Opinion
DOCKET NO. A-0075-13T4 DOCKET NO. A-0239-13T4
03-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.M. and J.M., Defendants-Appellants. IN THE MATTER OF M.M. and J.M., minors.
Joseph E. Krakora, Public Defender, attorney for appellant C.M. (Jill Alintoff, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.M. (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.M. and J.M. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-191-13. Joseph E. Krakora, Public Defender, attorney for appellant C.M. (Jill Alintoff, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.M. (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.M. and J.M. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendants, C.M. (Charles), and J.M. (Jennifer), appeal from the trial court's conclusion they abused or neglected their children, J.M. (Joseph) and M.M. (Mark). We affirm.
We used fictitious names to protect the privacy of the children.
The Division of Child Protection and Permanency (the Division) bears the burden to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). The statutory definition of an "abused or neglected child" at issue here 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 . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
The evidence presented at the fact-finding hearing provided ample support for the trial court's conclusion that the Division satisfied its burden of proof. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 25-26, cert. denied, ___ U.S. ___, 143 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
Both defendants were present for the fact-finding hearing and consented to the matter proceeding summarily. The court admitted the Division's investigation and screening summaries as well as positive drug test results for defendants. Defendants did not object to the competency of the Division's evidence or to any hearsay contained therein and neither testified nor offered any documents or witnesses on their behalf.
The record included the following facts:
On April 14, 2013, the Division received an anonymous referral, stating defendants were using cocaine and heroin daily. The reporter suspected defendants were using drugs around their children. Two Division caseworkers went to defendants' home that day to investigate the referral. They observed Joseph and Mark outside the house on the porch, unsupervised. Mark, who was fifteen months old, started walking away from the house toward the caseworker. One of the caseworkers brought Mark back to the house. On the porch, Joseph, age three, was standing on top of a toy car wearing only a tee-shirt with no diaper, underwear, or pants. Neither boy appeared very clean but no bruises were observed. The caseworker asked Joseph where his mommy was. He opened the door and yelled, "mommy." The caseworker called out as well. There was no one on the first floor. The caseworker then saw Jennifer running down the stairs.
The caseworker told Jennifer that one of her children had been walking up the street while the other was half-dressed on the porch. Jennifer replied that Joseph must have unlocked the door, something he does not do often, and that the children had never gotten out of the house before. She also stated Joseph often takes his diaper off by himself. After Joseph informed his mother he had pooped on his potty, the caseworker told Jennifer the poop was on the porch, in the doorway. Jennifer proceeded to clean it up and then, at the caseworker's request, Jennifer called her husband, Charles, to return home.
Jennifer tried to put a diaper on Joseph, but he kept running through the house and not responding to her. The caseworker offered to help, picked Joseph up, and asked Jennifer to put the diaper on the couch. Instead of doing that, Jennifer picked up Mark, who was fully dressed with diaper and pants, and began to place a diaper on him. The caseworker stopped her, telling her he already had a diaper on. Jennifer then diapered Joseph.
The caseworker noted that Jennifer's speech was slurred. She denied using any drugs or alcohol and said she had been sick for four days. However, Jennifer admitted to the second caseworker she had a history of using heroin, had completed a rehabilitation program, and relapsed in February 2010. After a second rehabilitation program, Jennifer stated she had no further relapses. Jennifer also denied any mental health issues but the Division learned that she was taking medication for depression.
Charles denied that Jennifer used any drugs. He said her slurred speech was due to a change in her medication for depression the week before. However, the bottle Charles showed the caseworker was nearly one year old, dated June 15, 2012. Charles said he did not notice Jennifer's speech was slurred when he left the house earlier that day. However, earlier in the week, Jennifer was "slurring her speech and sleepy." Charles did not want to leave the children with her and attempted to get someone else to watch the children in his absence.
A home assessment revealed only minimal food in the house. Charles, Jennifer, and the paternal grandmother agreed to a safety protection plan in which a paternal relative would stay in the home until the parents participated in substance abuse evaluations.
A caseworker returned the next day, April 15, 2013, and asked defendants to take a random urine screen. Defendants initially agreed, then resisted, and finally admitted they had been using heroin and cocaine for the last week. Defendants admitted using drugs as recently as April 15. Drug screens confirmed cocaine and opiate use by both defendants. Defendants claimed they always had someone else watch the children while they were using. However, Charles's mother did not suspect that either defendant used drugs.
The family devised a revised safety precaution plan in which the relatives would supervise defendants' contact with Joseph and Mark, and defendants would comply with substance abuse and psychological evaluations and the recommendations of those evaluations.
In his statement of reasons, the trial judge noted defendants' admission they used heroin and cocaine for a week before the Division began its investigation and found they had relapsed for an indefinite period of time. He found that, at the time the caseworkers arrived at the house, "[Jennifer] was high and in the process of being high allowed the children out on the street for . . . an indefinite period of time. . . . She did not have her wits about her. She was not able to parent her children at the time." He noted the age of the children and the length of time they were observed unattended:
[T]hese children were out on the street and long enough for the Division worker to have parked way down the street . . . walk up the street and the child to go up to [her]. That length of time without any indication that [Jennifer] was making any finding of where [her] children were tells me that she was neglecting her responsibilities.
The judge found further,
It was an ongoing, unremediated substance abuse addiction in addition to the neglect of the children. And that's for [Jennifer] for not keeping an eye on the children when she was watching them and for [Charles] who knew better than to leave those children with [Jennifer], who was also in the throws of an addiction, and he knew it.
The court found by a preponderance of evidence that defendants had abused or neglected Joseph and Mark pursuant to N.J.S.A. 9:6-8.21(c). The court concluded defendants' conduct fell well below the minimum degree of care, constituted gross negligence, willful and wanton misconduct, and exposed the children to a substantial risk of harm. The litigation was later dismissed pursuant to the Division's recommendation in an order that stated defendants' substance abuse had been remediated.
Charles raises the following arguments in his appeal:
POINT I
THE TRIAL JUDGE'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND GROSS NEGLIGENCE OR RECKLESS CONDUCT TO SUPPORT A CONCLUSION OF ABUSE AND NEGLECT AGAINST C.M.
A. DCPP'S DOCUMENTARY EVIDENCE DID NOT CREATE A SUFFICIENT RECORD TO SUSTAIN A FINDING OF CHILD ABUSE AND NEGLECT.
B. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT JOSEPH AND MARK SUFFERED EMOTIONAL HARM.
Jennifer raises the following arguments in her appeal:C. DCPP'S EVIDENCE FAILED TO PROVE THAT C.M.'S RELAPSE HARMED THE CHILDREN OR PLACED THEM AT A SUBSTANTIAL RISK OF HARM.
D. THE COURT IMPROPERLY FILLED IN INFORMATION NOT CONTAINED IN THE EVIDENCE TO SUPPORT ITS FINDING OF ABUSE AND NEGLECT AGAINST C.M.
POINT I
THE TRIAL COURT'S FINDINGS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE WITHIN THE RECORD BELOW AND THE TRIAL COURT'S FINDINGS THAT J.M. ABUSED OR NEGLECTED HER CHILDREN MUST BE REVERSED.
POINT II
THE APPELLATE DIVISION SHOULD REVERSE THE DECISION OF THE LOWER COURT AS THE DIVISION'S CASE WAS BASED PRIMARILY OF DIVISION DOCUMENTS WHICH WERE NOT COMPETENT AND CREDIBLE EVIDENCE AND WHICH CONTAINED OTHERWISE INADMISSIBLE HEARSAY.
POINT III
THE DIVISION FAILED TO PROVE THAT J.M. FAILED TO "EXERCISE A MINIMUM DEGREE OF CARE" UNDER N.J.S.A. 9:6-8.21(c)(4)(b) THEREFORE THE COURT'S FINDINGS OF ABUSE AND NEGLECT CANNOT BE SUSTAINED.
After reviewing these arguments in light of the record and applicable legal principles, we find none of them have merit.
