Opinion
DOCKET NO. A-0784-13T4
04-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.G., Defendant-Appellant, and E.A., Defendant. IN THE MATTER OF D.G., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.G. (Tracye Wilson Elliot, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-123-12. Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.G. (Tracye Wilson Elliot, Designated Counsel, on the brief). PER CURIAM
On August 14, 2013, a Family Part judge found T.G. (Mary) abused and neglected her infant son D.G. (Tom), born November 21, 2011. The child's father was not involved in the events at issue and did not join in this appeal. For the reasons that follow, we affirm.
I
Plaintiff New Jersey Division of Child Protection and Permanency (Division) had been involved with Mary prior to Tom's birth regarding her older daughter. Because of Mary's ongoing struggles with substance abuse, the daughter's father and Mary's mother share custody of the child.
After a referral regarding Tom, the Division learned that although he had been taken to his newborn seven-day checkup, he missed all his subsequent doctors' appointments until being hospitalized for a lung infection caused by the respiratory syncytial virus (RSV) in early January 2012. Tom was released after four days, and Mary was provided with a visiting nurse, whom she would not allow into the home.
After Tom's discharge from the hospital, Mary did not take him to a doctor for any follow-up visits. The baby was also delayed in his immunizations.
When a Division worker visited the home on February 9, 2012, Mary initially denied missing Tom's medical appointments. She eventually acknowledged that the baby had not been seen by a doctor since his illness, but claimed it was because she had difficulty with transportation. The worker volunteered the Division's assistance.
On February 15, 2012, Mary missed Tom's scheduled pediatric appointment, despite the Division's transportation offer. Once contacted by the Division, Mary rescheduled the check-up for the following day. She arrived half an hour late, and only after the Division worker, whom the doctor's office contacted when Mary again failed to appear, called her to remind her that the baby needed to be seen.
After learning that Mary was charged with possession of drug paraphernalia, N.J.S.A. 2C:36-2, a Division worker again visited her home on February 21, 2012. Coincidentally, at that moment, a family member was in the process of moving Tom to his home. Mary was upset when the worker arrived, insisting that she wanted to keep Tom with her. Accordingly, she agreed to participate in drug and alcohol treatment to address her use of heroin, cocaine, and marijuana.
The charge was dismissed on June 14, 2012, and a plea entered to a lesser offense.
After the Division filed a Title 9 complaint on March 1, 2012, Tom was placed in Mary's aunt's home. Some months later, Tom's daycare provider contacted the Division because Tom would return from weekends with his family with serious diaper rash. The director also reported that Mary did not always come for the baby before the facility closed. On one occasion, when staff from the daycare called Mary regarding her tardiness, her speech was slurred.
When the Division worker confronted Mary about this information, she only admitted to using marijuana on one day before she picked Tom up. Although the Division considered this referral to be "unsubstantiated," it implemented a "safety protection plan" because of concern regarding Tom's welfare. As part of the plan, Mary agreed to re-enroll in drug treatment, but was terminated for noncompliance on January 4, 2013.
The safety protection plan prohibited Mary from driving while Tom was with her and placed the baby in the Division's care and supervision. It was further agreed that visitation would either be supervised by Mary's mother or by another Division approved supervisor.
Mary again entered a drug treatment program from which she was discharged in March 2013. That month, Mary's aunt and mother were granted joint legal custody of Tom on an emergent basis.
Over the course of approximately eighteen months, Mary participated in several drug treatment programs, both in- and out-patient. Despite completing at least one such program, she repeatedly tested positive for drug use. She tested positive for illegal substances even on the day of the fact-finding hearing.
In rendering his decision after the fact-finding hearing, the trial judge stated the following:
In the instant matter, when [Tom] was three months old and after suffering from RSV requiring hospitalization, [Mary] failed to take him to scheduled follow-up doctor's appointments and well-baby check-ups with their associated vaccinations. [The Division worker] testified that [Mary] explained her failure to take [Tom] to the doctor was due to a lack of transportation. . . . On February 15, 2012, [Mary] missed an appointment to make up another missed appointment; the February 15, 2012 appointment was rescheduled to February 16, 2012. . . . On February 16, 2012, [Mary] arrived approximately 30 minutes late for the appointment because she did not have a ride for the 10:30 a.m. appointment. . . . [Mary] knew or should have known of the importance of follow-up appointments after [Tom's] hospitalization, as well as the importance of a newborn's receiving the appropriate vaccinations. Furthermore, [the
Division worker] testified that the home smelled of smoke, and [Mary] was informed that secondhand smoke is dangerous to babies, especially those recovering from respiratory infections.
[Mary] has abused illegal substances since [Tom] was born, continuing to use same despite being referred to and enrolled in various levels of treatment. Her drug use has caused her to disregard [Tom's] needs, forgetting to pick him up from daycare and failing to address his diaper rash. In fact, her drug abuse continued even up to June 17, 2013 when she tested positive in [c]ourt during the fact-finding hearing.
By way of error, Mary asserts the following point:
I. THE TRIAL COURT'S DECISION MUST BE OVERTURNED BECAUSE [TOM] WAS NOT IN [MARY'S] CARE DURING HER SUBSTANCE USE AND WAS NEVER HARMED BY ANY MISSED PEDIATRICIAN APPOINTMENTS.
II
The scope of 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). Such findings should 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)) (internal quotation marks omitted); 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)).
Moreover, 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). Nonetheless, 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, supra, 233 N.J. Super. at 69). The trial judge's legal conclusions, and the application of those conclusions to the facts, however, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
As defined in Title 9, an "abused or neglected child" is 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, as herein defined, 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[.]The safety of children is of paramount concern, N.J.S.A. 9:6-8.22, and the standard of proof is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.21(c)(4).]
A parent's "failure to exercise a minimum degree of care . . . refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). "Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes." Id. at 179. Therefore, under a gross or wanton negligence standard, a party becomes "liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Ibid.
Courts "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). When there is an absence of actual harm, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013).
On appeal, Mary contends that the trial judge erred by including information regarding an "unfounded" referral in his decision. On this point we agree. See N.J.A.C. 10:129-7.3(c)(4). Once an allegation has been categorized as unfounded, "[t]hat should . . . put the matter to rest." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 & n.15 (2011); In re A.I., 393 N.J. Super. 114, 124 n.3 (App. Div. 2007).
But the judge's decision, while referencing the unsubstantiated referral, was premised upon his finding that Mary's ongoing drug use exposed her child to risk. This finding was based on substantial credible evidence in the record. The judge further found that the missed pediatric appointments also placed the child at risk of harm, a determination clearly based on substantial credible evidence in the record.
Additionally, Mary contends that her substance abuse should not have factored into the trial judge's decision as the Division did not prove the child was ever in her care when she was under the influence, and drug addiction alone 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).
We agree that when considering Mary's drug use, "[t]he 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 even exercise visitation while impaired. V.T., supra, 423 N.J. Super. at 331. The use of drugs while caring for an infant, as opposed to an older child, puts the infant at great risk of harm "to the slightest parental misstep." Ibid. The Division need not wait for harm to occur, A.L., supra, 213 N.J. at 23, however, the record must include competent evidence that Mary's drug use either harmed the child or subjected him to a substantial risk of harm. See G.S., supra, 157 N.J. at 178.
Unlike V.T., in this case, Mary was doing more than just visiting her child, while impaired, in a supervised setting. For months, she had sole custody of Tom while continuing to suffer from active drug addiction. The record includes numerous positive drug screens obtained during that period of time. Mary actually admitted to using drugs on multiple occasions in February 2011 when she alone had custody of the baby. It is undisputed that the Division funded several drug programs in which Mary participated to no avail.
The differences between the situation in V.T. and Mary's life are very significant. Her drug use continued unabated after Tom's birth up until the day of the fact-finding hearing. The problem was not that she visited Tom while under the influence. The problem was that she continued her "persistent drug abuse" while caring for her infant. Thus the judge properly evaluated the underlying facts and the implications to be drawn therefrom on the issue of Mary's substance abuse.
Tom was hospitalized when two months old with a significant lung infection. After several days of hospitalization, Mary failed to take Tom to his scheduled follow-up doctors' visits and well-baby checkups "with their associated vaccinations." Mary took Tom to the doctor only after the Division worker visited and called her. We therefore agree with the Family Part judge that Mary's failure to obtain adequate medical care for the child, both before his hospitalization and afterwards, placed Tom at imminent risk of harm.
Mary asserts the judge erred because in P.W.R., the Supreme Court found that failure to take a child to a pediatrician, alone, did not suffice to prove abuse or neglect. The child in P.W.R., however, was a teenager who did not have an illness requiring treatment. That is quite different from Tom, who was barely two months old when hospitalized for a serious lung infection. Tom had not been examined by a pediatrician since an initial visit when he was only a week old. After being hospitalized, he was not taken for necessary follow-up visits. These factual differences distinguish P.W.R. from this case. On this point, the judge was also correct.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION