Opinion
DOCKET NO. A-3393-13T4
06-08-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.G., Defendant-Appellant. IN THE MATTER OF D.G., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.G. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0273-13. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.G. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part entered an order dated February 14, 2013 (the February 2013 order), reflecting the judge's conclusion that defendant J.G. had "abused or neglected" her son, D.G. (David). N.J.S.A. 9:6-8.21(c). The order set forth the judge's determination that defendant had "admitted taking heroin prior to the child's birth and the child tested positive for opiates at birth and was diagnosed with narcotic withdrawal syndrome and the child suffered actual harm." Approximately one year later, another Family Part judge entered an order terminating the litigation (the February 2014 order) because the Division of Child Protection and Permanency (the Division) had filed a guardianship complaint seeking to terminate the parental rights of defendant and David's father, L.M.
We have fictionalized the child's name to provide confidentiality.
Defendant now appeals both orders. She contends that the judge erred in finding abuse and neglect because the Division failed to prove David suffered any actual harm, particularly since the Division presented no expert testimony. Defendant also asserts that alternative medical explanations existed for David's condition at birth. Defendant additionally contends that the judge erred by never holding a dispositional hearing and keeping the child in a "foster care" placement "when the paternal grandparents were willing to take custody" of David.
We have considered these arguments. We reverse the February 2013 order and remand the matter for further proceedings consistent with this opinion. Since these appeals were filed, the Title Thirty guardianship proceeding has been completed. We take judicial notice of defendant's voluntary surrender of her parental rights to David during those proceedings. As a result, the second argument raised by defendant and any challenge to the February 2014 order is moot.
On June 24, 2014, the Family Part entered an order under Docket No. FG-04-140-14 accepting defendant's willing and voluntary surrender of her parental rights to David.
I.
Only July 10, 2012, the Division received a referral from a hospital where defendant had just given birth to David. Defendant admitted using heroin the day before, but told Division workers that she had been "clean" for five years prior, had obtained pre-natal care and was taking a drug used to treat opiate addiction pursuant to medical advice and a prescription provided by her doctor. She claimed to have lost her prescribed medication and used heroin the day before to avoid withdrawal symptoms.
At the fact-finding hearing, the Division's investigative summary and David's hospital records were moved into evidence. Defense counsel also read the following factual stipulations:
[Defendant] is treating with Dr. Baruch for substance abuse treatment; . . . [defendant] was prescribed Suboxone by Dr. Baruch; . . . upon finding out that she was pregnant, her medication was then changed to Subutex; . . . [defendant] reported to Dr. Baruch's office that she lost her medication in a taxicab; and . . . [defendant] within the [twenty-four] hours before giving birth to . . . [David] took heroin which [defendant] indicates was to avoid withdrawal.
At an earlier hearing, the judge overruled defendant's objection to the admission of David's hospital records without expert testimony. The records indicated that David's urine screens and a meconium stain revealed the presence of opiates. The records also indicated that David received poor pre-natal care, was born prematurely and suffered from sepsis, respiratory distress and narcotic withdrawal syndrome. David spent nearly three months in the hospital before being discharged to a resource parent. Upon discharge, David carried a diagnosis of "Infant of Maternal Substance Abuse" and "Narcotic Withdrawal Syndrome."
No witness testified at the fact-finding hearing. The Deputy Attorney General representing the Division and David's Law Guardian argued the proofs were sufficient to demonstrate abuse and neglect. Defense counsel stated that there was no dispute "regarding [defendant's] use of the drugs, regarding this child's withdrawal, regarding the child's positive[] [test results]." She argued, "the issue here is whether or not it was [from] the heroin or it was the Suboxone."
Carefully limiting his consideration to the documents in the record and the stipulations entered, the judge concluded that the evidence was sufficient to prove that defendant "failed to exercise a minimum degree of care and inflicted harm or substantial risk of harm on the child under [N.J.S.A. 9:6-8.21(c)(4)]." Distinguishing the facts from those presented in the then recently-issued Supreme Court decision, New Jersey Division of Youth & Family Services v. A.L., 213 N.J. 1 (2013), the judge noted "here[,] there is evidence of harm [to David] in the form of a diagnosis of narcotic withdrawal syndrome." He also noted "[t]here [was] no evidence . . . to indicate that Subutex or Suboxone would cause a positive screen for opiates."
The judge entered the fact-finding order referenced above. Upon termination of the litigation, defendant filed a timely appeal.
II.
Defendant argues that the evidence was insufficient to prove David suffered actual harm as a result of her admitted ingestion of heroin one day before his birth. Her contention is in reality two-fold.
First, citing A.L., supra, defendant argues that despite positive screens for opiates in David's urine and meconium, as well as a diagnosis of narcotic withdrawal syndrome upon discharge, there was insufficient evidence to prove the child actually suffered any harm at all. Second, defendant raises an issue of proximate cause. She contends that without expert testimony, there was no proof that the positive screens and the diagnoses were not the result of her prescribed substance abuse treatment.
The Division and the Law Guardian both contend that the judge's decision was supported by the evidence of defendant's admitted heroin use the day before David's birth and the medical records which demonstrated the child suffered actual harm as a result.
We set some well-known guideposts for consideration of these arguments. "Title 9's purpose is clear: to protect children 'who have had serious injury inflicted upon them' and make sure they are 'immediately safeguarded from further injury and possible death.'" A.L., supra, 213 N.J. at 18 (quoting N.J.S.A. 9:6-8.8(a)). "The focus in abuse and neglect matters, thus, is on promptly protecting a child who has suffered harm or faces imminent danger." Ibid.
Because the abuse and neglect statute, by its terms, does not extend to a fetus, the law's protection is limited to the condition of a child after birth. The behavior of an expectant mother during pregnancy can still be relevant if it relates to a child's suffering or the risk of harm to a child after birth.
[Id. at 22 (citation omitted).]
In this case, we do not apply our extremely deferential standard of review to the findings and conclusions of the Family Part judge. See, e.g., N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) ("[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008))); Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding."). Rather, the facts in this case are undisputed, and the judge's decision was a conclusion of law to which we are not required to defer. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011).
In A.L., supra, 213 N.J. at 9, the Court considered a finding of abuse and neglect where the evidence was limited to the mother's positive test for cocaine upon admission to the hospital and the presence of cocaine metabolites in the baby's meconium at birth. "The baby's health was otherwise normal, and he was discharged from the hospital after two days." Ibid.
Strictly hewing to the language contained in Title Nine, the Court reasoned "the primary question . . . is whether . . . [the] newborn, 'ha[d] been impaired' or was in 'imminent danger of becoming impaired' as a result of his mother's failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a 'substantial risk' of harm to be inflicted." Id. at 22 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). Noting that the Division could meet its burden of proof "in a number of ways," the Court specifically stated "proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Ibid.
Here, defendant conceded that David suffered from narcotic withdrawal syndrome at birth and carried such a diagnosis when discharged from the hospital. In our minds, this is ample proof of actual harm, and we therefore reject defendant's contention that there was insufficient proof of harm for the purposes of Title Nine.
However, since the briefs were filed in this appeal, the Court decided New Jersey Division of Child Protection & Permanency v. Y.N., 220 N.J. 165 (2014). There, the Court reversed our judgment affirming the trial court's finding of abuse and neglect that was premised, in part, upon the defendant's ingestion of methadone and her newborn son's evidence of methadone withdrawal symptoms. Id. at 173, 186. The facts in Y.N. are instructive.
The defendant, who was taking Percocet to ameliorate pain from an earlier accident and had a substantial history of substance abuse and addiction, learned she was pregnant and was advised that if she immediately stopped taking Percocet, her unborn child would be at risk. Id. at 169-70. The defendant enrolled in a methadone maintenance program approximately one month before she gave birth. Id. at 170. Her son was born suffering from methadone withdrawal. Ibid.
The Court noted "[t]he primary issue in this case involves statutory interpretation: whether a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) can be based solely on the harm caused to [the child] by methadone withdrawal -- without regard to whether [the defendant] acted unreasonably or with a minimum degree of care." Id. at 177. "Simply stated, the statute requires more than a mere showing of harm to a child. The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b)." Id. at 181. The Court held "that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure." Id. at 185-86.
Here, the stipulated facts were that defendant was participating in a medically-prescribed substance abuse treatment program during her pregnancy. The record evidence demonstrated that defendant had been in treatment since October 2009, had complied with medical directives during that time and had only one positive urine test in nearly three years of treatment, in April 2011, more than one year prior to David's birth.
Admittedly, defendant used heroin to self-medicate herself the day before David was delivered. However, whether the harm suffered by the child, e.g., narcotic withdrawal syndrome, was caused by defendant's ingestion of heroin, or whether it resulted from defendant's course of treatment, was, in the absence of expert testimony, unresolved. If in fact David's condition more likely resulted from defendant's use of prescribed medications to combat her drug addiction, then, under the reasoning expressed by the Court in Y.N., she should not have been found to have abused or neglected her child.
Citing defendant's failure to produce any evidence, the judge expressed a personal doubt that defendant's use of Suboxone or Subutex could lead to a positive drug screen for opiates in David. But the judge clearly indicated he was not reaching any factual resolution of the issue. We only note that it is the Division that bears the burden of proving by a preponderance of "only competent, material and relevant evidence" abuse or neglect at the fact-finding hearing. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002) (quoting N.J.S.A. 9:6-8.46(b)) (internal quotation marks omitted).
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Because the judge did not have the benefit of the decision and reasoning announced in Y.N., we are compelled to reverse the February 2013 fact-finding order and remand the matter to the Family Part for consideration of the issues we have raised. We leave the conduct of that hearing, including the introduction of additional evidence by the Division and defendant, to the sound discretion of the court. We do not retain jurisdiction.
III.
We briefly address defendant's other argument regarding alleged infirmities at the dispositional hearing. N.J.S.A. 9:6-8.45. As noted, the Family Part dismissed the Title Nine litigation upon the Division's filing of a Title Thirty complaint seeking to terminate defendant's parental rights. We take judicial notice of an order entered by the Family Part in the guardianship litigation reflecting defendant's voluntary surrender of her parental rights to David.
As a result, defendant's arguments regarding the dispositional hearing are moot. See, e.g., N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) ("An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks omitted))), certif. denied, 201 N.J. 153 (2010).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION