Opinion
DOCKET NO. A-2435-13T4
04-21-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.C., Defendant-Appellant. IN THE MATTER OF I.M., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ioannis S. Athanasopoulos, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan Villa, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.M. (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-323-13. Joseph E. Krakora, Public Defender, attorney for appellant (Ioannis S. Athanasopoulos, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan Villa, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.M. (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant appeals from the Family Part's September 24, 2013 order, following a fact-finding hearing, determining that defendant abused or neglected her six-month-old daughter by being "unresponsive and fail[ing] to provide proper supervision while she was the sole caretaker in the home for her child, [Irene], thus placing her child at substantial risk of harm." Defendant challenges the trial judge's finding that this conduct constituted abuse or neglect under N.J.S.A. 9:6-8.21(c)(4). The Law Guardian supports the judge's finding that the Division of Child Protection and Permanency (the Division) met its burden of proving abuse or neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by Judge Lois Lipton in her oral opinion of September 24, 2013.
A fictional name has been used to protect the privacy of the child.
On March 9, 2013, Officer Jackson was dispatched to defendant's apartment to investigate a complaint that a child inside the residence had been crying for two hours. When the officer arrived in the hallway outside defendant's door at approximately 2:00 a.m., he could hear a baby crying inside the apartment. Officer Jackson and his partner "knocked repeatedly" on defendant's door "and announced [themselves] as police very loudly[,] but there was no response." The baby continued to cry and the officers "tried to alert the individuals in the apartment . . . multiple times over several minutes." However, no one answered the door.
Officer Jackson then contacted the emergency services unit (ESU) to assist the officers in gaining entry to the apartment. The ESU officers used "special equipment that . . . wedge[d] the door open and [broke] the lock." There was "a loud sound when the lock [broke]." It was now approximately 2:30 a.m., and there was still no response from anyone in the apartment.
Officer Jackson entered the residence and saw defendant "laying on the couch and the baby was on the floor in front of her crying." The officer stated that defendant "was asleep, fast asleep." Defendant was not fully clothed and the officer observed that "[s]he had urinated on herself." Except for defendant and Irene, no one else was in the apartment.
For the next ten minutes, Officer Jackson "tried to wake [defendant] up" by "[y]elling and you know nudging her, pushing her shoulder." When she finally "gain[ed] consciousness[,]" the officer noted that defendant had "[s]lurred speech." Defendant told the officer "she had been drinking . . . ." Officer Jackson then called for "medical personnel" to come to the apartment and he also reported the incident to the Division.
When the Division caseworker arrived at the apartment at approximately 4:20 a.m., an ambulance was there to transport defendant to the hospital. Defendant had arranged for Irene's grandmother to care for Irene, who did not appear to be injured. The caseworker saw "empty beer bottles in the garbage and there were unopened bottles in the refrigerator."
About an hour later, the caseworker went to the hospital. The caseworker was present while a doctor spoke to defendant. While defendant "was cooperative with the doctor[,]" the caseworker observed that defendant's responses were "[n]ot coherent[] . . . ." The caseworker testified that defendant "tested positive for alcohol and marijuana" at the hospital.
After the doctor completed his examination, defendant told the caseworker "that when she left work . . . earlier that day, she went to a bar and had a beer with friends." When defendant went home, Irene's father was in the apartment with the child, but he later left and did not return. Defendant stated "that she had fallen asleep. When she had fallen asleep, the baby was on the floor playing." Defendant "denied that the baby was crying" and did not "know why the police came into the home." Contrary to Officer Jackson's observations, defendant also told the caseworker that "she thinks she urinated on herself because she was nervous when she woke up and there were strangers in her home."
Defendant did not testify at the fact-finding hearing and called no witnesses on her behalf.
Based on these facts, Judge Lipton rendered a detailed oral opinion, finding that the Division had established by a preponderance of the evidence that defendant abused or neglected her infant daughter by leaving the child "absolutely unsupervised" for at least two-and-one-half hours. After specifically finding that both Officer Jackson and the Division caseworker were credible, the judge remarked that, because of defendant's condition, "[t]here might as well have been nobody there" to supervise the baby. Defendant's admitted consumption of alcohol, the fact that she tested positive for marijuana, and the inability of the police to rouse her even after the ESU forced open the apartment door, plainly demonstrated that defendant left the child "totally unsupervised" and "at substantial risk of harm . . . ."
The matter was then transferred to a different judge, who, on December 11, 2013, returned joint legal and physical custody of Irene to defendant and Irene's father, and terminated the litigation. This appeal followed.
On appeal, defendant challenges the judge's finding that she abused or neglected Irene. She asserts she was merely in a "deep sleep" and that "there was insufficient evidence to establish that [her] sleep impaired her to the point of presenting a risk of harm to the child." We disagree.
Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial 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 if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "It is not our place to second-guess 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).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as:
a child 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 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").
In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.
Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the trial judge's finding that defendant abused or neglected her six-month-old child by rendering herself completely unable to supervise the infant for an extended period of time. Officer Jackson testified that he attempted to gain entrance to defendant's apartment by banging on the door and shouting for approximately thirty minutes until the ESU arrived. Once the emergency personnel loudly forced open the door, Officer Jackson saw defendant lying on the couch in her own urine. He attempted to rouse her for the next ten minutes before she gained consciousness. During that time, the child was "absolutely unsupervised" and could not have protected herself in the event of any number of negative events that could have occurred.
Defendant's contention that she was merely in a deep sleep rather than impaired is belied by the credible evidence in the record. The officer testified that defendant's speech was slurred. The caseworker saw empty beer bottles in the apartment and noted that defendant was not speaking coherently at the hospital. Defendant admitted to both the officer and the caseworker that she drank beer earlier in the evening, and defendant tested positive for alcohol and marijuana at the hospital.
Under the totality of these circumstances, we discern no basis for disturbing the trial judge's determination that defendant's reckless disregard for the baby's safety placed Irene at risk of serious harm and constituted abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION