Opinion
DOCKET NO. A-5681-13T3
04-12-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.C.-H., Defendant-Appellant. IN THE MATTER OF A.A. AND A.R., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.A. (Annemarie Sedore, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-148-13. Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.A. (Annemarie Sedore, Designated Counsel, on the brief). PER CURIAM
Defendant N.C.-H. (Nancy) appeals from the June 26, 2014 fact-finding order, memorializing the trial judge's determination that she abused and neglected her child on two separate occasions. We conclude from our review of the record that the competent, material and relevant evidence is sufficient to sustain the judge's findings. We affirm.
We use pseudonyms for the purposes of confidentiality and clarity.
I.
The testimony at the fact-finding hearing regarding Nancy and her son A.A. (Alex) revealed the following pertinent facts. On October 6, 2012, the Division of Child Protection and Permanency (Division) received a referral from the police after Nancy reported she had been raped by a former boyfriend, Jake. Although Nancy had broken up with Jake, they were still residing in the same two-bedroom apartment they shared with two other men, as well as two-year old Alex. Nancy invited a friend, Dan, to stay at the apartment to watch Alex, and because she was concerned that Jake would sexually assault her while she was sleeping. After smoking marijuana and drinking alcohol, Nancy went to bed. She was awakened by Dan's shouting and discovered that Jake was having sexual intercourse with her, while Alex was sleeping next to them.
Nancy was aware Dan had a history of substance abuse.
Later that same evening, Nancy admitted to the Division worker that she had consumed alcohol, smoked marijuana, and taken prescribed medication. Although the Division determined Alex was not in imminent danger, they requested that Nancy and Alex stay at her mother's house with supervised contact between Nancy and her son. A safety protection plan was put into place, including the requirement that Nancy attend an appointment with her psychiatrist, Vijaya Peddu, M.D.
Several days later, during a Division investigator's visit, Nancy reported she had not taken her prescribed medication in several days. She was observed to be "very jittery," unable to "sit still" and "walk[ing] around a lot." It was learned that during an appointment with Peddu the day before, Nancy had left prematurely because of a disagreement with the doctor's treatment recommendation. At the investigator's request, Nancy signed an authorization for the release of Peddu's records.
The Division contacted Peddu, requesting information as to Nancy's current state and the doctor's recommendations regarding her ability to parent. Peddu stated she had concerns for Nancy's mental health; she was unstable and should be supervised at all times with her child. The following day, Nancy returned to Peddu's office shouting that she wanted to terminate their relationship.
On October 18, 2012, the Division filed a verified complaint and order to show cause (OTSC) seeking custody, care, and supervision of Alex. After a hearing, the application was granted. The Division was granted legal and physical custody of Alex with Nancy having supervised visitation. The order required that copies of her medical records be provided to the Division.
After Peddu was called to testify as an expert witness and as Nancy's treating physician at the fact-finding hearing, Nancy's counsel objected to the testimony, asserting physician-patient confidentiality. After a review of written submissions on the issue, the judge denied the motion to bar Peddu's testimony, relying on the waiver signed by Nancy and the applicable statute and case law.
During the fact-finding hearing, the judge referred to an order of November 12, 2013 in which she denied the motion, citing to N.J.S.A. 9:6-8.10 and Kinsella v. Kinsella, 150 N.J. 276 (1997). That order is not included in our record. We rely on the judge's reference to it during the May 7, 2014 fact-finding hearing.
Peddu testified that Nancy was her patient from November 2007 until October 2012. Peddu diagnosed Nancy with attention deficit disorder, oppositional defiant disorder, cannabis abuse, and depressive disorder. She initially prescribed medications and recommended individual therapy. Based upon her evaluation of Nancy during a therapy session in October 2012, Peddu had contacted the Division because she was concerned about Nancy's erratic behavior. Nancy was very angry, aggressive, and was talking to herself. Peddu also recommended Nancy be admitted to an in-patient hospital for evaluation. Peddu was unsure if Nancy was under the influence of any substances or suffering from a psychological issue. Peddu further testified that after her encounters with Nancy in October 2012, she did not believe that Nancy could safely parent her child and stated that the child might be at risk.
II.
We next turn to the events of October 19, 2013. Nancy completed a treatment program in Florida in August 2013, returned to New Jersey, and moved into an in-patient treatment facility, Freedom House (FH). In September, custody of Alex was transferred back to Nancy and he joined her at FH. In October, Nancy was discharged from FH after she was found intoxicated with a male guest, while Alex was sleeping in the same room. An emergency removal order placed Alex with a temporary foster parent.
Subsequently, the Division filed an amended verified complaint and OTSC, seeking custody, care, and supervision of Alex, to which Nancy consented.
On June 26, 2014, Judge Ana Viscomi entered an order, accompanied by a letter opinion, determining that Alex was abused and neglected pursuant to N.J.S.A. 9:6-8.21(c). Relying on the testimony of witnesses and the documentary evidence, the judge concluded that Nancy had abused substances on both occasions "rendering her unable to care for her special needs son, thereby placing him at substantial risk of imminent harm." In "overwhelmingly find[ing]" that Alex "ha[d] been abused or neglected by his mother," the judge concluded:
The caseworker testified at the hearing that Alex was a special needs child and in need of constant attention.
There is a continued substantial risk of imminent harm to [Alex] if he is reunited with his mother. The hour-long three visits she has with her son, even if [Nancy] behaved appropriately, are not an adequate barometer of what the future holds based upon [her] past consistent conduct.
III.
On appeal, Nancy argues that the judge erred (1) by permitting Nancy's treating psychiatrist to release her treatment records and allowing her to testify at the fact-finding hearing; and (2) in finding that Alex was an abused or neglected child.
The scope of our review of a trial judge's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Particular deference should be given to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. 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 the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 2 33 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). In using that standard, we find no basis to disturb the trial judge's conclusion that Alex was abused and neglected, as defined in N.J.S.A. 9:6-8.21(c).
We first address Nancy's contention that the evidence was insufficient to establish, by a preponderance of the evidence, that she abused and neglected her child. "In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
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 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 . . . or by any other acts of a similarly serious nature requiring the aid of the court.
[N. J.S.A. 9:6-8.21(c)(4).]
In deciding a case of abuse or neglect, the judge should base her 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). "One act may be substantial or the sum of many acts may be substantial." Id. at 330 (citation omitted).
Here, the trial judge properly relied on the totality of the circumstances to determine that the Division had met its burden. The judge noted Nancy's history of substance abuse and detailed the events of October 2012, in which she was living with a man she suspected of sexually assaulting her, drank alcohol and smoked marijuana to the extent of being unaware that she was being sexually molested with her son sleeping next to her. A year later, while residing in an in-patient treatment facility, Nancy became intoxicated and invited a male guest to her room knowing there was a zero tolerance policy against the use of alcohol. Again, her child was sleeping in the room as these events unfolded. Her discharge from the facility rendered her homeless. The judge's finding that Nancy's conduct created a substantial risk of imminent harm to Alex is supported by the evidence.
We find Nancy's argument that the psychiatrist should not have released her records nor provided testimony to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nancy executed a release for the records permitting their disclosure to the Division. Peddu only answered the Division's questions and provided information after receiving the release. When Nancy revoked her consent the following day, Peddu provided no further records or information. Her testimony at the fact-finding hearing related to her diagnoses of Nancy during her treatment and her behavior on the last day of treatment. In addition, Peddu's observations of Nancy at the time of their last visit caused her concern that Alex was at risk due to Nancy's erratic behavior. As a result, Peddu was required to report her reasonable beliefs to the Division under N.J.S.A. 9:6-8.10.
N.J.S.A. 9:6-8.10 states in pertinent part: "Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Child Protection and Permanency by telephone or otherwise." --------
Based on our review of the record and the applicable legal standards, we conclude the evidence presented during the fact-finding hearing is sufficient to support the determination that Nancy abused or neglected her child and we therefore affirm the trial judge's order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION