Opinion
DOCKET NO. A-3003-12T1
04-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.T., Defendant-Appellant, and S.D., Defendant. IN THE MATTER OF L.D. and W.D., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, L.D. and W.D. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0074-12. Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, L.D. and W.D. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant H.T. appeals the Family Part's January 8, 2013 order finding that she had abused or neglected her children L.D. and W.D. by providing inadequate supervision. We affirm in part and reverse in part.
Defendant S.D. was named for dispositional purposes only and did not participate in the Title 9 hearings or in this appeal.
I.
The facts giving rise to the litigation are set forth in the Family Part judge's Rule 2:5-1(b) statement, dated March 19, 2013, which amplified his oral decision of January 8, 2013. The Division of Child Protection and Permanency (Division) initiated this litigation by order to show cause and verified complaint on October 20, 2011, against defendant and S.D., the biological parents of L.D., born in April 2010, and W.D., born in March 2008. On that date, the Family Part granted the Division custody because of concerns regarding defendant's prescription drug use, and the presence of prescription drugs within reach of the minors.
The court held a fact-finding hearing on August 10, September 13, and October 24, 2012. The Division introduced the screening summaries and medical records. Caseworker Christina Manley testified on behalf of the Division. The maternal grandmother (M.T.) testified on behalf of defendant.
Manley testified that on October 18, 2011, the Division received a referral and she responded to Cooper Hospital to speak with defendant regarding the infant L.D. According to Manley, defendant reported that approximately one week earlier, she had been in an argument with her boyfriend in the bedroom of her parents' home where she resided with her children. During the argument he took a handful of Clonidine pills that had been prescribed to her and placed them in his mouth while threatening to commit suicide. Her boyfriend then spit the pills out into the trash can. Shortly after this occurred, she and the children, as well as her boyfriend, left her parents' house. Defendant and the children went to stay with her aunt in Philadelphia.
The medical records reflect that defendant was prescribed Clonidine for high blood pressure.
Defendant and the children returned to her parents' home on October 17, 2011, around 11 p.m., for an 8 a.m. doctor's appointment the next morning. Defendant shared a bed with L.D. that night. L.D. awoke before defendant on October 18. As defendant was getting ready for her appointment, she noticed that L.D. was "sleeping a lot" but thought it was because she was coming down with a cold. Defendant took both children to her doctor's appointment. When defendant returned, she noticed that a candy wrapper that was previously in the trash was on the floor and she found Clonidine pills in the blanket on the bed in which she and L.D. had slept the previous night. At that point, defendant believed that L.D. had been sleeping so much because she had taken the Clonidine pills out of the trash and eaten them. Defendant told Manley that L.D. often went through the garbage searching for something to eat. This was confirmed by the maternal grandfather.
The medical records reflect that defendant was prescribed Clonidine for high blood pressure. Defendant disclosed that she had been taking Percocet pain medication for five years but took more than the prescribed dosage every day. Manley testified that defendant informed her that she was prescribed Clonidine to help her withdraw from Percocet. At the Division's request, defendant agreed to undergo substance abuse evaluation.
M.T. testified that she did not go into defendant's bedroom during the time she was gone. On the night defendant returned, she went into the room to help defendant get settled in with the children. She said the room was messy. She was "trying to make sure everything that [L.D.] could possibly get into was out of the way." She "pick[ed] up anything that [L.D.] shouldn't . . . get." When asked where she looked to pick up the items, she said "Just on the ground, you know. Anything that was laying on the floor." M.T. did not know the boyfriend had spit out the pills a week earlier, and she did not notice the pills in the trash can. M.T. testified that defendant kept the Percocet pills in the top drawer bureau where L.D. could not get to them.
The next morning, defendant woke M.T. up when she returned from her appointment. Defendant was concerned because she saw pills on the floor and thought L.D. was so sleepy because she ingested some of the pills. They decided to take L.D. to the hospital. M.T. stated that while they were driving she thought it would be faster to go by ambulance. She flagged down a police officer who called an ambulance, which took them to the hospital.
The hospital records reflect the treating doctor found no Clonidine in L.D.'s urine screen. The records further reveal that L.D. was medically cleared the same day, though she remained for observation overnight.
On January 8, 2013, the court issued an oral decision and amplified its decision in a written statement dated March 19, 2013. In its oral decision, the court concluded:
Given the children's very young age, the accessibility of the pills, the amount of pills contained in the trash can, and . . . everyone's knowledge that [L.D.] often went through the trash, the failure to remove the Clonidine pills from the bedroom trash can exposed the children to a serious risk of harm, and amounts to gros[s] negligence and actually reckless disregard of the fact that . . . everyone knew that the children went through the trash can. And the person who the [c]ourt is concerned about, [defendant], knew it. And that [is] certainly reckless disregard of that.In its amplified opinion, the court added:
The [c]ourt need not wait for the children to be harmed to find that they were exposed to a risk of harm. So the [c]ourt finds that [defendant] failed to exercise a minimum degree of care by failing to properly supervise the children, and makes this finding by a preponderance of the evidence.
The [c]ourt has considered the credible evidence and finds that [W.D.] and [L.D.] are children under the age of eighteen, whose physical, mental or emotional conditions has been impaired or is in imminent danger of being impaired as a result of [defendant's] failure to exercise a minimum degree of care in providing proper supervision.
. . . .
[Defendant's] conduct was grossly negligent because she knew that [L.D.] often
went through the trash and was always trying to find something to eat. Despite having seen [her boyfriend] spit approximately 28 Clonidine pills into the garbage, sleeping with [L.D.] in the same room in which the [trash can] containing the pills was located, and knowing her daughter's tendency to pick through the garbage, [defendant] still did not empty the pills from the [trash can]. This type of conduct recklessly created a serious risk of injury to her children and exposed them to a serious risk of harm. The Court need not wait for the children to be harmed to find that they were exposed to a risk of harm.
Based upon the above, the [c]ourt finds, by a preponderance of the substantial, credible evidence, that [defendant] abused and/or neglected [W.D.] and [L.D.], whose physical, mental or emotional condition was in imminent risk of being impaired, because [defendant] failed to exercise a minimum degree of care when she did not provide them with proper supervision. N.J.S.A. 9:6-8.21(c)(4)(b). [Defendant] failed to properly supervise her children by not removing pills from a [trash can] accessible to them despite knowing that the pills were in the trash and that [L.D.] often went through garbage looking for something to eat.
The court entered an order in which the judge determined "by a preponderance of evidence, that . . . [H.T.], abused or neglected the child(ren) based on the court's findings of fact and conclusions of law pursuant to N.J.S.A. 9:6-8.21(c)." Immediately following the fact-finding hearing decision, the court heard oral argument on the Division's request to dismiss the litigation. The Division explained that defendant had been complying with services and the children were doing well in daycare. The Division sought to have the case remain open sixty to ninety days for defendant to continue to receive services. The Law Guardian joined in the request. The court entered an order terminating the litigation, held the matter open for sixty to ninety days, and ordered the children returned to defendant's custody. This appeal followed.
II.
Appellant raises one argument on appeal:
POINT I THE STATE DID NOT PROVE BY A PREPONDERANCE OF EVIDENCE THAT THE DEFENDANT CREATED A RISK OF HARM TO THE CHILD.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title 9 is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this
legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.
[N. J.S.A. 9:6-8.8(a).]
Title 9 sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The purpose of Title 9 is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when 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 parent . . . 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, . . . or by any other acts of similarly serious nature requiring the aid of the court[.]The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).
[N. J.S.A. 9:6-8.21(c)(4)(b).]
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." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 299-300 (internal quotation marks and citation omitted).
Conduct is considered willful or wanton if it is "done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. 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. Gross negligence requires "an indifference to the consequences," but a parent's actual intent to cause harm is not necessary. Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted); G.S., supra, 157 N.J. at 179.
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, 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, "the court need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
Defendant argues that while her conduct in failing to empty the trash can containing the Clonidine pills may have constituted negligence, it did not constitute gross negligence. She further faults the Family Part judge for failing to articulate findings of fact and conclusions of law regarding abuse and neglect toward her son, W.D.
Our case law informs the discussion of the distinction between gross negligence and ordinary negligence in Title 9 cases. In A.R., for example, we held that a parent's act of placing a child on a bed without guardrails, and then closing the door, which led to the child rolling out of bed onto a radiator causing third-degree burns, constituted gross negligence. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 546 (App. Div. 2011). The court explained that "'an ordinary reasonable person' would understand the perilous situation in which the child was placed, and for that reason, defendant's conduct amounted to gross negligence." Ibid.
However, we explained in J.L. that a mother's act of allowing her young children to walk home, where they locked themselves in, while she remained at the playground, did not rise to the level of gross negligence. N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 169 (App. Div. 2009). There, we explained that the Family Part should focus on the parent's conduct in the context of the seriousness of the danger posed by a situation. Id. at 167. In the same vein, the Court declined to find gross negligence in a mother's mistaken belief that her parents were watching over her four-year-old son, who crossed a busy street to go to a neighbor's house on his own. T.B., supra, 207 N.J. at 310.
Here, it is evident that defendant knew that pills could be harmful to L.D. and that it was important to keep her pills out of L.D.'s reach by storing the Percocet in the bureau drawer. Clearly, defendant knew that L.D. had a habit of rummaging through the trash can to find objects to eat. Defendant does not dispute that prescription medication may be dangerous if swallowed by an infant. E.g., N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 69 (App. Div. 2012) (reversing sua sponte dismissal of Title 9 case and noting that Division made prima facie showing of abuse and neglect in pill-ingestion case). Defendant knew also that her boyfriend spit the pills into the trash can. Her disorderly room was such a concern that M.T. tried to pick up items off the floor that may have caused harm to L.D. Under these circumstances, defendant's failure to empty the trash can created a serious risk of harm to L.D. The facts in the record support an inference that the harm here was likely or probable. See G.S., supra, 157 N.J. at 178.
With respect to defendant's son, we agree with defendant that the trial court did not set forth any basis for a finding of abuse or neglect against W.D. The Supreme Court has cautioned that, in abuse and neglect cases, the Family Part "cannot fill in missing information on their own or take judicial notice of harm." A.L., supra, 213 N.J. at 28. Instead, it must cite to "particularized evidence" because of the "fact-sensitive nature" of these cases. Ibid. (citing N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011)). And while we are mindful that N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child," nothing in the Family Part judge's written or oral decisions suggests a basis for finding that W.D. suffered either abuse or neglect.
The court's reasoning focused exclusively on defendant's knowledge that the trash can contained Clonidine pills and L.D.'s propensity to rummage in the trash can. Nothing in the record suggests that W.D., unlike L.D., habitually went through the trash. In sum, we cannot sustain the judge's finding of abuse or neglect against W.D. on this record. See, e.g., N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616-17 (App. Div.) (sustaining abuse and neglect finding in Title 30 case as to one child, but reversing as to others for lack of evidentiary support), certif. denied, 192 N.J. 68 (2007).
Affirmed in part, reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION