Opinion
DOCKET NO. A-2729-13T1
08-05-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.M., Defendant, and J.M., Defendant-Appellant. IN THE MATTER OF T.M., S.M., and K.M. (Minors).
Mark Zavotsky, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Zavotsky, on the brief). Angela Melchionna, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Melchionna, on the brief). Christopher A. Huling, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-81-12. Mark Zavotsky, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Zavotsky, on the brief). Angela Melchionna, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Melchionna, on the brief). Christopher A. Huling, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, of counsel and on the brief). PER CURIAM
Defendant J.M. (John) appeals from the Family Part's January 24, 2012 order, finding that he abused or neglected his three young children, T.M. (Theresa), S.M. (Sam), and K.M. (Kimberly). On appeal he argues:
We use pseudonyms to protect the family's privacy.
POINT I: THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER AS DYFS FAILED TO PROVE THAT [JOHN] HARMED OR WOULD HARM HIS CHILDREN AS A RESULT OF HIS WILLING, KNOWING, AND VOLUNTARY ACTIONS. THE DEFENDANT'S ACT OF RUNNING DOWN TO THE CORNER WAS AN ISOLATED INCIDENT AND DID NOT AMOUNT TO A "SUBSTANTIAL" RISK OF HARM TO THE SUBJECT CHILD.
POINT II: THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER BECAUSE THE FACTS DID NOT ESTABLISH [JOHN] HAD AN UNREMEDIATED DRUG DEPENDENCY WHICH AFFECTED HIS ABILITY TO PROPERLY CARE FOR HIS CHILDREN.
POINT III: THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER BECAUSE THE DRUG SCREEN REPORT USED TO ESTABLISH THAT [JOHN] TESTED POSITIVE FOR COCAINE AND MARIJUANA WAS IMPROPERLY ADMITTED AND INADEQUATE TO ESTABLISH THE REQUIRED FACTUAL BASIS UNDER N.J.S.A. 9:6-8.21(c)(4)(b).
The Division of Child Protection and Permanency (DCPP) was formerly known as the Division of Youth and Family Services (DYFS). Throughout this opinion, we refer to the agency as the DCPP or the Division.
We considered these arguments in light of our review of the record and applicable principles of law. We affirm.
The record reflects the following procedural history and facts relevant to John's appeal. In October 2011, the Division received a referral about the family from the Trenton Police Department. At the time, Theresa was three years old, Sam was two years old, and Kimberly was one year old. According to the reporter, a police dispatcher, officers responded to a domestic violence call at the family's home on the evening of October 26, 2011, at which time the mother, defendant J.M. (Jennifer), accused John of hitting her. The officers did not observe any injuries, and the parties presented conflicting stories. Nevertheless, John was asked to leave the home.
A previous Division case on the family, opened in response to a July 2010 referral, had been closed.
The following day, the police again responded to the home. Each parent claimed that the other had left the children home alone, and the condition of the home was disturbing; the temperature 60 degrees and the children dressed only in diapers; a reported bed bug infestation; dirty clothing and garbage strewn about; and an exposed plywood floor. The responding officer referred the family to the Division because he was concerned for the children's safety.
The Division's caseworker, Leroy Peterson, investigated. He spoke with the police officer who made the referral, and with Jennifer and John. Jennifer told Peterson that she suffered from depression, but she was not on any medication, and denied any substance abuse or criminal history. She said that she and defendant lived together with their three children, and shared responsibility for the children's care. She alleged that John was in a gang, and stated that he was very jealous and physically abusive, but she had never pressed charges against him. Jennifer claimed that the previous night, John punched her in the face, held a knife to her throat, and threatened to kill her. The following morning he returned to the home at about 10:00 a.m., at which time Jennifer went to the food pantry, leaving the children in John's care. When she returned at 11:00 a.m., John was up the street, having left the children home alone for an unspecified amount of time.
John denied any history of substance abuse or acts of domestic violence against Jennifer, but claimed that she hit him, and that she had bipolar disorder, but did not take any medication for it. He admitted to an extensive criminal history, but said he was trying to turn his life around and was working as an informant for the police. He said that he and Jennifer shared responsibility for the children, but claimed Jennifer did not provide adequate care for the children or clean the house. As to the police visits, John stated that he and Jennifer had a verbal altercation, which resulted in the police being called and him being told to leave the home. When he returned the following morning, he had to break into the house to gain access, where he found the children home alone. He then locked the door and left the children alone while he went to find Jennifer; specifically, he walked up the street, not far from the house, where he found Jennifer in a car with another man.
Peterson completed a case plan with the parents, who both agreed to comply with the services recommended by the Division, including a substance abuse evaluation. At their December 1, 2011 drug screening, John and Jennifer denied using drugs, but both tested positive for cocaine and marijuana. Upon receiving the drug test results, Peterson returned to the home and spoke with the parents. Jennifer could not understand how she tested positive for cocaine, while John admitted having smoked marijuana a month earlier but denied using other drugs.
The Division removed the children on an emergent basis, and the court granted its request for their custody, care, and supervision. Thereafter, Jennifer underwent an additional substance abuse screening that was positive for marijuana. A criminal background check on John revealed numerous drug-related charges. Both parents were referred for psychological and substance abuse evaluations and treatment.
The Division conducted a "Dodd removal," which "refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
The court conducted a fact-finding hearing on January 24, 2012, with respect to the allegations of abuse and neglect made only against John as Jennifer previously entered into a stipulation that she had unremediated substance abuse issues that constituted abuse or neglect pursuant to law. Peterson testified at John's hearing about the Division's involvement with the family, as previously described. He stated that, based upon his initial investigation, the Division substantiated John for inadequate supervision of the children by leaving them home alone on October 27, 2011. Additionally, after the parents tested positive for cocaine and marijuana on December 1, 2011, the Division substantiated them for having an unremediated substance abuse problem.
A stipulation is an admission by a parent. Specifically, "[a] factual stipulation in an abuse or neglect case must [satisfy] . . . the judge . . . that there is a factual basis from which to conclude that defendants have committed some specific act or acts which constitute abuse or neglect as defined in N.J.S.A. 9:6-8.21(c) and that the parents willingly, knowingly and voluntarily agree that they have committed these acts." N.J. Div. of Youth & Family Services v. J.Y., 352 N.J. Super. 245, 266 (App. Div. 2002).
Defendant testified on his own behalf. He stated that he left the children home alone for only two or three minutes, while he walked to the corner of the street to look for Jennifer as "she was taking too long coming home." When he got to the corner, from where he could see his home, he found Jennifer on the phone. He told her to come home, "but she pulled off." He then "went straight to the house and waited for her to come back."
At the conclusion of the hearing, the court placed its decision on the record and entered an order, finding that John had abused or neglected the children by having an unremediated substance abuse problem, and by failing to provide adequate supervision for the children. The court believed the parents also had domestic violence issues, but there was insufficient evidence that those issues constituted abuse or neglect.
As for John's leaving the children home alone, the court found that "it is not absolutely the case that every time a parent has a one or two or three year old child that it takes her eyes off of them even if it was for two minutes that that is necessarily abuse and neglect." Here, however, John's conduct constituted neglect because he left children of a tender age, who were awake and mobile, unsecured, in a "messy, unkempt" apartment, with access to a stairwell and numerous other hazards. Moreover, he left the children unattended for no good reason. Despite John's claim that he left the children unattended for only a few minutes, in reality, he left them "for an indeterminate period of time." "He went out on some frolicking detour out of the apartment without any time . . . that he was going to return. Just locked the door and he left."
In terms of John's unremediated substance abuse, the court found that it impaired his judgment, and made him unable "to accurately perceive, recall and understand what's going on." Moreover, his addiction caused him to spend time away from the children, and to spend money on drugs that otherwise could be used to support the children. It also exposed him to "significant criminal penalties under the criminal code," including fines and possible imprisonment, all of which was "inimical to good parenting."
The court entered a fact-finding order memorializing its decision. John later moved for reconsideration, which the court denied.
After the fact-finding hearing, the court held a dispositional hearing, and entered an order initially continuing the children in the custody and care of the Division, but ultimately placing them in the legal and physical custody of a paternal aunt and terminating the litigation on January 23, 2014. This appeal followed.
