                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4745-18T3


NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

B.C.,1

          Defendant-Appellant,

and

F.C.,2

     Defendant.
____________________________



1
   Initials and pseudonyms are used to protect the identities of the parties
involved in this appeal. R. 1:38-3(12).
2
  Defendant F.C. is not a party to this appeal as plaintiff lodged no allegations
against him following its investigation into a report of educational neglect
against both defendants.
IN THE MATTER OF
E.C., E.C., AND F.C.,

     Minors.
____________________________

           Submitted June 3, 2020 – Decided July 6, 2020

           Before Judges Fuentes, Mayer and Enright.

           On appeal from the Superior Court of New Jersey,
           Chancery Division, Family Part, Essex County, Docket
           No. FN-07-0419-18.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (Robyn A. Veasey, Deputy Public Defender,
           of counsel; Laura M. Kalik, Designated Counsel, on the
           briefs).

           Gurbir S. Grewal, Attorney General, attorney for
           respondent (Donna Sue Arons, Assistant Attorney
           General, of counsel; Mary L. Harpster, Deputy
           Attorney General, on the brief).

           Joseph E. Krakora, Public Defender, Law Guardian,
           attorney for minors (Meredith Alexis Pollock, Deputy
           Public Defender, of counsel; Noel Christian Devlin,
           Assistant Deputy Public Defender, of counsel and on
           the brief).

PER CURIAM

     Defendant B.C. appeals from a November 2, 2018 fact-finding order

which determined she was responsible for the educational neglect of her




                                                                    A-4745-18T3
                                     2
children. We affirm, substantially for the reasons expressed by Judge Linda L.

Cavanaugh in her thoughtful oral opinion.

      B.C. and defendant F.C. are the biological mother and father, respectively,

of E.C. ("Ethan"), E.C. ("Evan"), and F.C. ("Fiona"). On March 19, 2018,

plaintiff Division of Child Protection and Permanency (Division) received a

referral from the children's school regarding their excessive absences and

tardiness throughout the school year. By the time the referral was made in the

2017-2018 school year, Ethan was absent thirteen days and tardy forty-five

times, Evan was absent nineteen days and tardy fifty-one times, and Fiona was

absent twenty-four days and tardy forty-nine times. According to a school

official, none of the absences were excused with doctor's notes.

      During its investigation, the Division learned the children were not

performing at their grade levels, were in danger of failing the school year and

might have to repeat their grade levels. The school informed the Division that

letters were sent to defendants regarding their children's absenteeism.

According to a representative from the school, when staff met with defendants

to discuss the unexcused absences, B.C. would leave the meeting. The children's

guidance counselor confirmed that defendants came to the school at least six

times for meetings but defendants blamed each other for the children's tardiness


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                                       3
and absences. Moreover, the guidance counselor remarked to the Division

caseworker that when students were absent as often as Ethan, Evan, and Fiona,

the school would send letters to, and meet with, the parents, and offer schooling

on Saturdays. In this case, the school provided all three remedies. Ethan was

the only one who attended school on Saturdays.

      On March 27, 2018, the caseworker interviewed Evan and Fiona. She

interviewed Ethan the following day. Evan stated he often was absent from

school because he contracted various illnesses.        Further, he explained he

frequently was tardy because he and his siblings did not "pay attention to the

time" when they walked to school. He added that his father, who resided outside

the home, used to drive the children to school, but his car broke down, and his

grandmother told his mother she was "spoiling" them by driving them to school.

      Similarly, Fiona attributed her absences from school to illness. Moreover,

she admitted she was tardy about once a week because she did not walk fast

enough. Also, she revealed she was bullied at school, but her parents, guidance

counselor, and principal were aware of this problem.

      When the caseworker interviewed Ethan, he acknowledged he was late for

school because he woke up late or had to wait for his siblings. He stated that




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                                       4
either his mother would wake him up or his father would schedule a wakeup

call.

        B.C. was interviewed by the caseworker on March 27, 2018. According

to B.C., the children walked to school because she wanted them to learn

responsibility. She claimed she woke the children at 6:00 a.m. on schooldays

and that they left for school around 7:20 a.m. B.C. acknowledged her children

often were tardy, but she maintained the school did not notify her about the

severity of the issue for two months. Further, she explained the children missed

school due to illness.

        B.C. conceded Ethan was the only child who attended school on Saturdays

because Evan and Fiona did not wish to participate in this program. B.C. also

commented that she suspected the children's school referred this matter to the

Division in retaliation for her complaining her daughter was bullied in school.

        In May 2018, the Division filed an order to show cause and verified

complaint seeking care and supervision of Ethan, Evan, and Fiona.             This

application was granted. The next month, certified school records reflected the

following: Ethan failed a number of classes, received a D+ in Mathematics, and

earned C's in the remainder of his courses; Evan failed three classes, received

D's in four classes, and a B in one class; Fiona received D's in four classes, a C-


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                                        5
in one class and B+'s in three classes. The school records also indicated Ethan

was absent twenty-five days, eight of which were excused, and tardy sixty-five

days. Evan was absent thirty-five days, twelve of which were excused, and tardy

sixty-eight days. Fiona had forty-two absences, sixteen of which were excused,

and seventy tardies.

      The Division's investigator testified at the November 2, 2018 fact-finding

hearing. When the hearing concluded, Judge Cavanaugh rendered an opinion

from the bench, finding the Division proved by a preponderance of the evidence

that B.C. educationally neglected her children as she "did not ensure her children

attend[ed] school in a consistent and timely manner." On May 3, 2019, the trial

court terminated the protective services litigation, leading to the instant appeal.

      On appeal, B.C. argues that "the trial court's decision must be reversed

because there was insufficient evidence to support a finding that [B.C.] abused

or neglected her children by failing to ensure that they received an adequate

education." We disagree.

      Appellate review of a trial court's decision is limited. An appellate court

owes special deference to the factual findings of a Family Part Judge. Cesare v.

Cesare, 154 N.J. 394, 413 (1998). This is appropriate because a Family Part

Judge "has the superior ability to gauge the credibility of the witnesses who


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                                        6
testify before [the judge who] . . . possesses special expertise in matters related

to the family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 430, 448

(2012). However, a family court's legal conclusions are reviewed de novo. N.J.

Div. of Child. Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342 (App. Div.

2016).

      A child is abused or neglected if the child's

            physical, mental, or emotional condition has been
            impaired or is in imminent danger of becoming
            impaired as the result of the failure of his [or her] parent
            . . . to exercise a minimum degree of care (a) in
            supplying the child with adequate . . . education . . . .

            [N.J.S.A. 9:6–8.21(c)(4).]

      In order to prove abuse or neglect under N.J.S.A. 9:6-8.21(c)(4), the

Division "must establish by a preponderance of the evidence that: (1) the child's

physical, mental, or emotional condition has been impaired or is in imminent

danger of becoming impaired; and (2) the impairment or imminent impairment

results from the parent's failure to exercise a minimum degree of care." N.J.

Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017).

      It is well established that

            [p]arents are required to ensure their children attend
            public school or receive equivalent instruction to that
            provided in the public schools. N.J.S.A. 18A:38-25
            [(citation omitted)].

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                                         7
            We have recognized that a parent’s failure to provide
            an education is a form of neglect under Title [Nine].
            See, e.g., N.J. Div. of Youth and Family Servs. v.
            M.W., 398 N.J. Super. 266, 285-86 (App. Div. 2008)
            (noting a parent harmed her children through
            educational neglect by allowing them to be deprived of
            the physical ability to attend school).

            [N.J. Div. of Child Prot. & Permanency v. S.D., 453
            N.J. Super. 511, 519 (App. Div. 2018).]

      A parent or guardian must meet the statutory requirements of N.J.S.A.

18A:38-25 in order to satisfy the "minimum degree of care" contemplated under

N.J.S.A. 9:6-8.21. Stated differently, a parent educationally neglects a child

when he or she fails to "cause [a school-aged] child regularly to attend the public

schools . . . or a day school . . . or to receive equivalent instruction elsewhere

than at school." N.J.S.A. 18A:38-25; See N.J. Div. of Child Prot. & Permanency

v. A.P., No. A-1545-16 (App. Div. Mar. 16, 2018) (slip op. at 9-10), certif.

denied, 235 N.J. 202 (2018).

      Here, Judge Cavanaugh considered B.C.'s argument that the children's

absences were due to various illnesses, but the judge questioned the long-

standing pattern of unexcused absences and found they could not have resulted

entirely from illnesses. The judge surmised:

            [y]ou don't have the flu one week one day, have the flu
            the next week one day, wait two more weeks and have

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                                        8
            the flu another day. The same with the stomach virus,
            and the same with the pneumonia. They are distinct
            events. That does not explain how there are absences
            on essentially . . . a weekly basis.

      The judge also addressed the children's habitual tardiness, stating:

            And this idea that they -- that you were trying to teach
            them responsibility, at what point does it show that
            that's not working? At what point does one realize that
            this isn't working, and that they've got to get to school,
            and something else has to be done? September,
            October, November, December, January, February,
            March, April, May, June[,] tardies throughout. Tardies
            throughout.

      We note that B.C. admitted she knew of the children's lateness and was

aware they were "fooling around" when they walked to school. Although B.C.

told the caseworker she would begin driving the children to school to remedy

this issue, there was no meaningful change in the children's punctuality after

B.C. made this representation.

      Given our deferential standard for the review of Judge Cavanaugh's

factual findings, we are satisfied there is no basis to disturb her determination

that B.C. failed to meet the minimum standard of care for her children and was

responsible for the children's educational neglect.

      Affirmed.




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