NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.G.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Appellant R.G. appeals the Family Part's November 2, 2011 order, which concluded that he and his wife "abused and neglected" their school-aged daughter, A.G., as that concept is defined in and proscribed by N.J.S.A. 9:6-8.21. Specifically, the trial court found that the parents failed to assure that A.G. received appropriate schooling during the 2010-11 school year, during which time A.G. should have been continuously enrolled in the third grade. We affirm.

I.

We set forth the relevant facts and procedural history from the extensive record. We do so in considerable detail because of the fact-sensitive nature of the allegations and the many events relating to A.G.'s schooling that took place during the relevant time frame.

The Division's Investigation And The Ensuing Proceedings

The Division of Youth and Family Services (the "Division")1 received several anonymous referrals in October and November 2010 reporting that A.G., then eight years old, was not attending school. The referrals indicated that A.G. had previously attended a local Catholic school in Rutherford, but that the school had apparently closed about five months prior, in May of that year. The mother, L.G., apparently wanted A.G. to remain in a Catholic school, but the father, appellant R.G., was unable to afford it. Allegedly concerned that A.G. would be harassed were she to attend public school, the parents claimed that they decided to home-school A.G. instead. Even so, A.G.'s older sister V.G., then fifteen years old, did attend public school during that same time frame.2 The Division attempted to investigate these allegations, but the parents were generally uncooperative with those efforts.

Consequently, the Division filed an initial verified complaint in the Family Part against the parents on November 19, 2010, requesting an order from the court to permit it to investigate these allegations. The complaint specifically noted that the Division had received referrals that the parents were not sending A.G. to school, and that they had been uncooperative when the Division tried to investigate those allegations. On the same day, Judge Peter J. Melchionne issued an order directing the parents to show cause why the Division should not be permitted to investigate the allegations.

Judge Bonnie Mizdol presided over the show-cause hearing on the return date on December 21, 2010. Both parents appeared at the hearing and claimed that A.G. was being home-schooled. The judge consequently issued an order directing the parents to permit the Division to investigate the children's circumstances, and to provide proof of the Rutherford School Board's approval of A.G.'s alleged home-school curriculum.

On the next day, December 22, 2010, a Division caseworker went to the family's home and interviewed A.G. privately. A.G. initially told the caseworker that she was attending a local Catholic school. However, when the Division caseworker asked A.G. for her teacher's name, the child began to appear uncomfortable and teary-eyed. A.G. then admitted that she had lied about attending the school out of fear that her mother would "get . . . in trouble." A.G. explained that she simply stayed at home while her siblings attended school, and that a tutor would instead come to the house several times over the week. The child expressed that "she [got] bored many times while at home[,] and . . . wishe[d] that she was in school."

That same day, the caseworker also interviewed the older sister, V.G. Similar to A.G.'s account, V.G. first told the caseworker that A.G. was attending a local Catholic school, but she then recanted that statement and instead explained that A.G. had a tutor who would come to the house several times during the week. This conflicted with A.G.'s account of the tutor's schedule, however, as V.G. had claimed that the tutor came on Fridays through Sundays, whereas A.G. stated that the tutor's schedule was Mondays through Thursdays.

Lastly, the caseworker also spoke with appellant that same day. When the caseworker explained to him that A.G. had given conflicting accounts about attending the local Catholic school, appellant responded that A.G. was afraid of the caseworker, and that the Division's investigation was causing the child stress. Appellant claimed that he was trying to get A.G. enrolled in a different private Catholic school in January 2011. When the caseworker asked appellant about which days the tutor came to see A.G., he responded that the tutor came on Tuesdays, Saturdays, and Sundays. Appellant was unable to provide the caseworker with a phone number for the tutor, however.

The mother then ended the conversation between the caseworker and appellant. She refused to be interviewed, but did allow the caseworker to observe the children's bedrooms and to ensure that there was adequate food in the kitchen.

Based on these interviews, the caseworker concluded that the claims of educational neglect of A.G. were substantiated against both parents. However, the record does not disclose any immediate action taken as a result of that determination.

On January 16, 2011, the Division received another anonymous referral reporting A.G.'s lack of schooling. A caseworker responded to A.G.'s home, but the mother refused to allow the caseworker to speak with the family.

Two days later, on January 18, 2011, Judge Mizdol issued an order to show cause much to the same effect as her prior order. Accordingly, a Division caseworker visited the family's home that same evening at 5:30 p.m. Appellant angrily told the caseworker that the mother and children were out shopping, and that the caseworker should not have come until 7:00 p.m. Appellant reiterated his claim that a tutor came to teach A.G., but, again, he could not give the caseworker any additional information about the tutor. The caseworker left and came back at 7:30 p.m. that evening, but the mother and children were still absent.

A caseworker returned to the home the next day, on January 19, 2011, and spoke with A.G. in the presence of her sister, V.G. A.G. told the caseworker that she was still not attending school, nor could she remember the last time she did so. Describing her daily routine, A.G. said that she would wake up for breakfast, go back to sleep, have lunch, watch television, and then return back to sleep again. A.G. explained she slept so much because she was bored. She also noted that she did not have any textbooks, aside from a science book that she would read when bored. A.G. stated that a tutor came on Fridays and Sundays, but that the tutor would spend only fifteen minutes or so with her and the rest of the time with her siblings. The child reiterated her desire to return to school.

The caseworker then spoke to the mother, who again claimed that A.G. was being home-schooled. The mother stated that she suspected that an individual was harassing her with these frequent calls to the Division, and also believed that the individual would harass A.G. at school. The mother claimed that a tutor had been visiting the children for approximately one year, usually on Tuesdays, Thursdays, Fridays, and Sundays, but not on a set schedule. The mother also stated that the tutor would take A.G.'s books with her. She told the caseworker that she had found lessons for A.G. to do on the computer. However, when the caseworker asked to see those lessons, the mother refused. She then became uncooperative and ended the interview.

The FN Complaint And Further Proceedings

On January 28, 2011, the Division filed a second verified complaint in the Family Part, this time seeking custody, care, and supervision of A.G., and for care and supervision of the sister, V.G. Counsel for the Division and the Law Guardian appeared before Judge Frances A. McGrogan that day. The Division argued that it should receive custody of A.G. due to the child's persistent non-attendance at school. The judge issued an order (1) directing the parents to enroll A.G. in school no later than January 31, 2011, (2) designating A.G. as a ward of the court, and (3) granting the Division custody, care, and supervision of A.G. and care and supervision of V.G. The order also directed the parents to appear three days later to show cause why the Division should not receive legal and physical custody of A.G.

On the return on the order to show cause on January 31, 2011, the parties3 again appeared before Judge McGrogan. Appellant testified that he was trying to enroll A.G. in Saint Clare's, a parochial school in Clifton. Appellant further asserted that A.G. was last enrolled in school in June 2009. At the conclusion of this hearing, Judge McGrogan ordered that A.G. and V.G. remain in the care and supervision of the Division, but that legal and physical custody be returned to the parents. The judge also ordered that A.G. be enrolled in school the following day, and that the parents provide documentation substantiating that enrollment. Accordingly, appellant indicated to the judge the following day that he had enrolled A.G. at Saint Clare's, and that she would be starting school there the next morning.

On February 22, 2011, the parties appeared before Judge Mizdol. An attorney for the Division informed the judge that caseworkers were having difficulty in reaching the children. The judge ordered the parents to provide the Division with names and addresses of relatives who could be appropriate as placements for A.G. The judge also ordered that A.G. continue to attend school, and that the parents allow the Division and the Law Guardian access to the children.

A caseworker subsequently visited the family's home on February 25, 2011. At that point, A.G. reported that she was in school, and that she was enjoying her studies there. A.G. responded similarly during subsequent visits on March 25 and May 9, 2011.