The Division remained involved with the family, offering supervised visitation with the children, substance abuse screening and treatment, domestic violence counseling, individual counseling, parenting skills courses, and anger management counseling for John, who was unable to participate in the Division-provided services during a period of incarceration in the spring of 2012. The court returned the children to Jennifer in June 2012. However, they were removed from her three months later, after she left a Mommy and Me program without authorization. They were again returned to Jennifer's physical custody in November 2012, and were returned to the legal custody of both parents on February 7, 2013. However, the Division retained supervision, and the family was ordered to live with the children's maternal great-grandparents, who would supervise the parents' contacts with the children. Less than two weeks later, the Division removed the children for a third time. As noted, the court placed the children with John's sister, who retained sole legal and physical custody of the children. --------
On appeal, John contends there was insufficient evidence to support the court's decision. We disagree.
In our review of the Family Part's determination in abuse and neglect cases, we "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); N.J. Div. of Child Prot. & Permanency v. K.N.S., ___ N.J. Super. ___, ___ (App. Div. July 17, 2015) (slip op. at 6). "A neglectful parent is a serious danger to an infant. We must be particularly vigilant not to improperly interfere with the credibility determinations of the trial judge where the danger to an innocent party of an incorrect determination is so severe." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 383 (App. Div. 2014).
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). Under Title Nine, "[t]he safety of children is the paramount concern." M.C. III, supra, 201 N.J. at 343. Accord P.W.R., supra, 205 N.J. at 31; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).
N.J.S.A. 9:6-8.21(c)(4)(b) defines a child as "abused or neglected" if the child's
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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]
The standard is one of gross or wanton negligence, "analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. Mere negligence will not suffice. Id. 178. Thus, "a guardian 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." Id. at 181; N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 167-68 (App. Div. 2009). See, e.g., N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 540, 545-46 (App. Div. 2011) (finding that parent was grossly negligent in placing ten-month old child on twin bed without rails, with sleeping ten-year-old child, resulting in infant's being severely burned by hot radiator).
Courts then conduct a factfinding hearing to determine whether a child has been abused or neglected. N.J.S.A. 9:6- 8.44; see also N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). At the hearing, the Division must prove abuse or neglect by a preponderance of the evidence, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Determinations are fact-sensitive and must be made on a case-by-case basis. P.W.R., supra, 205 N.J. at 33; N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010). "If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings." N.J.S.A. 9:6-8.50(a).
Applying those legal principles, we concur with the Family Part's conclusion that, under the circumstances presented, John's leaving children of tender years home alone, even if for a few minutes, constituted neglect. We conclude that John's leaving the extremely young children unsecured in an unkempt apartment, with access to a stairwell and other dangers, without knowing how long he would be away, and without any purpose other than to locate Jennifer, supplied more than sufficient credible evidence for the court to have relied upon in reaching his decision. The circumstances were made worse by the fact John was aware of the danger to which he was exposing the children, which he demonstrated by apparently being upset with Jennifer for having left the children unattended and his locking the door behind him in an attempt to prevent the children from wandering off. These facts establish abuse or neglect under the gross negligence standard. See, e.g., Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 434 N.J. Super. 154, 155, 160-62 (App. Div.) (affirming finding that nineteen-month-old child was abused or neglected when left unattended in motor vehicle while mother entered nearby store), certif. granted, 218 N.J. 530 (2014).
We are not persuaded by John's reliance upon the Court's decision in T.B., which we find distinguishable. In T.B., supra, 207 N.J. at 297-98, 309-10, the Court rejected a finding of abuse or neglect where the mother unknowingly left her child home alone, reasonably believing that the grandmother was in the home to supervise. Here, by contrast, defendant knowingly left the children unattended.
Because we conclude the court correctly determined John neglected the children by leaving them alone, we need not address his challenge to the court's finding that John had an unremediated substance abuse addiction to marijuana and cocaine that constituted abuse or neglect because it exposed the children to a substantial risk of harm. We note, however, a parent's involvement with illegal drugs does not invariably lead to a finding of abuse or neglect. See N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION