Opinion
DOCKET NO. A-4379-13T4
10-26-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.B., Defendant-Appellant. IN THE MATTER OF C.F., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora D. Glick, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-300-13. Joseph E. Krakora, Public Defender, attorney for appellant (Lora D. Glick, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel Devlin, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant-mother, A.B., appeals from a Family Part order, entered following a fact-finding hearing, which determined she had abused or neglected her then twenty-month-old son, C.F., pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). On appeal, defendant argues that the court erred in finding abuse or neglect as this was not supported by the record. The Division of Child Protection and Permanency (Division) argues the finding was proper as it met the burden of proof with the Law Guardian joining in this argument. For the reasons that follow, we reverse the trial court's determination.
We use initials to protect the confidentiality of the parties.
The father of C.F. was incarcerated at the time of the event. He was named a defendant in the litigation, but the Division did not seek a finding of abuse or neglect against him.
I.
The record establishes the following facts and procedural history. The Division received a referral on October 5, 2012, after Gloucester Township police responded to a domestic violence complaint at defendant's apartment. Defendant and her son lived with a female roommate, M.C., M.C.'s boyfriend, J.H., and their son. It was reported that defendant and M.C. had an altercation. According to the police incident report, when they arrived, defendant was in front of the house with a bloody, swollen face and holding her son. When police questioned J.H., he said he was asleep during the incident and they noted he seemed to appear under the influence of an unknown substance. The police investigated the dispute, and a glass pipe was found on the floor of defendant's bedroom with a corresponding burn mark in the carpet. Defendant denied ownership of the pipe. Police took both women into custody, charging M.C. with simple assault and harassment, and defendant with possession of drug paraphernalia. Police contacted the Division because the children were present during the incident and the "poor condition of the home."
A Division intake worker responded to the home later that day, where she spoke with C.F.'s paternal grandmother, A.F. The worker observed the living room to be fairly clean and two twin beds in defendant's bedroom, one for her and one for her son. A.F. indicated that there was always ample food in the apartment and that she comes to the house every other day and takes C.F. to the park. The worker observed that C.F. was dressed in clean and well-fitting clothing and was average size for his age.
A.F. told the worker that defendant believed M.C. or J.H. had put the glass pipe in defendant's room. She claimed M.C. appeared high when she arrived that morning because she seemed "out of sorts and confused." A.F. told the worker that defendant takes Xanax (alprazolam) for anxiety and goes to a methadone clinic every day except Sunday. She denied defendant ever appearing high in her presence and expressed that she had no concerns with C.F. being alone with defendant, as he is well taken care of.
Defendant underwent a requested urine screening on October 9, 2012. The instant results were positive for cocaine and PCP. The Division then instituted Dodd removal procedures and placed C.F. in a resource home. While removing C.F., the intake worker spoke with defendant. Defendant admitted to using cocaine approximately one week prior, but denied having used PCP. She stated that she was in the car with a friend smoking "wet" (marijuana laced with PCP) and that must have caused the positive result. Defendant denied having a prescription for anxiety medication, but stated she attends Urban Treatment for methadone. She admitted to recently testing positive for cocaine, but her goal was to enter detox and get off methadone completely. She was very upset about the Dodd removal and asked what she could do to have her son returned to her. The worker advised A.B. that she needed to complete a substance abuse evaluation and any treatment and defendant agreed to this service. C.F. was later evaluated by a physician and was found to "have no marks or bruises indicative of abuse" and "appeared to be a well child."
We note that the laboratory screening results used at trial were positive for alprazolam, methadone, and PCP.
A "Dodd removal" is the removal of a child from a home, on an emergent basis and without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 149 n.4 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011)). --------
The Division's order to show cause was heard on October 11, 2012. At that time, defendant completed a urine screen which was positive for PCP. Subsequently, C.F. was placed with his grandmother, A.F.
The fact-finding hearing was conducted on February 28, 2013. The Division rested its case after moving into evidence the following three items: (1) the Division's screening and investigation summary regarding the October 5, 2012 incident (redacted by consent of counsel); (2) defendant's drug screening report dated October 9, 2012; and (3) Gloucester Township police report regarding the October 5, 2012 incident (redacted by consent of counsel). The drug screening revealed that defendant tested positive for alprazolam, methadone, and PCP on October 9, 2012. Defendant did not testify, and neither the Division, the law guardian, nor defendant offered any witness testimony.
The Family Part judge heard the summations of counsel. The Division argued that it had met its evidentiary burden under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to -8.73. Defendant's counsel argued that the Division failed to meet its burden. Counsel noted that the police report indicated defendant was the victim in the domestic dispute incident and she denied possession of the drug paraphernalia. Further, counsel pointed to the grandmother's involvement in caring for C.F. and argued there exists no "nexus between my client's drug use and caring for the child[.]"
The judge found that the Division had met its burden by proving that defendant's drug use resulted in C.F. being an abused or neglected child. He found that:
The factual basis is that we have a situation where [defendant] is the primary caregiver. . . . And [defendant] tested positive for cocaine and PCP in an instant test and then, under P-2, tested positive for Methadone, PCP, and Xanax. . . . So here we have a primary caregiver, [use] of multiple illegal drugs [multiple times] . . . . So, again, we have evidence here where there's a primary [caretaker] — yes, there is another adult in her life, but it's not a situation where she is living in a home with another caregiver, and it's not appropriate to make a reasonable inference
that the child is at risk, because she is at some point under the influence, because of the fact that she is testing positive. . . . [T]he child maybe was not in any risk of harm the days when [A.F.] happened to be there, but other times it is reasonable to infer, based on these drug results, that there are times when the child is at imminent risk of having [his] physical, mental, or emotional condition being impaired due to [defendant's] drug use.