As a preliminary matter, to the extent that defendants now find fault with the fact the trial court relied exclusively upon documentary evidence, their arguments are barred by the invited error doctrine. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). As we have noted, defendants consented to the matter proceeding summarily, did not object to the competency of the Division's evidence or to any hearsay contained therein and neither testified nor offered any documents or witnesses on their behalf. As a result, they are barred from arguing on appeal that the trial court erred in following a procedure they endorsed at trial. Ibid.
In reviewing the decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "'family courts' special jurisdiction and expertise in family matters.'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (citation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision of the Family Part judge.
A parent "fails to exercise a 'minimum degree of care' when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care," as required by the statute, does not refer to merely negligent conduct, but rather "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S., supra, 157 N.J. at 178). Proof of actual harm to the child is not necessary. A court does not have to wait until a child is "'irreparably impaired by parental inattention or neglect'" before it acts. A.L., supra, 213 N.J. at 23 (quoting In re Guardianship of D.M.H, 161 N.J. 365, 383 (1999)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b)). "The trial court must base its findings on the totality of circumstances." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). In addition, several acts analyzed together can be viewed as causing a "substantial" risk of harm. N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).
The allegation of neglect here was based upon a failure to exercise minimum care in supervising young children as a result of defendants' substance abuse. "[N]ot 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. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82.
[T]he inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.
[Id. at 182.]
Although defendants admitted to using heroin and cocaine for a week, the finding of abuse and neglect here was not based merely upon their ingestion of drugs. As the trial court observed, the imminent danger here was that defendants' very young children were essentially unsupervised for an indefinite period of time. The caseworkers' observations established a direct nexus between defendants' drug use and the creation of that imminent danger.
Upon their arrival, the very young boys were outdoors without any sign of parental supervision. Jennifer was apparently unaware that both children were outdoors or for how long they were outside without supervision. In mid-April, one of the boys was standing outside naked except for a tee-shirt. It was later admitted that Jennifer had been using drugs during this time period but, on that day, her condition was manifested by slurred speech and her incapacity to place a diaper on her child. The evidence of her failure to exercise a minimum degree of care in supervising her young children is compelling.
The caseworkers observed no sign that Charles was under the influence of drugs or alcohol on the first day of their investigation. So, the question as to him is whether the evidence supports the conclusion that he failed to exercise the requisite degree of care by leaving his children in Jennifer's care when she was incapable of supervising them.
Charles claimed he did not notice that Jennifer was unable to care for the children on the day in question and both defendants contended the children were with other people when they were using drugs. However, Charles admitted both defendants had been using heroin and cocaine for a week prior to the initiation of the Division's investigation. He also admitted that, at least on one occasion that week, he concluded Jennifer's condition rendered her incapable of caring for the children. He was, therefore, well aware of "the dangers and risks associated with the situation," G.S., supra, 157 N.J. at 181-82, that Jennifer had relapsed into drug use during that time period and had manifested an inability to supervise the children.
In New Jersey Division of Child Protection and Permanency v. B.O., 438 N.J. Super. 373 (App. Div. 2014), an infant suffered brain damage after his mother rolled over while sleeping with him under the influence of drugs. We affirmed findings of abuse and neglect against both her and the child's father, who knowingly allowed this sleeping arrangement while the mother was impaired. We were unpersuaded by the father's argument that he did nothing wrong because he did not sleep with the infant. We stated, "A parent's failure to act in circumstances that demand action is the essence of neglect." Id. at 384; see also D.M.H., supra, 161 N.J. at 379-80 (finding harm where a father's failure to act "compounded the mother's neglect and contributed to the circumstances that" led to removal); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 436 (App. Div. 2009) (stating a mother harmed her children by permitting the father into the home in violation of court orders).
Here, too, Charles knew the dangers inherent in leaving his children in Jennifer's care while she was actively using drugs and prone to being under the influence. By failing to secure alternative arrangements to protect his children from this danger, he failed to exercise a minimum degree of care as defined in the abuse and neglect statute.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION