DCPP VS. C.H. AND L.H. IN THE MATTER OF K.H. AND S.H. (FN-07-0444-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 8, 2018
• Docket: A-3440-16T3/A-3441-16T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3440-16T3 A-3441-16T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.H. and L.H.,

Defendants-Appellants. ______________________________

IN THE MATTER OF K.H. and S.H,

Minors.

Argued May 14, 2018 – Decided June 8, 2018

Before Judges Rose and Firko.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0444-15.

Carol N. Willner, Designated Counsel, argued the cause for appellant C.H. (Joseph E. Krakora, Public Defender, attorney; Carol N. Willner, on the brief).

Clara S. Licata, Designated Counsel, argued the cause for appellant L.H. (Joseph E. Krakora, Public Defender, attorney; Clara S. Licata, on the brief). Diane L. Scott, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Diane L. Scott, on the brief).

Danielle Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Danielle Ruiz, on the brief).

PER CURIAM

In these consolidated appeals, L.H. ("mother") and C.H.

("father") (collectively, "defendants") appeal from an August 19,

2015 Family Part order, finding they abused or neglected their

daughters, K.H. and S.H.,1 by failing to ensure they attended

school regularly. The fact-finding order was perfected for appeal

by a March 8, 2017 order terminating the litigation. We affirm.

I.

We derive the salient facts from the record developed at the

fact-finding hearing. Defendants are the biological parents of

K.H., born in April 2001, and S.H., born in August 2005.

Defendants' history with plaintiff Division of Child Protection

and Permanency ("Division") began in January 2003, following a

1 We use initials to protect the identity of those involved and to preserve the confidentiality of these proceedings. R. 1:38- 3(d)(12).

2 A-3440-16T3 referral for inadequate supervision. Father was substantiated for

neglect. In February 2010, the Division again substantiated

neglect, following a referral that father had assaulted mother and

was admitted to a psychiatric ward. Apparently, K.H., then nine

years old, and S.H., then five years old, had been left home alone.

In October 2014, the Division received a referral that S.H.

had "been absent for [thirteen] of the [eighteen] school days in

October 2014." Three months later, the Division closed the case,

finding the children were healthy and "safe in the care of their

natural parents."

Pertinent to this appeal, on February 26, 2015, the Division

received a referral that S.H. was absent from school for fourteen

days between October 2014 and January 2015. Because S.H. was

unable to read at her grade level, she had been placed on home

instruction, but mother interfered with the sessions, at times

refusing to allow the tutor to enter the family's residence.

On March 4, 2015, after three previous attempts, Division

caseworker Rachel DuBois met with the family at their home. Mother

initially refused to speak with DuBois, became agitated, and left

the room. The caseworker spoke with father who indicated his wife

was "crazy," and exhibiting "strange" behavior. DuBois instructed

father to ensure both girls attended school regularly. Mother

3 A-3440-16T3 later returned and inquired about the purpose of the caseworker's

visit. Unable to answer many of the questions posed by DuBois,

mother "appeared to be confused or lacked insight."

DuBois spoke with S.H., who could not recall the last time

she attended school, but "appeared to be clean and . . . dressed

appropriately." K.H. refused to speak with the caseworker, but

presented as "clean and healthy." Father promised DuBois he would

take S.H. for a school services evaluation.

DuBois returned to the home in April 2015 because K.H. had

not attended school after father had taken S.H. for her evaluation.

Between January and April 2015, K.H. missed thirty-four of seventy-

five school days, and S.H. only received five days of home

instruction. The parents' reasons for their daughters' absences

were not plausible.

Specifically, mother claimed she kept K.H. home from school

because "she does [not] like people interviewing her kids." Mother

also told the caseworker she did not permit S.H.'s instructor to

enter the home because mother was sick from January through April.

Father stated he was "afraid of [mother]" and unable "to enforce

any rules." The children had not seen a physician for more than

a year. The caseworker expressed concerns about the mental health

of both parents.

4 A-3440-16T3 Accordingly, on April 23, 2015, the Division filed a complaint

and order to show cause for care and supervision of K.H. and S.H.

The judge granted the Division's application and ordered

defendants to comply with mental health evaluations and services

provided by the Division, and to ensure that their daughters attend

school.