Thereafter, defendant successfully completed inpatient treatment at Straight and Narrow. While there, the Division made numerous positive progress reports to the court and ultimately reunited defendant with her son. The litigation against defendant was terminated by an order entered on April 21, 2014, and this appeal followed.
Defendant contends that there was insufficient evidence showing she was ever impaired while caring for her son, thus the court erroneously concluded that the child was placed at a risk of substantial harm.
II.
On appeal from an order finding abuse or neglect, we must determine whether the trial court's decision was based on evidence supported by the record before the court. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 25—26, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013); see also N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). We should not disturb the trial court's factual findings "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations and internal quotation marks omitted).
Even when a party appealing a decision "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be accorded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations and internal quotation marks omitted). That is because, "by virtue of its specific jurisdiction, the Family Part possess[es] special expertise in the field of domestic relations." N.J. Div. of Youth and Family Services v. R.G., 217 N.J. 527, 553 (2014) (alteration in original) (citation and internal quotation marks omitted). However, when a trial court's determination results from review of documentary evidence, such as the case here, our standard of review is broader than if the court made findings based on testimonial evidence presented in an evidentiary hearing. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009); State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). Likewise, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Title Nine sets forth the controlling standards for adjudicating cases of alleged abuse or neglect. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). Title Nine's main precept is to protect children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). The statute defines an "abused or neglected child" to include a child:
[W]hose 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 . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof. . . .At the statutorily-required fact-finding hearing, the Division bears the burden of proof. N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178-79 (2014). Generally, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and [] only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). However, where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). The Court noted that "we do not require expert testimony in abuse and neglect actions. In many cases, an adequate presentation of actual harm or imminent danger can be made without the use of experts." Id. at 29.
[N.J.S.A. 9:6-8.21(c)(4)(b).]
A "minimum degree of care," as required by the statute, does not refer to merely negligent conduct, but rather "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citation omitted). The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citations omitted).
Whether conduct is merely negligent, as opposed to grossly or wantonly so, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the Division must demonstrate "the probability of present or future harm" to the child, "[a] court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" A.L., supra, 213 N.J. at 23 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
We recognize that "a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." A.L., supra, 213 N.J. at 23. However, "a parent should not exercise visitation, even supervised visitation, while impaired." V.T., supra, 423 N.J. Super. at 331. Moreover, use of drugs while caring for an infant puts the child at greater risk of harm "to the slightest parental misstep." Ibid.
Here, as was found by the Court in A.L., "the records alone did not prove imminent danger or a substantial risk of harm to the . . . child." A.L., supra, 213 N.J. at 9. The Division, therefore, did not meet its burden.
No actual harm to C.F. was present. He was healthy and noted to be a "well child." Although the three documents offered as the Division's sole proofs showed defendant used PCP and cocaine sometime before the urine screen, this evidence did not evince she used the drugs while she was responsible for the care of her child, as the grandmother often cared for him, as well. Because there was no testimony to support the documentary evidence, the reports alone cannot support a conclusion that A.B.'s care of C.F. was grossly or wantonly negligent, made knowing that injury was likely or made with reckless disregard that substantial likelihood of harm would befall the child. No evidence was presented to demonstrate the child's physical, mental, or emotional condition was impaired by his mother's actions. The decision to not offer any witnesses, but to simply rely on the reports, placed the court in the position of having to "read between the lines," which cannot support the basis for a finding of abuse or neglect. Recently, our Supreme Court reaffirmed that a determination of whether a parent's conduct is negligent or grossly negligent "requires an evaluation of the totality of the circumstances. Such an evaluation can only occur through a hearing." Dep't of Children & Families v. E.D.-O., ___ N.J. ___, ___ (2015) (slip op. at 12).
The Division offered no expert or other evidence proving the drugs' impairment effect and the length of time such impairment occurs after use, which could possibly link impairment to a time she was caring for her son. As held in A.L., supra, 213 N.J. at 29, expert testimony is not required to prove harm; however, in this instance, the positive drug screening alone was not adequate proof of imminent harm to C.F. requiring a finding of abuse or neglect. Use of an illegal substance, standing alone, is insufficient to establish abuse or neglect. See A.L., supra, 213 N.J. at 28-29; V.T., supra, 423 N.J. Super. at 331-32.
Further, the Division's investigation summary and the police report contained many contradictory allegations. Fact-finding hearings must also adhere to fundamental rules of evidence and must be conducted with the formality and decorum we expect from any other adjudicative proceeding. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). The procedure employed by the Division, submitting redacted documents in lieu of testimonial evidence, fails to provide the evidential support to allow the judge to resolve disputed issues or make credibility determinations. The court would have benefitted from hearing testimony from any of the parties or witnesses involved to determine the credibility of their statements. Accordingly, the judge's conclusion cannot withstand scrutiny and the underlying evidence is insufficient to show abuse or neglect.
This holding intends to underscore the need for evidence to support a claim of abuse or neglect, as interpreted by the Court in A.L. This includes proof of actual harm or, in the absence of actual harm, "the Division was obligated to present competent evidence adequate to establish [the child was] presently in imminent danger of being impaired physically, mentally or emotionally." N.J. Dep't of Children & Families v. M.C., 435 N.J. Super. 405, 409 (App. Div. 2014) (citations omitted). These essential proofs cannot merely be based on a positive drug screen. Rather, the Division must demonstrate harm or show the likelihood of an imminent substantial risk of harm rising above mere negligence. A.L. supra, 213 N.J. at 28; N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). In sum, given the totality of the circumstances, we conclude the reports alone simply do not support a finding of abuse or neglect, and therefore the order under review must be vacated. Additionally, we direct defendant's name be removed from the Central Registry.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION