . . . [was] of significant concern[] to them." The DAG
then incorrectly represented to the court that Dr. Mack had
recommended that Jenny participate in alcohol treatment.
Even though Jenny had not refused to participate in any of
the services offered, the judge, perhaps relying on the
misstatement by the DAG about Dr. Mack's recommendations,
suggested that the Division "should be taking the child away
from [Jenny] if she doesn't participate in all those services."
The judge then characterized Jenny's questioning of the
additional services as "wanting to fight back[.]" Although
5 A-2436-13T3
Jenny had agreed to participate in all recommended services, the
judge characterized her wish to postpone the urine screen as
being "reluctant to participate in services[.]" The judge then
suggested that the matter be converted from a Title Thirty to a
Title Nine litigation and offered to list the matter for a fact-
finding.
Around noon on July 20, 2012, Jordan Brown, a therapist
assigned to provide counseling to Jenny, accompanied caseworker
Kimberly Chalmers to Jenny's apartment for an intake
appointment. They noticed that the door to Jenny's apartment
was ajar, and when they knocked on the door and called for
Jenny, there was no response. Chalmers pushed open the door and
entered the apartment. She observed Tom walking around wearing
a dirty diaper.
Jenny emerged from the bedroom, and Chalmers noticed she
appeared disheveled and had alcohol on her breath. After
Chalmers mentioned Tom's dirty diaper, Jenny initially told the
child to "go get a Pamper and change yourself." When Chalmers
suggested that Tom should be cleaned, Jenny went into the
bathroom with the child, cleaned him up, and put a new diaper on
him. When asked about the alcohol smell, Jenny stated that she
had some of her girlfriends over the night before and they drank
wine. She claimed that Tom had been with his father, who
6 A-2436-13T3
dropped him off around 11:00 p.m. Jenny claimed her friends
left and she had stopped drinking by 10:30 p.m. When asked
about the door, Jenny explained that one of her girlfriends had
been there earlier that morning and must have left it open.
After conferring with her supervisor, Chalmers told Jenny
that the Division was going to remove Tom from her custody
because of inadequate supervision and place him with Jenny's
mother, Denise.
The Division filed a Title Nine complaint for custody on
July 24, 2012, and sought a finding of abuse or neglect against
Jenny. A fact-finding hearing was initially scheduled for
August 16, 2012. On August 3, 2012, the court entered an order
postponing the fact-finding to October 22, 2012. On October 22,
2012, Jenny appeared but the fact-finding was again postponed
until November 9, 2012. On that day, Jenny did not appear and
her counsel requested an adjournment as she had been unable to
contact Jenny. Counsel explained that Jenny did not have a
phone but she had attended that last hearing and thought she
would want to attend the fact-finding. A Division supervisor,
Kerline Fils-Aime, told the judge that the caseworker had gone
to Jenny's home the day before but was not able to get in the
building. The judge denied the adjournment, noting that the
7 A-2436-13T3
fact-finding had already been postponed because of a hurricane2
and he had to address an "enormous amount" of fact-findings and
permanency hearings.
Fils-Aime testified based primarily on reports filed by
Chalmers. She confirmed that after Jenny submitted to a
substance abuse evaluation, there was no recommendation for
follow-up care.
The Division also called Jordan Brown, who testified that
when she and Chalmers entered the apartment, she noticed that it
was dirty and smelled of alcohol. She also described Tom's
diaper as "filthy," but explained that it was a white pull-up
diaper, and appeared dirty on the outside. Brown did not
observe the condition of the inside of the diaper. Brown also
smelled alcohol on Jenny's breath.
At the conclusion of the Division's case, Jenny's counsel
again asked the judge to continue the matter so that Jenny could
testify. Counsel indicated that Jenny disputed the allegations
and wanted to testify. Counsel also noted that Jenny had been
present on October 22, 2012, when the matter was last scheduled
for fact-finding. The judge denied the application, noting that
Jenny "knew we needed to move this case. . . . She knew that
this case was coming up. She knew that it had to be heard. If
2
Hurricane Sandy struck New Jersey on October 29, 2012.
8 A-2436-13T3
she wanted an opportunity to testify she should have been here,
she should have known."
The judge rendered an oral decision, finding both witnesses
called by the Division "very credible," even though Fils-Aime
was not present on July 20, 2012, had no first-hand knowledge of
the events of that day, and did little more than recite
information contained in Division reports. The judge observed
that the caseworker found that Jenny's apartment had roaches and
was "filthy," although he acknowledged that this may be a better
indicator of poverty than child abuse.
The judge also found that the Division had provided
services to Jenny "to address issues of alcohol . . . as well as
drugs." The judge concluded that Jenny "was familiar
with . . . [t]he fact that there was a drug and alcohol
problem." The judge noted that when the caseworker and Brown
spoke with Jenny, they noticed alcohol on her breath. Jenny
told the caseworker that she had stopped drinking when her
friends left at 10:30 p.m., and she did not drink after Tom was
returned to her at 11:00 p.m. The judge rejected this statement
based on a sua sponte calculation of Jenny's alcohol metabolism:
Alcohol generally burns off a[t] one ounce
of alcohol per hour. Four ounces of wine,
one ounce of vodka. If you stop drinking at
10:30 the night before you would not still
have alcohol on your breath and still be in
bed by noon the following day. [Y]ou might
9 A-2436-13T3
be there with a hangover, but you wouldn't
have alcohol fresh on your breath.
Employing this analysis, the judge concluded that Jenny "had
been drinking and had been drinking much later during a period
of time while this child was in her sole custody." The judge
also noted that, because the door to the apartment was ajar, Tom
could have walked out and fallen down the steps without Jenny
knowing because her bedroom door was closed.
The judge was also critical of Jenny's initial decision to
have Tom change his own pull-up diaper, "without any sort of
hygiene to address what may very well have been on a two-year
old over an extended period of time."3 The judge concluded that
it
seems [a] fair and reasonable inference to
make if the diaper was so old and dirty on
the outside, that it must have been on there
for a long period of time. And children
need to use facilities more often than that.
So that it would have been important, at
least for her, as a mother to check and see
whether the child needed some care before
simply placing another diaper on the child.
The judge found that the Division had proven that Jenny
abused or neglected Tom and entered an order with the following
conclusions:
3
Chalmers testified at the hearing on the order to show cause
that, after she urged Jenny to clean Tom, Jenny took the child
into the bathroom, cleaned him up, and he came out wearing a
clean Pamper.
10 A-2436-13T3
[Jenny] has failed to attend her court
ordered substance abuse treatment on a
consistent basis. [Jenny's] apartment
smelled of alcohol, she admitted to drinking
alcohol until 10:30 p.m. the night before
and she still had alcohol on her breath at
12 p.m. on July 20, 2012 when the Division
worker and a therapist arrived for a
scheduled appointment. [Jenny] was not
dressed and asleep behind a closed bedroom
door and the apartment door was left open.
The child was wandering around the
apartment, unsupervised and with a dirty
diaper. [Jenny] failed to appreciate the
risk of harm that the situation presented to
her child.
Jenny attended thirty-two group and individual sessions at
The Bridge Addiction Services (Bridge). On October 19, 2012,
Bridge provided a report to the Division indicating that
"[Jenny] has attended all scheduled activities and continued to
submit negative urine drug screens. Based on her level of
participation she is on track to complete treatment on November
20, 2012."
The parties next appeared in court on February 25, 2013,
for a compliance review. Based on the Division's
recommendation, the judge ordered that Tom could be reunified
with Jenny and legal and physical custody of him could be
transferred to her without further of the court. In spite of
this order and Jenny's completion of services, Tom was not
reunified with Jenny until August 22, 2013. Litigation was
terminated in December 2013 and this appeal followed.
11 A-2436-13T3
On appeal, defendant raises the following arguments:
THE APPELLANT WAS DENIED DUE PROCESS AND THE
DIVISION FAILED TO PROVE BY A PREPONDERANCE
OF THE EVIDENCE THAT THE APPELLANT NEGLECTED
HER CHILD.
POINT I
THE APPELLANT WAS DENIED DUE PROCESS.
A. THE COURT INAPPROPRIATELY
THREATENED THE APPELLANT AT THE
ORDER TO SHOW CAUSE FOR CARE AND
SUPERVISION.
B. THE TRIAL COURT ERRED IN
DENYING APPELLANT THE RIGHT TO
TESTIFY.
POINT II
THE DIVISION FAILED TO PROVE THAT APPELLANT
NEGLECTED HER CHILD.
A. INADEQUATE SUPERVISION
B. MEDICAL NEGLECT
C. ENVIRONMENTAL CONDITIONS
D. INDIVIDUALS WITH INTELLECTUAL
DISABILITIES
II.
An "abused or neglected child" is defined as:
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, as herein defined, to exercise a
minimum degree of care . . . (b) in
providing the child with proper supervision
or guardianship, by unreasonably inflicting
12 A-2436-13T3
or allowing to be inflicted harm, or
substantial risk thereof, including the
infliction of excessive corporal punishment;
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).]
Where, as here, there is no actual harm alleged, the court
must focus on "the likelihood of future harm," taking into
consideration events after the removal "if causes for concern
have been significantly alleviated." N.J. Div. of Youth &
Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004),
certif. denied, 182 N.J. 426 (2005). We therefore must
determine whether Jenny failed to exercise a minimum degree of
care when she drank on the evening of July 19, 2012, and slept
late the next morning, leaving Tom unsupervised, wearing a dirty
diaper, and with her apartment door ajar.
In G.S. v. Department of Human Services, 157 N.J. 161, 177-
78 (1999), the Court discussed the "minimum degree of care"
standard and determined that it refers to conduct that is
grossly or wantonly negligent, but not necessarily intentional.
We applied this standard in New Jersey Department of Youth &
Family Services v. J.L., 410 N.J. Super. 159, 161 (App. Div.
2009), in reversing a finding of abuse or neglect against the
mother of a three-year-old and a five-year-old who allowed them
to walk from a playground to their home while she remained at
13 A-2436-13T3
the playground. After the children entered their home, a child-
proof door closed behind them, locking them in. Id. at 161-62.
They called 9-1-1 and the police arrived to unlock the door.
Id. at 162. Although the children were upset, they were
unharmed. Ibid. In reversing, we found that the mother's
conduct, "although arguably inattentive or even negligent," did
not meet the requisite standard contemplated by G.S. Id. at
168.
The Supreme Court considered a similar case of inadequate
supervision in Department of Children & Families, Division of
Youth & Family Services v. T.B., 207 N.J. 294 (2011). In T.B.,
the Court reversed a finding of neglect against the mother of a
four-year-old, who left the child in his grandparents' home
mistakenly believing that the grandparents, who frequently cared
for the child, were home. Id. at 296. The child woke up, found
that no one was home, and walked across a street to a neighbor's
house. Id. at 297. The police were contacted and the Division
was notified. Ibid. The Division later determined that the
mother had neglected the child. Id. at 298-99. The Court held
that the mother's failure to check to see if the grandparents
were home before she left was negligent but did not rise to the
level of gross negligence. Id. at 309.
14 A-2436-13T3
Here, the March 8, 2012 order granting the Division care
and supervision of Tom directed the Division to refer Jenny for
parenting skills, individual therapy, and a substance abuse
evaluation. Evaluations of Jenny by Doctors Cox, Singer,
Sostre, Mack, and Catholic Charities failed to identify any drug
or alcohol abuse problem.
In March 2012, when the judge concluded that Jenny was
aware that she had "a drug and alcohol problem," there was
nothing in the record to support either the existence of a
problem or her awareness of same.4 Not only did the evaluators
find no alcohol issue, but Jenny consistently maintained that
she drank in moderation and not when Tom was around. The
judge's conclusion that the smell of alcohol on Jenny's breath
was proof that she continued to drink alcohol after Tom was
returned home was speculation. Even if Jenny had continued to
drink, as the judge surmised, and slept in late the next morning
as a result, there is no proof that her behavior created a
substantial risk of harm to Tom. See N.J. Div. of Youth &
Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011)
(reversing finding of neglect against father who refused to
attend substance abuse treatment and tested positive for cocaine
4
On April 12 and 16, 2012, Jenny tested positive for THC, the
primary component of marijuana.
15 A-2436-13T3
and marijuana during supervised visits because there was no
proof of actual harm to child and no expert evidence that father
posed a risk during visits).
Tom never left the apartment and Jenny changed his diaper,5
albeit after being prompted by the caseworker. Further, there
was no proof that Jenny was aware that her apartment door was
left ajar and her explanation that a friend who visited earlier
that day left the door open was not challenged.
To hold that a parent who, on a single occasion, has too
much to drink and sleeps in late the next day while his or her
child walks around in a dirty diaper commits child abuse would
classify many otherwise responsible parents as child abusers.
See ibid. ("The Division would be quickly overwhelmed if law
enforcement was required to report every individual under the
influence who had children."). Simply put, there was no proof
of harm to Tom, or that Jenny's conduct met the statutory
standard of abuse or neglect. Even if we accepted the court's
finding that Jenny "failed to attend her court ordered substance
5
We are aware of the importance of providing proper hygiene to
children and that the failure to change a toddler's diaper can
result in complications. See Ch Li, Zh Zhu, & Yh Dai, Diaper
Dermatitis: a Survey of Risk Factors for Children Aged 1 – 24
Months in China, 40 J. Int'l Med. Res. 1752 (2012). However, no
proof was presented that Tom suffered any resultant health
consequences from wearing the dirty diaper.
16 A-2436-13T3
abuse treatment on a consistent basis," that does not constitute
abuse or neglect as a matter of law. Id. at 332.
As we find the evidence insufficient to support a finding
of neglect, we need not consider the other claims raised.
However, we feel compelled to address the following issues.
When the DAG informed the court on April 2, 2012, that Dr.
Mack had recommended alcohol treatment services and the Division
had arranged for Jenny to participate in a treatment program,
the court accepted the representation without question.6 When
Jenny understandably asked why she was being required to
complete additional services, the judge commented that she was
fighting back and suggested that her child would be taken away
"if she doesn't participate in all those services."
Services provided by the Division should be designed to
address an area of legitimate concern and not imposed
arbitrarily. See N.J. Div. of Youth & Family Servs. v. I.S.,
6
We stress the importance of accuracy in representations made to
the court by the Division's attorneys about an evaluator's
treatment recommendations. The judges who hear children-in-
court cases typically handle high volumes and must make
critical, fact-sensitive decisions about the welfare of children
under significant time pressures. Their judicial functions are
surely hampered where, as here, the DAG misrepresented the
services that an expert evaluator had recommended a parent to
receive. This case illustrates how such a misstatement,
although presumably unintended, can materially affect a case and
divert it down the wrong path, resulting in this child's removal
and separation from his mother for more than a year.
17 A-2436-13T3
202 N.J. 145, 178 (2010) (criticizing Division for requiring
father who had successfully raised four children to complete
"utterly irrelevant" parenting classes). Before ordering
compliance with a particular service recommended by the
Division, a judge should be satisfied that there is a legitimate
basis and real need for it. Failure to do so may cause
unnecessary delays and discourage otherwise willing parents from
compliance with needed services. The Division's claim and the
judge's conclusion that Jenny had an alcohol problem is
untethered to any record evidence in this case and thus formed
an inappropriate basis for the finding of neglect.
We reject the Division's argument that a defendant in a
Title Nine fact-finding hearing does not have a right to
testify. Due process is a constitutional right that must be
"scrupulously protected" by our courts. N.J. Div. of Youth &
Family Servs. v. G.M., 198 N.J. 382, 397 (2009). At a minimum,
due process requires that a parent charged with abuse or neglect
have "adequate notice and an opportunity to prepare and
respond[.]" N.J. Div. of Youth & Family Servs. v. N.D., 417
N.J. Super. 96, 109 (App. Div. 2010).
The request for a continuance to allow Jenny to testify
required more than a conclusory reference to the court's backlog
in denying her application. This error was amplified when the
18 A-2436-13T3
court categorically rejected Jenny's "version of the events"
that she stopped drinking at 10:30 p.m., without at least
hearing her testimony and evaluating her credibility and
demeanor.
Finally, we reject the Division's argument that because
"[Jenny] was reunified with her son and legal custody was
transferred back to [her, she] suffered no harm by not being
able to testify[.]" As to the child, given the questionable
circumstances surrounding this removal and the excessive delay
in reunification, we are compelled to reemphasize the harmful
effects that improvident removal can have on young children.
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610
(1986) (citation omitted). As to Jenny, our courts have
repeatedly acknowledged the "significant and longstanding
adverse consequences" that may result from a parent's placement
on the child abuse registry. N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 179 (2014); N.J. Dep't of
Children & Families v. A.L., 213 N.J. 1, 25 (2013).
Reversed. The Division is directed to remove defendant's
name from the Child Abuse Registry within ten days of the date
of this opinion.
19 A-2436-13T3