RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3001-12T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
April 7, 2014 v. APPELLATE DIVISION L.W.,
Defendant-Appellant,
and
R.W.,1
Defendant.
_________________________________
IN THE MATTER OF I.W. and K.W.,
Minors.
Submitted February 25, 2014 – Decided April 7, 2014
Before Judges Fisher, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-172-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Phuong V. Dao, Assistant Deputy Public Defender, on the brief).
1 R.W. did not appeal. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.W. and K.W. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
L.W. (Lisa2), appeals from a February 6, 2013 fact-finding
and dispositional order finding that Lisa neglected her two
young children by failing to provide housing. We agree with
Lisa and the Law Guardian's position on appeal that the proofs
demonstrated Lisa's impoverished condition, but did not
substantiate neglect. We therefore reverse.
Lisa first came to the attention of the New Jersey Division
of Child Protection and Permanency (the Division) in 2010 when
she was arrested with others in connection with drugs found in
an apartment where she was staying. Her older daughter, Isabel,
was less than a year old at the time. The child was taken from
Lisa as she could not provide care when she was incarcerated.
Lisa stipulated to abuse or neglect and her name was entered
2 We use fictitious names to protect the identity of the children.
2 A-3001-12T3 into the child abuse registry pursuant to N.J.S.A. 9:6-8.11.
Lisa successfully completed services, Isabel was returned, and
the litigation dismissed in November 2011. The Division
continued to provide services. In September 2012, Lisa told the
Division caseworker that she had relocated to Georgia. The
Division referred the family to the Georgia child protection
agency.
On October 10, 2012, Lisa brought Isabel, now four years
old, and Kate, twenty months old, to the Division office. Lisa
told the caseworker that she had explored all her options and
could not find housing. Lisa consented to the temporary
placement of her two young daughters in foster care.
Two days later, at the order to show cause hearing on the
complaint filed by the Division, the caseworker testified that
the children seemed healthy, safe and happy when Lisa brought
them to the office. They were clean, well-fed and well-clothed.
She testified that the only concern was a lack of housing.
Lisa's lawyer told the judge that Lisa had been staying with her
fiancé "in a TRA rental assistance program, and that program
only allows him and children in his legal and physical custody
to remain with him." Because the fiancé was not a legal
custodian of the children, Lisa and her children were forced to
leave. The attorney also said that Lisa had made an appointment
3 A-3001-12T3 "with Welfare" for the following week to secure her own rental
assistance, had called her aunt, who did not respond, and had
filed a complaint in court to give her fiancé joint custody so
that he could assist in finding housing for the family. The
judge stated:
—it sounds as though [Lisa] did the responsible thing by coming to [the Division] and being responsible and — and saying look, I —right now I'm homeless, I have no way to provide for my children, can you help me, and that's what they're doing.
In spite of the spirit of cooperation expressed at this
hearing, the Division sought to prove Lisa's neglect of her two
children at a fact-finding hearing in February 2013, held before
a different judge.
The Division caseworker, Carlotta Leak, testified that in
July 2012 St. Michael's Hospital reported that Lisa was at the
hospital with her children, upset that she had no housing. Lisa
then told the Division she was moving to Georgia. The Division
received another referral at the end of July that Lisa was
living with her children at Newark Penn Station. The Division
was unable to verify this report, but met with Lisa on October
10 when she voluntarily came to the office seeking housing for
her children. Leak testified that Lisa told her she had gone to
Georgia, but it did not work out.
4 A-3001-12T3 Lisa testified on her own behalf that she moved to Georgia
with her fiancé in June after a fire destroyed her New Jersey
housing. She explained that they all returned to New Jersey in
July following a death in her fiancé's family and then had
insufficient funds to return to Georgia. While in New Jersey,
they lived with her fiancé's uncle from August until the middle
of September and then moved to a shelter until forced to leave
in early October. Lisa testified that she "went down to
Welfare" and was denied benefits because she was unable to
participate in a job search program due to childcare issues.
She also reached out to Newark Emergency Services, but was not
eligible for housing. She then took the children to live with
her fiancé in his transitional housing in a Newark hotel. Lisa
testified that she had unsuccessfully sought employment as well.