On April 27, 2015, defendants and K.H. met with Division

psychologist Alison Strasser Winston, Ph.D. Dr. Winston did not

testify at the hearing, but the parties stipulated to the admission

of her report, subject to redaction of any diagnoses. K.H. told

Dr. Winston that mother was not mentally stable and "needs help

[but] she keeps refusing." Mother presented as paranoid and denied

having mental health issues. Dr. Winston concluded mother had

"not been proactive in ensuring that her children attend school,

nor d[id] she seem overly concerned about . . . the impact of

their poor attendance." Father told Dr. Winston he had been

diagnosed with schizophrenia in 2009, which remained unaddressed.

Dr. Winston found father was passive and unassertive.

On April 28, 2015, S.H. and K.H. did not attend school. Based

on Dr. Winston's evaluation and the children's absences from

5 A-3440-16T3 school, the Division executed an emergency Dodd removal. 2 The

trial court upheld the removal, finding defendants had failed to

comply with its April 23, 2015 order. Following the children's

removal, their attendance improved and they were "thriving."

At the August 19, 2015 fact-finding hearing, the Division

presented DuBois as its sole witness. Certain documents, including

Division reports and assessments, Dr. Winston's psychological

evaluation, police reports and the children's school records were

admitted into evidence. Defendants did not testify or present any

witnesses.

In an oral decision, the judge determined the Division

"prove[d] by a preponderance of the evidence that both . . . mother

and father failed to provide a minimum degree of care in supplying

the children with their education." In doing so, the judge found:

[T]here is nothing in the evidence, . . . to mitigate that or to in any way, diminish the level of proofs that the Division provided to the [c]ourt by way of the oral testimony and physical evidence that would in any way . . . prevent this [c]ourt from weighing the Division's evidence and concluding that the Division proved the elements that are required that the parents neglected the education of their children as required by the statute.

2 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

6 A-3440-16T3 The judge also found the testimony of DuBois and the

documentary evidence credible. A memorializing order was entered

on the same date, and this appeal followed.

On appeal, defendants do not dispute their daughters'

excessive absences from school. Further, mother does not dispute

Dr. Winston's determination that the girls were emotionally

impaired by her mental illness because they believed mother needed

them to stay at home with her. Rather, defendants contend they

do not have the mental capacity to act recklessly or with gross

negligence in failing to provide an education for K.H. and S.H.

The Division and law guardian urge us to affirm the court's order.

II.

Our task as an appellate court is to determine whether the

decision of the Family Court is supported by substantial credible

evidence in the record and is consistent with applicable law.

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular

deference to "the family courts' special jurisdiction and

expertise . . . ." Id. at 413. Unless the judge's factual findings

are "so wide of the mark that a mistake must have been made[,]"

they should not be disturbed, even if we would not have made the

same decision had we heard the case in the first instance. N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)

7 A-3440-16T3 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.

Super. 65, 69 (App. Div. 1989)). "It is not our place to second-

guess or substitute our judgment for that of the family court,

provided that the record contains substantial and credible

evidence to support" the judge's decision. N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citation

omitted).

A.

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

evidence," 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). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) defines

an "abused or neglected child" as a child under eighteen years of

age:

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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . education . . . though financially able to do so or though offered financial or other reasonable means to do so . . . .

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

8 A-3440-16T3 in the public schools. N.J.S.A. 18A:38-25. Attendance of a school

age child is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch.

Bd. of Educ., 176 N.J. 568, 641 (2003). Indeed, 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. "The

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 Doe v. G.D, 146 N.J.

Super. 419, 431 (App. Div. 1976)).

Applying these standards, we affirm the trial court's

undisputed finding of educational neglect. Although the judge did

not specifically find K.H. and C.H. suffered actual harm as a

result of defendants' neglect, a court "need not wait to act until

a child is actually irreparably impaired by parental inattention

or neglect." N.J. Dep't of Children & Families, Div. of Youth &

Families Servs. v. A.L., 213 N.J. 1, 23 (2013) (quoting In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence

of actual harm, a finding of abuse and neglect can be based on

proof of imminent danger and substantial risk of harm." Ibid.;

see N.J.S.A. 9:6-8.21(c)(4)(b). That is clearly the case here

9 A-3440-16T3 because the poor attendance records of both K.H. and S.H. placed

them at serious risk of suffering an educational deficit.

Instead, defendants argue, for the first time on appeal, that

their mental illness precludes a finding of educational neglect.

Considering this argument pursuant to the "plain error" standard,

we are satisfied it was not "of such a nature as to have been

clearly capable of producing an unjust result." R. 2:10-2.

In particular, the existence of a mental illness, whether

known or unknown, does not preclude a finding of child abuse or

neglect under Title 9. The language in N.J.S.A. 9:6-8.21(c)(4)

concerning failure "to exercise a minimum degree of care" has been

interpreted by our Supreme Court as referring to "conduct that is

grossly or wantonly negligent, but not necessarily intentional"

and "reckless disregard for the safety of others . . . ." Dep't

of Children & Families, N.J. Div. of Youth & Family Servs. v.

T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human

Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth

& Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div.

2012).

Although it is clear that the phrase implies more than simple

negligence, it can apply to situations ranging from "slight

inadvertence to malicious purpose to inflict injury." McLaughlin

10 A-3440-16T3 v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). "Where an ordinary

reasonable person would understand that a situation poses

dangerous risks and acts without regard for the potentially serious

consequences, the law holds him or her responsible for the

injuries" caused. G.S., 157 N.J. at 179 (citing McLaughlin, 56

N.J. at 305 and Fielder v. Stonack, 141 N.J. 101, 123 (1995)).

Conduct is considered willful or wanton if done with the

knowledge that injury is likely to, or probably will, result.

McLaughlin, 56 N.J. at 305. Because risks that are recklessly

incurred are not considered unforeseen perils or accidents in the

eyes of the law, actions taken with reckless disregard for the

consequences also may be wanton or willful. Ibid.; Egan v. Erie

R.R. Co., 29 N.J. 243, 254-55 (1959). As long as the act or

omission that causes injury is done intentionally, whether the

actor actually recognizes the highly dangerous character of his

or her conduct is irrelevant. See McLaughlin, 56 N.J. at 305.

"Knowledge will be imputed to the actor." G.S., 157 N.J. at 178.

We reject defendants' arguments that they lack sufficient

mental capacity to understand failing to educate K.H. and S.H.

posed a serious risk to their well-being. The record reflects

both parents expressed awareness that their children were required

to attend school, as evidenced by their conversations with school

11 A-3440-16T3 officials, DuBois, and Dr. Winston. Further, defendants did not

present any evidence at the hearing that they lacked the capacity

to understand their educational responsibility to their children.

See G.S., 157 N.J. at 177 (recognizing "Title 9's primary concern

is the protection of children, not the culpability of parental

conduct").

B.

We next address defendants' claims that their respective

attorneys were ineffective primarily for failing to present

evidence that they lacked the mental capacity to understand they

exposed their children to harm. "[A] defendant has a right to

[the effective assistance of] counsel when a complaint is filed

against him or her charging abuse and neglect and threatening the

individual's parental rights." N.J. Div. of Youth & Family Servs.

v. B.H., 391 N.J. Super. 322, 345 (App. Div. 2007) (citing N.J.S.A.

9:6-8.43(a)). In determining whether that right has been violated,

we apply the test "as set forth . . . in Strickland [v. Washington,

466 U.S. 668 (1984)]." Id. at 346; see N.J. Div. of Youth & Family

Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the

Strickland test in parental termination cases). Specifically,

"(1) counsel's performance must be objectively deficient i.e., it

must fall outside the broad range of professionally acceptable

12 A-3440-16T3 performance; and (2) counsel's deficient performance must

prejudice the defense i.e., there must be 'a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.'" B.R., 192 N.J. at 307

(quoting Strickland, 466 U.S. at 694).

To establish the elements of an ineffective-assistance-of-

counsel claim,

appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

[Id. at 311.]

Here, defendants failed to furnish certifications from any

expert regarding their respective mental conditions. Thus,

defendants have failed to establish the elements of an ineffective-

assistance-of-counsel claim. See N.J. Div. of Youth & Family

Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010)

(rejecting the defendant's ineffective-assistance-of-counsel

claim in part because he "fail[ed] to provide certifications

13 A-3440-16T3 . . . relating the substance of the omitted testimony" from the

expert witnesses his trial counsel never procured). Defendants'

remaining ineffective-assistance-of-counsel arguments lack

sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

Affirmed.

14 A-3440-16T3