Opinion
DOCKET NO. A-6152-10T4
06-26-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.S., Defendant-Appellant. IN THE MATTER OF A.L., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Colleen A. McCarthy, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.L. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-0173-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Colleen A. McCarthy, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.L. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.S. appeals from a Family Part order dated July 13, 2011, finding that she abused or neglected her month-old baby, A.L., "by occupying a home that contained drugs, [and] drug paraphernalia [and] that was ultimately raided by police." We reverse.
I
The record can be summarized as follows. At the time she gave birth to A.L., S.S. was nineteen years old. She had been involved in a relationship with the child's father, D.L., since she was fourteen. At the time the child was born, S.S was living with D.L. While her mother disapproved of their relationship, she also expected S.S. to live with D.L. and make a home with him, because S.S. was pregnant with his child and the mother thought the two of them should live independently as "a family." There was evidence, however, that D.L. was abusive to S.S. and she was afraid that "he would get enraged and throw her through a window" if she tried to leave him.
When the child was born, the Division of Youth and Family Services (DYFS or Division) was called to the hospital because of the couple's reported history of domestic violence, including an incident in which a social worker at the prenatal clinic reported seeing D.L. hitting S.S. in the head during a prenatal visit. During a home assessment, on November 10, 2010, the assigned DYFS caseworker observed that the couple's apartment was clean and neat, and the baby was healthy, well-cared for, and appeared "to be bonded" with S.S. On that date, S.S. privately told the worker that she was planning to leave D.L. and move in with a relative but was afraid to tell him her plans. The worker recommended that the agency close its case because there were "no current events of domestic violence" and the child was healthy.
However, on the evening of November 18, 2010, the local police raided the parents' apartment due to reports that D.L. was "a known drug dealer." He and A.G., another individual who was staying at the apartment, were arrested after the police thoroughly searched the premises and found drugs. During the arrest, A.G. told the police that the drugs were his, although he apparently changed his story later on. The police did not arrest S.S., because she was not a target of their investigation and there was no evidence that she was involved in drug dealing.
At the fact finding hearing, Detective Jaremczak testified that when the police entered the apartment by breaking down the door, S.S. walked out of a bedroom holding the unharmed baby in her arms. While there was a smell of burnt marijuana in the living room, Det. Jaremczak testified that there was no smell of marijuana in the bedroom from which S.S. had emerged. The police told S.S. to stay in the living room with the baby while they searched the apartment.
The record supports the conclusion that during the search, the police essentially tore the place apart. They found drugs in various locations, including on top of a dresser in the bedroom. In a closet they also found an Airsoft pistol, which the police report referred to as a "fake gun."
There was no testimony further explaining this alleged weapon, although its existence seemed to take on an exaggerated significance in the judge's eventual decision. The police report referred to the Airsoft pistol as a "fake replica gun." Although we do not ordinarily consult the internet, because internet information is not part of the appellate record, we have taken that step here solely to confirm what appears evident from the police report. An Airsoft gun is a plastic replica that fires plastic pellets. It is not a "weapon" and there is no evidence on this record that D.L. ever used or attempted to use it for any illegal purpose. The Airsoft pistol was not introduced in evidence, nor were photographs that the police found in the apartment allegedly showing D.L. and S.S. making gang signs.
After the police called DYFS to report the raid, the DYFS worker who arrived on the scene found the baby's crib overturned and the rest of the apartment in a chaotic state. Although the baby was in good health, S.S. was barely able to find formula for him in the wrecked apartment. S.S. did not appear to be under the influence of any drugs. However, the DYFS worker testified that when she entered the apartment there was a strong smell of marijuana, and she believed the smell extended to the bedroom. The apartment appeared to be in such disarray that she did not believe it was safe to leave S.S. and the baby there. She also did not know precisely what S.S.'s involvement might have been in the drug activity. Although the baby was physically unharmed and appeared bonded with S.S., the worker decided to remove the baby on an emergent basis, reasoning that S.S. "placed [the] child at enormous risk" because the child was "exposed to drugs and marijuana smell." The child was placed in a foster home.
