NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Minor- Respondent. (2013)

Defendant, L.F., appeals from the September 7, 2012 Family Part Order entered following a fact-finding hearing determining that she abused or neglected her son.   We reverse.

The evidence presented at the hearing was as follows.   L.F., who was forty-three years old at the relevant time period, is the mother of three children, including the minor child, O.G., born March 29, 2000.   The two live together, along with C.L., one of L.F.'s adult daughters.   Her other adult daughter, O.L.G., lives out of the house.

On December 25, 2011, L.F. was at home with C.L., O.L.G., O.G., and J.A., a teenage cousin of O.G. who was visiting for the holidays.   The family celebrated Christmas, and L.F. received pajamas from her daughters.   She thought she should have received a better gift, specifically an iPod cover.   This caused an argument and she left the home and did not return until the evening.   At that time, she entered the apartment through the rear and went to the kitchen where she attempted to commit suicide by strangling herself with the refrigerator power cord.   L.F.'s daughter found her the next morning.   L.F. was unconscious and taken to Palisades Medical Center.   At the hospital, a bleed in her eye was observed from the attempt and she tested positive for marijuana.

The next day, the Division learned of the attempted suicide, which took place while L.F.'s ten-year-old son was home.   The Division responded and investigated the referral, at which time L.F. admitted that she tried to kill herself by taking the cord from a freezer and wrapping it around her neck.   When asked about her children, she stated they were in the home but she did not know where.   She denied using drugs but revealed a history of bipolar disorder and that she had been prescribed Wellbutrin.   L.F. claimed she was compliant with her medications but admitted to not taking them at times and could not remember the last time she took them.   O.G. reported he last saw his mother around 9:00 a.m. on Christmas day.   She left in her car and he had no knowledge of her whereabouts but had been left with his sister, C.L.

When the caseworker interviewed L.F., she told the worker that she attempted suicide nineteen years earlier.   She reported that she was prescribed Wellbutrin, but had not taken it in two weeks because it did not work.   Instead, she smokes marijuana approximately one time per month to relieve her stress.

L.F. underwent a psychiatric evaluation on December 28, 2011, with Dr. Samiris Sostre.   She reported a history of bipolar disorder.   Dr. Sostre opined that L.F.'s risk of attempting suicide was high because of her symptoms of depression, poor social support, past history of abuse, history of suicide attempt and noncompliance with treatment.   He recommended that L.F.'s contact with O.G. be supervised.

On January 2, 2012, L.F. advised the Division that she was not going to send O.G. back to his father because he was bad- mouthing her.   She also asserted that O.G. is a special needs child.   The following day, she again contacted the Division, saying O.G. Sr. was verbally abusing O.G.

On January 13, 2012, the Division filed an Order to Show Cause (OTSC) and Verified Complaint requesting an order granting care and supervision of O.G. based upon L.F.'s unaddressed psychiatric condition.   The court granted the application and ordered L.F. to attend substance abuse treatment.   The court also directed that homemaker services be placed in L.F.'s home.   The homemaker services were terminated on February 17, 2012 conditioned upon L.F.'s adult daughter, O.L.G.'s, joint supervision of O.G.L.F. was compliant.   On February 29, 2012, the return date of the OTSC, the court entered an order directing L.F. to attend substance abuse treatment and follow up with psychiatric treatment, as well as making sure O.G. was taking his medication and wearing eyeglasses.

The court conducted its fact-finding hearing on July 9 and September 7, 2012.   The Division called Dr. Sostre and caseworker Aack–Ortiz.   According to Dr. Sostre, L.F. admitted to being depressed for a long time and exhibited symptoms of depression.   Dr. Sostre testified that L.F. stated the argument with her daughter precipitated the attempt where she took the refrigerator cord and wrapped it around her neck.   L.F. told Dr. Sostre that she had been diagnosed with bipolar disorder and was prescribed Wellbutrin, but she stopped taking it because she felt it did not help her.   The doctor opined that L.F.'s impulse control and anger would affect her ability to parent.   Further, he expressed the opinion that L.F. could have been successful in her suicide attempt while her child was home, which was indicative that her child was not her priority.

Aack–Ortiz testified that L.F. told her she attempted suicide because her daughters bought her pajama pants and she wanted an iPod case for Christmas.   L.F. also reported that she was diagnosed with bipolar disorder, depression and anxiety.

The defense called O.G. Sr., who testified that he had planned to spend time with O.G. on Christmas but did not speak directly with L.F. when arranging this visit.   Rather, he spoke only with O.G. He called O.G. around 12:30 a.m. on Christmas morning and again later in the day, telling him that he would see him that day, but he did not schedule a time or inform O.G.'s sisters that he would be picking him up.

The defense also called O.L.G., who testified that she was aware of the Christmas Day visitation planned for O.G. with his father because she heard L.F. speak to O.G. Sr. on the phone that morning.   She testified O.G. Sr. was to pick O.G. up later that day.   She was “pretty sure” L.F. was talking to O.G. Sr. but could not be certain.

L.F. testified that she took a puff of marijuana a few days prior to her suicide attempt.   She stated that O.G. Sr. told her he was picking up O.G. as soon as he awakened on December 25, but she could not recall whether she confirmed or whether the conversation was over the phone or via text message.   She claimed that she was taking Abilify at the time of the suicide attempt and that she always took her medicine.   She stated that the hospital records indicating she had stopped her medication were due to the staff misunderstanding her because of her lisp and that she never told the Division workers or Dr. Sostre that she was not taking her medication.

The trial judge concluded that the Division proved, by a preponderance of the evidence, that L.F. put O.G. at a substantial risk of harm.   The judge thoroughly discussed his credibility determinations.   He found L.F. was not credible.   He did not find it believable that the hospital staff would misunderstand her, as he had no trouble understanding her testimony, and despite testifying to taking her medication, he noted that four people reported that she told them she was not taking her medication.   Additionally, the judge expressed that he had to “pull it out of her” that she smoked marijuana prior to the suicide attempt.

The judge distinguished the factual circumstance he found from New Jersey Division of Youth and Family Services v. T.B., 207 N.J. 294 (2011) where the court found a mother was not negligent in leaving her child home alone because she reasonably believed her parents were in the house.   The judge reasoned that here, no reasonable person could conclude O.G. would not be home.   He credited O.G. Sr.'s testimony that he never spoke with L.F. regarding the pickup, and observed that L.F. could not remember whether the conversation was a phone call or text message.   The judge found L.F. was not taking her medication and smoked marijuana.   He also credited Dr. Sostre's testimony that L.F. was at risk for another attempt, which placed O.G. at a substantial risk of harm.   The judge entered an order finding L.F. neglected O.G. by failing to take her psychotropic medication, smoking marijuana, and attempting suicide while O.G. was in the home, placing him at substantial risk of harm.   At the request of all parties, the judge also dismissed the case from litigation “as she has complied [with] services, and the child is safe in her custody.”

On appeal, L.F. raises the following points:

POINT I

THE COURT ERRED IN FINDING THAT L.F. ABUSED OR NEGLECTED O.G. BECAUSE D.C.P.P. DID NOT MEET ITS BURDEN OF PROOF SHOWING THAT L.F. FAILED TO PROVIDE A MINIMUM DEGREE OF CARE.

POINT II

D.C.P.P. FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT L.F. WAS NOT O.G.'S PRIMARY CARETAKER AT THE TIME OF HER SUICIDE ATTEMPT.

The focus of Title Nine is protection of the child from serious harm, emotional or physical, or the threat of such harm.  N.J.S.A. 9:6–8.8;  G.S. v. Dep't of Human Servs., 157 N.J. 161, 176–177 (1999).  N.J.S.A. 9:6–8.21(c), in relevant part, defines an “abused or neglected child” 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 ․ to exercise a minimum degree of care ․ 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;  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).]

“[A] 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.”   G.S., supra, 157 N.J. at 181.

