Dcpp v. D.S.H.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 5, 2023
• Docket: A-2781-21
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2781-21

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.S.H. (Deceased) and T.C.,

Defendants,

and

R.H.,

Defendant-Appellant,

IN THE MATTER OF R.H. and C.C., minors.

Submitted November 14, 2023 – Decided December 5, 2023

Before Judges Rose and Smith. On appeal from the Superior Court of New Jersey, Chancery Division, Family Court, Essex County, Docket No. FN-07-0129-19.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicholas Joseph Dolinsky, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.H. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David Ben Valentin, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this Title Nine matter, defendant R.H. (Ron), appeals from a March 29,

2022 Family Part order terminating protective services litigation following a

February 22, 2019 fact-finding determination that he educationally neglected his

then fourteen-year-old daughter, R.H. (Rachel), by failing to ensure she was

enrolled in school.1 Because there was insufficient evidence to support the

court's legal conclusion, we reverse.

1 Consistent with the parties' briefs, we use initials and pseudonyms to protect their privacy. See R. 1:38-12(d)(12). A-2781-21 2 I.

We summarize the facts from the limited record developed at the brief

fact-finding hearing. Rachel is the biological child of D.S.H (Dee) and T.C.;

Ron is Rachel's legal father. The family has a history with the Division of Child

Protection and Permanency since 2006. 2

Pertinent to this appeal, on October 14, 2018, the Division received a

referral from local police that Dee had reported Rachel missing and she was

located at a friend's home in East Orange. Rachel told police Ron had custody

of her but she had been staying with Dee for the past month because Ron said

he "did not want her anymore." Rachel said "she [wa]s not supposed to be living

with her mother because D[ee] uses drugs and used to beat [her]." Rachel further

disclosed Ron "hits her when his girlfriend is around" and "last hit her a month

ago." No marks or bruises were observed on Rachel's body. Police contacted

Ron, who said he would respond in two hours.

The next day, Division investigative worker, Melissa Montalvo, attempted

to call Ron but "[a] man with an accent" hung up when Montalvo identified

2 See N.J. Div. of Youth & Fam. Servs. v. D.S.H., 425 N.J. Super. 228, 243-44 (App. Div. 2012) (recognizing Ron as Rachel's legal father, thereby reversing a Family Part judgment that terminated D.S.H.'s parental rights to Rachel). D.S.H. died in July 2021; D.S.H., T.C., and their biological daughter, C.C. are not parties to this appeal. A-2781-21 3 herself. On October 16, 2018, the Division contacted Ron and advised that a

court hearing was scheduled for the following day.

On October 17, 2018, Montalvo interviewed Ron. Visibly upset, Ron

denied he left Rachel with Dee. Ron explained he left Rachel in the care of

Dee's sister, M.S. (Martha), four weeks prior to the referral, with the plan that

Rachel "stay with Martha indefinitely since he did not have an established home

at the moment." Ron acknowledged that since May 2018, "he ha[d] been living

out of hotels." He claimed he gave Martha money weekly while she cared for

Rachel. According to Ron, "R[achel] likes to make up stories."

Ron told Montalvo "he tried all he could" to reenroll Rachel in Orange

Preparatory Academy but she "ha[d] a big mouth and t[old] people we don't live

in Orange." He said he attempted to provide the school with proof of residence

but "the school refused to believe him because R[achel] kept 'running her

mouth.'" Directing Ron's attention to Rachel's last day of school on September

27, 2018, and October 4, 2018 when she was "officially unenrolled" by the

school, Montalvo asked "what happened the weeks after her last day of school."

Ron responded he "continued to go to the school to convince them to reenroll

R[achel] but they wouldn't." Ron claimed he would have enrolled Rachel in the

A-2781-21 4 East Orange school district the following Monday but the Division removed the

child from his care.

The Division also interviewed Dee and Martha. Dee claimed Ron dropped

off Rachel at her home in June 2018, never advised when he would return, and

had not been back since that day. Martha alleged Rachel had stayed at her home,

her mother's home, and her daughter's home. Martha said Rachel was not

attending school. She further stated Ron "and his girlfriend lost their apartment

in May/June of 2018 and have been living from hotel to hotel in South Jersey."

Based on its investigation, the Division made findings that the allegations

against Ron for abandonment and educational neglect were "established." The

Division also found the allegations against Ron for physical abuse were "not

established."

The fact-finding hearing was held during the afternoon of February 22,

2019. Montalvo was the sole witness. Two documents were admitted into

evidence – the Division's screening summary and investigative summary –

subject to the parties' agreement that the court would not consider "embedded,"

third-party hearsay contained in the summary reports.

Montalvo's testimony was consistent with the Division's summary reports

outlined above. Regarding Ron's efforts to reenroll Rachel in school, Montalvo

A-2781-21 5 elaborated: "He said that he actually did go to the school and tried to provide

them with a copy of his previous . . . tenant/landlord contract he had filled out

for the last place they lived." Montalvo "contact[ed] the school to verify this

information" but "[a]ccording to the school," Ron did not do so. Montalvo did

not disclose with whom she spoke at the school. Nor was any information

concerning her contact with the school memorialized in the Division's summary

reports. Notably, Rachel's attendance records were not moved into evidence.

On cross-examination by the law guardian, Montalvo explained Ron said

he attempted "to enroll [Rachel] in the East Orange School District" because

Martha lived in East Orange. However, Ron neither told Montalvo where he

was living at the time nor "that he had checked up on R[achel]." When

questioned by Ron's counsel, Montalvo acknowledged Ron mentioned "he did

not have secure housing" having "lost his housing . . . sometime in the beginning

of the summer." Thereafter, Ron "had been living in hotels."

Immediately following closing arguments, the judge issued a decision

from the bench citing the governing legal principles. Crediting Montalvo's

testimony, the judge found

the only statements of R[achel] that are corroborated by anything other than inadmissible hearsay is that [Ron] lost his apartment in May 2018, they had been living in hotels, . . . she had not been to school for the three

A-2781-21 6 prior weeks, and that he had dropped her off somewhere weeks prior. All other statements of R[achel] are uncorroborated and, while admissible, cannot be relied upon by this court for any finding of abuse or neglect.

The court also found the statements of Dee and Martha inadmissible as "third-

party hearsay."

Based on the admissible evidence adduced at the hearing, the court

concluded the Division proved educational neglect but failed to prove

abandonment. According to the court:

The evidence establishe[d] that [Ron] left R[achel] with [Martha], to whom he provided funds weekly. His attempts to have R[achel] enrolled in [the] East Orange [School] District because that's where [Martha] lives lend[] credibility to this evidence. It further establishes that he attempted to have R[achel] returned to Orange Prep Academy but could not because they no longer lived in Orange.

....

[Ron] acknowledged that R[achel] had not been to school and his attempts to . . . ensure that she was enrolled or that whomever he left her with had what was necessary in order to ensure she could be enrolled were feeble at best. There were . . . many other things that he could have done to ensure that she was enrolled, and he failed to do so.

A-2781-21 7 II.

Ordinarily, we defer to the Family Court's factual findings, as long as they

are supported by substantial credible evidence in the record. N.J. Div. of Youth

& Fam. Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Fam.

Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate to set

aside a ruling that is "so wide of the mark that a mistake must have been made."

M.M., 189 N.J. at 279 (quoting C.B. Snyder Realty Inc. v. BMW of N. Am.,

Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "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)). We also

accord no deference to the trial court's legal conclusions, which we review de

novo. State v. Smith, 212 N.J. 365, 387 (2012); see also Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Through the admission of "competent, material[,] and relevant evidence,"

in a Title Nine action, the Division must prove by a preponderance of the

evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b); see also

A-2781-21 8 N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011). In pertinent

part, N.J.S.A. 9:6-8.21(c)(4)(a) 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 [the child's] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate . . . education, . . . though financially able to do so or though offered financial or other reasonable means to do so . . . .