At a hearing on December 7, 2010, the DYFS attorney reported to the court that on November 23, 2010, S.S. had undergone a drug test, which was negative. The child had been placed with a paternal aunt. S.S. was "doing everything that she need[ed] to do" and was about to begin unsupervised visitation with the baby. By the next hearing, on February 23, 2011, S.S. was living with her mother and stepfather. She was compliant with all of the services DYFS had provided, including individual counseling. DYFS had "no concerns" about the baby living with S.S. in her mother's home, and recommended "that the child be reunified with" S.S. The Law Guardian agreed, reporting to the judge that both parents were "visiting [the baby] three or four times per week, plus weekends, really caring for the child."
Accordingly, the judge ordered that "legal and physical custody" of the child be returned to S.S. "today." However, the case was to be kept "open for services." When the judge inquired whether the case could be dismissed "at the next court date," the DYFS attorney responded that a fact finding hearing was still required, after which "we can then recommend dismissal" if "everything's sufficient at that point."
The fact finding hearing was held on April 19 and July 13, 2011. The testimony was consistent with the facts recited earlier in this opinion. Following the hearing, the DYFS attorney urged the court to make a finding of abuse and neglect, and the Law Guardian agreed with that position. In an oral opinion placed on the record on July 13, 2011, the trial judge recited the drugs that were found in the apartment and the "airsoft pistol," noting "that . . . it's important as to what the search warrant yielded." The judge acknowledged that the police found S.S. quietly holding the baby and had no evidence that she was involved in drug activity. However, the judge found that S.S. and D.L. were not truthful with the police in denying that anyone had smoked marijuana in the apartment. The judge concluded that "both mom and dad's actions constitute neglect." She found that because there were drugs in several places in the house, S.S. must have known that drugs were being used and "possibly being sold from the house" and "the environment of this house is clearly one that a child should not be in." Without explaining the nature of the risk, the judge concluded that "by having a home that had all of these items in the home as they were taken . . . in the search warrant" the parents failed to exercise "a minimum degree of care" and placed the child at risk of harm. She therefore entered an order finding abuse or neglect on the part of both parents.
However, because the child was thriving in his mother's care, according to DYFS and the Law Guardian, and D.L., who was still having issues with drug use, consented "to legal and physical custody going to the mother," the underlying Title Nine complaint was dismissed without the need for a dispositional hearing.
II
In pertinent part, N.J.S.A. 9:6-8.21(c)(4), defines an abused or neglected child as:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired as the result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . ."[T]he phrase 'minimum degree of care' refers to conduct" by a parent "that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999); N.J. Div. Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). Moreover, as the Court recognized in T.B., the purpose of Title Nine is to protect children "who have had serious injury inflicted upon them." Id. at 303 (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011)).
shelter. . . , or (b) in providing the child with proper supervision . . . by unreasonably . . . allowing to be inflicted harm, or substantial risk thereof.
[N.J.S.A. 9:6-8.21(c)(4)(a), (b).]
Whether a child will face danger in the future may be inferred from the parent's past conduct.
[The] focus on the parent's level of culpability in assessing a "minimum degree of care" language is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.
[T.B., supra, 207 N.J. at 307.]
In a Title Nine action, to establish that a child is abused or neglected, DYFS must prove its charge "by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (citing N.J.S.A. 9:6-8.44). In entering an order finding abuse and neglect, the trial court "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and "all documentary exhibits considered by the court must be clearly identified for appellate review." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) .
Our review of the trial court's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413. Unless the court's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted).
On this appeal, S.S. contends that the finding of abuse and neglect is not supported by sufficient credible evidence. Departing from the position it espoused before the trial court, the Law Guardian also contends that the court's finding is legally unsustainable. Based on our review of the record, we conclude that, even applying our usual deferential standard, the trial court's decision here is not supported by specific factual findings or by sufficient underlying evidence of abuse or neglect. As applied to S.S., the trial court's decision is "so wide of the mark" that we must set it aside. Ibid.
We do not address the finding of abuse and neglect against D.L., who has not filed an appeal from that order.
