N.J. Div. of Child Prot. & Permanency v. E.E. (In re T.B.)
| Decision Date | 13 December 2019 |
| Docket Number | DOCKET NO. A-5467-17T3 |
| Parties | NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.E., Defendant-Appellant, and T.B., SR., and J.E., Defendants. IN THE MATTER OF T.B., JR., L.B., P.B., and P.O.P.L., Minors. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0017-17.
Joseph E. Krakora, Public Defender, attorney for appellant (David Anthony Gies, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth Helms Wallace, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Ben Valentin, Assistant Deputy Public Defender, on the brief).
Defendant E.E. (Erica),1 the mother of four children, appeals an October 20, 2016 Family Part order finding she abused or neglected her three oldest children, T.B. Jr. (Brian), L.B. (Dennis), and P.B. (Margaret), contrary to N.J.S.A. 9:6-8.21(c)(2) and (c)(4), and a June 18, 2018 order terminating the litigation. The court concluded Erica committed educational abuse or neglect against all three children and medical abuse or neglect against Dennis and Margaret. We affirm in part and reverse in part.
We affirm the court's order as to its educational neglect finding with respect to Brian and Dennis under N.J.S.A. 9:6-8.21(c)(4) because there was substantial credible evidence in the record supporting the court's finding that Erica failed to exercise the requisite minimum degree of care in supplying Brian and Dennis with an adequate education. However, we reverse the portion of the order finding educational neglect regarding Margaret, as the record contains insufficient substantial credible evidence to support such a finding.
Further, we reverse the portions of the order finding Erica medically neglected Dennis and Margaret in violation of N.J.S.A. 9:6-21(c)(2) because the record lacks substantial credible evidence to support the court's finding that the children were currently experiencing or at risk of "protracted disfigurement . . . or protracted loss or impairment . . . of any bodily organ." We also reverse the portion of the order finding medical neglect under N.J.S.A. 9:6-8.21(c)(4) as the record does not contain evidence that Erica had the ability to pay for dental care, that it was available to her, or that the Division of Child Protection and Permanency (Division) offered her such assistance, as required by that statutory provision.
In September 2014, Erica moved from Texas to New Jersey with Brian,Dennis, and Margaret. The facts underlying the court's abuse and neglect findings stem from an incident on July 11, 2016 in which Erica and the children were at a Walmart in New Brunswick, and Erica became sick and began experiencing pain in her legs and feet. After an employee contacted an ambulance and the police, emergency medical staff responded and transported the family to St. Peter's University Hospital (St. Peter's) in New Brunswick. At the time, the family was residing in a motel in Maple Shade. Brian was ten years old, Dennis was nine years old, Margaret was five years old, and Erica was thirty-six weeks pregnant with P.O.P.L. (Carl).
At St. Peter's, Erica was diagnosed with edema and informed by medical staff that it would be "very dangerous" for her to leave the hospital in her condition, but she nevertheless insisted on leaving. Neither Erica nor Margaret were wearing shoes when they arrived. Further, medical staff at the hospital had concerns about Erica's mental health after she refused to answer questions about herself and the children. Accordingly, a staff psychiatrist contacted the police.
When a New Brunswick Police Department officer arrived shortly thereafter, he made the first of two referrals regarding Erica that the Division received that day. The second referral came from medical staff at St. Peter's who reported that Erica refused to disclose her children's information, providecontact information for herself or her regular physicians, and was "not making any sense when she [spoke]."
The first Division worker to respond was from Middlesex County, where St. Peter's is located. Shortly thereafter, Jessica Payne, a Division worker from Burlington County, arrived at the hospital.2 At the fact-finding hearing on October 20, 2016, Payne testified that Erica "indicated that her children had received no formal education and . . . since they've been in New Jersey[,] . . . they had not received pediatric or dental care." After Erica stated that the Division "would not be able to speak to her children" and "show[ed] signs that she was . . . not going to cooperate" with its investigation, the Division executed a Dodd removal of Brian, Dennis, and Margaret.3
When they left the hospital, Payne interviewed the children and noticed that they all "had significant speech impediments," which made it "difficult tocommunicate with them." The following day, Dennis and Brian "articulated to [Payne] that they did not know how to read and write" and were unable to spell the sentence "walk the dog." Dennis, "unsolicited," told Payne that he was going to "pull [a] tooth out of his mouth himself[,] and that he had done that in the past." Further, Payne testified that an initial physical examination of the children by Jayiddah Thomas-Brown and Jessica Shafer, nurses employed by Rutgers University and working with the Division, revealed that Dennis and Margaret had "visible significant . . . [t]ooth decay."
At the fact-finding hearing, Thomas-Brown testified that she examined Dennis and was concerned about his hygiene and dental health. Specifically, she stated that he had body odor, uncombed hair, dirty clothes, missing teeth, a chipped tooth and "[h]oles in some of [his] teeth," and "reported that he pulled out his teeth when they hurt." Thomas-Brown also noted that although Dennis knew some letters of the alphabet, some numbers, and some colors, he was unable "to completely spell his name."
Shafer, the nurse who conducted Brian's and Margaret's examinations, testified that Brian "struggled" to identify or spell the word "the," and was unable to completely identify all of the letters in the alphabet. In addition, Shafer noticed that Margaret was able to recite the complete alphabet but hadvisible dental decay. As a result of the concern for the condition of Dennis's and Margaret's teeth, the Division scheduled an emergency dental appointment for all of the children.
On July 13, 2016, the Division filed an order to show cause and a verified complaint for custody of Brian, Dennis, and Margaret, alleging that Erica abused or neglected the children. In granting the Division custody, the court issued an oral decision noting "concerns about [their] dental . . . [and] bodily hygiene" as well as their difficulties properly communicating and speaking. In the court's corresponding order issued the same day, it permitted Erica supervised visitation and ordered her to attend parenting classes and sign releases for her medical records.4
One week later, Renuka Maringanti, D.D.S., administered a dental examination of the children. At the fact-finding hearing, Maringanti testified that Brian had one cavity and that she recommended protective sealants on four other teeth, but did not recommend emergency treatment.5 However, Maringanti also stated that Dennis had multiple "really deep cavities" which, if neglected,could "spread to the tissues" and lead to swelling and the development of abscesses. Moreover, Maringanti noted that Dennis appeared to have a baby tooth which required a root canal procedure. Maringanti further testified that Margaret had poor oral hygiene, with multiple severe, deep cavities. None of the children had active infections or abscesses at the time of the examination, but Maringanti nevertheless referred them to a specialist pediatric dentist.
In August, Brian and Dennis engaged in the Comprehensive Health Evaluations for Children (CHEC) program at the CARES Institute, which is associated with Rowan University School of Osteopathic Medicine. Brian's composite scores for his testing were at "the upper end of the Lower Extreme range of intellectual functioning," and Dennis's composite score fell within "the Below Average range of intellectual functioning." Both boys were referred to the child study team in Maple Shade for a Basic Skills Intervention program along with one-on-one instruction.
The court held a Title Nine fact-finding hearing concerning the allegations of abuse or neglect on October 20, 2016. The Division presented documentary evidence and testimony from Maringanti, Thomas-Brown, Shafer, and Payne. It did not seek to qualify Maringanti as an expert, but instead offered her lay testimony as the children's treating dentist. Erica introduced one document,Brian's immunization records, into evidence, but no witness testimony. The Law Guardian presented no documentary evidence or testimony.
At the conclusion of the fact-finding proceeding, the court issued an oral decision in which it determined the Division proved its allegations by a preponderance of the evidence and entered a corresponding order. Specifically, the court found that Maringanti, Thomas-Brown, and Shafer were all credible witnesses, and that Payne was "very professional," "thorough," "extremely experienced," and "very confident." The court stated that, based on the witnesses' testimony and the documents entered into evidence, it...
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