The parties next appeared before Judge Mizdol on May 10, 2011 for a case management conference. The attorney for the Division informed the judge that A.G.'s school was considering holding her back from advancing on to the fourth grade, due to her prolonged absence during the first half of the school year, as well as her below-average performance in school. In response, appellant contended that A.G.'s new school had a more advanced curriculum, and adding that he would be willing to send A.G. to summer school if he could afford to do so. Judge Mizdol ordered that A.G. continue attending school and that custody remain with the parents.

About a week later, on May 19, 2011, the Division received an anonymous tip that A.G. had been absent from school since at least April 24, the Easter holiday that year. The Division further learned that appellant had not paid tuition to A.G.'s private school. When a Division caseworker got in touch with him on May 23, 2011, appellant refused to disclose where A.G. was attending school. Instead, he referred the caseworker to his attorney.

The following day, May 24, 2011, the Division brought an emergent application before Judge Melchionne. The parents did not attend the proceeding, even though they were given notice. The Division informed the judge that a caseworker had called A.G.'s school and confirmed that she had been absent since at least Easter. Consequently, Judge Melchionne ordered the parents to disclose which school A.G. was attending. Two days later, on May 26, 2011, the mother informed a Division caseworker that she planned to enroll A.G. in a school in

Pennsylvania, although she refused to identify the school.

Judge McGrogan subsequently held a hearing on May 31, 2011. Appellant testified that A.G. was home with her sister that day, and also stated that the family could not afford to send A.G. to private school. The judge responded that although the parents may have wanted A.G. to attend private school, they nevertheless had a legal obligation to educate her. The judge specifically observed that the parents were "playing games with the Division. They're playing games with the [c]ourt." After finding that A.G. was at imminent risk of substantial harm, the judge ordered A.G. to be placed with the Division immediately, and further instructed appellant to wait at the courthouse until the Division had secured the child.

In a written order dated that same day, Judge McGrogan stated her findings that the parents were preventing A.G. from attending school without any justifiable purpose in violation of prior instructions from the court, and that the parents had been uncooperative with the Division. Later that day, a caseworker went to the family's home to obtain custody of A.G., but no one was there.

Judge McGrogan held a subsequent hearing on June 2, 2011. Neither parent was in attendance, although an attorney was there on behalf of appellant. The judge ordered that A.G. and V.G. be placed in the physical custody of the Division, and also issued separate bench warrants for the arrest of both parents.

The parents appeared before Judge McGrogan later that day. Appellant refused to disclose A.G.'s whereabouts in response to the judge's questioning. Consequently, the court held him in contempt. The mother claimed that she did not know where A.G. was, claiming that appellant had taken her somewhere but had not told her where. After an exchange between the judge and the parents, appellant claimed that A.G. was with her aunt. Given these circumstances, the judge decided to have the parents taken into custody, and indicated that they would be released the next day if A.G. were located.

A caseworker succeeded in locating and speaking with A.G. at a relative's home later that day. The child stated that she had been staying there the past week, although her parents did not tell her why they had placed her there. The caseworker told A.G. that she would be going to a foster home with her sister,4 and that she would be registered for school.

On June 3, 2011, a caseworker spoke with the parents, who were then incarcerated in the Bergen County Jail pursuant to Judge McGrogan's prior bench order. The mother claimed that A.G. was enrolled for public school in Pennsylvania and was supposed to start the previous week, but never began. Appellant claimed that he could not pay the tuition at Saint Clare's, but that he was putting aside money to place A.G. at another Catholic school instead. Appellant stated, however, that it would be acceptable to him to have A.G. attend public school if he could not place her in a private school. At a hearing that day before Judge McGrogan, the Division stated that it would enroll A.G. in the Rutherford public school system, and that A.G. would begin classes the following Monday. In light of these developments, the judge released the parents from jail.

The Fact-Finding Hearings

The Family Part held a series of fact-finding hearings on intermittent days between June and October 2011 before Judge John A. Conte. During that time, the Division presented testimony from several Division caseworkers, as well as from a Rutherford School District employee. Appellant testified on his own behalf.

The narrative that clearly emerged from these hearings was that A.G. was being deprived of a stable educational environment. Although disagreeing on certain details, the Division witnesses and appellant both acknowledged that A.G. had not maintained a continued attendance in school.

For example, the testifying Division caseworkers noted the persistent inability on behalf of the parents to offer the Division proof of A.G.'s school enrollment. The Division at times had difficulty locating A.G., as the parents had placed her with a relative following the court's May 31, 2011 order that granted the Division care and custody of the child. The Division also emphasized the parents' evasiveness, having received conflicting reports from them about which school or schools, specifically, A.G. was supposedly attending. Further testimony from a school district employee corroborated the Division's position. He explained that when he investigated the parents in November 2010 about the status of A.G.'s school enrollment, they similarly gave him conflicting accounts of whether the child was being home-schooled, or was instead attending a private school. The Division's witnesses also stated that these actions by the parents had an adverse effect upon the child, as A.G. was at a grade level below other peers of her same age, and that she was also performing below-average academically.

In his defense, appellant testified that A.G. had previously been attending a private Catholic school in Rutherford, but that her school had apparently closed around May 2010. He claimed that he thereafter tried to find another private school for his daughter, but was unsuccessful in doing so. As appellant did not wish to enroll her in public school, he allegedly decided to home-school A.G. beginning in September 2010. He explained that he re-enrolled A.G. in a different private school at the beginning of 2011, but because he was unable to maintain the tuition payments, he had to discontinue her enrollment at the end of April that year, after Easter. He claimed that A.G. was again home-schooled. Appellant added that at the time of the hearing, he had enrolled A.G. in yet another private school to begin the fourth grade.

The Trial Court's Findings Of Abuse And Neglect

Judge Conte issued a written decision on November 2, 2011, finding that both parents had committed abuse and neglect of A.G. In his decision, the judge credited the Division's proofs, characterizing them as "straightforward, direct, unequivocal, and uncontradictory." By contrast, the judge described appellant's testimony as "evasive, lacking in candor, and ambivalent."

The judge was unpersuaded that the parents had actually obtained a tutor for the children. He specifically found that their assertions that A.G. was home-schooled were "incredulous statements without the benefit of truth or corroboration." The judge therefore issued an order reflecting his finding of abuse and neglect on the part of both parents for not providing A.G. with an appropriate education.

Thereafter on February 14, 2012, Judge McGrogan issued a final order terminating the Title Nine litigation and maintaining the children in the physical and legal custody of the parents. Appellant subsequently appealed. The mother has not appealed.

II.

Appellant contends that we must vacate the trial court's findings of abuse and neglect against him because the Division failed to prove its contentions by a preponderance of the evidence. More specifically, appellant submits that the trial judge failed to account sufficiently for the mitigating fact that A.G. was ultimately placed in the fourth grade in the 2011-12 school year, the chronologically appropriate grade for her age. Appellant maintains that his daughter's placement in the appropriate grade for her age legally negates a finding of educational neglect under Title Nine arising from the events of the 2010-11 school year, notwithstanding A.G.'s lengthy absence from school. We disagree.

In general, we do not disturb the trial court's factual findings on appeal when they are supported in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "`feel' of the case" based upon the opportunity of the judge to see and hear the witnesses. N.J. Div. of Youth & Family Servs. v. M.M., 19 N.J. 261, 293 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Where the Division seeks temporary custody of a child pursuant to Title Nine based on a belief that a child has been neglected or abused, the court is to conduct an evidentiary hearing. After such a hearing, the court is to make specific factual findings to determine "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.21(c); see also N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 262 (App. Div. 2002). At such a fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). The Division bears the burden of proving abuse and neglect by a preponderance of such competent evidence. Ibid. If the court is satisfied that this burden has been established, it "shall state the grounds for [such] findings." N.J.S.A. 9:6-8.50(a).

