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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0061-16T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.B.J. and T.E.,
Defendants,
and
D.B., SR.,
Defendant-Appellant.
____________________________
IN THE MATTER OF D.B. and T.E., minors.
Submitted October 5, 2017 – Decided November 17, 2017
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0200-16. Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Kozic, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).
PER CURIAM
In this Title 9 matter, defendant D.B.1 appeals from the
Family Part's July 26, 2016 order memorializing the court's
determination that he abused or neglected his son, D.B. Jr.
("David") by abandoning the child as contemplated by N.J.S.A. 9:6-
8.21(c)(5). On appeal, defendant argues that the weight of the
evidence did not support the court's finding because he did not
forsake his parental responsibilities, and the deterioration of
his relationship with his son was merely an unintended consequence
of his financial instability. He also argues that plaintiff, the
New Jersey Division of Child Protection and Permanency (Division),
"failed to make reasonable efforts to prevent placement and . . .
to reunify [defendant] with his son or otherwise preserve the
father-son relationship." We disagree and affirm.
1 We use initials and pseudonyms to protect the family's privacy.
2 A-0061-16T2 The salient facts developed at the fact-finding hearing are
summarized as follows. Defendant, David's mother (Alice),2 David
and his ten-year-old sister Debbie lived together as an intact
family until early 2013. At the time, David was fifteen years
old, and attending high school. Alice provided a major part of
the family's income until she decided that year to leave to live
with a different man.
Soon after Alice left, defendant began to experience
financial hardships. Eventually, David's sister went to live with
her maternal grandmother while David remained with defendant in
the home. Defendant however would leave David alone for days
without supervision or provisions. Defendant began to abuse
alcohol, and each day he became less able to respond to David's
basic needs.
In early 2014, the power to defendant's home was turned off,
which forced David to seek shelter elsewhere. In the spring,
David chose to move in with his friend and his friend's mother
(Betty), instead of living with defendant at a relative's home.
David believed that this would be a temporary arrangement, but
after he began to lose contact with defendant, he returned to
their home in September only to find it padlocked. David was
2 David's mother, defendant A.B.J., did not join defendant in his appeal of the Family Part's decision.
3 A-0061-16T2 never able to return home. He remained with Betty who provided
for all of his needs.
Initially, defendant maintained some contact with David while
his son stayed with Betty. He attended some of his son's football
games and appeared on David's prom night. However, defendant
never attempted to speak to Betty or to make any arrangement or
contribution for David's care. When it became apparent that
defendant was not going to care for David, Betty contacted the
Division, which initially responded that it would remove David
from her care, a result Betty was not seeking.
Later, to keep David enrolled in school, Betty needed
defendant to sign an affidavit confirming the family's
homelessness. When she spoke to defendant, Betty encouraged him
to come to her home to spend time with David. Defendant chose not
to visit his son although he lived nearby.
The next year, Betty became concerned about David's medical
insurance. Eventually, it became apparent that in order for David
to have health insurance, the Division would have to get involved.
Betty knew the Division would not approve her as a caretaker for
David because the father of her two youngest children had a
criminal record. She asked another woman (Jean), whose son was
also David's friend, to become David's caretaker and Jean agreed.
4 A-0061-16T2 While transitioning from Betty's home to Jean's, David became
ill, and needed defendant, who was still his legal guardian, to
accompany him to a local medical facility. Betty and Jean located
defendant and he accompanied them to the local urgent care
facility. Defendant never made any inquiry as to the status of
either family's care for his son or his living arrangements.
In July 2015, Jean notified the Division that David was living
with her. A caseworker interviewed David. During the interview,
David stated that he had no relationship with defendant. The
Division instituted the underlying action, and obtained an order
awarding it custody of David and permitting him to continue living
with Jean. David lived with Jean but also spent time at Betty's
home. He came to consider them as his "two mothers."
At the ensuing fact-finding hearing, Judge Angelo J.
DiCamillo heard testimony from the Division's caseworker, Betty,
Jean, David, and defendant. David and defendant testified as to
the nature of their relationship and its deterioration, which led
to David's placement.
David testified that, although technically his parents had
abandoned him, he knew they could not care for him "even if they
wanted to." He explained that it was his decision to move in with
Betty after defendant was evicted. He also reported turning down
defendant's invitation to stay with him at a family member's home
5 A-0061-16T2 because he "felt like it was[ not] the best decision for [him]."
He preferred the stability of living with his friends' families.
David also lamented the loss of his relationship with
defendant, which he once described as close. He mentioned that
he resented hearing other family members talk about spending time
with defendant, who lived nearby but never came to visit David.
"[I]t bothered [him] that [defendant] never tried to look for
[him.]" Notwithstanding defendant's lack of effort, David stated
that he had "tried to build a relationship" because he "want[ed]
a relationship with [his] dad again." At times, David wished that
he could have conversations with defendant, but hesitated to call
him because defendant was the parent in the relationship, not the
other way around.
Defendant denied abandoning David. According to defendant,
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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-0061-16T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.B.J. and T.E.,
Defendants,
and
D.B., SR.,
Defendant-Appellant.
____________________________
IN THE MATTER OF D.B. and T.E., minors.
Submitted October 5, 2017 – Decided November 17, 2017
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0200-16. Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Kozic, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).
PER CURIAM
In this Title 9 matter, defendant D.B.1 appeals from the
Family Part's July 26, 2016 order memorializing the court's
determination that he abused or neglected his son, D.B. Jr.
("David") by abandoning the child as contemplated by N.J.S.A. 9:6-
8.21(c)(5). On appeal, defendant argues that the weight of the
evidence did not support the court's finding because he did not
forsake his parental responsibilities, and the deterioration of
his relationship with his son was merely an unintended consequence
of his financial instability. He also argues that plaintiff, the
New Jersey Division of Child Protection and Permanency (Division),
"failed to make reasonable efforts to prevent placement and . . .
to reunify [defendant] with his son or otherwise preserve the
father-son relationship." We disagree and affirm.
1 We use initials and pseudonyms to protect the family's privacy.
2 A-0061-16T2 The salient facts developed at the fact-finding hearing are
summarized as follows. Defendant, David's mother (Alice),2 David
and his ten-year-old sister Debbie lived together as an intact
family until early 2013. At the time, David was fifteen years
old, and attending high school. Alice provided a major part of
the family's income until she decided that year to leave to live
with a different man.
Soon after Alice left, defendant began to experience
financial hardships. Eventually, David's sister went to live with
her maternal grandmother while David remained with defendant in
the home. Defendant however would leave David alone for days
without supervision or provisions. Defendant began to abuse
alcohol, and each day he became less able to respond to David's
basic needs.
In early 2014, the power to defendant's home was turned off,
which forced David to seek shelter elsewhere. In the spring,
David chose to move in with his friend and his friend's mother
(Betty), instead of living with defendant at a relative's home.
David believed that this would be a temporary arrangement, but
after he began to lose contact with defendant, he returned to
their home in September only to find it padlocked. David was
2 David's mother, defendant A.B.J., did not join defendant in his appeal of the Family Part's decision.
3 A-0061-16T2 never able to return home. He remained with Betty who provided
for all of his needs.
Initially, defendant maintained some contact with David while
his son stayed with Betty. He attended some of his son's football
games and appeared on David's prom night. However, defendant
never attempted to speak to Betty or to make any arrangement or
contribution for David's care. When it became apparent that
defendant was not going to care for David, Betty contacted the
Division, which initially responded that it would remove David
from her care, a result Betty was not seeking.
Later, to keep David enrolled in school, Betty needed
defendant to sign an affidavit confirming the family's
homelessness. When she spoke to defendant, Betty encouraged him
to come to her home to spend time with David. Defendant chose not
to visit his son although he lived nearby.
The next year, Betty became concerned about David's medical
insurance. Eventually, it became apparent that in order for David
to have health insurance, the Division would have to get involved.
Betty knew the Division would not approve her as a caretaker for
David because the father of her two youngest children had a
criminal record. She asked another woman (Jean), whose son was
also David's friend, to become David's caretaker and Jean agreed.
4 A-0061-16T2 While transitioning from Betty's home to Jean's, David became
ill, and needed defendant, who was still his legal guardian, to
accompany him to a local medical facility. Betty and Jean located
defendant and he accompanied them to the local urgent care
facility. Defendant never made any inquiry as to the status of
either family's care for his son or his living arrangements.
In July 2015, Jean notified the Division that David was living
with her. A caseworker interviewed David. During the interview,
David stated that he had no relationship with defendant. The
Division instituted the underlying action, and obtained an order
awarding it custody of David and permitting him to continue living
with Jean. David lived with Jean but also spent time at Betty's
home. He came to consider them as his "two mothers."
At the ensuing fact-finding hearing, Judge Angelo J.
DiCamillo heard testimony from the Division's caseworker, Betty,
Jean, David, and defendant. David and defendant testified as to
the nature of their relationship and its deterioration, which led
to David's placement.
David testified that, although technically his parents had
abandoned him, he knew they could not care for him "even if they
wanted to." He explained that it was his decision to move in with
Betty after defendant was evicted. He also reported turning down
defendant's invitation to stay with him at a family member's home
5 A-0061-16T2 because he "felt like it was[ not] the best decision for [him]."
He preferred the stability of living with his friends' families.
David also lamented the loss of his relationship with
defendant, which he once described as close. He mentioned that
he resented hearing other family members talk about spending time
with defendant, who lived nearby but never came to visit David.
"[I]t bothered [him] that [defendant] never tried to look for
[him.]" Notwithstanding defendant's lack of effort, David stated
that he had "tried to build a relationship" because he "want[ed]
a relationship with [his] dad again." At times, David wished that
he could have conversations with defendant, but hesitated to call
him because defendant was the parent in the relationship, not the
other way around.
Defendant denied abandoning David. According to defendant,
he loved his son, and he attempted to maintain contact with him
and attend his football games, but their separation placed
inevitable strain on their relationship. He admitted he did not
contact Betty or Jean about David, but claimed he knew that his
son was in good hands and would not "get[] in trouble" living with
them.
After considering the testimony, and the provisions of
N.J.S.A. 9:6-8.21(c)(5), Judge DiCamillo concluded defendant had
abused or neglected David by abandoning him. He found that
6 A-0061-16T2 defendant had willfully forsaken his son when he failed to maintain
a relationship with him. According to the judge, defendant's
poverty did not excuse his failure to "act[] as a father" to David.
Defendant could have "walked [to the house where David lived] once
a week to see [his son]. He could have developed a relationship."
Instead, defendant ignored his "responsibility to be a father to
[his son]," by not "reach[ing] out . . ., visit[ing] the child,
talk[ing] to him, [or] see[ing] what[ is] going on." Judge
DiCamillo determined, in doing so, defendant had willfully
forsaken his parental duties to David, which constituted
abandonment.3 This appeal followed.
We begin our review by recognizing it is limited and narrow.
In recognition of the special expertise of Family Part judges in
matters of parental abuse and neglect, we defer to findings
supported by "substantial credible evidence in the record." N.J.
Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).
We intervene, however, to ensure fairness if the judge's
"conclusions are 'clearly mistaken or wide of the mark.'" Id. at
227 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.
88, 104 (2008)). "Where the issue to be decided is an 'alleged
3 The court, sua sponte, also found that the Division "dropp[ed] the ball" by "fail[ing] to help this child out" when Betty called in 2014.
7 A-0061-16T2 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 & 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
interpretation of the law and the application of such legal
conclusions to the facts are subject to plenary review. See
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995). In our review, we consider the totality of the
circumstances in abuse or neglect proceedings. N.J. Div. of Youth
& Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011).
"New Jersey's child-welfare laws balance a parent's right to
raise a child against 'the State's parens patriae responsibility
to protect the welfare of children.'" N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting N.J. Dep't
of Children & Families v. A.L., 213 N.J. 1, 17-18 (2013)). "The
adjudication of abuse or neglect is governed by Title 9, which is
designed to protect children who suffer serious injury inflicted
by other than accidental means." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014) (citing
G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999)); see also
N.J.S.A. 9:6-8.21 to -8.73. Title 9 is intended to safeguard
8 A-0061-16T2 children who have been abused or are at risk of imminent harm.
A.L., supra, 213 N.J. at 18, 22.
"Strict adherence to the statutory standards . . . is
important because the stakes are high for all parties concerned."
Y.N., supra, 220 N.J. at 179. Consequently, whether a parent has
engaged in acts of abuse or neglect is considered on a case-by-
case basis and must be "analyzed in light of the dangers and risks
associated with the situation," N.J. Dep't of Children & Families
v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S.,
supra, 157 N.J. at 181-82), and evaluated "at the time of the
event that triggered the Division's intervention." N.J. Dep't of
Children & Families v. E.D.-O., 223 N.J. 166, 170 (2015).
Under Title 9, a child is "abused or neglected" when a child
"has been willfully abandoned by his parent or guardian." N.J.S.A.
9:6-8.21(c)(5). A parent or guardian willfully abandons a child
by committing any of the following acts:
(a) [W]illfully 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.
[N.J.S.A. 9:6-1 (emphasis added).]
9 A-0061-16T2 In addition:
[A]bandonment does not necessarily . . . imply that the parent has deserted the child, or even ceased to feel any concern for [the child’s] interests. It fairly may . . . import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.
[Lavigne v. Family & Children's Soc'y, 11 N.J. 473, 480 (1953) (emphasis added) (quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (Ct. Err. & App. 1890)).]
"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).
A parent's lack of income cannot be relied upon as the sole
basis for a finding of abandonment. Poverty is insufficient to
support a finding of child abuse or neglect. N.J. Div. of Child
Prot. & Permanency v. L.W., 435 N.J. Super. 189, 195 (App. Div.
10 A-0061-16T2 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div.
1976)). The question to be answered is whether the parent did all
that was possible to provide for his or her child's material and
emotional support given the circumstances. See, e.g., L.W., 435
N.J. Super. at 196 (reversing a finding of abuse or neglect where
an impoverished mother "did the responsible thing" by seeking
"housing through government agencies[, seeking] employment to no
avail [and] coming to the Division for help instead of subjecting
her children to further homelessness"); see also In re Guardianship
of J.C., 129 N.J. 1, 11 (1992) (reversing a termination of parental
rights where a mother continued to demonstrate support for her
children after their placement in foster care by "show[ing] an
interest in her children . . . visiting them regularly and
frequently").
At a fact-finding hearing, N.J.S.A. 9:6-8.44, the burden is
on the Division to prove by a preponderance of the "competent,
material and relevant evidence," N.J.S.A. 9:6-8.46(b)(2), that the
parent failed to provide support and care. P.W.R., supra, 205
N.J. at 32. In assessing the proofs, we focus "on the harm to the
child." G.S., supra, 157 N.J. at 180. We observe that the conduct
of a parent or guardian is assessed "in context based on the risks
posed by the situation." N.J. Dep't of Children & Families v.
T.B., 207 N.J. 294, 309 (2011).
11 A-0061-16T2 Applying these guiding principles, we conclude that Judge
DiCamillo's finding of abuse or neglect was supported by
substantial credible evidence. Defendant's arguments challenging
the judge's finding of abandonment are without sufficient merit
to warrant [further] discussion in a written opinion. R. 2:11-
3(e)(1)(E). We affirm substantially for the reason expressed by
Judge DiCamillo in his oral decision.
We choose to not consider defendant's claim that his
abandonment of his child was caused by the Division's inaction
because he did not raise that argument before the trial judge.
"[I]ssues not raised [before the trial judge] will ordinarily not
be considered on appeal unless they are jurisdictional in nature
or substantially implicate the public interest." N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (citing
Cty. of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006)).
We only note that, although Judge DiCamillo took issue with the
Division for not responding to Betty's initial call regarding
David living with her, its failure did not frame defendant's
decision to leave his son's care and support to others while he
did nothing to improve his circumstances so that he could care for
or even stay in contact with his child.
Affirmed.
12 A-0061-16T2