RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3440-16T3

A-3441-16T3

NEW JERSEY DIVISION OF CHILD 

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v. 

C.H. and L.H.,

Defendants-Appellants.

______________________________

IN THE MATTER OF K.H. and S.H,

Minors.

Argued May 14, 2018 – Decided June 8, 2018

Before Judges Rose and Firko.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, 

Docket No. FN-07-0444-15.

Carol N. Willner, Designated Counsel, argued 

the cause for appellant C.H. (Joseph E. 

Krakora, Public Defender, attorney; Carol N. 

Willner, on the brief).

Clara S. Licata, Designated Counsel, argued 

the cause for appellant L.H. (Joseph E. 

Krakora, Public Defender, attorney; Clara S. 

Licata, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3440-16T3

Diane L. Scott, Deputy Attorney General,

argued the cause for respondent (Gurbir S. 

Grewal, Attorney General, attorney; Jason W. 

Rockwell, Assistant Attorney General, of 

counsel; Diane L. Scott, on the brief). 

Danielle Ruiz, Designated Counsel, argued the 

cause for minors (Joseph E. Krakora, Public 

Defender, Law Guardian, attorney; Danielle 

Ruiz, on the brief). 

PER CURIAM

In these consolidated appeals, L.H. ("mother") and C.H. 

("father") (collectively, "defendants") appeal from an August 19, 

2015 Family Part order, finding they abused or neglected their 

daughters, K.H. and S.H.,1 by failing to ensure they attended 

school regularly. The fact-finding order was perfected for appeal 

by a March 8, 2017 order terminating the litigation. We affirm. 

I.

We derive the salient facts from the record developed at the 

fact-finding hearing. Defendants are the biological parents of 

K.H., born in April 2001, and S.H., born in August 2005. 

Defendants' history with plaintiff Division of Child Protection 

and Permanency ("Division") began in January 2003, following a 

 

1 We use initials to protect the identity of those involved and to 

preserve the confidentiality of these proceedings. R. 1:38-

3(d)(12). 
3 A-3440-16T3

referral for inadequate supervision. Father was substantiated for 

neglect. In February 2010, the Division again substantiated 

neglect, following a referral that father had assaulted mother and 

was admitted to a psychiatric ward. Apparently, K.H., then nine 

years old, and S.H., then five years old, had been left home alone. 

In October 2014, the Division received a referral that S.H. 

had "been absent for [thirteen] of the [eighteen] school days in 

October 2014." Three months later, the Division closed the case, 

finding the children were healthy and "safe in the care of their 

natural parents." 

Pertinent to this appeal, on February 26, 2015, the Division 

received a referral that S.H. was absent from school for fourteen 

days between October 2014 and January 2015. Because S.H. was 

unable to read at her grade level, she had been placed on home 

instruction, but mother interfered with the sessions, at times 

refusing to allow the tutor to enter the family's residence. 

On March 4, 2015, after three previous attempts, Division 

caseworker Rachel DuBois met with the family at their home. Mother 

initially refused to speak with DuBois, became agitated, and left 

the room. The caseworker spoke with father who indicated his wife 

was "crazy," and exhibiting "strange" behavior. DuBois instructed 

father to ensure both girls attended school regularly. Mother 
4 A-3440-16T3

later returned and inquired about the purpose of the caseworker's 

visit. Unable to answer many of the questions posed by DuBois, 

mother "appeared to be confused or lacked insight." 

DuBois spoke with S.H., who could not recall the last time 

she attended school, but "appeared to be clean and . . . dressed 

appropriately." K.H. refused to speak with the caseworker, but 

presented as "clean and healthy." Father promised DuBois he would 

take S.H. for a school services evaluation. 

DuBois returned to the home in April 2015 because K.H. had 

not attended school after father had taken S.H. for her evaluation. 

Between January and April 2015, K.H. missed thirty-four of seventyfive school days, and S.H. only received five days of home 

instruction. The parents' reasons for their daughters' absences 

were not plausible.

Specifically, mother claimed she kept K.H. home from school 

because "she does [not] like people interviewing her kids." Mother 

also told the caseworker she did not permit S.H.'s instructor to 

enter the home because mother was sick from January through April. 

Father stated he was "afraid of [mother]" and unable "to enforce 

any rules." The children had not seen a physician for more than

a year. The caseworker expressed concerns about the mental health 

of both parents.
5 A-3440-16T3

Accordingly, on April 23, 2015, the Division filed a complaint 

and order to show cause for care and supervision of K.H. and S.H. 

The judge granted the Division's application and ordered 

defendants to comply with mental health evaluations and services 

provided by the Division, and to ensure that their daughters attend 

school. 