--------
As in New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), the record strongly supports a conclusion that the nineteen-year-old S.S. was the victim of domestic violence. She exercised poor judgment, and perhaps yielded to intimidation, in staying in a relationship with an abusive partner who was probably engaged in illegal activity. However, this record simply does not support a finding that she engaged in child abuse or neglect, or that it was necessary to label her as a child abuser in order to ensure her child's, or any other child's, future protection. Id. at 27-28.
On this record, there was no proof of any actual harm to the child. There was no legally competent evidence, or even any attempt at an explanation, as to the potential effects of second-hand marijuana smoke on the baby. Id. at 28 ("[H]arm cannot be presumed in the absence of evidence of its existence or potential.") The detective who testified at the hearing confirmed that there was no smell of marijuana in the bedroom from which S.S. emerged with the baby. There was no proof that S.S. used drugs on November 18, 2010, or that she ever used drugs. There was no evidence that the one-month-old baby could possible reach or ingest any of the drugs that were in the apartment. Although the apartment was in chaos when the DYFS worker arrived, there was no evidence that S.S. was responsible for its condition, other than by virtue of living with someone who was a suspected drug dealer and whose suspected activities had motivated the police to tear the premises apart during a search. The police confirmed that S.S. was not arrested because she was not suspected of any illegal activity.
Further, by the time of the fact finding hearing, physical and legal custody of the child had already been returned to S.S. She had complied with all of the services DYFS had provided to her, had broken off her relationship with D.L., and was living with her family. She was also planning to move to Florida to live with her father, a plan to which DYFS expressed no objection. DYFS presented no evidence of any likelihood that the events that caused the child to be taken from S.S. in the first place were likely to recur. S.S., supra, 372 N.J. Super. at 24 ("We see no reason, when judging the likelihood of future harm, that the court focus solely on events at the time of the removal if causes for concern have been significantly alleviated.") Moreover, the judge did not make the specific factual findings needed to support a determination of abuse or neglect.
We cannot second-guess the November 18, 2010 decision of the DYFS worker to remove the child on an emergency basis from the chaos in which she found him. See P.W.R., supra, 205 N.J. at 39-40. On the other hand, once the smoke cleared, so to speak, the Division's subsequent prosecution of S.S. for child abuse and neglect appeared unwarranted. If the DYFS complaint was a "wake up call" for S.S., about the need to break away from D.L. and make a new life for herself, it was effective. Months before the fact finding hearing commenced in April 2011, DYFS recognized that S.S. was a fit and loving parent and consented to return the child to her physical and legal custody. Yet the agency insisted on proceeding with the fact finding hearing, although the judge suggested that the case might simply be dismissed.
As we recently held in New Jersey Division of Youth and Family Services v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011), while we do not condone parents' illegal drug use, a parent's use of drugs, by itself, will not necessarily support a finding of abuse and neglect. Moreover, the purpose of a fact finding hearing is not to assign moral blame to the parent, but to determine whether the child has been actually injured or placed emotionally or physically at risk in some significant way, such that the court's intervention is required:
The purpose of a fact-finding hearing in an abuse or neglect proceeding is not to assign guilt to a defendant, but to determine whether a child is an abused or neglected child pursuant to N.J.S.A. 9:6-8.44. Under the statutory framework, "the safety of the child shall be of paramount concern." At the hearing, the State must prove by a preponderance of the evidence that there has been an act of abuse or neglect committed by the parent . . . "If facts sufficient to sustain the complaint under [Title 9] are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal." N.J.S.A. 9:6-8.50(c).
[Id. at 328 (citations omitted).]
The Division's case at the fact finding hearing was largely based on innuendo and hearsay, as opposed to legally competent evidence of abuse or neglect. The trial judge's decision was no doubt made more difficult because the Law Guardian sided with DYFS, a position it later abandoned on appeal. The resulting finding of child neglect was not supported by sufficient credible evidence, and must be reversed. Accordingly, if S.S.'s name has been placed on the Central Registry, it shall be removed forthwith.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION