Opinion
DOCKET NO. A-5615-12T2
07-28-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent v. D.W., Defendant-Appellant. IN THE MATTER OF D.B., JR., AND D.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea A. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Harris and Fasciale. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-598-12. Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea A. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
This Title Nine child protective services litigation presents a very close case. Defendant D.W. (Dina) appeals from the November 9, 2012 order finding that she abused or neglected her then seven-year-old special needs son Daniel and four-year-old daughter Diane because Dina "wasn't a reliable caretaker and . . . was addicted to drugs and she was not appropriately addressing the issue of her addiction." The Law Guardian supports Dina's position that she did not abuse or neglect her children even though her conduct "was clearly cause for concern and the Division correctly became involved." We affirm.
We use fictitious names for the family members for clarity and to protect their privacy interests.
The November 9, 2012 fact-finding order was made final when the judge terminated the protective services litigation by order of June 3, 2013.
I.
On January 11, 2012, the New Jersey Division of Youth and Family Services (the Division) received a referral from the children's biological father, which alleged that Dina "was smoking crack cocaine daily" and that he harbored concerns for the safety of his son and daughter who were in Dina's care. At the time, Dina and the children were living at Dina's mother's home, where the children's grandmother and uncle also resided.
The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
After an investigation, the Division determined that Dina had a long-standing substance abuse problem, and referred her for counseling and treatment services. Over the ensuing months, Dina's attendance at counseling was sporadic at best, and she tested positive for illicit drug use multiple times. Finally, in June 2012, the Division was advised that Dina required inpatient treatment to properly address her substance abuse.
On June 21, 2012, the Division conducted an emergency removal of Daniel and Diane, placing the children in their father's physical custody. On July 17, 2012, the Family Part formally transferred temporary legal and physical custody of the children to their father. By that time, Dina had entered an inpatient drug treatment program, and the judge permitted her to have supervised visitation with the children.
On November 9, 2012, the fact-finding and dispositional hearing was conducted. The only witness was a Division supervisor, who laid the foundation for the admission of several documents and explained entries in Division documents created by the assigned caseworker.
The judge overruled several evidentiary objections raised by Dina, and ultimately rejected her claim that the Division had failed to sustain its burden of proving abuse or neglect. Dina argued that her children were properly cared for, well-fed, and had their medical needs satisfied. Nevertheless, the judge concluded that Dina, as the children's primary caretaker, had failed her "tender years" children (one of whom had special needs) and recklessly exposed them to danger by her unremitting substance abuse. Finding that the other adults in the home were not reliable caretakers, and Dina was addicted to drugs and not appropriately addressing her addiction, the judge determined, "it is more probably true than not true that . . . the children were abused and neglected." This appeal followed.
On appeal, Dina presents the following contentions for our consideration:
POINT I: DYFS DID NOT PROVE ITS CASE IN ACCORDANCE WITH THE EVIDENTIARY REQUIREMENTS OF N.J.S.A. 9:6-46(a)-(b) AND THEREFORE THE COURT'S FINDING OF ABUSE AND NEGLECT WAS IMPROPER.We are not persuaded by these arguments.
POINT II: D.W.'S DUE PROCESS RIGHTS WERE VIOLATED WHERE DOCUMENTS CONTAINING HEARSAY WERE ADMITTED TO SUPPORT A FINDING OF ABUSE AND NEGLECT.
II.
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The burden is on the Division 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. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
N.J.S.A. 9:6-8.21(c)(4)(b) provides that an "abused or neglected child" means an individual under the age of eighteen years
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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]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). Thus, it is "grossly or wantonly negligent" behavior that falls below the "minimum degree of care." Id. at 178.
Actual harm need not befall a child for there to be a violation of N.J.S.A. 9:6-8.21(c)(4)(b). See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999); see also N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011). Abuse or neglect can occur when a child's "physical, mental, or emotional condition . . . is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4)(b). "[An] abuse/neglect finding often arises because of a legitimate and reasonable inference — stemming from the act or omission in question — that 'the child is subject to future danger.'" Dep't of Children & Families v. E.D.-O., 434 N.J. Super. 154, 159 n.5 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 307 (2011)). "[W]here a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger." T.B., supra, 207 N.J. at 307.
[Dep't of Children & Families v. R.R., ___ N.J. Super. ___, ___ (App. Div. June 9, 2014) (slip op. at 7).]
An assessment of whether a parent's behavior failed to satisfy the minimum degree of care standard "must 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.'" N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009) (quoting G.S., supra, 157 N.J. at 182). The "totality of the circumstances" are to be considered when determining a case of abuse or neglect. V.T., supra, 423 N.J. Super. at 329.
Here, the Family Part judge evaluated and weighed the competing evidence that was presented to him. He was aware that the children were not present when Dina used drugs, and that they suffered no tangible harm. Nevertheless, the judge rightly assessed Dina's persistent inability to properly parent due to her unresolved, and long-standing, substance abuse issues, thereby recklessly leaving her children exposed to a lack of proper oversight.
Our standard of review on appeal is narrow. We defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "[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)). Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal citation and quotation marks omitted). Under the totality of the circumstances, we affirm the Family Part's findings because they are supported by adequate, substantial, and credible evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
Dina's contention that she was denied due process of law by the Family Part's evidentiary rulings is meritless. R. 2:11-3(e)(1)(E). "[O]rdinarily, an evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion . . . ." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). The trial judge did not mistakenly exercise his discretion when considering the challenged evidence pursuant to N.J.R.E. 803(c)(6), Rule 5:12-4(d), and N.J.S.A. 9:6-8.46(a)(3).
CLERK OF THE APPELLATE DIVISION