On April 27, 2015, defendants and K.H. met with Division 

psychologist Alison Strasser Winston, Ph.D. Dr. Winston did not 

testify at the hearing, but the parties stipulated to the admission 

of her report, subject to redaction of any diagnoses. K.H. told 

Dr. Winston that mother was not mentally stable and "needs help 

[but] she keeps refusing." Mother presented as paranoid and denied 

having mental health issues. Dr. Winston concluded mother had 

"not been proactive in ensuring that her children attend school, 

nor d[id] she seem overly concerned about . . . the impact of 

their poor attendance." Father told Dr. Winston he had been 

diagnosed with schizophrenia in 2009, which remained unaddressed. 

Dr. Winston found father was passive and unassertive. 

On April 28, 2015, S.H. and K.H. did not attend school. Based 

on Dr. Winston's evaluation and the children's absences from 
6 A-3440-16T3

school, the Division executed an emergency Dodd removal.2 The 

trial court upheld the removal, finding defendants had failed to 

comply with its April 23, 2015 order. Following the children's 

removal, their attendance improved and they were "thriving." 

At the August 19, 2015 fact-finding hearing, the Division 

presented DuBois as its sole witness. Certain documents, including 

Division reports and assessments, Dr. Winston's psychological 

evaluation, police reports and the children's school records were 

admitted into evidence. Defendants did not testify or present any 

witnesses. 

In an oral decision, the judge determined the Division 

"prove[d] by a preponderance of the evidence that both . . . mother 

and father failed to provide a minimum degree of care in supplying 

the children with their education." In doing so, the judge found:

[T]here is nothing in the evidence, . . . to 

mitigate that or to in any way, diminish the 

level of proofs that the Division provided to 

the [c]ourt by way of the oral testimony and 

physical evidence that would in any way 

. . . prevent this [c]ourt from weighing the 

Division's evidence and concluding that the 

Division proved the elements that are required 

that the parents neglected the education of 

their children as required by the statute.

 

2 A Dodd removal is an emergent removal of a minor without a court 

order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd 

Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 

26 n.11 (2011). 
7 A-3440-16T3

The judge also found the testimony of DuBois and the 

documentary evidence credible. A memorializing order was entered 

on the same date, and this appeal followed. 

On appeal, defendants do not dispute their daughters' 

excessive absences from school. Further, mother does not dispute 

Dr. Winston's determination that the girls were emotionally 

impaired by her mental illness because they believed mother needed 

them to stay at home with her. Rather, defendants contend they 

do not have the mental capacity to act recklessly or with gross 

negligence in failing to provide an education for K.H. and S.H. 

The Division and law guardian urge us to affirm the court's order. 

II.

Our task as an appellate court is to determine whether the 

decision of the Family Court is supported by substantial credible 

evidence in the record and is consistent with applicable law. 

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular 

deference to "the family courts' special jurisdiction and 

expertise . . . ." Id. at 413. Unless the judge's factual findings 

are "so wide of the mark that a mistake must have been made[,]" 

they should not be disturbed, even if we would not have made the 

same decision had we heard the case in the first instance. N.J. 

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) 
8 A-3440-16T3

(quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. 

Super. 65, 69 (App. Div. 1989)). "It is not our place to secondguess or substitute our judgment for that of the family court, 

provided that the record contains substantial and credible 

evidence to support" the judge's decision. N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citation 

omitted). 

A.

Through the admission of "competent, material[,] and relevant 

evidence," the Division must prove by a preponderance of the 

evidence that the child was abused or neglected. N.J.S.A. 9:6-

8.46(b). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) defines 

an "abused or neglected child" as a child under eighteen years of 

age: 

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 . . . to exercise a minimum 

degree of care (a) in supplying the child with 

adequate . . . education . . . though 

financially able to do so or though offered 

financial or other reasonable means to do so 

. . . . 

In New Jersey, parents are required to ensure their children 

either regularly attend the public schools of the district in which 

they reside, or receive instruction equivalent to that provided 
9 A-3440-16T3

in the public schools. N.J.S.A. 18A:38-25. Attendance of a school 

age child is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch. 

Bd. of Educ., 176 N.J. 568, 641 (2003). Indeed, a parent who 

fails to comply with the attendance requirements "shall be deemed 

to be a disorderly person . . . ." N.J.S.A. 18A:38-31. "The 

reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) 

concerns parental encouragement to truancy of a school age child, 

or other interference with normal educative processes." Doe v. 

Downey, 74 N.J. 196, 199 (1977) (quoting Doe v. G.D, 146 N.J. 

Super. 419, 431 (App. Div. 1976)). 

Applying these standards, we affirm the trial court's 

undisputed finding of educational neglect. Although the judge did 

not specifically find K.H. and C.H. suffered actual harm as a 

result of defendants' neglect, a court "need not wait to act until 

a child is actually irreparably impaired by parental inattention 

or neglect." N.J. Dep't of Children & Families, Div. of Youth & 

Families Servs. v. A.L., 213 N.J. 1, 23 (2013) (quoting In re 

Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence 

of actual harm, a finding of abuse and neglect can be based on 

proof of imminent danger and substantial risk of harm." Ibid.;

see N.J.S.A. 9:6-8.21(c)(4)(b). That is clearly the case here 
10 A-3440-16T3

because the poor attendance records of both K.H. and S.H. placed 

them at serious risk of suffering an educational deficit. 