She said she came to the Division office to seek help for her
children when all else failed so they would not be living "out
on the street." She testified that after the children were
placed, she found a full-time job with the Federal Emergency
Management Agency.
In an oral decision immediately following Lisa's testimony,
the judge found that Lisa did not have housing for her children
due to her "unbelievably poor planning." He also found it "hard
to believe that Welfare would have offered her" a program, but
5 A-3001-12T3 denied her request for the necessary childcare. He criticized
Lisa for following her fiancé in spite of the effect on her
children. The court also found Lisa to be irresponsible for
leaving permanent housing in Georgia to come to New Jersey
without the means to return. The decision was followed by a
dispositional hearing after which the judge ordered visitation
and other services.
On appeal Lisa raises the following issues:
POINT I: LISA'S FINANCIAL DIFFICULTY IN SECURING HOUSING IS NON-ACTIONABLE NEGLECT BECAUSE IT IS BASED ON POVERTY AND SHE ATTEMPTED TO LOOK FOR EMPLOYMENT.
POINT II: LISA'S CONDUCT DOES NOT FALL BELOW THE MINIMUM DEGREE OF CARE BECAUSE SHE LOOKED FOR EMPLOYMENT AND SOUGHT HELP FROM THE DIVISION, WELFARE, AND NEWARK EMERGEN[C]Y SERVICES FOR FAMILY.
We review appeals as of right from a final judgment of the
Superior Court. R. 2:2-3(a)(1). As a threshold matter, we
consider whether the February 6, 2013 finding of abuse or
neglect was a final order ripe for appellate review. A parent
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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-3001-12T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
April 7, 2014 v. APPELLATE DIVISION L.W.,
Defendant-Appellant,
and
R.W.,1
Defendant.
_________________________________
IN THE MATTER OF I.W. and K.W.,
Minors.
Submitted February 25, 2014 – Decided April 7, 2014
Before Judges Fisher, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-172-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Phuong V. Dao, Assistant Deputy Public Defender, on the brief).
1 R.W. did not appeal. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.W. and K.W. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
L.W. (Lisa2), appeals from a February 6, 2013 fact-finding
and dispositional order finding that Lisa neglected her two
young children by failing to provide housing. We agree with
Lisa and the Law Guardian's position on appeal that the proofs
demonstrated Lisa's impoverished condition, but did not
substantiate neglect. We therefore reverse.
Lisa first came to the attention of the New Jersey Division
of Child Protection and Permanency (the Division) in 2010 when
she was arrested with others in connection with drugs found in
an apartment where she was staying. Her older daughter, Isabel,
was less than a year old at the time. The child was taken from
Lisa as she could not provide care when she was incarcerated.
Lisa stipulated to abuse or neglect and her name was entered
2 We use fictitious names to protect the identity of the children.
2 A-3001-12T3 into the child abuse registry pursuant to N.J.S.A. 9:6-8.11.
Lisa successfully completed services, Isabel was returned, and
the litigation dismissed in November 2011. The Division
continued to provide services. In September 2012, Lisa told the
Division caseworker that she had relocated to Georgia. The
Division referred the family to the Georgia child protection
agency.
On October 10, 2012, Lisa brought Isabel, now four years
old, and Kate, twenty months old, to the Division office. Lisa
told the caseworker that she had explored all her options and
could not find housing. Lisa consented to the temporary
placement of her two young daughters in foster care.
Two days later, at the order to show cause hearing on the
complaint filed by the Division, the caseworker testified that
the children seemed healthy, safe and happy when Lisa brought
them to the office. They were clean, well-fed and well-clothed.
She testified that the only concern was a lack of housing.
Lisa's lawyer told the judge that Lisa had been staying with her
fiancé "in a TRA rental assistance program, and that program
only allows him and children in his legal and physical custody
to remain with him." Because the fiancé was not a legal
custodian of the children, Lisa and her children were forced to
leave. The attorney also said that Lisa had made an appointment
3 A-3001-12T3 "with Welfare" for the following week to secure her own rental
assistance, had called her aunt, who did not respond, and had
filed a complaint in court to give her fiancé joint custody so
that he could assist in finding housing for the family. The
judge stated:
—it sounds as though [Lisa] did the responsible thing by coming to [the Division] and being responsible and — and saying look, I —right now I'm homeless, I have no way to provide for my children, can you help me, and that's what they're doing.
In spite of the spirit of cooperation expressed at this
hearing, the Division sought to prove Lisa's neglect of her two
children at a fact-finding hearing in February 2013, held before
a different judge.
The Division caseworker, Carlotta Leak, testified that in
July 2012 St. Michael's Hospital reported that Lisa was at the
hospital with her children, upset that she had no housing. Lisa
then told the Division she was moving to Georgia. The Division
received another referral at the end of July that Lisa was
living with her children at Newark Penn Station. The Division
was unable to verify this report, but met with Lisa on October
10 when she voluntarily came to the office seeking housing for
her children. Leak testified that Lisa told her she had gone to
Georgia, but it did not work out.
4 A-3001-12T3 Lisa testified on her own behalf that she moved to Georgia
with her fiancé in June after a fire destroyed her New Jersey
housing. She explained that they all returned to New Jersey in
July following a death in her fiancé's family and then had
insufficient funds to return to Georgia. While in New Jersey,
they lived with her fiancé's uncle from August until the middle
of September and then moved to a shelter until forced to leave
in early October. Lisa testified that she "went down to
Welfare" and was denied benefits because she was unable to
participate in a job search program due to childcare issues.
She also reached out to Newark Emergency Services, but was not
eligible for housing. She then took the children to live with
her fiancé in his transitional housing in a Newark hotel. Lisa
testified that she had unsuccessfully sought employment as well.
She said she came to the Division office to seek help for her
children when all else failed so they would not be living "out
on the street." She testified that after the children were
placed, she found a full-time job with the Federal Emergency
Management Agency.
In an oral decision immediately following Lisa's testimony,
the judge found that Lisa did not have housing for her children
due to her "unbelievably poor planning." He also found it "hard
to believe that Welfare would have offered her" a program, but
5 A-3001-12T3 denied her request for the necessary childcare. He criticized
Lisa for following her fiancé in spite of the effect on her
children. The court also found Lisa to be irresponsible for
leaving permanent housing in Georgia to come to New Jersey
without the means to return. The decision was followed by a
dispositional hearing after which the judge ordered visitation
and other services.
On appeal Lisa raises the following issues:
POINT I: LISA'S FINANCIAL DIFFICULTY IN SECURING HOUSING IS NON-ACTIONABLE NEGLECT BECAUSE IT IS BASED ON POVERTY AND SHE ATTEMPTED TO LOOK FOR EMPLOYMENT.
POINT II: LISA'S CONDUCT DOES NOT FALL BELOW THE MINIMUM DEGREE OF CARE BECAUSE SHE LOOKED FOR EMPLOYMENT AND SOUGHT HELP FROM THE DIVISION, WELFARE, AND NEWARK EMERGEN[C]Y SERVICES FOR FAMILY.
We review appeals as of right from a final judgment of the
Superior Court. R. 2:2-3(a)(1). As a threshold matter, we
consider whether the February 6, 2013 finding of abuse or
neglect was a final order ripe for appellate review. A parent
is entitled to appeal as of right from a fact-finding
determination followed by a final order of disposition.
N.J.S.A. 9:6-8.70. Upon completion of a Title Nine finding of
abuse or neglect, the court must hold a dispositional hearing in
order to determine whether the child may safely return to the
custody of the parent from whom the child was removed. N.J.S.A.
6 A-3001-12T3 9:6-8.45 to -8.50. As we noted in N.J. Div. of Youth and Family
Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003),
N.J.S.A. 9:6-8.70 does not define what constitutes a final
appealable dispositional order. Even though the family judge
stated in this dispositional order that it "is a final order
with regard to the fact finding," the order was not truly final
as the Title Nine action remained open, further services were
ordered and the children were not returned to their mother. The
correct procedural mechanism for review of an interlocutory
Title Nine order is by motion for leave to appeal pursuant to R.
2:5-6. L.A., supra, 357 N.J. Super. at 165. We are, however,
persuaded to relax this requirement and grant leave to appeal as
within time. See id. at 166 (the grave impact of a protracted
post abuse or neglect finding proceedings militates in favor of
considering an appeal in spite of its procedural defects).
