Opinion
DOCKET NO. A-2936-12T3
09-22-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. I.H., Defendant-Appellant. IN THE MATTER OF A.C., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth Cabot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Cory H. Cassar, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0241-12. Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth Cabot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Cory H. Cassar, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant appeals from a March 27, 2012 order, entered following a fact-finding hearing, determining that she neglected her then five-year-old son by being "unable to care for the minor child due to her arrest [and] physical condition" following an incident at the Newark Airport. Defendant challenges the trial court's finding that this conduct constituted neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services met its burden of proving neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons expressed by Judge Lois Lipton in her thorough oral opinion.
The child was born in 2006.
Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency (the "Division"). L. 2012. c. 16.
The following facts were adduced at the hearing. In the afternoon on November 17, 2011, defendant arrived at the Newark Airport on a flight from Illinois. The Division received a referral that, upon her arrival, defendant was under the influence and was hitting her son. The Port Authority Police arrested her for endangering the welfare of a child, N.J.S.A. 9:6-1.
Division Investigator Sykes reported to the Port Authority Police Administration Building, where he observed defendant in a holding cell. Sykes testified that defendant was "[v]ery [disoriented]." She was basically lying around, moving around a lot, saying things . . . outwardly, like talking to herself." The investigator tried to get defendant to answer some basic questions about the incident, but defendant was unable to respond to most of his inquiries. When she did, "her words were slurred," and Sykes was unable to understand her. Sykes stated that defendant
wasn't in a condition really to care for her son because . . . she was incoherent. She was . . . in a holding cell. She really couldn't really care for him or probably care for herself at that time, quite frankly. I mean, she was under some type of influence of some type of drug.
Division Case Worker Romero spoke to defendant the next day, while she was still in police custody. Defendant told Romero that, after getting off the airplane, her child "wanted to get something from the store, and she told him that he wasn't going to get anything, so the child . . . started flipping out." Defendant stated she then "noticed that she had police officers all over her, and she was handcuffed and arrested" for endangering the welfare of a child. Defendant reported that, in August 2011, she was convicted in Illinois for driving while intoxicated, served twenty-four days in jail, and was currently on probation. Defendant stated she took Xanax and Adderall prior to her flight and asserted she was being treated for "bipolar and stress and anxiety[.]"
On February 2, 2012, defendant pled guilty to one count of fourth-degree endangering the welfare of a child, N.J.S.A. 9:6-1. For reasons that are not clear from the record, none of the parties apprised the trial judge at the March 27, 2012 factfinding hearing of defendant's plea. On April 20, 2012, defendant was sentenced to twelve months of probation.
After this appeal was filed, we granted the Law Guardian's motion to supplement the record with defendant's judgment of conviction and permitted the parties to brief the issue of whether, based on her conviction, defendant is collaterally estopped from contending she did not neglect her child within the meaning of Title Nine. However, neither the Division nor the Law Guardian provided us with a transcript of the plea hearing. In the absence of this transcript, we cannot review the factual basis defendant provided for her guilty plea. Therefore, we are unable to address the Division's and Law Guardian's collateral estoppel argument.
Based on these facts, Judge Lipton found that the Division proved by a preponderance of the evidence that defendant neglected her son because, on November 17, 2011, defendant "was unable to care for the minor child due to her arrest [and] physical condition." The judge found that defendant was under the influence of drugs at the time of her arrest, "appeared disoriented [, and] was talking to herself." Defendant was "unable to communicate basic information and answers" to the Division investigator. The judge stated:
[I]t's clear that [defendant's] condition, whether because she took too much medication, didn't take enough medication assuming it was prescribed, took something else, drank or was having an episode of inappropriate behavior, whatever of those facts are entered into the equation, the bottom line is I don't know of anybody in this courtroom or anyone else that would entrust [defendant] with their child as a babysitter on that date knowing what we do know.This appeal followed.
The law doesn't require that she intentionally neglect or abuse her child, but I do find that she certainly neglected her child by being unable to appropriately supervise that child. She couldn't even take care of herself in a manner basic enough to communicate with the Division worker. In addition, the fact that she was incarcerated, per se, made her unable to appropriately supervise her child which is neglect.
On appeal, defendant argues that "the trial court erred in finding by a preponderance of evidence that [defendant] neglected the child." We disagree.
Defendant also argues that "the trial court erred in finding by a preponderance of evidence that [defendant] abused the child." However, Judge Lipton did not make a finding that defendant physically abused her son and, instead, limited her ruling to a finding of neglect.
Our review of the court's factual finding of neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 4 00 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 412-13. Unless the trial judge's factual 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) (citation omitted), they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. See Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines a "neglected child" as:
a child whose physical, mental, or emotional condition has been impaired or is inA court does not have to wait until a child is actually harmed before it can act in that child's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div. 2009) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, _U.S. ___, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.
imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . 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 through offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
This statutory definition applies to both a neglected child and abused child.
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In determining a case of neglect, "the trial court must base its findings on the totality of the circumstances[.]" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).
Having reviewed the record in light of these standards, we are satisfied there was competent, credible evidence in the record to support Judge Lipton's finding that defendant neglected her child. Shortly after defendant arrived at the airport, the police arrested her for endangering the welfare of her son. In the immediate aftermath of her arrest, Investigator Sykes observed defendant in the holding cell talking to herself, unable to answer basic questions about the incident, and slurring her words. The investigator testified that defendant "was under some type of influence of some type of drug" and was completely unable to provide proper supervision for her young child. Defendant's actions plainly placed her son at a serious risk of harm.
Under these circumstances, we discern no basis to second-guess the judge's factual findings. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). As previously noted, we affirm for the reasons stated in Judge Lipton's opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION