Opinion
DOCKET NO. A-0961-13T1
03-25-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.N., Defendant-Appellant. IN THE MATTER OF Z.N., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0695-13. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.N. appeals from a Family Part order, entered following a fact-finding hearing, which determined she had abused and neglected her nephew, Z.N., for whom she was the legal custodian. The Division of Child Protection and Permanency (Division) investigated a referral by Z.N.'s biological mother, alleging the child and his siblings were abused or neglected because of defendant's alleged drug use. In conducting their investigation, the Division found no concerns for the health or safety of Z.N. or his siblings; however, when defendant was requested to undergo a drug screen the results proved positive for phencyclidine (PCP). Based upon this evidence, the judge concluded defendant's conduct recklessly endangered Z.N.
On appeal, defendant, joined by the Law Guardian, challenges the trial judge's factual findings, as well as his application of the law to the facts, arguing the Division's evidence was insufficient to meet the requirements of Title 9. We have considered the arguments advanced in light of the record and conclude the record lacks substantial credible evidence defendant recklessly created a substantial risk to the child's mental health or physical safety. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22, 27-28 (2013); G.S. v. Dep't of Human Servs., 157 N.J. 161, 179, 181 (1999). Accordingly, we reverse the finding of abuse or neglect.
The facts are presented in documents because no testimony was presented during the September 12, 2013 fact-finding hearing. Rather, the Division introduced its investigative summary and defendant's lab results showing her urine was positive for PCP on May 14, 2013.
When Z.N.'s mother was incarcerated, she transferred legal custody to defendant, her sister, who cared for the child for the ensuing three to four years. Defendant also provided care for two of Z.N.'s siblings. Upon the mother's release from prison, she reported to the Division her concern defendant was abusing PCP and had engaged in criminal activity subjecting her to arrest. Defendant informed the Division she believed her sister made false allegations in an effort to regain custody of her three children.
Investigating the referral, the Division spoke to Z.N., who was nine years old. He stated he was doing well in school, and the worker found him healthy and happy. He and his younger sibling stated defendant smoked "brown and white" cigarettes outside the home, which the younger child called "Zombies." Z.N.'s older sibling stated no one used drugs or alcohol in the home. Defendant denied drug use or alcohol abuse; she agreed to comply with the Division's request for a urine screening.
Defendant attended the test, which proved positive for PCP. Thereafter, the Division exercised an emergency removal of the children. N.J.S.A. 9:6-8.29. The children's medical examinations disclosed no problems, except for a condition for which the youngest child was receiving care. The Division's removal was solely grounded on defendant's positive drug test.
The judge's findings regarding Title 9 were as follows:
The [c]ourt finds the [D]ivision met its burden of proving by a preponderance of the evidence that [defendant's] conduct resulted in . . . this child being abused or neglected . . . . The positive urine screen for PCP, combined with the fact that the child was in her sole care, notwithstanding the fact that the day the [D]ivision saw her she wasn't under the influence, but the fact that she's the sole caregiver and she tested positive, as confirmed in the lab results, for [the] dangerous substance of PCP, leads to a reasonable inference that at some point she was under the influence of that drug while this child was in her care.
Defendant urges the inferential findings of abuse or neglect cannot be sustained because no evidence shows she was under the influence while caring for Z.N. Further, she contends there is no evidence of gross negligence in the child's care or reckless disregard for his safety.
Our standard of review on appeal is narrow. "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." Ibid. (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). 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).
The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S., supra, 157 N.J. at 171 (citing N.J.S.A. 9:6-8.8); see also N.J.S.A. 9:6-8.21 to -8.73 (governing protection of abused and neglected children). The statute in question also addresses the substantial risk of harm to a child that can support a finding of abuse or neglect in the absence of actual impairment. A.L., supra, 213 N.J. at 22.
An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4)(b):
"Abused or neglected child" means a child less than 18 years of age . . . 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 . . . by any [] acts of a [] serious nature requiring the aid of the court . . . .
Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82). A court considering whether a parent's or guardian's conduct meets the statutory standard must analyze all facts, N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328-29 (App. Div. 2011), and decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014).
Applying the statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. See N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011).
During the fact-finding hearing, the State bears the burden and must present proofs to establish abuse or neglect as defined in the statute. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011); N.J.S.A. 9:6-8.46(b). Specifically, the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005).
We recognize that "the elements of proof are synergistically related." V.T., supra, 423 N.J. Super. at 329 (citation and internal quotation marks omitted). A court need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare. 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 and 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). When "there is no evidence of actual harm, . . . the statute requires a showing of 'imminent danger' or a ' substantial risk' of harm before a parent or guardian can be found to have abused or neglected a child." A.L., supra, 213 N.J. at 8 (citing N.J.S.A. 9:6-8.21(c)).
Here, as was found by the Court in A.L., "the records alone did not prove imminent danger or a substantial risk of harm to the . . . child." Id. at 9. The Division, therefore, has not met its burden.
No actual harm to Z.N. was noted. Z.N. and his siblings were healthy, regularly attending and doing well in school, and their residence was safe and properly maintained. When the Division removed Z.N., defendant was not home; however, at that time she had arranged for an appropriate adult caregiver.
Although the two documents offered as the Division's sole proofs showed defendant used PCP sometime before the urine screen, this evidence did not evince she used the narcotic while she was responsible for the care of the child. The children's statements defendant smoked "white and brown cigarettes," which the five-year-old called "Zombies," does not result in a reasonable inference the cigarettes were laced with PCP. Further, the Division offered no expert or other evidence proving PCP's impairment effect and the length of time such impairment occurs after use, which could possibly link impairment to a time she was caring for the children.
We do not suggest a caretaker's illicit drug use should be ignored by the Division, even when no actual harm to the children is readily apparent. Nor does our opinion imply caretakers of young children may abuse drugs or alcohol outside the presence of the children. Children are precious and mandate vigilant caretakers to protect them.
Our holding merely underscores the Division's burden of proof when faced with such conduct by a parent or guardian. The Division is required to "present competent evidence adequate to establish [the child was] presently in imminent danger of being impaired physically, mentally or emotionally." N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 409 (App. Div.) (citing A.L., supra, 213 N.J. at 23, 30), certif. granted, 220 N.J. 41 (2014). Proof of defendant's past use of PCP alone cannot establish (1) grossly or wantonly negligent conduct performed knowing injury was likely, or (2) conduct performed with reckless disregard for the substantial likelihood of harm to befall the child. See A.L., supra, 213 N.J. at 27-28. The absence of evidence requires the order be vacated. Additionally, we direct that defendant's name be removed from the Central Registry.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION