RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2878-12T1
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,1
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 20, 2014
v.
APPELLATE DIVISION
S.I.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF S.I., a minor.
__________________________________
Submitted May 29, 2014 - Decided July 2, 2014
Published
Before Judges Sapp-Peterson, Lihotz and
Maven.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FN-09-270-12.
Joseph E. Krakora, Public Defender, attorney
for appellant (Erin L. Pinder, Designated
Counsel, on the briefs).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
1
On June 29, 2012, the Department of Children and Families
was reorganized and the Division of Youth and Family Services
was renamed as the Division of Child Protection and Permanency.
L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-
10(b)).
counsel; Joyce Calefati Booth, 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).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
Defendant S.I. appeals from a Family Part order, entered
following a fact-finding hearing, which determined she had
abused and neglected her minor grandchild for whom she was the
legal custodian.2 S.I. refused consent to allow the child to
undergo a mental health evaluation because she believed the
child was being "manipulative" and merely "acting out." The
Division of Youth and Family Services (the Division) executed an
emergency removal and sought a psychiatric evaluation to discern
whether the child was suicidal. S.I. challenges the trial
judge's factual findings, as well as her application of the law
to the facts. Specifically, S.I. disputes: (1) the single act
of withholding her consent for the mental health evaluation
demonstrated medical neglect; (2) she failed to exercise a
minimum degree of care by withholding her consent for the
2
It is not clear how long the child was in S.I.'s care and
custody. S.I. testified the child had been in her care for
twelve years. The Division's complaint stated an order granting
S.I. custody was entered three years earlier, but the document
is not included in the record.
2 A-2878-12T1
evaluation; and (3) the child suffered or was at imminent risk
of suffering harm because she withheld her consent.
We have considered the arguments advanced by the parties.
Although we find no fault with the Division's initial decision
to remove the child to effectuate a mental health evaluation, we
conclude the record lacks substantial credible evidence that
S.I.'s conduct amounted to medical neglect or recklessly created
a substantial risk to the child's mental health or physical
safety. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1
(2013). Accordingly, we reverse the finding of abuse or
neglect.
These facts are taken from the April 5, 2012 fact-finding
hearing. During the hearing the State presented testimonial
evidence from two Division workers and admitted, without
objection, documents evidencing the initial referral and the
Division's investigation. S.I. testified in her own behalf.3
A school nurse contacted the Division after a note written
by S.I.'s then twelve-year-old grandchild was discovered, which
stated: "I want to kill myself. I hate my life." When
confronted, the child explained she wrote the note more than a
month earlier, but admitted being depressed. She stated she
3
We note the child's parents attended the fact-finding
hearing, but did not testify.
3 A-2878-12T1
"ha[d] no plan on how she's going to hurt herself." Further,
the child expressed fear of S.I., complaining her grandmother
hits her in the back "once per week." The child insisted she
did not want to return to S.I.'s care.
A mobile crisis unit was contacted. The record states a
response team went to the school, but does not include the
results of the child's evaluation.
The school's vice principal contacted S.I. asking her to
come to the school. S.I. complied. When told of the discovered
note, S.I. did not believe the child was suicidal or desired to
end her life. The vice principal informed the Division S.I.
became "extremely upset" after the child's comments were
disclosed and she "could not be calmed." S.I. insisted the
child was acting out after being punished. She repeatedly
denied the child's allegations of physical abuse, and suggested
the child was merely rebelling. S.I. declined the
recommendation she take the child to the hospital for a mental
health evaluation.
The vice principal advised the Division worker when he told
S.I. the child feared returning home, S.I. responded "She don't
want me. I don't want her." S.I. then left the school without
the child. Subsequent calls by the vice principal to S.I. went
4 A-2878-12T1
unanswered. The school called the Division after S.I. left the
school.
Division Special Response Unit (SPRU) worker Pedro Cereno
responded to the school. He interviewed the child, who said she
disliked school because classmates bullied her, called her names
and made fun of her appearance. The child complained S.I. yells
at her, which causes "feelings of depression" and "she would
rather be dead than go through these things." Although the
child did not have a plan to harm herself, she feared returning
home as "she d[id] not feel safe." Finally, the child expressed
she had limited contact with her parents.
Following unanswered calls to S.I., Cereno traveled to her
home. The child remained in the school building with another
SPRU worker.
