Opinion
DOCKET NO. A-1164-14T2
06-24-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.W., Defendant-Appellant, and R.S., Defendant. IN THE MATTER OF R.S., JR. and E.S., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-267-13. Joseph E. Krakora, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant A.W. appeals a September 30, 2013 order concluding that she abused or neglected her children, Randy and Ellen. We affirm.
We use pseudonyms to protect the identities of the children.
A.W. and R.S. are the biological parents of Randy and Ellen. On January 14, 2013, the Division of Child Protection and Permanency (the Division) filed a verified complaint for custody of Randy and Ellen alleging that A.W.'s unaddressed mental health issues and both parents' ongoing substance abuse were placing the children at risk of harm.
Prior to the Division's involvement, A.W. was diagnosed with bipolar disorder, experienced suicidal ideation, was prescribed several antidepressants, and attended therapy and counseling sessions at the Family Service Bureau of Newark (FSB). On April 25, 2012, the Division received a referral from A.W.'s mother alleging abuse and neglect on the basis of A.W.'s poor parenting skills, substance abuse, and poor mental health. The Division deemed these allegations unfounded but continued monitoring A.W. and provided services to her and R.S.
As a result of the Division's monitoring, a nurse-practitioner at the FSB sent a letter to the Division explaining that A.W.'s treatment was inconsistent and that, although she did not appear to pose a threat to her children, A.W. was neglectful of her own mental health. The letter further recommended that A.W. should continue her mental health treatment, seek family counseling to help remediate her relationship with her mother, and end her illegal drug use because it could interfere with her psychotropic medication regimen.
A.W. submitted to several drug screens over the next few months in compliance with the Division's requests. Each screen returned positive for marijuana, one screen returned positive for opiates, and several screens returned positive for benzodiazepines. A.W. submitted to a psychiatric evaluation with Daniel Bromberg, PhD., during the investigation.
On September 14, 2012 A.W. admitted to the Division caseworker that she smoked marijuana daily, but smoked only at night and outside the house. The caseworker brought A.W. to a local Division office, asked her to submit to a urine test, and implemented a safety protection plan that included cessation from illegal drug use, help from a Division homemaker aide in A.W.'s apartment for eight hours a day, and substance abuse counseling.
On September 19, 2012, A.W. again tested positive for marijuana and benzodiazepines. After discussing the results with A.W. and R.S. on September 21, 2012, a Division caseworker again asked them to submit to another urine screening. Both tests returned positive for marijuana. During the process of the screen, A.W. told the caseworker that her previous screen returned positive for opiates because she was taking clonazepam to treat her anxiety attacks, but was unable to produce the prescription bottle. The caseworker implemented a new safety plan, requiring A.W. and R.S. to refrain from illicit drug use; to have a homemaker aide to be present in the apartment twenty-four hours per day; and to not have unsupervised contact with their children.
Dr. Bromberg completed his report while these events were ongoing and reported that A.W. was "in the throes of a depressive episode." She told Dr. Bromberg that she and her mother fought every day, and that the altercations sometimes became physical. She also told Dr. Bromberg that R.S. had threatened to burn down her home with her children inside. She reported two physical altercations between herself and R.S., which occurred in the presence of their children.
Dr. Bromberg noted A.W.'s acknowledgement of her diagnoses, including bipolar disorder and mood regulation issues, and that she had vacillated between manic and depressive episodes. Her manic phase was marked by violent outbursts and an inability to control emotions, such as "yelling, screaming, cursing, and smacking or punching others." Her depressive phase was marked by vegetative symptoms, with difficulty performing everyday tasks and suicidal ideation. A.W. admitted that she had experienced suicidal ideation since age seven, and had attempted suicide several times. A.W. reported that she used marijuana to "feel normal," and that it reliably terminated her anxiety attacks. She reported that it was not unusual for her to smoke twelve marijuana "blunts" per day, although her usage decreased to a single "blunt" per week after the Division's involvement in the case.
Dr. Bromberg also administered a battery of psychological tests, including the Personality Assessment Inventory (PAI), the Adult-Adolescent Parent Inventory — II (AAPI-II), and the Child Abuse Potential Inventory (CAPI). A.W.'s tests on the PAI were inconclusive because her tests did not meet the validity threshold metrics contained within the inventory. Dr. Bromberg concluded that her parenting attitudes and beliefs, pursuant to the AAPI-II, were within the average range; her score on the CAPI was "consistent with that of known perpetrators of physical abuse."
Dr. Bromberg opined that resolution of A.W.'s case would be difficult and that, although several of A.W.'s symptoms and her history of aggressive behavior indicated a need to remove her children from her home, A.W.'s therapist and the Division's homemakers indicated that she had the ability to adequately parent her children. Dr. Bromberg recommended that if the Division sought to keep the children in the home, A.W. needed to agree to live in her own apartment with eight hours of homemaker services per day, seven days per week. Additionally, Dr. Bromberg recommended that A.W.'s children enroll in a full-time daycare program; that A.W. allow the Division to contact her twenty-four hours a day, seven days a week; that she submit to a substance abuse program and random urine tests; that she undergo psychotherapy and counseling; that she continue and manage her psychotropic medication regimen; and that she submit to a physical examination. Dr. Bromberg recommended that A.W. begin dialectical behavior therapy (DBT) to help ensure the success of the safety plan and that, if she refused to comply with his recommendations plan, her children should be removed immediately.
Throughout the proceedings A.W.'s living situation changed several times. She lived with her mother, sometimes sporadically, and then moved in with R.S. at Dr. Bromberg's recommendation.
Division homemaker aides were put in place by the Division and initially reported no issues with the children's well-being. On October 23, 2012, however, a Division homemaker aide reported that the family attempted to hide from her while shopping in Jersey City. On November 13, 2012, A.W. reported that she had been out of her medication for two weeks, and that she smoked marijuana on November 4, 2012. The Division substantiated A.W. and R.S., informing both of them that they subjected Randy and Ellen to a "substantial risk of physical injury." On December 20, 2012, a Division caseworker visited A.W. and found no issues with the children; A.W. told the caseworker that substance abuse treatment was going well, and her relationships with R.S. and her mother had improved.
On January 9, 2013, A.W.'s therapist at the FSB reported that she was closing A.W.'s case because A.W. had not contacted the FSB in three months. The Division informed A.W. that she was non-compliant with the safety plan and conducted a removal of her children. At the time of the removal, A.W. told the caseworkers that she was contemplating hurting herself, after which she was transported to a nearby hospital for psychiatric evaluation. The children were placed in a foster home on January 10, 2013.
After the children were removed, the Division continued monitoring A.W.'s progress. She submitted to therapy and obtained medication for her bipolar disorder. A.W. stopped taking one of her medications, Seroquel, because it made her feel tired, despite indications that the medication was helping her stabilize her mood. On January 14, 2013, the parties appeared on the return of the order to show cause, where the court concluded that removal was appropriate based on A.W.'s non-compliance with services and her continued illegal drug use. The court approved the Division's plan to place the children with A.W.'s cousin.
The trial court conducted a fact finding over four days, commencing May 16, 2013 through September 30, 2013. Dr. Bromberg testified as to his evaluations of A.W. consistent with his report. Dr. Bromberg discussed A.W.'s employment history, which he characterized as poor. In the two years prior to her interview with Dr. Bromberg, A.W. held only one part-time job from which she was fired after "punch[ing] her manager in the head." He further testified about the inventories and tests he administered to A.W. and opined that DBT should have been the first component of treatment because it would have helped A.W. self-regulate her emotions while abstaining from substance abuse, and that if A.W. could not adhere to the recommendations he made, A.W.'s children would be at a substantial risk of harm. He concluded that, after receiving information that A.W. was non-compliant with her safety plan requirements, the "level of risk [was] no longer manageable." Dr. Bromberg also characterized the amount of services offered to A.W. as extraordinary.
R.S. was not a party to the proceeding because he was already on the Central Registry pursuant to an earlier substantiation that occurred during September 2011. --------
On cross-examination, Dr. Bromberg reaffirmed that DBT was important in ensuring the success of the recommendations as a whole because it was important to help A.W. self-regulate her emotional state. Dr. Bromberg recognized that DBT "is a difficult service to find in northern New Jersey." He also testified that the level of effort the Division expended to keep the children in the home was unusual, especially the amount of homemaking services that the Division provided.
The Division called several caseworkers involved in each stage of A.W.'s case to testify. Brianna Rulton testified A.W. admitted that she had used marijuana outside while her children were asleep. Elias Guzman testified about services including day care and the implementation of homemakers to assist A.W., R.S., and their children. He testified that the homemakers could not always get into the home, and that A.W. would leave her home without alerting the homemakers that she was leaving.
Caseworker Mauricio Diaz acknowledged that, at the time of the removal, not all of Dr. Bromberg's recommendations had been implemented. Specifically, the DBT treatment recommended by Dr. Bromberg was not implemented until July 2013. The delay in obtaining DBT treatment was due to the difficulty in locating a local therapist who practiced DBT.
Dr. Roger Harris, an expert in psychiatry with a specialty in personality disorders testified on behalf of A.W. He did not conclude that A.W. provided inadequate or neglectful care to her children and testified that A.W. could recognize high-risk behaviors, and that she stopped taking one of her psychotropic medications (Seroquel) because it made her tired. Dr. Harris asserted that the FSB should not have prescribed Seroquel, and that the Division should not have reacted as it did when A.W. stopped taking it. Dr. Harris opined that A.W.'s marijuana usage would not harm her children or subject them to a substantial risk of harm. He testified that, because marijuana helps regulate A.W.'s emotional state, it actually helped her parent her children. He opined that, considering A.W.'s behavior as a whole, her children were not in harm or at a substantial risk for harm. Dr. Harris diagnosed A.W. with borderline personality disorder rather than bipolar disorder, but agreed that DBT is an effective treatment for borderline personality disorder, and that it is widely used to treat the disorder.
The trial court issued an oral opinion after Dr. Harris testified, on September 20, 2013. The judge credited Dr. Bromberg's testimony, finding that his reliance on the inventories and tests he conducted on A.W. were appropriate under the circumstances and accepted his opinion that A.W's substance abuse , as well as her mental health issues, impaired her ability to parent. In discrediting portions of Dr. Harris's testimony, the trial judge concluded that the amount of marijuana A.W. consumed on a daily basis, more likely than not, negatively impacted her ability to parent. The trial court found that if a parent "were doing [marijuana] twelve times a day, there would hardly be any period of time during that day that those children would not be subject to someone who was under the influence of an illegal substance."
The court noted that, although A.W. felt stabilized on marijuana and did not feel as stabilized while on her psychotropic medication regimen, "you cannot [stabilize] with an illegal substance. You cannot do it against the law." The court concluded that, when considering the continuing drug use, lack of dedication to the medication, and her propensity for violence, A.W. was not compliant with Dr. Bromberg's safety plan despite the unavailability of DBT. The trial judge accordingly found that A.W. abused and/or neglected her children and entered an order to that effect on September 30, 2013.
A.W. returned for compliance reviews on December 18, 2013; March 19, 2014; and June 25, 2014. The court found that conditions had been remediated and ordered the children to return home on September 24, 2014 and terminated the litigation. This appeal followed.
A.W. asserts that the trial court's findings were insufficient to support a finding of abuse or neglect. We disagree. We note that appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). We "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The standard for deciding whether a parent or guardian has failed to exercise a minimum degree of care is one of gross negligence. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999). Parental conduct that is "inattentive or even negligent [does] not meet the requisite standard of willful or wanton misconduct." N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009). A parent is held to what "an ordinary reasonable person would understand" when considering whether a situation "poses dangerous risks." G.S., supra, 157 N.J. at 179-81. The focus of Title Nine is not on the "'culpability of parental conduct' but rather 'the protection of children.'" N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S., supra, 157 N.J. at 177).
Finally, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). In looking to the totality of the circumstances, we have noted that the elements of proof in abuse and neglect cases "are synergistically related." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).
A.W. asserts that the trial court's ruling is not supported by facts establishing that A.W.'s children were harmed or at a substantial risk of harm, and that the trial court impermissibly focused on A.W.'s "propensity for smoking illegal substances," as well as violent behaviors that took place before the Division's involvement. A.W. specifically cites to V.T., supra, for the proposition that drug use alone is insufficient for a finding of abuse or neglect under Title Nine. A.W. also cites N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247 (App. Div. 2012) for a similar proposition.
A.W. misstates both the relevant law and facts. In V.T., we said that "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." V.T., supra, 423 N.J. Super. at 332. The parent in V.T. was accused of neglecting his child during supervised visitation because he was impaired at the time of his visitation. Id. at 326-27. The parent had ingested cocaine and marijuana two days prior to his supervised visits. Ibid. We said that, under those circumstances, no abuse or neglect occurred because the drug abuse did not harm the child, and the parent posed no substantial risk of harm to the child. Id. at 330-31. We specifically noted that "the State [was] unable to demonstrate whether or not [the parent] was impaired to the point of posing a risk to [the child] in a supervised setting." Ibid.
The facts of this case differ substantially from those in V.T. Unlike in V.T., A.W. is one of the primary caretakers of her children. She smoked up to twelve "blunts" of marijuana per day while Randy and Ellen were in her care, not while engaging with her children during a supervised visit. The trial court concluded that, in light of that admission, "there would hardly be any period of time during th[e] day that those children would not be subject to someone who was under the influence of an illegal substance." The trial court noted that although A.W. could have been using the marijuana to self-regulate and that the effects of marijuana vary from person to person, the use of marijuana was illegal and likely interfered with her ability to tend to her children.
More importantly, A.W. did not follow the requirements of the safety plan in place at the time of the removal. In addition to marijuana use that possibly inhibited the effectiveness of her psychotropic medication, A.W. ceased taking some of her medicine and also stopped attending her therapy sessions. The trial court considered, in conjunction with A.W.'s failure to follow the safety plan, A.W.'s "propensity for violence," and the consideration that "it [would] not be unlikely that [A.W.] would act in a violent manner." Thus, unlike in V.T., A.W.'s substance abuse in conjunction with the other relevant circumstances did provide a basis for a finding of abuse because of the risk that she could harm her children. This finding is supported by other facts, such as A.W.'s attempts to avoid her homemaking services, Dr. Bromberg's conclusions that A.W.'s scores on the inventories and tests he administered suggested a propensity for physical child abuse, and the fact that A.W.'s children were younger than the child in V.T. See V.T., supra, 423 N.J. Super. at 331 (explaining that the child in V.T. was eleven years old).
A.W.'s citation to S.N.W., supra, is also inapposite. A.W. cites S.N.W. for the proposition that the trial judge's findings were unsupported by the facts. In this case, the trial judge made specific findings supporting her conclusions regarding abuse and neglect and concluded that the facts, taken together, indicated a substantial risk for harm under the circumstances by a preponderance of evidence.
A.W. also asserts that the Division did not provide sufficient services prior to the removal of Randy and Ellen from her home. Prior to removing children from a parent's home, the Division must "make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009) (quoting N.J.S.A. 9:6-8.8(b)(2)).
A.W. argues because the Division did not implement several aspects of Dr. Bromberg's plan until after the removal of the children, the Division did not make efforts "that have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or another permanent arrangement." N.J.S.A. 10:133-1.3. She asserts the Division did not implement any of the measures Dr. Bromberg prescribed, including, most critically, the DBT, until after the removal occurred.
A.W.'s argument lacks merit. Dr. Bromberg's recommendations were largely a continuation of services that A.W. sought out before Division intervention and services that the Division had already obtained for A.W., including psychotropic medication, substance abuse treatment, and counseling. A.W. terminated her adherence to the safety plan of her own volition; her failure to adhere to the safety plan was essentially a rejection of the services that the Division had already secured for her. Although obtaining DBT in the early stages of her treatment was considered to be "critically important," testimony at trial established the difficulty in securing DBT treatment for A.W.
Dr. Bromberg also testified that the Division made an unusually strenuous effort to keep A.W.'s children in her home, citing the amount of homemaking service that the Division provided to A.W., which totaled between eight and twenty-four hours per day. The Division also aided A.W. in searching for an apartment with R.S. per Dr. Bromberg's recommendations, and aided her in placing her children in a full-time daycare program.
A.W. had already begun all other aspects of the plan before seeing Dr. Bromberg, including counseling, a medication regimen, and substance abuse cessation. These goals, even without DBT, "have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or another permanent arrangement," thus fulfilling the Division's obligations pursuant to N.J.A.C. 10:133-1.3. The removal occurred only after A.W. refused to follow the safety plan, and evinced the risk of harming her children by failing to fully utilize the recommendations and services the Division had already offered her.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION