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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5335-12T1
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,1
Plaintiff-Respondent,
v.
M.C.,
Defendant-Appellant.
________________________________
IN THE MATTER OF
A.C., M.C., M.C., and K.G., minors.
Submitted October 8, 2014 - Decided October 16, 2014
Before Judges Waugh and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FN-16-159-12.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea Silkowitz,
1
Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16. We refer to it as the Division in
this opinion.
Assistant Attorney General, of counsel; Ann
Avram Huber, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Lisa M.
Black, Designated Counsel, on the brief).
PER CURIAM
Defendant M.C. appeals from a September 12, 2012 Family
Part order finding that she had abused or neglected her four
young children, A.C., born in April 2003, M.C. II, born in May
2007,
M.C.
November
III,
2011.
born
in
November
Specifically,
2009,
the
and
trial
K.G.,
judge
born
found
in
that
defendant failed to take her psychotropic medication, resulting
in
a
psychotic
episode
when
the
placed them at risk of harm.
children
were
present
that
Having considered the record,
under the particular facts presented we affirm the finding of
abuse or neglect.
We derive the following facts and procedural history from
the record.
caregiver.
In March 2012, defendant was the children's sole
On March 29, 2012, the Division received a referral
expressing concern for the children.
The Division was advised
that S.G., the biological father of K.G., brought A.C. for a
doctor's appointment and that S.G. "was reeking of alcohol."
The following day the Division received a second referral,
which
came
from
St.
Joseph's
Hospital
2
where
defendant
was
A-5335-12T1
admitted
following
family's apartment.
a
psychotic
episode
that
occurred
at
the
The Division sent two Special Response Unit
workers, Mark Hoskins and Jenny Sierra, to investigate.
They
reported that a neighbor confirmed that defendant had not been
taking her medication and was hospitalized after a psychotic
episode during which she was stabbing a wall in the apartment
building's hallway with a knife.
Hoskins reported that defendant told a hospital emergency
room doctor that there is "a camera in [defendant's] home that
is recording [e]verything and is telling her to do things.
would not say what the camera was telling her to do.
She
EMS stated
to the doctor that [defendant] had a knife and pointed it at the
children."
Hoskins further reported:
Workers asked mother if she knows what date
is today.
Mother stated it was 3-30-12.
Mother was asked if she knows where her
children are.
Mother stated she did not
know.
Worker asked mother if she is
concerned where her children are.
Mother
stated not really.
Mother asked who she
left her children with.
Mother's response
was "that is what is shown on the tape".
Worker asked what tape?
Mother stated the
camera that is in her house.
It talks to
her. Worker asked what does it say? Mother
said things.
Worker asked her again and
mother's response [sic] was same.
Sierra
added
that
when
asked
who
was
taking
care
of
her
children, defendant speculated that K.G.'s father, S.G., might
be caring for them.
3
A-5335-12T1
Defendant advised the Division workers that she had been
prescribed Zoloft and Abilify for her mental condition but that
"she
ha[d]
not
taken
them
in
a
few
months."
When
asked,
defendant responded that she did not know why she had ceased
taking the medications.
Defendant further advised the Division
workers that she smoked marijuana and crack the day before.
While at the hospital, defendant tested positive for marijuana
and cocaine.
Defendant's neighbor confirmed that defendant had not been
taking her medication and also expressed concerns regarding the
well-being of defendant's children.
the
children
were
being
looked
The neighbor advised that
after
by
defendant's
friend,
Swan, whom she suspected might have an alcohol abuse problem and
a criminal background.
On March 31, 2012, the Division sent two other workers to
defendant's apartment.
Swan told the workers that the children
were doing well and that K.G.'s father, S.G., was helping her by
bringing supplies twice a day.
When asked whether the children
had enough food, she responded that they did, and pointed to
food
that
Division
she
was
workers
preparing
observed
for
that
the
the
children's
"[c]hildren
lunch.
were
The
dressed
appropriately in shirts and jeans and looked healthy and well
groomed."
While their report mentioned some shortcomings in the
4
A-5335-12T1
accommodations, such as cluttered clothing and lack of bunk beds
for A.C. and M.C. II, it concluded that their "[c]aregiver was
appropriate."
clean
The children appeared "comfortable," "dressed in
clothing,"
neglect."
and
"showed
no
visible
signs
of
abuse
of
The report noted that Swan handled the children well
and that they appeared "bonded with her."
The
next
day
the
Division
learned
more
about
Swan's
criminal history and her recent issues with cocaine and alcohol
abuse.
Two different workers, Odeiry Rosario and Kevin Belli,
were sent to defendant's apartment to investigate the living
arrangement.
cluttered"
They
with
observed
"clothing
that
the
throughout
apartment
the
was
home,"
"very
"several
ashtrays covered in aluminum foil" along with lighters within
reach of the children, and "things piled up high."
The workers
found M.C. III "face down on the floor . . . covered in urine,"
and also "what appeared to be a marijuana joint on the floor in
the living room."
The Division "determined that due to the living environment
and,
also,
children
Division
[Swan]'s
could
not
removed
transported
them
extensive
remain
the
to
St.
in
criminal
her
children
Joseph's
history,
care."
from
the
Hospital
that
Consequently,
apartment,
for
the
the
and
pre-placement
physical examinations.
5
A-5335-12T1
Belli
M.C. II.
interviewed
defendant's
two
eldest
sons,
A.C.
and
Notably, Belli asked A.C. "if he knew where his mother
was [a]nd what had happened to her."
A.C. responded that he did
know, and told Belli that his mom "had felt sick."
A.C. was
unsure about what "sick" meant, but expressed that his mom "was
mad."
He explained to Belli that his mom believed that there
are cameras in the walls watching them.
A.C. also believed that
there were cameras in the walls, but that he could not show
Belli where they were because "they couldn't be seen."
Belli
assured A.C. that there were no cameras in the walls at home and
that he need not be concerned.
At
the
September
12,
2012
fact-finding
hearing,
Division presented the testimony of Rosario and Belli.
moved
its
business
records
into
evidence
without
the
It also
objection.
Defendant, however, objected when the Division sought to admit
defendant's hospital records from St. Joseph's and Clara Maass.
Specifically, defendant argued that: (1) "the Division didn't
have
these
documents
when
the
removal
occurred;"
and
(2)
defendant's hospital records were not relevant because "they had
nothing to do with the removal," which was "conducted because of
the
conditions
of
the
home
when
the
workers
went
out
[a]nd
because of the condition of [Swan]."
6
A-5335-12T1
The
court
responded
that
defendant's
condition
was
something that it
should consider with respect to the risk
that the children may have been exposed to,
i.e.[,] she was - - she had a knife, she was
stabbing. If I believe that testimony [a]nd
she was stabbing at the walls believing
there [were] cameras there, [a]nd one of her
children is just about believing it himself,
doesn't that pose a risk to the children[,]
that type of behavior?
The court ultimately allowed defendant's hospital records
into evidence.
It determined that defendant's psychotic episode
was
the reason why there was an initial response
to the home on March 29.
There's been
testimony regarding that.
Even if I accept
defense counsel's position that the worker
decided to remove the children because of
the condition of [Swan] [a]nd the condition
of the apartment, I can still draw an
inference from the other testimony - - [a]nd
I'm not even so sure it's drawing an
inference.
I mean, there's testimony that
she was having a psychotic episode, which I
need to know, or - - or I now know, which is
part
of,
you
know,
a
risk
to
these
children . . . .
Importantly,
the
records
included
an
"ED
physician
document" that provided a chronology of defendant's treatment at
St. Joseph's.
It states that on March 30, 2012, defendant went
to the emergency room complaining about a "Psych Problem."
The
report notes:
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A-5335-12T1
According to EMS, ambulance was called on Pt
by an unknown caller, possibly her children,
for pointing a knife towards her kids.
According to Pt, she states that there is a
camera in her house and she hears voices
'audio from the camera'. The voices do not
tell her to kill herself or hurt her
children they just 'talk'.
This report also includes an entry that "Pt states she f/u with
Dr. T[i]rado (psych) for bipolar d/o.
She is supposed to be
taking [Z]oloft and [A]bilify, however, pt states she does not
take
her
Robert
medications."
Tirado,
Abilify
and
November
9,
Another
A.N.P.,
Zoloft.
2010,
notes
that
Records
and
undated
defendant
dated
signed
by
document
was
September
Dr.
stamped
Tirado
by
prescribed
28,
2010
indicate
and
that
defendant was receiving treatment for her depression and anxiety
at that time.
Defendant declined to testify or offer any evidence at the
fact-finding hearing.
The Division's complaint also named S.G.
as
he
a
defendant,
and
testified
on
his
own
behalf.
He
explained that his sister lived next door to defendant and that
his sister called him to tell him that "[M.C.] was acting out"
and that "[he] should come over," which he did.
S.G. opined
that defendant "was just frustrated [a]nd overwhelmed.
the four kids . . . ."
He maintained that, "in her acting out I
had it confined to the hallway.
[a]nd
the
kids
were
She had
relaxed.
I was kind of in-between her
But
8
she
calmed
down
[a]nd
I
A-5335-12T1
convinced her to get an ambulance to go to the hospital, I think
you're having a breakdown."
At the conclusion of the hearing, the court rendered an
oral decision in which it found that the Division had not met
its
burden
apartment
of
proving
constituted
that
the
environmental
condition
abuse
or
of
defendant's
neglect,
noting
that the April 1, 2012 reports directly conflicted with the
Division reports made the previous day.
However, the court
found that the Division had satisfied its burden based on the
following factual findings:
I'm not going to ignore the reason why all
this began.
And this all began because
[defendant] has a psychiatric condition,
[a]nd she does take medication for a
psychiatric condition. Specifically what it
is I'm not sure, but at a minimum she's
suffering from depression [a]nd anxiety. It
sounds more like she was having a nervous
breakdown on the day in question as opposed
to –- or if she was having a psychotic
episode.
Yes, she was frustrated [a]nd
aggravated, [a]nd that's one of the - those are the feelings that you do have when
you are having a nervous breakdown - - at
least there's some of the symptoms.
But
because of the fact that she did not take
her medication that she should have, because
of the fact that the children were exposed
to [defendant] when she was having a
psychotic episode, where she very well may
have been, you know, stabbing the walls, or
wall in front of her children. At least one
of her children indicates that, you know, he
almost believed that there were cameras in
the
walls.
This
is
not
a
healthy
environment. This exposed these children to
9
A-5335-12T1
a risk of harm. So not only does there have
to be harm, but there could also be just a
risk of harm. So the fact that there were - . . . lighters, dirty ashtrays, maybe
marijuana on the floor - - the tiles could
have come loose overnight, I don't know. I
don't find that to be a case where they're
at risk, but I do find because of her - mental condition that I find that she's
neglectful in that she posed a risk to her
children by not taking her medication and by
having - - and not doing anything about the
medical condition that she has. So in that
regard the Division has clearly met its
burden with respect to abuse [a]nd neglect,
and that's because of the risk of harm.
As to S.G., while labelling it a "[c]lose [c]all," the court
found that his conduct did not constitute abuse or neglect.
On
December
13,
2012,
the
court
conducted
a
compliance
review hearing, at which defendant failed to appear.
The court
continued care, custody and supervision of the children with the
Division,
and
ordered
defendant
substance abuse evaluations.
to
attend
psychiatric
and
Defendant failed to attend those
evaluations or appear at a March 26, 2013 permanency hearing, at
which time the court approved the Division's plan of termination
of parental rights followed by adoption.
The Division then
filed a guardianship complaint, and on May 29, 2013, the court
terminated the Title Nine proceeding.
This appeal followed.