Cereno spoke to S.I. regarding the note found by school
officials and urged her to take the child to the hospital for a
psychiatric evaluation. S.I. declined, stating the child was
being manipulative as "she ha[d] not gotten her way." S.I.
explained the child was spoiled and accustomed to getting what
she wanted; however, S.I. had lost her job and the family could
no longer afford to spend money as before. S.I. characterized
the child's conduct as reflective of her rebellion because she
5 A-2878-12T1
had "behavioral issues." Finally, S.I. remarked she was being
treated for depression as a result of her own circumstances.
S.I. vehemently denied the child's claims of physical abuse
and the use of corporal punishment. S.I.'s daughter, who also
lived in the home, confirmed the child was not physically
abused.
After Cereno again discussed the need to take the child to
the hospital, S.I. insisted it was unnecessary and stated she
refused to "play into [the child's] manipulation." S.I.
additionally stated she did not want to go to the hospital for
fear her own depression might trigger an anxiety attack.
Cereno explained if S.I. continued to refuse, the Division
would be required to remove the child to obtain the evaluation.
S.I. suggested the Division should "assume custody of the child
because she wasn't taking the child to the hospital." Cereno
also testified S.I. "remained adamant of the fact that if the
child didn't want to be in the home, that she was not going to
have her there." Cereno then offered to provide homemaker
services for the household, but S.I. responded: "Hell [n]o."
S.I. refused to sign the notice of emergency removal.
Consequently, the Division effected a Dodd removal and assumed
6 A-2878-12T1
the child's temporary care, custody, and supervision.4 The child
was immediately taken to Jersey City Medical Center for a
psychological evaluation, where she "was screened, not deemed a
risk and . . . released."
Sarah Overholser, the caseworker who assumed responsibility
for the case after the child was removed, also testified. She
stated the Division's investigation revealed the child's claims
of physical abuse by S.I. were "unfounded."5 The Division also
communicated with the child's parents, who expressed they
maintained regular contact with her.
4
"'A "Dodd removal" refers to the emergency removal of a
child from the home without a court order, pursuant to the Dodd
Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
The Act was authored by former Senate President Frank J. "Pat"
Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family
Servs. v. N.S., 412 N.J. Super. 593, 609 n.2, (App. Div. 2010)).
5
A "substantiated" finding is one where "the available
information, as evaluated by the child protective services
investigator, indicates by a preponderance of the evidence that
a child is an abused or neglected child as defined in N.J.A.C.
10:133-1.3 because the alleged child victim has been harmed or
placed at risk of harm by a parent or guardian." An
unsubstantiated finding, therefore, is one where the evidence is
insufficient to make such an evaluation. This differs from an
"unfounded" finding, which is made when "[t]here is not a
preponderance of evidence that the alleged child victim was
harmed or placed at substantial risk of harm;" or "[t]here is
not a preponderance of evidence indicating that a parent or
guardian and child were involved." N.S., supra, 412 N.J. Super.
at 607 n.1 (alteration in original) (citation omitted).
7 A-2878-12T1
S.I. testified regarding her meeting with school officials
and her interview by the Division. She stated the vice
principal declined her requests to talk to the child when she
did not want to return home. S.I. asked what she should do and
what the school was going to do, but the vice principal just
"shrugged"; so she left. She insisted the vice principal never
stated the child needed a psychiatric evaluation.
In speaking with Cereno, S.I. related she lost her job and
"had gotten very ill with depression" and "had basically a
breakdown." S.I. explained her depression and anxiety caused
her to become "mixed-up," "overwhelm[ed]," and unable to
adequately explain her position or "get [] Cereno to understand"
her view of the child's behavioral concerns. S.I. stated the
child was "not being abused physically or any other way." S.I.
noted since her employment ended, she discovered the child's
"failing grades [and] horrible attitude toward her aunts." S.I.
started to address these issues with the child, who reacted by
"crying and ranting and raving." S.I. believed the child's
comments, as related by the vice principal, showed she was
"acting out."
S.I. professed she loved the child, denied stating she did
not want her, and insisted she wanted what was best for her.
She steadfastly asserted the child would "never have committed
8 A-2878-12T1
suicide." Rather, she suggested the child "was being
vindictive" because a few days earlier S.I. had forbade the
child from attending the local Boys and Girls Club until her
grades improved. S.I. believed the child was "just a teenager
acting out because she was failing and I wanted her to
redirect."
S.I. also related she feared going to the hospital because
of her own depression and anxiety. She asserted her daughter
offered to take the child to the hospital, but Cereno would not
permit the aunt to accompany the child to the hospital.
At the conclusion of the hearing, the judge entered her
oral opinion. She found S.I. was "a very intelligent, obviously
well-educated woman" and recognized the difficulty associated
with being and raising a teenage girl. However, she found S.I.
refused to take the child for a mental health assessment when
"[c]learly the child was in probable danger of having some kind
of a serious mental episode." Addressing S.I.'s explanation of
the child's behavior, the judge commented:
whether [the child's behavior] was just for
attention or whether it was really serious,
that's not [a decision] for the caregiver to
make. . . . [T]hat's for the experts.
That's for the people in the Medical Center
or wherever who will sit down and do mental
testing on someone to make sure that they
are not a danger to themselves.
9 A-2878-12T1
The judge related concerns for teenage suicide, the emotional
turmoil caused by bullying, and a young person's inability to
fully appreciate the consequences of his or her actions and the
possibility of change in the future, stating:
[W]ould she have done it? Nobody knows
that.
But as the caregiver, do you have the
obligation to do everything that you can to
make sure that this child will not harm
herself? You bet you do.
The judge determined S.I. "was obligated to take this child
for a medical health assessment after [she] had threatened
suicide and she refused to do so." S.I. received specific
instructions regarding how to address the issue, but refused to
comply. Accordingly, the judge determined the Division
established by a preponderance of the evidence that the child
was "abused or neglected" and S.I.'s failure to act amounted to
medical neglect.
After dispositional hearings, the child was placed in the
legal and physical custody of her father, and the litigation was
terminated. S.I. filed this appeal.
S.I. argues the trial judge erred in finding the Division
met its burden to show medical neglect by a preponderance of the
evidence as the judge's factual findings were not supported by
adequate, substantial, and credible evidence in the record.
10 A-2878-12T1
S.I. urges the findings of abuse or neglect cannot be sustained
solely because she disagreed with the Division's recommendation
that the child needed a mental health evaluation. Moreover, she
contends a single instance of allegedly blocking suggested care
does not rise to the level of gross negligence or reckless
disregard for the child's safety.
Our standard of review on appeal is narrow. We defer to
the Family Part's findings of fact based on those findings.
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007). "[F]indings by the trial judge are considered binding
on appeal when supported by adequate, substantial and credible
evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351
N.J. Super. 427, 433 (App. Div. 2002) (citing Rova Farms Resort,
Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Deference to a trial court's supported factual findings is
warranted because the trial judge "has the opportunity to make
first-hand credibility judgments about the witnesses who appear
on the stand [and] . . . has a 'feel of the case' that can never
be realized by a review of the cold record." N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Nevertheless,
"[w]here the issue to be decided is an 'alleged error in the
trial judge's evaluation of the underlying facts and the
implications to be drawn therefrom,' we expand the scope of our
11 A-2878-12T1
review." G.L., supra, 191 N.J. at 605 (quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993)). The trial judge's legal conclusions and the application
of those conclusions to the facts are subject to plenary review.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
The adjudication of abuse or neglect is governed by Title
9, which is designed to protect children who suffer serious
injury inflicted by other than accidental means. G.S. v. Dep't
of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-
8.8). See also N.J.S.A. 9:6-8.21 to -8.73 (governing protection
of abused and neglected children). "The statute in question
addresses harm to a child[.]" A.L., supra, 213 N.J. at 8. An
"abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)
as
a child less than 18 years of age whose
parent or guardian, as herein defined, . . .
or 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 . . . 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 . . . .
12 A-2878-12T1
Whether a parent or guardian has engaged in acts of abuse
or neglect is considered on a case-by-case basis and must be
"'analyzed in light of the dangers and risks associated with the
situation.'" N.J. Dep't of Children & Families v. R.R., __ N.J.
Super. ____, ____ (App. Div. 2014) (slip op. at 7) (quoting
G.S., supra, 157 N.J. at 181-82). Under the statutory standard,
"something more than ordinary negligence is required to hold the
actor liable." G.S., supra, 157 N.J. at 178. Proscribed is
"conduct that is grossly or wantonly negligent, but not
necessarily intentional." Ibid. The standard "implies that a
person has acted with reckless disregard for the safety of
others." Id. at 179. However, whether a particular event is
mere negligence, as opposed to gross or wanton negligence, can
be difficult to determine. See N.J. Div. of Youth & Family
Servs. v. T.B., 207 N.J. 294, 309 (2011).
A court considering whether a parent or guardian's conduct
meets the statutory standard must analyze all facts, N.J. Div.
of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App.
Div. 2011), and decide whether the parent or guardian exercised
a minimum degree of care under the circumstances. N.J. Div. of
Child Prot. & Permanency v. J.A., ___ N.J. Super. ___, ___ (App.
Div. 2014) (slip op. at 9).
13 A-2878-12T1
During the fact-finding hearing, the State bears the burden
and must present proofs to establish abuse or neglect as defined
in the statute. P.W.R., supra, 205 N.J. at 32; N.J.S.A. 9:6-
8.46(b). Specifically, the State must "demonstrate by a
preponderance of the competent, material and relevant evidence
the probability of present or future harm" to the minor child.
N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13,
24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J.
426 (2005).
We recognize that "the elements of proof are
synergistically related." V.T., supra, 423 N.J. Super. at 329,
(citation and internal quotation marks omitted). In this
regard, "[o]ne act may be substantial or the sum of many acts
may be substantial" to prove abuse or neglect. Id. at 320
(citation and internal quotation marks omitted). A court need
not wait until a child is actually harmed or neglected before it
can act to address parental conduct adverse to a minor's
welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J.
Super. 222, 235-36 (App. Div.) (citing In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505
(2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3502, 177 L. Ed.
2d 1095 (2010).
14 A-2878-12T1
"[N]on-intentional conduct is sufficient to warrant a
finding of abuse if injury to the child is demonstrated." S.S.,
supra, 372 N.J. Super. at 24 (citing G.S., supra, 157 N.J. at
175-82). However, when "there is no evidence of actual harm,
. . . the statute requires a showing of 'imminent danger' or a
'substantial risk' of harm before a parent or guardian can be
found to have abused or neglected a child." A.L., supra, 213
N.J. at 8 (citing N.J.S.A. 9:6-8.21(c)). If an isolated act
"appears to be aberrational," labeling the parent a child abuser
may be inappropriate. N.J. Div. of Youth & Family Servs. v.
K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), certif.
dismissed, 208 N.J. 355 (2011).
Guided by these principles we examine the facts in this
matter. The issue presented is whether S.I.'s refusal to take
the child to the hospital for a psychiatric evaluation
constituted a failure to exercise a minimum degree of care,
recklessly creating "harm, or [the] substantial risk thereof[.]"
N.J.S.A. 9:6-8.21(c)(4)(b). A teenager's expression tantamount
to thoughts of suicide should never be ignored by adults.
However, the facts presented here are so limited we can only
conclude this evidence fails to prove the child was in "imminent
danger" or that a "substantial risk" of harm would result from
15 A-2878-12T1
S.I.'s refusal to seek immediate psychiatric review, which are
prerequisites to sustain a finding of abuse or neglect.
The Division presented Cereno's report, which included the
school's reaction to finding the child's note on December 8,
2011. The child admitted penning the note, sometime in October,
possibly six to eight weeks earlier. The child stated she was
depressed, but also affirmed she had no plans on how to harm
herself. In his discussion with the child, Cereno noted the
child related poor relationships with her family members and
alleged physical and verbal conflict with S.I.
When confronted with the note stating the child "wanted to
kill herself," school and Division workers appropriately reacted
to determine the depth of the child's depression. The facts
show the child was upset, possibly distraught by her perceived
treatment by S.I., and she was also troubled by her classmates'
conduct, a longstanding problem the school was purportedly
addressing. But the record contains no evidence that describes
the child's behaviors when she was examined by the mobile crisis
unit or any recommendation by those responders after speaking
with the child. The record also lacks evidence demonstrating
the effect of S.I.'s conduct. The judge observed, mental health
concerns attendant to the behavior identified by school
officials are a subject left for experts to determine. At
16 A-2878-12T1
trial, no evidence was offered assessing the level of risk
posed. When S.I. refused to take the child to the hospital,
certainly at that time the child's safety was secured by the
intervention of school and Division officials. Acting as parens
patriae, the Division had the child examined. Therefore, even
though S.I. declined to take the child to the hospital because
she disagreed with the Division's assessment of the
circumstances, she did not thwart efforts to obtain the desired
evaluation. The Division later learned the hospital could not
identify any underlying medical or mental health conditions, and
did not recommend a course of necessary treatment, or diagnose a
risk requiring immediate care.
There are additional undisputed facts not addressed in the
judge's opinion, which support S.I.'s belief the child's
comments did not manifest urgent attention. S.I.'s decision was
informed by her parental experience, from which she concluded
the child was exhibiting teenage rebellion after being
disciplined for poor school performance. These include: S.I.
had raised the child for most of her life, without incident or
intervention from the Division; S.I.'s recent unemployment
caused her to more closely scrutinize the child's behaviors,
which she identified as more disrespectful as she entered her
17 A-2878-12T1
teens; and S.I. related the child's previous attempts at
manipulation, when disciplined or denied what she wanted.
S.I. also had demonstrated her care for the child's well-
being. She detailed proactive efforts undertaken to curtail
peer bullying and implement protocols with teachers to aid the
child in the event of future incidents. S.I. also initiated
counseling for the child to assist with these concerns.
Admittedly, when told of her granddaughter's interview
comments and the feelings she expressed in the uncovered note,
S.I. became upset, angered, and her statements suggest she felt
rejected. We do not countenance S.I.'s lack of cooperation with
the school or the Division. Her decision declining to
immediately seek a mental health evaluation perhaps was a
mistake; however, it cannot be said to rise to the level of
gross or wanton negligence.
We also cannot ignore S.I.'s view of her granddaughter's
behavior in part was justified by the Division's investigation,
which concluded the child's claims of physical abuse at the
hands of S.I. were unfounded, not merely unsubstantiated. The
child's claim of estrangement from her parents also was not
supported by the parents' statements.
The trial judge did not reject S.I.'s testimony as not
credible. Rather, she rejected S.I.'s view on the need for the
18 A-2878-12T1
child's mental status examination based on a general concern for
teenage suicide and the emotional effects of bullying. There is
no evidential support for the judge's finding that this child
"was in probable danger of having some kind of mental episode."
The record contains no expert evidence or even admissible
documentary evidence supporting this assertion. Indeed, the
record reflects only the judge's opinion, which cannot be used
to substantiate legal conclusions. "Judges at the trial and
appellate level cannot fill in missing information on their own
or take judicial notice of harm. Instead, the fact-sensitive
nature of abuse and neglect cases, turns on particularized
evidence." A.L. supra, 213 N.J. at 28 (internal citation
omitted).
Examining the totality of the facts and circumstances
facing this family, we cannot conclude S.I.'s emotional and
angry response to her granddaughter's comments was grossly or
wantonly negligent, made knowing that injury was likely or made
with reckless disregard that substantial likelihood of harm
would befall the child. No evidence was presented to
demonstrate the child's physical, mental, or emotional condition
was impaired or that she was in imminent danger of harming
herself as a result of S.I.'s decision to decline the
recommendation for an immediate evaluation. Accordingly, the
19 A-2878-12T1
judge's conclusion to the contrary cannot withstand scrutiny and
the underlying evidence is insufficient to show abuse or
neglect.
Our comments must not be misunderstood as questioning the
Division's precautionary response to assure the child received a
mental health evaluation. When the SPRU worker was confronted
with the child's comments during her interview and her feelings
expressed in the uncovered note, along with S.I.'s refusal to
take the child straight to the hospital, the need to act was
manifest. In fact, S.I.'s extreme emotional response prevented
her from offering a reasoned alternative course, leaving removal
as the only available option. However, rather than resorting to
Title 9, the Division has extensive authority to assure children
are protected under the State's child welfare laws pursuant to
N.J.S.A. 30:4C-11 and -12. As detailed by Chief Justice
Rabner's opinion in A.L., these statutory provisions authorize
not only services, but as necessary, care and custody. A.L.,
supra, 213 N.J. at 30-34. Every event requiring the Division's
intervention does not result from abuse or neglect.
Moreover, our holding intends to underscore the need for
evidence to support a claim of abuse or neglect, as interpreted
by the Court in A.L. This includes proof of actual harm or, in
the absence of actual harm, "the Division was obligated to
20 A-2878-12T1
present competent evidence adequate to establish [the child was]
presently in imminent danger of being impaired physically,
mentally or emotionally." N.J. Div. of Child Prot. & Permanency
v. M.C., __ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at
3) (citations omitted). These essential proofs cannot merely be
based on the Division's view that the parent or guardian's
decision on behalf of a child was ill-advised. Rather, the
Division must demonstrate harm or show the likelihood of an
imminent substantial risk of harm rising above mere negligence.
A.L. supra, 231 N.J. at 28; S.S., supra, 372 N.J. Super. at 24.
Such evidence is absent here. Accordingly, S.I.'s demonstrated
failure to comply with the recommended psychiatric evaluation
was not proven to be medical neglect under N.J.S.A. 9:6-
8.21(c)(4).
Reversed.
21 A-2878-12T1