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NOT FOR PUBLICATION WITHOUT THE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.
————————————————————————————————
IN THE MATTER OF T.H. and B.H.,

Minors.
—————————————————————————————————

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.

2 A-3759-15T1
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 . . . ."

3 A-3759-15T1
 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.

4 A-3759-15T1
 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).

5 A-3759-15T1
 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.

6 A-3759-15T1
 [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

7 A-3759-15T1
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.

8 A-3759-15T1