Opinion
DOCKET NO. A-0023-14T1 DOCKET NO. A-0555-14T1
05-11-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.G., Defendant-Appellant. IN THE MATTER OF T.D, I.G. AND J.G., Minors. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.R., Defendant-Appellant. IN THE MATTER OF J.G., Minor.
Joseph E. Krakora, Public Defender, attorney for appellants (Sarah L. Monaghan, Designated Counsel, on the brief in A-0023-14; Dana Citron, Designated Counsel, on the brief in A-0555-14). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief in A-0023-14; Rita Ann Gesualdo, Deputy Attorney General, on the brief in A-0555-14). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the briefs in A-0023-14 and A-0555-14).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-192-14 and FN-07-191-14. Joseph E. Krakora, Public Defender, attorney for appellants (Sarah L. Monaghan, Designated Counsel, on the brief in A-0023-14; Dana Citron, Designated Counsel, on the brief in A-0555-14). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief in A-0023-14; Rita Ann Gesualdo, Deputy Attorney General, on the brief in A-0555-14). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the briefs in A-0023-14 and A-0555-14). PER CURIAM
We consolidate and decide these two appeals simultaneously because they both share the same core of operative facts. In these two Title 9 cases, the Division of Child Protection and Permanency (Division) alleged that the biological mothers of three children, ranging in age from two to nine years old, knowingly shared a four-bedroom apartment that was being used by the named tenant to store, package, and distribute large quantities of illicit narcotics.
This criminal activity came to light when law enforcement agents arrested the named tenant as he exited the apartment in possession of a large quantity of crack cocaine, packaged for street-level distribution. Law enforcement agents gained entry to the apartment by using the key provided by the tenant, after repeated knocks and oral announcements of their presence went unheeded. A search of the apartment revealed large quantities of crack cocaine and marijuana concealed in the kitchen's garbage receptacle; paraphernalia associated with the packaging and distribution of the narcotics were found in other areas of the kitchen. The Division filed a Verified Complaint asserting these housing conditions placed the children at a high risk of harm constituting abuse and neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a).
The Family Part Judge conducted a fact-finding hearing at which a Division caseworker and an Essex County Sheriff's Detective testified for the Division. The two appellants also testified; they claimed they were forced to share the apartment with the other occupants, including the self-confessed drug dealer, for economic reasons. They also alleged they did not see any criminal activity and were not aware of the presence of illicit narcotics in the apartment. The Family Judge rejected appellants' testimony as a matter of credibility and found the Division met its burden of proof. The judge found appellants knowingly exposed these children to a high risk of harm by deciding to reside in an apartment that was being used to operate a criminal enterprise involving the storage and distribution of illegal drugs.
After reviewing the record developed before the Family Part and mindful of our standard of review, we affirm.
I
G.G. (Gail) is the biological mother of I.G. (Iris), a little girl born in February 2012. Gail's paramour I.G. (Ishmael) is Iris's biological father and the biological father of a boy who was born shortly after this incident. Gail is also the biological mother of T.D. a girl born in 2004; F.D. is T.D.'s biological father. J.R. (Jessica) is the biological mother of J.G. (James), a boy born in February 2006.
Pursuant to Rule 1:38-3(d)(12), we identify the parties by using fictitious names to protect and preserve the confidentiality of these proceedings.
On August 27, 2013, the Division filed an Order to Show Cause (OTSC) and Verified Complaint pursuant to N.J.S.A. 9:6-8.21 against Gail and Jessica seeking the care and supervision of their respective children. The Division alleged these two mothers abused and neglected their respective children by knowingly residing in an apartment that was used by a drug dealer for the storage and distribution of illicit narcotics. The Division alleged Gail and Jessica were aware that the apartment was being used for illegal activity because the illicit drugs were concealed in the kitchen's garbage receptacle. The location and nature of a garbage can, a household item that is an aspect of daily living, created a constant and highly probable risk that the drugs concealed therein would be discovered and accessed by all of the occupants of the apartment, including appellants' children.
The paraphernalia used in the distribution of the narcotics was in plain view in the kitchen area and was also likely to have been discovered by the occupants. The criminal activity engaged in by the named tenant H.C. (Howard) within the apartment included the repackaging of large quantities of crack cocaine into smaller vials or containers, commonly used for street-level distribution. Finally, the Division alleged Gail and Jessica knowingly placed their children in an overcrowded, unsanitary apartment. Under the totality of these circumstances, the Division alleged Gail and Jessica exposed their children to an imminent danger of physical and emotional harm.
Although Division records described the apartment as littered with dog feces and dirty clothes, the evidence presented at the fact-finding hearing focused almost exclusively on the presence of the illicit drugs. --------
On the return date of OTSC, the Family Part found that the Division established a prima facie case that Gail and Jessica knowingly placed their children in a dangerous home environment that exposed them to a high risk of harm under N.J.S.A. 9:6-8.21(c)(4)(a). The case proceeded from this point in the ordinary course. On January 15, 2014, the Family Part Judge conducted a fact-finding hearing at which a total of five witnesses testified. The purpose of the fact-finding hearing was "to determine whether the child is an abused or neglected child" as defined under Title 9. N.J.S.A. 9:6-8.44.
The Division's first witness was Essex County Sheriff's Detective James Bradley. He was one of a number of law enforcement agents involved in the raid of the apartment. Bradley testified that on August 14, 2013, agents from the Essex County Sheriff's Department's Narcotics Unit gathered at a concealed location to observe the front door of Howard's basement apartment. Based on prior investigative efforts, agents of the Narcotics Unit had identified Howard as a distributor of illicit narcotics in this particular area of Newark.
Based on information provided by confidential informants, agents from the Narcotics Unit were aware that Howard "would package the Crack Cocaine at his place of residence in fifty packs (street term for 50 vials) and every morning between the hours of [10:30 and 11:30], he would deliver the fifty pack to his street runners[.]" At approximately 10:55 a.m., on August 14, 2013, the agents saw a man matching Howard's description "exit from the target location." As Bradley described it, they drove their police cars "up to where [Howard] was walking." Howard immediately put his hands up and made no attempt to flee.
As Bradley and his fellow officers approached Howard, he "observed a bulge in [Howard's] left sweatpants' pocket." When he reached Howard, Bradley "looked in the pocket and observed clear glass vials of crack cocaine." The officers arrested Howard and took possession of the cocaine. They also advised Howard that they were going to apply for a warrant to search the apartment. According to Bradley, Howard admitted he had more drugs in the apartment, including crack cocaine and marijuana. Bradley also emphasized that Howard took complete ownership of the drugs. He claimed his "family has nothing to do with this."
According to Bradley, he and the other law enforcement agents who responded to the apartment "knocked numerous times," and announced themselves as police officers. No one inside the apartment responded or otherwise acknowledged their presence. The officers were able to gain access to the apartment using a set of keys found on Howard's person from a search incident to his arrest. Bradley described what transpired next:
A. [A]t this point we were met by a female.
Q. Okay. And did the female allow you into the apartment?
A. No, she did not.
Q. Okay. What happened next?
A. She, then, pushed the door back, closed on us and, then, we forced entry into the apartment. And myself and, I don't recall the other officer, followed her into the back bedroom where we detained her.
Q. Okay. Do you know which female shut the door in your face?
A. Yes, [A.P.].
It is undisputed that at the time Bradley and his fellow officers entered the apartment, there were a total of three families residing therein. The first family consisted of Howard, his paramour A.P., and their two minor children; the second consisted of Gail (who was in the third trimester of her pregnancy), her paramour Ishmael, their one-year-old daughter Iris, and Gail's nine-year-old daughter T.D.; the third family consisted of Jessica and her seven-year-old son James. Thus, there were five adults and five children, ranging in age from two to nine years old.
The report of the search issued by the Essex County Sheriff's Department described the various locations in the apartment where officers found contraband. The crack cocaine and marijuana were concealed in the garbage can kept in the kitchen. A black plastic bag found inside the garbage can contained a smaller clear plastic "sandwich bag" that held fifty-two glass vials with red caps. These vials contained an off-white rocky substance, later confirmed to be crack cocaine. Another clear plastic sandwich bag contained forty-five clear glass vials with green caps. Each vial was filled with the same off-white rocky substance, later confirmed to be crack cocaine. Finally, a clear plastic zip-lock bag marked with a red butterfly contained sixteen smaller clear zip-lock bags that were filled with a brownish-green vegetation, later confirmed to be marijuana.
In addition to the contraband found inside the kitchen garbage can, the police found inside the kitchen cabinet "items commonly used as packing material for crack cocaine[;] . . . a box of empty clear glass vials, two clear plastic zip-lock bag[s] marked with a blue butterfly containing numerous red and pink caps, and a box of Krasdale plastic sandwich bags." A report prepared by the Division caseworker who responded to the scene documented that the Narcotics Unit found a total of thirty-two grams of marijuana and ninety-seven vials of crack cocaine inside the apartment. The caseworker testified at the fact-finding hearing. Both Gail and Jessica denied knowing there were illegal narcotics hidden in the garbage can in the kitchen, or anywhere else in the apartment. The caseworker testified that both women were visibly upset and denied any personal involvement with drugs. The Division did not remove any of the children nor seek judicial intervention to take custody of the children.
With respect to Gail, the record shows she had moved out of her previous apartment on July 9, 2014, "because of illegal activity." Gail and Ishmael decided to reside in Howard's apartment temporarily because it had four separate bedrooms. Gail denied ever seeing any drugs while she lived with Howard and his paramour. Jessica also denied knowing anything about drug activity or the storage of illegal drugs in the apartment. She also denied using drugs and told the Division caseworker she was willing to submit to drug testing.
The Family Part Judge made the following finding at the conclusion of the fact-finding hearing:
Patiently having heard the testimony of the parties there seemed to be two - - I'm going to talk in general, because the defenses seem to be similar. Either the defense of see no evil, hear no evil, speak no evil, I
have no idea, I don't know anything, don't know what's going on.
Or, alternatively, that there was no real risk to the children.
And those seem to be the two defenses.
The hear no evil, speak no evil, [know no] evil is really incredible to me.
We have what appears to be a person heavily involved in selling and distribution of drugs. Using the apartment for the drugs. In plain view all of this drug paraphernalia is in the kitchen. All the drugs are being stashed in the garbage can knowing that there's 17 other people floating around in this apartment, I can't imagine that [Howard] says, stay away from the black bag in the garbage can when he goes out to sell his drugs. He certainly doesn't want that thrown out or down the incinerator. I don't imagine how he could expect that people would not know what's going on or what his occupation is.
. . . .
It's incredible in my mind to think that anyone in that household did not know what was going on.
It seems clear to me that the types of paraphernalia that was sitting in plain view in the kitchen, certainly, would have told everyone what was going on. And the fact that [Howard] had no other means of support. And the fact that he was going out and selling these drugs and keeping them in the house. I can't believe these other people had no idea or that he wouldn't even tell them stay away from these drugs, they're in the garbage. Don't take the garbage out whatever you do. They were all living there.
How does he know when he comes back that everything isn't in the garbage truck taken away? I can't . . . even fathom that the parties didn't know what was going on in this particular case.
I didn't find any of the defendants credible with regard to the ["] I have no idea what was going on.["] It doesn't make any sense. It is just incredible.
. . . .
And if we're talking about the risk of harm we have children of various ages, some very small. If you're talking about risk of harm getting into drugs, ingesting drugs, drug raids, violence . . . the things that go on in drug dealings and the violence that goes on, the potential of arrest of the parents. All of those create substantial risk to the parties when they have children living with them or staying with them in a home where drug dealing is going on.
. . . .
I'm satisfied the Division has met its burden against [Gail and Jessica] . . . I'm satisfied that they were all -- they [all lived there] long enough and five weeks would be enough to know that there's drug dealing going on in this home.
The trial court conducted two compliance review hearings thereafter, one on April 10, 2014, and the final on July 17, 2014. In this appeal, both appellants argue the evidence does not support a finding that they abused or neglected their children. Gail in particular argues that she does not deserve to be placed on the registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11. She argues that inclusion will ruin her good name and needlessly limit her employment prospects.
II
N.J.S.A. 9:6-8.21(c)(4)(a) defines "abused or neglected child" as
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 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.
[(Emphasis added).]
A finding of abuse or neglect can be established if the preponderance of the evidence shows the child is in imminent danger and exposed to a substantial risk of harm. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013). The parental conduct must show the lack of a "minimum degree of care, [which] refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). However, neither the Division nor the judiciary need wait until a child is actually irreparably harmed by parental conduct or omission to intervene and take the action warranted under the circumstances. Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015).
Here, the Family Part Judge rejected, as a matter of credibility, appellants' testimony denying any knowledge of the nefarious activities that took place under their own roof. The judge found appellants knowingly or recklessly exposed these young children to a great risk of imminent danger by allowing them to cohabitate with a drug dealer who used the common kitchen area of the apartment to store and distribute dangerous illegal drugs.
The judge found the risk of harm included, but was not limited to, the likelihood that these young, physically mobile children would access and ingest these drugs. The judge also noted Howard was operating a criminal enterprise that required the storage, packaging, and distribution of large quantities of illicit drugs. He also took notice of the inherent potential for violence associated with these nefarious activities.
In reviewing a Family Part Judge's factual findings, we are bound to uphold those factual findings that are supported by sufficient credible evidence. N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 139 (App. Div. 2014). We also owe particular deference to the judge's assessment of a witness' credibility. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We also acknowledge and reaffirm the Family Part's special expertise in matters related to its unique jurisdiction in disputes or cases involving matters of the family. C.W., supra, 435 N.J. Super. at 139-140.
The record before us supports the Family Part Judge's conclusions and factual findings. Both Gail and Jessica resided in this apartment long enough to have discovered Howard's illegal operations. Their decision to share this apartment exposed their children to a clear, serious, and imminent risk of harm to their physical and emotional wellbeing. We affirm substantially for the reasons expressed by the Judge who presided over the fact-finding hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION