Opinion
DOCKET NO. A-2237-13T4
02-19-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.O., Defendant-Appellant, and J.B. and E.B., Defendants. IN THE MATTER OF C.B. and A.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Jeanne Screen, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joann M. Corsetto, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.B. and A.B. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from Superior Court, Chancery Division, Family Part, Hudson County, Docket No. FN-09-429-12. Joseph E. Krakora, Public Defender, attorney for appellant (Jeanne Screen, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joann M. Corsetto, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.B. and A.B. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
T.O., the mother of two children, C.B. and A.B., born in 2002 and 2008 respectively, appeals from a September 18, 2012 order commemorating the judge's finding by a preponderance of the evidence that T.O. abused or neglected her children by taking drugs while the children were in her care. The Law Guardian, who represents both children, urges us to affirm. T.O. argues that the judge lacked substantial, credible evidence to support her finding. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons articulated by Judge Bernadette N. DeCastro in her written decision.
We use initials for the parties to preserve the confidentiality of the children.
E.B., the father of C.B., does not appeal the finding of abuse and neglect as to him for knowingly leaving his child in T.O.'s care while she was under the influence of PCP and acting "crazy." The Division did not seek a finding of abuse or neglect against J.B., the father of A.B.
The order was rendered ripe for appeal as of right after the court entered a November 18, 2013 final order granting the maternal grandmother Kinship Legal Guardianship pursuant to N.J.S.A. 3B:12A-1 to -7.
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Two workers from the Division of Child Protection and Permanency (Division) testified at the fact-finding hearing. We adduce the following facts from their testimony and the documents introduced into evidence.
On May 22, 2012, the Division received an emergency referral reporting that T.O. had relapsed into substance abuse and been arrested for driving while intoxicated, N.J.S.A. 39:4-50. A Division worker asked the parents to report to the Division office for a drug screening. T.O. seemed incoherent and confused on the telephone. She needed transportation to the Division office for testing. When the Division workers went to her home to pick her up, T.O. was incoherent, used profanity, seemed to go through many mood changes, and was sweating and making sharp movements. E.B. was hiding to avoid the drug testing. T.O. indicated that while the children were at home, both parents had taken phencyclidine (PCP), which makes them do "crazy shit." She said the drug made her feel as though she could read people's minds. She stated that the drug affected her for days.
T.O. also admitted that she tested negative while at her drug program only because she flushed her system with juices to evade a positive test result. At the Division office, she attempted to provide a sample from a bag of her daughter's urine that she had taped to her hip for that purpose. After the Division discovered the subterfuge, T.O. refused to provide another sample and left the office.
A Division worker went to T.O.'s home with two police officers, where they saw a traffic ticket that she had dropped on the floor. T.O. explained that she had received the ticket for driving while intoxicated the previous weekend.
E.B. also admitted using PCP with T.O. and said he knew T.O. was using PCP regularly, which made her act "crazy." He said at times he took his child out of the home to protect him. The children told the workers that T.O. frequently drove them to school, and picked them up from school and from their maternal grandmother's house.
Judge DeCastro determined that T.O. put the two children at substantial risk of harm by her continuous use of PCP while the children were in her care, as well as the likelihood that she would drive them while under the influence.
We first review the law regarding fact-finding hearings. The purpose of such a hearing is not to assign guilt to a parent, but to determine by a preponderance of the evidence whether the children at issue are "abused or neglected" as defined in Title Nine. N.J.S.A. 9:6-8.44, 46(b); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). "[T]he Family Part possesses special expertise in the field of domestic relations and thus appellate courts should accord deference to Family Part factfinding[s]." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (internal quotation marks and citation omitted).
"The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (internal citation omitted). An appellate court must determine whether there is substantial credible evidence in the record to support the trial court's factual and credibility findings. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[O]nly competent, material and relevant evidence may be admitted[]" at a hearing. N.J.S.A. 9:6-8.46(b).
Title Nine provides the following definition of an abused or neglected child:
"Abused or neglected child" means a child less than 18 years of age . . . (4) . . . 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 (a) in supplying the
child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so[.]
[N.J.S.A. 9:6-8.21(c)(4)(a).]
Unquestionably, caring for young children while under the influence of illegal drugs that cause the parent to lose judgment constitutes neglect of those children. Compare N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 375 (App. Div. 2014)(finding neglect where the parents took drugs and the mother then rolled over on her baby at night, causing brain damage); with V.T., supra, 423 N.J. Super. at 331-32 (stating that a parent's ingestion of cocaine and marijuana prior to two supervised visits did not pose a risk to an eleven-year-old child when the parent behaved appropriately at the visits).
Substantial credible evidence was presented by the Division to support Judge DeCastro's finding of neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION