The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3944-14T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.C.,
Defendant-Appellant.
______________________________________________
IN THE MATTER OF A.T.M.,
Minor.
______________________________________________
Submitted May 2, 2017 – Decided June 1, 2017
Before Judges Yannotti, Fasciale and
Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0389-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lora B. Glick, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Merav
Lichtenstein, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Olivia Belfatto
Crisp, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
T.C. appeals from an order of the Family Part dated April 29,
2014, which found that she abused or neglected her minor child,
A.T.M. We affirm.
T.C. is the biological mother of A.T.M., who was born on
August 2, 2013. On January 6, 2014, the Division of Child
Protection and Permanency (Division) conducted an emergency
removal of the child because T.C. had been admitted to a hospital,
and N.M., who was thought to be the child's biological father,
could not be located. A.T.M. was found in the care of J.K., who
was using an open oven and an electric fan to heat the apartment.
On January 8, 2014, the Division filed a complaint in the
Family Part against T.C. and N.M., seeking care, custody, and
supervision of A.T.M., and applied to the court for temporary
relief. T.C. and N.M. appeared at the initial hearing and T.C.
identified N.M. as the child's father; however, J.K. had informed
the Division that he believed he was the child's father. The court
granted the Division's application. The court determined that the
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child could not remain in a home that lacked heat. The court found
that T.C. did not have appropriate housing, and T.C. had mental
health issues. The court ordered T.C. to show cause why the child
should not remain in the Division's care, custody, and supervision.
Thereafter, the Division amended its complaint and added J.K. as
a defendant.
On February 24, 2014, the return date of the order to show
cause, the Division presented the court with T.C.'s psychiatric
evaluation, which recommended medication and individual therapy.
The Division had referred T.C. for mental health services, but she
did not attend the services consistently and had been discharged
from the program. The Division also had scheduled T.C. for
parenting skills classes and anger management therapy. The court
ordered that A.T.M. would remain in the Division's care, custody,
and supervision. The court also ordered T.C. to attend mental
health services.
On April 29, 2014, the court entered an order dismissing the
complaint as to N.M., because paternity tests ruled him out as the
child's biological father. On that date, the court also conducted
a fact-finding hearing in the matter. T.C. did not attend.
At the hearing, the Division's caseworker testified that she
spoke with T.C. at the hospital after A.T.M. was born. T.C. said
she, N.M., and A.T.M. were going to reside with N.M.'s brother in
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his one-bedroom apartment in Irvington. T.C. denied that she used
controlled substances or had any mental health issues or learning
disabilities. She claimed she had recovered from a period of
depression following her mother's death.
The Division conducted a background check and determined that
T.C. was receiving $741 per month in social security benefits, of
which $250 went towards rent. On August 5, 2013, a Division worker
visited the apartment and determined that T.C. and N.M. could
appropriately care for the child. T.C. agreed to participate in a
psychological evaluation and expressed an interest in receiving
counseling.
T.C., N.M., and A.T.M. remained in the Irvington apartment
for about one month, when N.M.'s brother locked them out. T.C.
claimed that she gave rent money to N.M., but he never gave the
money to his brother. T.C., N.M., and A.T.M. moved in with one of
N.M.'s other relatives in an apartment in East Orange. In October
2013, a Division worker informed T.C. she could not remain with
the child in that apartment during the winter, because it did not
have functioning heat. The worker also told T.C. she could not use
an electric heating fan to heat the apartment.
T.C., N.M., and A.T.M. then moved into an apartment with
T.C.'s brother in Newark, but T.C.'s brother told them to leave
because T.C. refused to contribute $200 toward the rent. In early
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December 2013, T.C., N.M., and A.T.M. moved in with N.M.'s mother;
however, they could not remain there. N.M.'s mother was living in
senior citizen housing, and she was only permitted to have N.M.
and T.C.'s other two children stay there with her.
T.C., N.M., and A.T.M. relocated to another relative's home
in Newark. The relative told them to leave because they would not
contribute to the rent. Thereafter, N.M. went to live with a
brother in Pennsylvania, and T.C. and A.T.M. moved in with J.K.,
her new boyfriend. It appears that T.C. had been dating J.K. about
three months.
In December 2013, the Division's worker met with T.C. and
told her that she should contact the welfare department for housing
assistance. T.C. signed a family plan, in which she agreed to take
A.T.M. to a pediatrician, attend scheduled appointments at the
Family Services Bureau (FSB), and explore all housing options. The
worker told T.C. that A.T.M. would be removed from her care if she
became homeless. T.C. did not attend the scheduled appointments
at the FSB.
On January 5, 2014, T.C. was transported by ambulance to a
hospital, after she complained of chest pains. Persons at the
hospital contacted the Division, and the Division's workers met
with T.C. to inquire about A.T.M. Initially, T.C. said she left
the child with a family friend, specifically, J.K. She claimed the
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child was at a location on Avon Avenue in Newark. T.C. later said
she, J.K., and A.T.M. had been living at that location.
The workers were unable to find a residence at the address
T.C. had provided. They contacted the hospital and learned of
another address on Jeliff Avenue in Newark. The workers went to
the house at that address; however, it appeared to be abandoned.
The workers called T.C.'s relatives and other persons, but no one
knew where A.T.M. could be located.
On January 6, 2014, the Division's workers went to the Jeliff
Avenue address. At first, the workers were unable to gain access,
but thereafter spoke to T.C.'s friend, who said that T.C. had been
living at that address with her new boyfriend. The workers returned
with officers from the Department of Human Services. They were
admitted to the residence, and J.K. met them at the door to the
apartment.
One of the workers found A.T.M. sitting unstrapped in a car
seat on the sofa. The child was dressed in dirty clothes and
appeared disheveled. The worker noticed that J.K. was using an
open oven and an electric fan to heat the apartment. She explained
to J.K. that it was dangerous to heat the apartment in that manner
due to the risk of carbon monoxide poisoning. The worker also told
J.K. the Division would have to remove the child because she could
not remain in an apartment without functioning heat.
6 A-3944-14T4
J.K. told the worker that he, T.C., and the child slept
together in a twin bed, and one of the workers said the child
required a bassinette or crib. J.K. stated he did not know what
happened to A.T.M.'s bassinette. A worker asked J.K. about the
child's food, and J.K. showed her a half-full can of baby formula.
The workers determined that the child had to be removed on an
emergency basis.
T.C. and the Law Guardian did not offer evidence or present
any witnesses at the hearing. The court placed an oral decision
on the record, finding that T.C. had abused or neglected A.T.M.
The court noted that T.C. had resided in several different homes,
and she and the child eventually moved into an apartment that was
being heated by an open oven and an electric fan, even though the
Division's worker previously told her she could not have the child
in a home without functioning heat during the winter.
The court noted that while T.C. was in the hospital, she had
initially been evasive about the child's location, because she
knew the Division would not find the residence to be acceptable
for a child. The court also stated that T.C.'s decision to leave
A.T.M. with J.K. was troubling, because he was a person she had
only recently met. The court found that A.T.M. could have been
left with other relatives or friends, but T.C. decided to leave
the child with J.K. in an unsuitable residence.
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The court concluded that considering the totality of
circumstances, T.C. had abused or neglected A.T.M. by placing the
child at substantial risk of harm. The court cited the use of an
open oven as a source of heat; sleeping with the child and J.K.
on a twin bed; dressing the child in unclean clothes; leaving the
child with J.K.; failing to secure suitable housing; moving in
with various relatives and friends until she was told to leave
because she did not contribute toward the rent; and failing to
maintain her welfare and social security benefits.
The court entered an order dated April 29, 2014, which stated
that T.C. abused or neglected A.T.M. On January 5, 2015, the court
approved the Division's permanency plan, which called for the
termination of T.C.'s parental rights and the child's adoption.
The court entered an order on January 14, 2015, which dismissed
the complaint as to J.K. because paternity tests showed he was not
the child's biological father. On March 16, 2015, the court
dismissed this action, after the Division filed its guardianship
complaint. This appeal followed.
On appeal, T.C. argues that the trial court erred because it
based its findings of abuse or neglect entirely upon her poverty.
She contends that a parent or caretaker's poverty cannot support
a finding of abuse or neglect, and the court erred by relying upon
what she says were mischaracterizations of the record by the
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Division's attorney. She also argues that the court erred by
failing to convert the matter to a Title 30 action because this
case did not involve abuse or neglect.
The scope of our review in an appeal from an order entered
by the Family Part in an abuse or neglect matter is limited. N.J.
Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011).
We must uphold "factual findings undergirding the trial court's
decision if they are supported by 'adequate, substantial and
credible evidence' on the record." N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
An "abused or neglected child," is defined by N.J.S.A. 9:6-
8.21(c)(4), as a child who is less than eighteen years of age and
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 (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[.]
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"'Whether a parent or guardian has failed to exercise a
minimum degree of care' in protecting a child is determined on a
case-by-case basis and 'analyzed in light of the dangers and risks
associated with the situation.'" N.J. Div. of Youth & Family Servs.
v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010) (quoting G.S.
v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). "'[M]inimum
degree of care' refers to conduct that is grossly or wantonly
negligent, but not necessarily intentional." G.S., supra, 157 N.J.
at 178.
