DCPP VS. L.B., AND D.W., IN THE MATTER OF J.B. (FN-09-0204-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2641-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.B.,
Defendant-Appellant,
and
D.W.,
Defendant.
_________________________
IN THE MATTER OF J.B.,
a minor.
_________________________
Argued March 22, 2021 – Decided August 17, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0204-19.
Adrienne Kalosieh, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Adrienne Kalosieh, of
counsel and on the briefs).
William Rodriguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sookie Bae, Assistant Attorney
General, of counsel; William Rodriguez, on the brief).
Meredith Alexis Pollock, Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Alexis Pollock, on
the letter brief).
PER CURIAM
Following a fact-finding hearing, see N.J.S.A. 9:6-8.44, the Family Part
judge concluded defendant L.B. had abused or neglected her eleven-year-old
son, J.B. (James), in violation of N.J.S.A. 9:6-8.21(c).1 Approximately nine
months later, defendant entered a voluntary identified surrender of her parental
rights in favor of James' then-current resource parent, and the next month the
judge entered an order terminating this Title 9 litigation.
1
We use initials and pseudonyms pursuant to Rule 1:38-3(d)(12).
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2
Defendant now appeals, raising a single argument. She contends that the
Division of Child Protection and Permanency (the Division) did not prove, and
the judge erred in finding, that defendant failed to provide the minimum standard
of care for James required by N.J.S.A. 9:6-8.21(c)(4), or that she willfully
abandoned her son, pursuant to N.J.S.A. 9:6-8.21(c)(5). The Division argues
otherwise. Through his Law Guardian, James takes no position on the appeal. 2
Having considered the arguments in light of the record and applicable
legal standards, we affirm the order as modified.
I.
At the hearing, the judge heard the testimony of Division caseworkers
Tiffany Meredith and Sandra Cruz-Medrano and considered several Division
documents entered into the record. Defendant did not testify or call any
witnesses. At the start of the hearing, the parties agreed with the judge that
hearsay statements in the documents that were not subject to any exception
would not be admitted.
The Division was involved with the family for several years prior to the
December 2018 incidents that led to the filing of the verified complaint. At the
2
James' father, defendant D.W., was incarcerated at the time of the hearing, did
not appear in the litigation, and is not part of this appeal.
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3
time of his birth in 2008, James was deemed "medically fragile," subsequently
underwent multiple surgeries, and was diagnosed with multiple behavioral and
psychiatric problems. After an earlier removal and placement in an inpatient
program, the Division returned James to defendant's care in February 2017.
On December 13, 2018, the Jersey City Medical Center (JCMC) contacted
the Division after defendant left James at the hospital because she was unable to
manage his aggressive and sometimes violent behavior. Defendant wanted the
hospital to admit James for inpatient care, but the staff psychiatrist determined
admission was unwarranted. Meredith responded to the referral, was able to
reach defendant later that evening and convinced her to transport James to
Hoboken University Medical Center (HUMC) for a second opinion. That
hospital admitted James for monitoring, however, after one week, the staff
determined that he was cleared for discharge. Although the Division offered
defendant services to cope with James' behaviors, she refused to report to the
hospital and take custody of her son, believing it was necessary to place James
in an inpatient program for further care. The Division took custody of James at
the hospital, placed him in foster care with an unrelated family, and filed its
complaint.
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At the fact-finding hearing, Meredith's testimony included an explanation
of James' prior residential treatment, his placement in foster care, and his 2017
reunification with defendant. When she was able to contact defendant about the
referral from the JCMC, Meredith arranged to meet at defendant's home. She
testified that defendant was "very frustrated" and believed "no one was making
a proper diagnosis for her son." Defendant described how James had become
"aggressive and violent," suffered from "insomnia," and experienced "audio and
visual hallucinations about demons." Defendant described an incident in which
she awoke to find James holding a knife and threatening to kill her and her other,
older son. Defendant stated that for everyone’s safety, she was no longer able
to care for James.
Meredith testified that she persuaded defendant to seek a second opinion,
even though defendant made clear she was specifically trying to secure an
inpatient placement for James. Meredith accompanied defendant and James to
HUMC for an evaluation. During the long wait to see the doctor, defendant
showed Meredith a video recording of the incident that led her to seek help at
the Medical Center; in it, James was seen screaming at his mother. Meredith
also observed James becoming more "agitated and frustrated" as he waited to be
evaluated in Hoboken, and heard the child claim to see demons and converse
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with invisible beings. Finally, after being assessed, the hospital admitted James
to its "children's psychiatric unit."
After a one-week observation period, the hospital staff met to discuss
James' recommended treatment on discharge to a partial hospitalization program
(PHP). Meredith said defendant reiterated her frustration and belief that doctors
continued closing the case and would arrange for continued services, including
placement in a PHP program. Defendant agreed to pick up James at the hospital;
however, she never did, causing the Division to take custody of James at HUMC
and secure a placement for him.
During cross-examination, Meredith testified about defendant's efforts to
address James' behavioral and psychiatric problems after reunification.
Defendant also said she had developed post-traumatic stress disorder and a heart
condition requiring surgery because of the stress of caring for James. Meredith
acknowledged observing damage James caused to defendant's apartment, and
she acknowledged being sympathetic to defendant's plight and her desire to have
James placed in a residential treatment facility. Meredith testified the Division
found "the act of neglecting [James] by abandoning him at the hospital was an
act of desperation" and confirmed "the child did not suffer any injury or harm
as a result of being left in the hospital."
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Cruz-Medrano, a permanency supervisor for the Division, worked after
hours for its special response team for more than twelve-and-a-half years. She
responded to HUMC. Her first contact with defendant was by phone later that
evening. Defendant told her that she "would not be able to take her child home
due to his behaviors and that she was fearful." Defendant provided no names of
relatives who might care for James. Cruz-Medrano spoke with James at the
hospital; he told her that "he was just waiting for his mom to come pick him up."
Because James was cleared for discharge and defendant had no intention to pick
him up, the Division executed an emergency removal. Defendant provided the
Division with a "bag of clothes . . . and some . . . Christmas gifts" she had for
her son. Cruz-Medrano testified that James admitted he was "unable to control
his anger" and confessed to hearing voices. Defendant told Cruz-Medrano that
she wanted James to remain hospitalized out of fear, that "home support had
failed her," and she did not have a plan for James' return.
After considering the summations of counsel, the judge reserved decision
noting the case was not "clear cut." 3 Two days later, the judge issued a written
3
Defendant notes in passing that the judge should have dismissed the Title 9
complaint and proceeded under Title 30 to provide services to the family. She
notes her trial counsel made such a request. That is an apparent reference to a
single sentence at the close of defense counsel's summation in the Family Part.
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decision in support of her order. After detailing the testimony and citing
relevant case law, the judge wrote:
[T]he record contains substantial, credible evidence to
support a finding of 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 when she
willfully refused to take responsibility . . . and to take
him home when he was cleared for discharge despite
the Division's offer of services and his enrollment in a
partial hospitalization program. Defendant believed
that this was not sufficient despite it being the
recommendation from the hospital . . . . The only plan
that she would accept was residential treatment . . . .
Not even the hospital recommended residential
treatment. At the time of his discharge, [James] was
not hearing voices. He believed that his mother was
coming to pick him up.
Defendant "abandoned" her son, leaving him
alone and forcing the Division to assume care, custody
and control of him. . . . A parent is not 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 the parent to provide care for her child. But for the
Division's intervention, defendant left [James] 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
Undoubtedly, without any finding of abuse or neglect, the trial court was
empowered to proceed under Title 30 and provide services to the family. N.J.
Div. of Youth & Fam. Servs v. I.S., 214 N.J. 8, 15 (2013). However, even if
counsel's summation comment was a sufficient request, the crux of the issue in
this case was defendant's refusal to accept the services proposed by the Division.
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responsibilities." In re Guardianship of K.L.F., 129
N.J. [32,] 39 [(1992) (second alteration in original)].
II.
Well-known standards guide our review. "[A]ppellate courts defer to the
factual findings of the trial court because it has the opportunity to make first -
hand credibility judgments about the witnesses who appear on the stand; it has
a feel of the case that can never be realized by a review of the cold record.'"
N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 342–43 (2010)
(quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)).
Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, "[t]here is an exception to th[e] general rule of deference:
Where 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 review." N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J.
596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188–
89 (App. Div. 1993)). When the issue presented turns on a legal conclusion
derived from the Family Part's factfinding, "we are not required to defer." N.J.
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Div. of Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 542–43 (App. Div.
2011). This is such a case.
"In general, 'Title 9 controls the adjudication of abuse and neglect cases.'"
Dep't of Child. & Fams., Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J.
166, 177 (2015) (quoting M.C. III, 201 N.J. at 343). "The focus of Title 9 'is
not the "culpability of parental conduct" but rather "the protection of children."'"
N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 368 (2017)
(quoting E.D.-O., 223 N.J. at 178). Title 9 defines an "abused or neglected
child" as one under the age of eighteen 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, including the
infliction of excessive corporal punishment . . . .
[N.J.S.A. 9:6-8.21(c)(4).]
"Included under Title 9 is a separate category of abuse or neglect: 'willful
abandonment.' A child less than [eighteen] years of age may be found to be
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abused or neglected if the child has been willfully abandoned by his parent or
guardian." A.B., 231 N.J. at 368–69 (quoting N.J.S.A. 9:6-8.21(c)(5)).
The "minimum degree of care" element in subsection (c)(4) reflects "the
intermediary position between simple negligence and the intentional infliction
of harm." Id. at 369 (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 179
(1999)). After considering the totality of the circumstances and assessing each
case on its facts, we must determine whether the parent or guardian "fail[ed] 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 369 (quoting G.S., 157 N.J.
at 181).
Here, defendant's decision not to take custody of James at HUMC did not
expose the child to the imminent risk of serious injury or harm. There was no
medical testimony adduced by the Division that detailed in any way James' then-
current psychiatric diagnosis or any evidence of how defendant's failure to
provide him with the services the Division intended to supply proved that the
child faced "some form of actual or threatened harm," which Title 9 requires.
N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 25 (2013). James was in
the process of being released from HUMC and certainly faced no imminent risk
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of harm. Although his future psychiatric treatment hung in the balance, we
cannot conclude based on the evidence adduced at the fact-finding hearing that
defendant's conduct amounted to abuse or neglect under Title 9. See N.J. Div.
of Youth & Fam. Servs. v. S.I., 437 N.J. Super. 142, 154–55 (App. Div. 2014)
(holding that although "[a] teenager's . . . thoughts of suicide should never be
ignored by adults," the "limited" evidence "fail[ed] to prove the child was in
'imminent danger' or that a 'substantial risk' of harm would result from [the
defendant's] refusal to seek immediate psychiatric review, which are
prerequisites to sustain a finding of abuse or neglect").
N.J.S.A. 9:6-1 defines abandonment of a child as:
(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 . . . .
In A.B., the Court cited with approval Chief Justice Vanderbilt's formulation of
the pre-Title 9 law of abandonment, noting the parent's conduct needed to meet
"an extremely high bar" demonstrating "a 'settled purpose' to forego her parental
rights." 231 N.J. at 371–72 (citing Lavigne v. Fam. & Child.'s Soc'y, 11 N.J.
473, 480 (1953)); see also, In re Guardianship of DMH, 161 N.J. 365, 377 (1999)
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(noting that under Title 30, "abandonment may not be based on parental conduct
that is only uncertain, ambivalent or equivocal in fulfilling parental duties."
(citing In re Adoption of a Child by D.M.H., 135 N.J. 473, 488, (1994))). In
A.B., the Court concluded the evidence failed to establish the defendant
"willfully relinquished her parental rights." 231 N.J. at 372.
By citing K.L.F. in her written opinion, the trial judge apparently
concluded the evidence here was sufficient to demonstrate defendant "willfully
forsook [her] parental responsibilities." 129 N.J. at 39. However, as the
Division correctly notes, "[a] trial court judgment that reaches the proper
conclusion must be affirmed even if it is based on the wrong reasoning." Hayes
v. Delamotte, 231 N.J. 373, 387 (2018) (citing Isko v. Plan. Bd., 51 N.J. 162,
175 (1968)).
Neither N.J.S.A. 9:6-1(b) or (c) require the Division prove that a parent
acted willfully or permanently forsook the child. In a different context, we noted
the distinction between subsection (a) and these other subsections.
The alternative definitions of abandonment in
N.J.S.A. 9:6-1 also tend to support our view. Both of
the other definitions proscribe "failing to care for and
keep the control and custody of a child" so that the child
shall be exposed to harm, subsection (b), or shall
become a financial burden upon the public or others not
chargeable with the child's care, subsection (c). Both
of those alternatives do not require a permanent
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relinquishment and do not use the word forsaken which
is employed, in stark contrast, only in subsection (a).
We believe the Legislature was thereby drawing a line
between harms, physical, moral, or financial, that might
befall the child or others from even a temporary
leaving, and the "ultimate act" of neglect described by
"willfully forsaking."
[State v. N.I., 349 N.J. Super. 299, 311–12 (App. Div.
2002).]
In this case, however well-intentioned defendant's conduct may have
been, she willfully refused to accept custody of her son when HUMC was
prepared to discharge the child. As a result, the Division, which was prepared
to provide services to defendant, including a PHP mental health program, was
forced to accept custody and find a placement for James. Defendant produced
no medical evidence challenging the hospital's decision that discharge was
appropriate. It is beyond serious debate that parents cannot simply refuse to
accept custody of their child because their experiences and beliefs lead them to
conclude their opinions about what is best for the child are correct, and the
opinions of medical providers are wrong. The facts in this case demonstrate the
Division proved defendant willfully abandoned James pursuant to N.J.S.A. 9:6-
8.21(4)(c)(5).
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We affirm the Family Part's order as modified.
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