Opinion
DOCKET NO. A-5880-11T2
03-18-2015
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Y.N., Defendant-Appellant, and P.C., Defendant. IN THE MATTER OF P.A.C., a minor.
Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief). Erin O'Leary, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. O'Leary, on the brief). Olivia Belfatto-Crisp, Assistant Deputy Public Defender, argued the cause for minor P.A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Belfatto-Crisp, on the brief). Lynn Paltrow (National Advocates for Pregnant Women), of the New York Bar, admitted pro hac vice, argued the cause for amici curiae Experts in Maternal and Fetal Health, Public Health, and Drug Treatment (Gibbons P.C. and Ms. Paltrow, attorneys; Lawrence S. Lustberg and Ms. Paltrow, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-297-11. Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief). Erin O'Leary, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. O'Leary, on the brief). Olivia Belfatto-Crisp, Assistant Deputy Public Defender, argued the cause for minor P.A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Belfatto-Crisp, on the brief). Lynn Paltrow (National Advocates for Pregnant Women), of the New York Bar, admitted pro hac vice, argued the cause for amici curiae Experts in Maternal and Fetal Health, Public Health, and Drug Treatment (Gibbons P.C. and Ms. Paltrow, attorneys; Lawrence S. Lustberg and Ms. Paltrow, on the briefs). PER CURIAM
In New Jersey Division of Child Protection & Permanency v. Y.N., 220 N.J. 165 (2014), the Supreme Court considered the question "whether, under N.J.S.A. 9:6-8.21(c)(4)(b), a finding of abuse or neglect can be sustained against a woman who, while addicted to drugs, learns she is pregnant and enters a bona fide methadone treatment program, and whose child suffers methadone withdrawal symptoms at birth." Id. at 11-12. The Court concluded that the finding could not be sustained on that basis, reversed our decision to the contrary in New Jersey Division of Youth & Family Services v. Y.N., 431 N.J. Super. 74 (App. Div. 2013), and remanded the matter to us with the direction "to decide whether there is sufficient credible evidence in the record to support the finding of abuse or neglect on an alternate theory articulated by the family court." Y.N., supra, slip op. at 29-30.
In addition to seeking a finding of abuse or neglect against Y.N. based on the harm caused to her child by her use of methadone during her pregnancy, the Division also proposed alternative theories that defendant exposed her child to a substantial risk of harm from: (1) her admitted substance abuse with prescription and "street" drugs; (2) alleged incidents of domestic violence with the child's father which led to a temporary restraining order, and her retraction of those allegations; and (3) her use of illicit drugs approximately one month after the birth of the child, including her refusal to submit to a urine screen after the father reported that he saw her using crack cocaine.
The trial judge described Y.N.'s credibility as "very questionable." Observing she had a long history of drug abuse, the judge found that Y.N. continued to take illicit drugs for four months after learning she was pregnant, right up to one month before the baby was born, and only entered the methadone maintenance program at that late date in her pregnancy. The trial judge also noted there was evidence that Y.N. relapsed one month after the baby was born, based upon her refusal to take a urine test and the allegation of P.C., the baby's father. The trial judge further found that Y.N. has a potential to expose the child to domestic violence.
In its opinion, the Court noted that its decision did not preclude a finding of abuse or neglect on alternative theories:
We have resolved only the issue before us. We do not pass on whether there is sufficient credible evidence to support an abuse or neglect finding on some other basis referenced by the family court, such as the timeliness of [Y.N.'s] seeking drug treatment — that is, whether an unjustified delay might have adversely affected her newborn's later withdrawal symptoms. We also do not address whether [Y.N.] violated the abuse and neglect statute because of the manner in which she responded to the domestic violence allegedly committed against her. We therefore remand to the Appellate Division to decide whether there is sufficient credible evidence in the record to support the finding of abuse or neglect on an alternate theory articulated by the family court.
[Ibid.]
The fact-finding hearing focused on the primary issue of the harm suffered by the newborn as a result of the mother's consumption of methadone. While there was testimony as to the other allegations of abuse or neglect, the Division, defendant, and the Law Guardian understandably focused on the paramount and predominant charge. Now that the Court has directed an inquiry into what may be fairly referred to as alternative theories of abuse or neglect, we feel that the fairest procedure to all parties is a remand to the Family Part for a de novo fact-finding. The record before us is inadequate to permit a meaningful determination of the alternative theories. Moreover, fundamental fairness requires that defendant have the opportunity to defend, and the Division the chance to support, these allegations.
A finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) "requires proof that the child was impaired or in imminent danger of becoming impaired because the parent (1) failed to exercise a minimum degree of care and (2) unreasonably inflicted or allowed to be inflicted harm, or created a substantial risk of inflicting harm, on the child." Id. at 20. The Court emphasized that "parental fault is an essential element for a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b)," and that, to constitute such fault, "a parent's conduct must be 'grossly negligent or reckless,'" and not merely negligent. Id. at 20-21 (quoting N.J. Pep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011)).
We remand for a fact-finding hearing de novo. All parties will be permitted to present additional evidence, including medical and/or expert testimony as to whether defendant's substance abuse during her pregnancy and thereafter, and her delay in seeking treatment, subjected P.A.C. to a substantial risk of harm sufficient to render him an abused or neglected child. As to defendant's delay in obtaining treatment, such evidence may also include what medical advice she received, the extent to which the delay was attributable to her compliance with such advice and the efforts she made to obtain treatment.
We direct that this hearing be completed within ninety days of the date of our opinion. That period may be expanded for good cause upon application to the trial court.
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