                           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                     NOT FOR PUBLICATION WITHOUT THE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.




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