The scope of review of a Family Part judge's factual findings is limited.   N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278–79 (2007).   The court must defer to a trial judge's findings of fact if “ ‘supported by adequate, substantial, and credible evidence’ ” on the record.  In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App.Div.1993) (also quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483–84 (1974)).   Factual findings which undergird a trial court's judgment should not be disturbed unless “ ‘they are so wholly insupportable as to result in a denial of justice,’ and should be upheld whenever they are ‘supported by adequate, substantial and credible evidence.’ ”  Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483–84 (1974)).

“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,’ ” the scope of review is expanded.  N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)(quoting In re J.T., supra, 269 N.J.Super. at 188–89).  “Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken.”  Ibid.

Neglect cases are fact sensitive.  N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011).  “Each case requires careful, individual scrutiny.   Many reported cases are idiosyncratic.”  Ibid. Cases in which the only risk of harm was created by an act or omission of a parent as the basis of a neglect complaint are particularly fact sensitive.   The inquiry as to whether a parent has exercised a minimum degree of care

should focus on the harm to the child and whether that harm could have been prevented․  When a cautionary act by the guardian would prevent a child from having his or her ․ condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.

[G.S., 157 N.J. at 182.]

“The parent's conduct must be evaluated in context based on the risks posed by the situation.”  Dep't of Children & Families v. T.B., supra, 207 N.J. 294 at 309.   The standard is not simply whether some potential for harm exists.   N.J. Dep't of Youth and Family Servs. v. J.L., 410 N.J.Super. 159, 168–69 (2009).

In J.L., supra, 410 N.J.Super. at 160–62, we found that a mother's decision permitting her children to walk to their home from a play area in their complex, as she watched with an unobstructed view, only to result in them being locked inside of their home, did not rise to the level of willful or wanton misconduct to constitute a failure to exercise a minimum degree of care.   Likewise, in T.B., supra, 207 N.J. at 309–10, the Court concluded that a mother who left her four-year-old son unsupervised for two hours, under the mistaken belief that his grandmother was home, was plainly negligent but her conduct did not rise to the level of gross negligence or recklessness so as to constitute a failure to exercise a minimum degree of care.

Conversely, in New Jersey Division of Youth & Family Services v. R.M., 411 N.J.Super. 467, 481 (App.Div.), certif. denied, 203 N.J. 439 (2010), we held that a mother created a substantial risk of harm to her children when “[she] had used drugs and alcohol at a time when she was caring for her young children and there was a strong basis to conclude that she would have driven with them under those circumstances had she not been prevented from doing so.”   Similarly, in New Jersey Division of Youth & Family Services v. A.R., 419 N.J.Super. 538, 545–46 (App.Div.2011), we upheld the finding of abuse or neglect because a father was aware of the inherent dangers of leaving his ten-month-old child on a twin bed without rails next to a radiator because he placed blankets around the child as a buffer, but this buffer did not prevent the infant from falling and being burned.

Here, O.G. was being cared for by his two adult sisters, who had been watching him since approximately 9:00 that morning, one of whom lived in the household with him and L.F. It is undisputed O.G. never became aware of his mother's actions because his sister had taken him to her upstairs bedroom to watch cable television.   Indeed, it is doubtful that anyone knew L.F. had returned home.   As such, C.L. was acting as O.G.'s primary caretaker at the time, as was O.L.G., who was visiting that day.   O.G. was therefore never in danger.

As we emphasized in J.L., supra, “the standard is not whether some potential for harm exists[,]” but whether the conduct “ ‘recklessly creates a risk of serious injury to the child.’ ”  410 N.J.Super. at 168–69 (quoting G.S., supra, 157 N.J. at 181).  N.J.S.A. 9:6–8.21(c)(4).   We acknowledge that substantial risk of harm under Title Nine does not mean actual harm must occur to sustain a finding of abuse or neglect.  N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 9 (2013) (“in absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm.   A court need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.” (citations and quotations omitted)).   Nonetheless, the risk of harm must be substantial.   Even accepting the trial judge's findings of fact and credibility determinations, the record here only shows some potential for harm.   L.F.'s conduct did not meet the requisite standard that her conduct created a substantial risk of harm to O.G. Ibid.

Reversed. L.F.'s name is ordered to be removed from the Central Registry and from records maintained by her local police department.

PER CURIAM