This standard "implies that a person has acted with reckless
disregard for the safety of others." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting
G.S., supra, 157 N.J. at 179). Moreover, a parent may be found to
have abused or neglected a child when the parent creates a
substantial risk of harm, since a court "need not wait until a
child is actually irreparably impaired by parental inattention or
neglect." In the Matter of the Guardianship of D.M.H., 161 N.J.
365, 383 (1999).
Here, there is sufficient credible evidence to support the
trial court's finding that T.C. abused or neglected A.T.M. by
failing to provide the child with the minimum degree of care. As
the record shows, A.T.M.'s physical, mental, or emotional
condition was in imminent danger of becoming impaired because T.C.
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did not provide the child with a safe and stable home. At the time
of the child's removal, T.C. was living with the child in an
apartment that was being heated with an open oven and an electric
fan. T.C. had previously been told the child could not be kept in
an apartment without functioning heat in the winter months.
Moreover, A.T.M. did not have adequate sleeping arrangements,
lacked clean clothing, and appeared to lack sufficient food.
T.C. argues that the court's finding that she abused or
neglected A.T.M. should be reversed because she was not financially
capable of providing the child with a safe and stable home. She
contends that the court erred by finding that she abused or
neglected the child due to poor choices. She contends her temporary
housing arrangements were driven solely by poverty. These
arguments are without merit.
The record shows that at various times, T.C. had been
receiving food stamps, welfare payments, and social security
benefits. At times, T.C. was forced to leave homes where she was
staying because she failed to contribute to the rent even though
she was then receiving social security benefits. The record also
shows that the Division instructed T.C. to explore all options for
housing assistance, and she signed a family agreement, in which
she committed to doing so. T.C. did not take the necessary steps
11 A-3944-14T4
to obtain such assistance. Eventually, T.C. elected to move in
with J.K., in a residence that was clearly unsafe.
In support of her appeal, T.C. relies upon New Jersey Division
of Child Protection and Permanency v. L.W., 435 N.J. Super. 189
(App. Div. 2014). In that case, the trial court found that the
parent neglected her two young children by failing to provide them
with housing. Id. at 191. The parent moved with her fiancé to
Georgia, after a fire destroyed her New Jersey housing. Id. at
193. The family returned to New Jersey after a death in the
fiancé's family, but did not have funds to return to Georgia.
Ibid.
They lived for a while with a relative, and moved to a
shelter, but were forced to leave. Ibid. The parent did not
qualify for welfare benefits, and was not eligible for housing
assistance. Ibid. Eventually, the parent brought her children to
the Division's office, so they would not become homeless. Ibid.
The trial court determined that the parent's lack of housing was
due to "unbelievably poor planning." Ibid.
We reversed the trial court's finding of neglect. Id. at 197.
We noted that "poverty alone is not a basis for a finding of abuse
or neglect." Id. at 195 (citation omitted). We observed that the
parent's "poor planning" was "in part a side-effect of poverty."
Id. at 196. We concluded that the evidence did not support the
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trial court's decision because the parent sought housing
assistance and employment "to no avail." Ibid. We noted that the
parent's fiancé could not provide housing, and the parent
ultimately did "the responsible thing" by seeking assistance from
the Division. Ibid.
We are convinced that T.C.'s reliance upon L.W. is misplaced.
The record does not support T.C.'s contention that the trial
court's finding that she abused or neglected A.T.M. was based on
poverty alone. Rather, in this case, the court found that, although
T.C. had the ability and resources to secure appropriate housing,
she elected instead to reside in an apartment that was being heated
in the winter months by an open oven and an electric fan. The
record supports the trial court's finding that, by doing so, T.C.
placed the child at substantial risk of harm.
T.C. also argues that the court's decision lacked details and
was confusing. She asserts that the decision does not accurately
reflect the Division's testimony and evidence. She contends that,
in making its decision, the court relied upon "inflammatory
misstatements of the evidence" by the Division's attorney. These
arguments are without sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E). As stated previously, the court's decision is
supported by sufficient credible evidence in the record.
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T.C. further argues that the trial court should have converted
this case to an action under Title 30, because there was no
evidence that she abused or neglected the child. N.J.S.A. 30:4C-
12 permits the Division to seek care, custody, and supervision of
a child without a finding of abuse or neglect, if the court
determines that such an order would be in the child's best
interests.
In this matter, the Division's complaint sought relief under
both N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. After completing its
investigation, the Division sought a finding of abuse or neglect.
The trial court properly found that, in light of the evidence
presented, the Division had established by a preponderance of the
evidence that T.C. had abused or neglected the child. Under the
circumstances, the court did not err by refusing to convert the
matter to an action under Title 30.
Affirmed.
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