We must "accord deference to factfindings of the family
court because it has the superior ability to gauge the
credibility of the witnesses who testify before it and because
it possesses special expertise in matters related to the
family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413
(1998)). We may not "second-guess or substitute our judgment
for that of the family court," so long as "the record contains
7 A-3001-12T3 substantial and credible evidence to support" the family court's
decision. Id. at 448-49. We accept the judge's
characterization of Lisa's housing deficit as being a result of
poor planning. The judge's belief that Lisa was not credible
with regard to her inability to participate in the job search
and training program, however, is not based on any evidence in
the record. We do not assume that welfare agencies are always
able to accommodate the immediate childcare needs of
participants. Had the Division offered testimony to support
that conclusion, the judge might well have accepted that
testimony, but an assumption that programs function in an
optimal way for all participants is not justified.
In pertinent part, Title Nine defines an abused or
neglected child as one
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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so . . . .
[N.J.S.A. 9:6-8.21(c)(4)(a).]
Through the admission of "competent, material and relevant
evidence," the Division must prove by a preponderance of the
8 A-3001-12T3 evidence that the child was abused or neglected. N.J.S.A. 9:6-
46(b). The judge did not find that Lisa was "financially
capable" of providing shelter for her children and chose not to
do so; he found only that Lisa had engaged in "poor planning"
which led her family into homelessness. See N.J. Div. of Youth
and Family Servs. v. K.M., 136 N.J. 546, 550 (1993) (finding
neglect where the parents are financially and physically capable
of providing adequate food, clothing and shelter for their
children, but failed to do so despite Division assistance). It
is well-settled that poverty alone is not a basis for a finding
of abuse or neglect. Doe v. G.D., 146 N.J. Super. 419, 430-31
(App. Div. 1976), aff'd sub. nom., 74 N.J. 196 (1977); see also
In re Guardianship of J.E.D., 217 N.J. Super. 1, 13 (1987)
(stating that the Family Part judge should be careful not to
decide a case because of a cultural bias or because of the
parents' economic or social circumstances), certif. denied, 111
N.J. 637 (1988).
Lisa's poor planning is at least in part a side-effect of
poverty. She sought housing through government agencies. She
sought employment to no avail. Like many people, she formed a
bond with her fiancé and tied her family welfare to his ability
to provide housing. Ultimately, he was unable to provide
housing for the children, so Lisa did what was in their best
9 A-3001-12T3 interest by coming to the Division for help instead of
subjecting her children to further homelessness. We agree with
the first judge who reviewed this matter that by seeking help
from the Division, Lisa "did the responsible thing." The
Division, as a child welfare agency, has a primary mission to
help families stay together and to assist parents to raise safe
and healthy children. See N.J.S.A. 30:4C-11.3 (citing a general
policy to reunify families absent imminent threat to a child's
safety).
Although there was insufficient evidence to sustain a
finding of neglect under Title Nine, the Division may still
provide services to Lisa and her family with her consent
pursuant to N.J.S.A. 30:4C-11, or may seek a court order to
provide services in the best interest of the children pursuant
to N.J.S.A. 30:4C-12. See N.J. Div. of Youth and Family Servs.
v. I.S., 214 N.J. 8, 15 (2013) (stating that the Legislature
intended N.J.S.A. 30:4C-12 to authorize the court to "award
care, supervision, and even custody" to the Division "when
children need services and a parent cannot provide that help for
no fault-based reason"), cert. denied, __ U.S. __, 134 S. Ct.
529, 187 L. Ed. 2d 380 (2013).
It is important that impoverished, homeless parents feel
free to call on the Division in times of need, without fear of
10 A-3001-12T3 being found neglectful for "poor planning." See The New Jersey
Safe Haven Infant Protection Act, N.J.S.A. 30:4C-15.6 to -15.11
(permitting a parent to anonymously leave an infant less than
thirty days old at designated locations with the "freedom from
prosecution [to] encourage the parent to leave an infant safely
and save the life of an infant"). For the many people who live
on or over the edge of homelessness in New Jersey, the Division
may be their last resort; it provides a way to find safe housing
for their young children, even at the cost of the parent's
temporary separation from those children. Such a parental
sacrifice to promote the welfare of their children should be
encouraged.
Reversed.
11 A-3001-12T3