Substantively, an "abused or neglected child" is defined in the statute to encompass:

To be sure, in applying these concepts, our courts have recognized that a parent or guardian's mere negligence does not constitute abuse and neglect of a child. As the Supreme Court held:

The Court also stated in G.S. that "the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 151 N.J. 101, 123 (1995); McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). This standard was factually satisfied in G.S., where a parent had given her autistic child a full bottle of medication, which was seventy-eight times the indicated dosage. Id. at 166-67. Cf. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (finding no abuse or neglect of a newborn infant, even though the mother used cocaine during pregnancy, because Title Nine focuses on the "risk of substantial, imminent harm to the child, not on the past use of drugs alone").

A parent's duty to provide an education to his or her child is statutorily mandated in this State by N.J.S.A. 18A:38-25:

Our courts have specifically recognized the failure to provide an education as a form of abuse and neglect under Title Nine. See, e.g., N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J.Super. 266, 285-86 (App. Div.) (noting that 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), certif. denied, 196 N.J. 347 (2008); see also N.J.S.A. 9:6-8.21(c)(4) (treating the failure to provide a child with "adequate" education as a form of abuse and neglect).

Appellant contends that because A.G. ultimately entered the appropriate grade for her age, she was not actually harmed by his conduct, and so Judge Conte erroneously entered a finding of abuse and neglect. He claims that A.G.'s placement in fourth grade in the fall of 2011 sufficiently demonstrates that she received "equivalent instruction elsewhere than at school," thereby fulfilling his parental obligations under N.J.S.A. 18A:38-25.7 Judge Conte rejected this overly simplistic argument, and so do we.

As the Supreme Court observed in G.S., "[t]he main goal of Title [Nine] is to protect children from acts or conditions which threaten their welfare." G.S., supra, 157 N.J. at 176 (emphasis added) (citation omitted) (internal quotation marks omitted). Indeed, that goal is reflected in the statutory definition of abused or neglected children, which includes those children who are in "imminent danger" of impairment as a result of a lack of education. N.J.S.A. 9:6-8.21(c)(4). Actual harm to children is therefore not the only evil that Title Nine addresses. The statute also aims to end conditions that will lead to a child's actual harm. If Title Nine permitted a showing only of actual harm, the Division's staff would be forced to sit idly by while parents continue a course of conduct that would eventually cause harm.

The logical implication of appellant's position would be that the Division should not have interfered until it became apparent that A.G. was unable to keep pace academically with students of her age. If that were so, the Division surely would be unduly hamstrung in carrying out its duty to protect children. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (noting in the context of a proceeding to terminate parental rights that "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect"). The educational deficit that was caused by a child missing a year in school may not materialize immediately. Indeed, without the Division's intervention here, and the enforcement measures the trial court repeatedly applied, A.G.'s parents may well have kept her out of school for an even longer period, to her obvious detriment.

Appellant's argument that his daughter received "equivalent" instruction is unavailing because no evidence was placed into the record8 that the parents caused A.G. to receive any such instruction. The parents' claims of tutoring were evasive and unsubstantiated.

Notably, A.G. was not placed in school by the parents until the Family Part ordered them to do so. Even then, the parents subsequently removed A.G. from school in April 2011, and they refused to disclose her location to the court. That non-compliant behavior precipitated the removal of A.G. from the parents' custody, her enrollment in school for the remainder of the school year, and her subsequent entry into a remedial summer school program. A.G.'s alleged home instruction and tutoring were never credibly established. Her brief enrollment in Saint Clare's between February and April 2011 occurred only as the result of a court order.

Even though A.G. somehow managed to enter the fourth grade, the record suggests that that result may well have been due, at least in part, to the schooling A.G. received while she was in the Division's custody. The Division's efforts to remediate A.G.'s lack of instruction during part of the school year should not negate the trial court's well-supported finding of appellant's educational neglect.

Applying our deferential standard of review to the trial court's factual findings, as well as to the relevant law, we are satisfied that Judge Conte's determination of educational neglect was evidentially and legally sound. We therefore affirm the trial court's decision.