On appeal, defendant argues that the Division failed to
prove
mental
by
a
preponderance
health
posed
a
of
risk
the
of
10
credible
harm
to
evidence
the
that
children.
her
She
A-5335-12T1
maintains that she did not act purposely or recklessly to put
her children at risk.
records
upon
which
Further, she contends that the hospital
the
court
relied
should
not
have
been
admitted because they were immaterial and irrelevant.
We begin with a review of the applicable legal principles
that guide our analysis.
The Division brought this case under
Title Nine, N.J.S.A. 9:6-8.21 to -8.73.
Title Nine sets forth
the controlling standards for abuse and neglect cases.
N.J.
Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011).
Title
Nine's
main
precept
is
to
protect
children
circumstances and actions that threaten their welfare.
from
G.S. v.
Dep't of Human Servs., 157 N.J. 161, 176 (1999) (citing State v.
Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991)).
A fact-finding hearing must be held to determine whether a
child is abused or neglected.
N.J.S.A. 9:6-8.44.
An abused or
neglected child is one 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, as herein defined, 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;
11
A-5335-12T1
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]ny
determination
that
the
child
is
an
abused
or
neglected child must be based on a preponderance of the evidence
and . . . only competent, material and relevant evidence may be
admitted."
N.J.S.A.
9:6-8.46(b).
While
the
Division
must
demonstrate "the probability of present or future harm" to the
child,
"the
actually
court
'need
irreparably
neglect.'"
not
wait
impaired
by
to
act
until
parental
a
child
inattention
is
or
N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.
Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426
(2005).
A minimum degree of care, as required by
8.21(c)(4),
is
less
than
a
duty
of
N.J.S.A. 9:6-
ordinary
care;
it
is
something more than ordinary negligence and refers to grossly or
wantonly
negligent
conduct,
but
not
necessarily
conduct.
G.S., supra, 157 N.J. at 178.
intentional
The essence of gross or
wanton negligence is that it "implies that a person has acted
with reckless disregard for the safety of others."
Id. at 179.
Thus, "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
12
the
child
or
recklessly
A-5335-12T1
creates a risk of serious injury to that child."
Id. at 181.
The analysis does not focus on the intent of the parent or
guardian, but rather the resulting injury, or resulting risk
thereof, to the child.
Id. at 176-77.
Abuse and neglect cases are fact sensitive and "[e]ach case
requires
careful,
"idiosyncratic."
look
at
the
findings.
individual
scrutiny"
as
many
P.W.R., supra, 205 N.J. at 33.
totality
of
the
circumstances
cases
are
The court must
in
making
its
Id. at 33-34 (citing N.J. Div. of Youth & Family
Servs. v. M.C. III, 201 N.J. 328, 345 (2010)).
There
is
no
question
that
untreated
mental
illness,
resulting, as in defendant's case, in loss of touch with reality
or paranoid hallucinations, can pose a substantial risk of harm
to a child.
See N.J. Div. of Youth & Family Servs. v. F.M., 211
N.J. 420, 450-51 (2012) (noting that while mental illness alone
does not disqualify a parent from raising a child, refusal to
treat the illness can pose a real threat to a child).
Although
no physical abuse or neglect is alleged here, the mental illness
of a parent may create an environment in which the parent is
incapable of safely caring for his or her children.
N.J. Div.
of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App.
Div. 2001), certif. denied, 171 N.J. 44 (2002).
13
A-5335-12T1
The
court
"must
consider
the
potential
for
serious
psychological damage to the child inferential from the proofs."
In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App.
Div.
1977).
Where
a
direct
causal
link
exists
between
a
parent's mental illness and neglect of his or her children, a
failure to exercise the requisite degree of minimum care may be
found.
N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J.
Super. 190, 202 (J. & D.R. Ct. 1981).
The scope of our review of a trial court's factual findings
is limited.
N.J.
261,
N.J. Div. of Youth & Family Servs. v. M.M., 189
278
(2007).
These
findings
may
not
be
disturbed
unless "they are so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as
to offend the interests of justice."
Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation and
internal quotation marks omitted).
family
courts'
matters,
special
appellate
court factfinding.'"
Moreover, "'[b]ecause of the
jurisdiction
courts
should
and
expertise
in
family
accord
deference
to
family
M.C. III, supra, 201 N.J. at 343 (quoting
Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
to
be
decided
is
an
'alleged
error
in
"Where the issue
the
trial
judge's
evaluation of the underlying facts and the implications to be
drawn therefrom,' we expand the scope of our review."
14
N.J. Div.
A-5335-12T1
of Youth & Family 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)).
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 narrow issue in the present case is whether the facts
demonstrate that defendant's mental illness, as it manifested
during this period, caused her to fail to exercise a minimum
degree
of
care
by
substantial
risk
noted,
Division
the
recklessly
thereof."
need
creating
N.J.S.A.
not
wait
"harm,
or
[the]
9:6-8.21(c)(4)(b).
for
harm
to
occur,
As
S.S.,
supra, 372 N.J. Super. at 24, and under the totality of the
circumstances here, we share the trial court's conclusion that
defendant created a substantial risk of harm to the children.
Perhaps our determination would be different had defendant
not brandished a knife, had the children not been present, had
defendant
not
been
the
children's
sole
caregiver,
or
had
defendant adduced some competent proof that she was medically
directed to cease her medication.
of
these
circumstances,
when
However, it is the confluence
viewed
in
their
totality,
that
support the trial court's finding of abuse or neglect.
15
A-5335-12T1
Here, defendant was the children's sole caregiver.
The
record indicates that during her psychotic episode she was seen
stabbing the apartment walls with a knife, and pointing the
knife at the children.
Such knife-wielding activity certainly
carried with it the risk of physical harm.
though
the
children
were
not
harmed
Additionally, even
physically,
defendant's
psychotic ideations that there were cameras in the walls led at
least one of the children to believe that was true.
When questioned at the hospital, defendant admitted that
she ceased taking her required medications, while at the same
time resorting to illegal drugs such as marijuana and crack
cocaine.
S.G. informed hospital staff that defendant had been
exhibiting "bizarre" and "paranoid" behavior for the three weeks
prior
to
her
commitment,
which
supports
an
inference
that
defendant was aware she should have taken her medication or
sought additional treatment for her condition.
Moreover, when
she was hospitalized, defendant failed to exhibit an awareness
or concern as to who was caring for the children, and the record
amply demonstrates that S.G. and Swan were either not committed
or suited to such task.
Defendant additionally argues that the trial court erred in
admitting the hospital records in evidence.
Defendant's sole
basis for objecting to these records was relevance.
16
A-5335-12T1
We review evidentiary objections based on relevance under
an abuse of discretion standard.
Verdicchio v. Ricca, 179 N.J.
1, 34 (2004) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,
492
(1999)).
"'Relevant
evidence'
means
evidence
having
a
tendency in reason to prove or disprove any fact of consequence
to the determination of the action."
N.J.R.E. 401.
Stated
differently,
only
cannot
"evidence
is
irrelevant"
where
it
"justify any reasonable inference as to the fact in question."
Verdicchio, supra, 179 N.J. at 33-34 (quoting State v. Allison,
208 N.J. Super. 9, 17 (App. Div. 1985) (internal quotation marks
omitted)).
Here,
records
the
in
psychotic
judge
evidence
episode,
explained
because
which
he
that
they
found
he
shed
allowed
light
relevant
to
the
on
hospital
defendant's
the
issue
of
whether she abused or neglected her children under N.J.S.A. 9:68.21(c)(4)(b).
In addition to detailing defendant's episode,
the records indicate that defendant had sought treatment for
depression and anxiety, which bears on her knowledge of her
mental condition.
discretion
in
Accordingly the trial court did not abuse its
admitting
these
records
into
evidence
over
defendant's relevance objection.
Affirmed.
17
A-5335-12T1