The statute does not require that a child experience actual harm. N.J. Dep't

of Child. & Fams. v. E.D.-O., 223 N.J. 166, 178 (2015). However, "in a case

where there is no such proof, the critical focus is on evidence of imminent

danger or substantial risk of harm." N.J. Dep't of Children & Families v. A.L.,

213 N.J. 1, 22 (2013).

Further, "[t]o find abuse or neglect, the parent must 'fail[] . . . to exercise

a minimum degree of care.'" E.D.-O., 223 N.J. at 179 (alteration in original)

(quoting N.J.S.A. 9:6-8.21(c)(4)(b)). A "minimum degree of care" encompasses

"conduct that is grossly or wantonly negligent, but not necessarily intentional."

Ibid. Wanton negligence is conduct that is engaged in with the parent's

knowledge that injury is likely to result. Ibid. Mere negligence does not trigger

the statute. Dep't of Child. & Fams., Div. of Youth & Fam. Servs. v. T.B., 207

A-2781-21 9 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs. Div. of Youth & Fam.

Servs., 157 N.J. 161, 172-73 (1999).

"[W]hether a parent's conduct is negligent or grossly negligent requires an

evaluation of the totality of the circumstances." E.D.-O., 223 N.J. at 170-71. In

undertaking this analysis, our Supreme Court has warned trial and appellate

courts "must avoid resort to categorical conclusions." Id. at 180. Thus, whether

a parent failed to exercise a minimum degree of care involves a "fact-sensitive"

analysis "and must be resolved on a case-by-case basis." Id. at 192.

In New Jersey, parents are required to ensure their children either

regularly attend the public schools of the district in which they reside or receive

instruction equivalent to that provided in the public schools. N.J.S.A. 18A:38 -

25; see also Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568,

641 (2003) (holding attendance of a school-age child is compulsory). A parent

who fails to comply with the attendance requirements "shall be deemed to be a

disorderly person." N.J.S.A. 18A:38-31.

Our Supreme Court has linked truancy to child neglect in finding "[t]he

reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) concerns parental

encouragement to truancy of a school age child, or other interference with

normal educative processes." Doe v. Downey, 74 N.J. 196, 199 (1977) (quoting

A-2781-21 10 Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976)) (holding a preschool-

age child's lack of education is not educational neglect under N.J.S.A. 9:6-8.21);

N.J. Div. of Youth & Fam. Servs. v. M.W., 398 N.J. Super. 266, 285-86 (App.

Div. 2008) (noting a parent had harmed her children through educational

neglect, among other forms of abuse, because she had left them with her cousin

who locked them in a basement for an extended period of time and deprived

them of beds, food, a toilet, and the physical ability to attend school).

Pursuant to N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the

child relating to any allegations of abuse or neglect shall be admissible in

evidence; provided, however, that no such statement, if uncorroborated, shall be

sufficient to make a fact finding of abuse or neglect." See also N.J. Div. of Child

Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div. 2014) (quoting

N.J.S.A. 9:6-8.46(a)(4)). "Stated another way, 'a child's hearsay statement may

be admitted into evidence, but may not be the sole basis for a finding of abuse

or neglect.'" Id. at 67 (quoting P.W.R., 205 N.J. at 33). Corroborative evidence

therefore is required. Ibid. "The most effective types of corroborative evidence

may be eyewitness testimony, a confession, an admission or medical or

scientific evidence." N.J. Div. of Youth & Fam. Servs. v. L.A., 357 N.J. Super.

155, 166 (App. Div. 2003).

A-2781-21 11 III.

With these legal principles in view, we turn to the arguments raised on

appeal. Ron challenges the sufficiency of the Division's evidence underpinning

the trial court's finding of educational neglect. Ron argues the court failed to

consider the totality of the circumstances, including his "impoverished condition

and transient lifestyle." For example, Ron contends the Division failed "to assist

[him] with housing or enrolling Rachel in school." Citing the Division's policy

manual for determining and supporting allegations of abuse and neglect, Ron

claims Rachel's twelve-day absence fell short of the one-month absence "without

valid reasons" example of educational neglect. Ron further contends the

Division failed to present competent evidence that "the education . . . Rachel

had been receiving was 'inadequate,'" as required under N.J.S.A. 9:6-8.21(c)(4).

Finally, Ron argues the court improperly relied on Montalvo's uncorroborated

hearsay testimony.

The law guardian now joins Ron, urging us to reverse. Similar to Ron,

the law guardian contends the trial court improperly relied on "inadequate

information" to support the educational neglect finding, including Montalvo's

testimony that she spoke with unidentified school personnel regarding Ron's

efforts to reenroll Rachel. For the first time on appeal, the law guardian argues

A-2781-21 12 the court failed to consider the responsibilities of public school districts to

ensure that homeless children in New Jersey are provided with a thorough and

efficient education. See generally N.J.S.A. 18A:7B-12.1; N.J.A.C. 6A:17-1.1

to -1.2, -2.3; see also 42 U.S.C. § 11431(1) (providing "[e]ach [s]tate educational

agency shall ensure that each child of a homeless individual and each homeless

youth has equal access to the same free, appropriate public education . . . as

provided to other children and youths").

Having considered these arguments in view of the governing legal

principles, we are persuaded the Division's proofs fell short under the totality of

the circumstances presented in this case. The record is devoid of any competent

evidence that Ron failed to exercise a minimum degree of care by educationally

neglecting Rachel. Instead, as the trial court found, Ron: "lost his apartment in

May 2018" and "was living in hotels with Rachel"; left Rachel in Martha's care;

attempted to enroll Rachel in school in East Orange where Martha lived; and

attempted to reenroll Rachel in school in Orange but he and Rachel no longer

resided in that municipality. In view of those factual findings, the court found

Ron's attempts to ensure Rachel attended school during her three-week absence

"feeble at best." We disagree.

A-2781-21 13 Initially, we recognize the court's educational neglect finding was based

primarily on Rachel's statements as corroborated by Ron's admissions pursuant

to N.J.S.A. 9:6-8.46(a)(4). Further, the court carefully parsed Rachel's

uncorroborated statements in its decision rejecting the Division's abandonment

allegation. We therefore discern no error in the admission of Rachel's statements

concerning her school absences.

We part company, however, with the court's finding that Ron's attempts

to comply with Rachel's school attendance requirements were insufficient.

Those findings were implicitly based on Montalvo's discussions with school

officials who were neither identified in the record nor disclosed in the Division's

summary reports. Even if the school personnel had been identified, however,

Montalvo's conversations with these individuals nonetheless were out of bounds

pursuant to the parties' stipulation that the court would not consider "embedded"

hearsay.

Moreover, although the parties do not dispute that Rachel had not attended

school from at least September 27, 2018 to October 14, 2018, the Division failed

to introduce into evidence Rachel's school records. Thus, the total number of

absences is not specified in the record. Assuming, however, there were no

school holidays within that three-week period, as Ron argues, the timeframe is

A-2781-21 14 less that the one-month period set forth as an example of educational neglect in

the Division's policy manual. Although it contends the manual's examples are

not exhaustive, the Division failed to consider Ron's homelessness as a "valid

reason[]," excusing Rachel's absence from school during that time frame.

We therefore cannot conclude on the record before us that the Division's

proofs demonstrated Ron's conduct amounted to gross negligence. See T.B.,

207 N.J. at 309. Because the evidence the Division presented was insufficient

to establish abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a), we reverse

the trial court's decision and order the Division to remove the incident from

defendant's existing entry in the Central Registry.

Reversed.

A-2781-21 15