Instead, defendants argue, for the first time on appeal, that 

their mental illness precludes a finding of educational neglect. 

Considering this argument pursuant to the "plain error" standard, 

we are satisfied it was not "of such a nature as to have been 

clearly capable of producing an unjust result." R. 2:10-2. 

In particular, the existence of a mental illness, whether 

known or unknown, does not preclude a finding of child abuse or 

neglect under Title 9. The language in N.J.S.A. 9:6-8.21(c)(4) 

concerning failure "to exercise a minimum degree of care" has been 

interpreted by our Supreme Court as referring to "conduct that is 

grossly or wantonly negligent, but not necessarily intentional" 

and "reckless disregard for the safety of others . . . ." Dep't 

of Children & Families, N.J. Div. of Youth & Family Servs. v. 

T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human 

Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth 

& Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 

2012). 

Although it is clear that the phrase implies more than simple 

negligence, it can apply to situations ranging from "slight 

inadvertence to malicious purpose to inflict injury." McLaughlin
11 A-3440-16T3

v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). "Where an ordinary 

reasonable person would understand that a situation poses 

dangerous risks and acts without regard for the potentially serious 

consequences, the law holds him or her responsible for the 

injuries" caused. G.S., 157 N.J. at 179 (citing McLaughlin, 56 

N.J. at 305 and Fielder v. Stonack, 141 N.J. 101, 123 (1995)). 

Conduct is considered willful or wanton if done with the 

knowledge that injury is likely to, or probably will, result. 

McLaughlin, 56 N.J. at 305. Because risks that are recklessly 

incurred are not considered unforeseen perils or accidents in the 

eyes of the law, actions taken with reckless disregard for the 

consequences also may be wanton or willful. Ibid.; Egan v. Erie

R.R. Co., 29 N.J. 243, 254-55 (1959). As long as the act or 

omission that causes injury is done intentionally, whether the 

actor actually recognizes the highly dangerous character of his 

or her conduct is irrelevant. See McLaughlin, 56 N.J. at 305. 

"Knowledge will be imputed to the actor." G.S., 157 N.J. at 178. 

We reject defendants' arguments that they lack sufficient 

mental capacity to understand failing to educate K.H. and S.H. 

posed a serious risk to their well-being. The record reflects 

both parents expressed awareness that their children were required 

to attend school, as evidenced by their conversations with school 
12 A-3440-16T3

officials, DuBois, and Dr. Winston. Further, defendants did not 

present any evidence at the hearing that they lacked the capacity 

to understand their educational responsibility to their children. 

See G.S., 157 N.J. at 177 (recognizing "Title 9's primary concern

is the protection of children, not the culpability of parental 

conduct").

B.

We next address defendants' claims that their respective 

attorneys were ineffective primarily for failing to present 

evidence that they lacked the mental capacity to understand they 

exposed their children to harm. "[A] defendant has a right to 

[the effective assistance of] counsel when a complaint is filed 

against him or her charging abuse and neglect and threatening the 

individual's parental rights." N.J. Div. of Youth & Family Servs. 

v. B.H., 391 N.J. Super. 322, 345 (App. Div. 2007) (citing N.J.S.A. 

9:6-8.43(a)). In determining whether that right has been violated, 

we apply the test "as set forth . . . in Strickland [v. Washington, 

466 U.S. 668 (1984)]." Id. at 346; see N.J. Div. of Youth & Family 

Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the 

Strickland test in parental termination cases). Specifically, 

"(1) counsel's performance must be objectively deficient i.e., it 

must fall outside the broad range of professionally acceptable 
13 A-3440-16T3

performance; and (2) counsel's deficient performance must 

prejudice the defense i.e., there must be 'a reasonable probability 

that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different.'" B.R., 192 N.J. at 307 

(quoting Strickland, 466 U.S. at 694).

To establish the elements of an ineffective-assistance-ofcounsel claim,

appellate counsel must provide a detailed 

exposition of how the trial lawyer fell short 

and a statement regarding why the result would 

have been different had the lawyer's 

performance not been deficient. That will 

include the requirement of an evidentiary 

proffer in appropriate cases. For example, 

if the failure to produce expert or lay 

witnesses is claimed, appellant will be 

required to supply certifications from such 

witnesses regarding the substance of the 

omitted evidence along with arguments 

regarding its relevance.

[Id. at 311.]

Here, defendants failed to furnish certifications from any 

expert regarding their respective mental conditions. Thus, 

defendants have failed to establish the elements of an ineffectiveassistance-of-counsel claim. See N.J. Div. of Youth & Family 

Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010)

(rejecting the defendant's ineffective-assistance-of-counsel 

claim in part because he "fail[ed] to provide certifications 
14 A-3440-16T3

. . . relating the substance of the omitted testimony" from the 

expert witnesses his trial counsel never procured). Defendants' 

remaining ineffective-assistance-of-counsel arguments lack 

sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

Affirmed.