Opinion
DOCKET NO. A-0783-13T1
12-12-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.E., Defendant-Appellant. IN THE MATTER OF K.E., Jr., J.E., M.E. and MA.E., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Respondent DCPP has not filed a brief. Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondent minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-123-13. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Respondent DCPP has not filed a brief. Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondent minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant M.E. appeals from an order entered in this Title Nine matter prohibiting her from supervising visitation between her estranged husband, K.E., Sr., and their four minor children. The Division of Child Protection and Permanency (the Division) initiated a Title Nine action against K.E. for leaving his then seven-year-old son J.E. alone in a car. Following a fact-finding hearing, K.E. was found to have abused or neglected J.E. Visits were ordered as supervised by M.E.'s parents. M.E. seeks to vacate that portion of the order rejecting her as K.E.'s supervisor, arguing the order interferes with her "constitutionally protected fundamental liberty right to supervise visitation involving her minor children." We reject her argument and affirm.
The facts are not disputed. The Division was contacted when Woodbury police found J.E. crying, alone and shoeless, standing outside a parked car at 5:30 a.m. on October 6, 2012. Two empty beer bottles were on the front seat of the vehicle. J.E. remembered he had been with his father, K.E., who was not in the immediate area.
K.E. was located at approximately 7 a.m., one block from his car. He appeared disoriented and did not remember where he left his car or that J.E. was with him. In a subsequent interview with police, K.E. stated he picked up J.E. from football practice, went to eat pizza and drove to a friend's house for a party, which he left at 11 p.m. K.E. could not remember any events after 11 p.m., claiming he suffered from pre-existing neurological issues. He recalled drinking one or two beers at the party and suggested someone must have drugged him.
A relative took K.E. to Cooper University Health Center. There he acknowledged he drank four beers and smoked marijuana. A blood test revealed traces of opiates, benzodiazepines, marijuana, and cocaine in K.E.'s system. During the hospital examination, K.E. also admitted "to smoking PCP recreationally." Police charged K.E. with endangering the welfare of a child, neglect of a child, and possession of open alcohol containers in a vehicle.
J.E. was released into the custody of M.E., who was the residential custodian of the parties' four children. The Division learned M.E. and K.E. were separated and K.E. was residing with M.E.'s parents. M.E. expressed her concerns and asserted she would not allow K.E. to be unsupervised while with the children.
K.E. declined to undergo a substance abuse evaluation. He agreed to a hair follicle test, but did not attend the scheduled appointment for the test.
The Division filed a Title Nine complaint and was granted care and supervision of the parties' children. K.E. was permitted visitation, as supervised by M.E.'s parents. M.E. was named as a defendant for dispositional purposes and there was no evidence she had acted to abuse or neglect the children.
M.E. was interviewed by a Division caseworker and denied either she or K.E. used drugs. Also, she declined repeated requests by the Division to obtain copies of the children's medical records or speak to them outside her presence. On February 15, 2013, the return date of the order to show cause, the Law Guardian reported M.E. would not permit him to interview the children and also told the children not to speak to him alone. M.E. also insisted she remain when the children spoke to the Division caseworkers. The Law Guardian insisted an order was necessary to allow interviews to be conducted at the children's schools.
On July 1, 2013, K.E. requested to modify the visitation order and have M.E. replace her parents as the supervisor during K.E.'s visitation. The Law Guardian objected, citing K.E.'s lack of cooperation with the Division, his unwillingness to participate in drug screenings, and M.E.'s refusal to allow the children to speak with counsel or his investigator. The court denied K.E.'s request, withholding a final decision until after the fact-finding hearing.
K.E. did not attend the fact-finding hearing held on August 27, 2013. Division caseworkers testified and documents were introduced without objection. The judge found K.E. abused or neglected J.E. by using drugs while caring for J.E. and leaving him alone in the car. The judge concluded K.E.'s explanation of being drugged was unsubstantiated and noted K.E.'s history of PCP and marijuana use also contradicted his claims. The judge also rejected M.E.'s statements to caseworkers stating K.E. did not use drugs. The judge found her statement was motivated by her desire to protect K.E. and prevent "outside intervention, feeling that she could handle [the situation] better herself."
The Division requested an order requiring the continued supervision of K.E.'s visits with the children by their maternal grandparents. The Division objected to allowing M.E. supervise visits, maintaining she did not recognize the risk K.E.'s unresolved substance abuse posed to the children. The judge found most of the children "were too young to take any kind of precautionary steps on their own to be alert themselves for whether they're being put in a dangerous situation because of dad's abuse of drugs." The judge also mentioned M.E.'s contradictory statements made to hospital personnel and the Division's caseworkers regarding K.E.'s drug use. Specifically, she communicated concerns to doctors about K.E.'s possible drug use, but told the Division "[K.E.] has no problems with drugs . . . it's not an issue." Also, the judge found M.E.'s minimization of the danger posed by K.E.'s drug use had not changed despite evidence gathered in the litigation and K.E.'s refusal to engage in treatment.
To assure the children's safety, the judge declined M.E.'s request to supervise the visits and ordered "she could not change th[e] order without potentially placing the children at risk of harm." All visits between K.E. and the children were ordered to continue under the direction of the maternal grandparents or another supervisor approved by the Division. The judge also discussed the need to allow the Law Guardian a final interaction with the children prior to concluding the case to allow "the children's voices . . . to be protected" and heard. A final order terminating this litigation was entered on August 27, 2013. This appeal ensued.
M.E. appeals from the portion of the order preventing her from serving as K.E.'s visitation supervisor. She argues she never placed the children at risk and the record lacked support for the court's finding "her supervision would harm the children or pose a risk thereof." M.E. contends the order violated her constitutional right to be free from state interference.
K.E. is not a party to this appeal. The Division has "elected to take no position" since it "[does] not raise [] any issues regarding the abuse and neglect finding." The Law Guardian maintains the judge's findings were fully supported by the record, which shows M.E. was "defensive and uncooperative during the litigation" and, further, would not allow the Law Guardian to freely speak to the children. Accordingly, M.E.'s lack of appreciation for the risks K.E.'s conduct posed to the children dictated she must not be permitted to supervise visitation.
Certainly, due process protects the parent-child relationship. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982)). However, the right to raise and care for children is not absolute, but "tempered" by the State's duty to intervene against unfit, abusive or neglectful parents or guardians. K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The court's authority to impose supervision restrictions is found in N.J.S.A. 9:6-8.55. The statute provides, in part:
The court may make an order of protection in assistance or as a condition of any other order made under this act. The order of protection may set forth reasonable conditions of behavior to be observed for a specific time by a person who is before the court and is a parent . . . responsible for the child's care or the spouse of a parent or guardian, or both.We therefore must consider whether the imposed restriction was necessarily supported by the Division's evidence.
[N. J.S.A. 9:6-8.55.]
In conducting our limited review, we note "'findings 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)) (brackets omitted). Generally, a family judge's factual findings are overturned only when "'they are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 1046 (2008)). Finally, we will not interfere with a trial court's conclusions of law that are based upon supported factual findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).
The Division clearly and convincingly proved the need to supervise K.E.'s interactions with the children. K.E.'s unabated substance abuse, which actually harmed J.E. and proved likely to cause a substantial risk of harm to the other children, necessitated protections to reasonably assure the children's safety. The judge properly exercised the State's parens patriae responsibility to protect a child's safety, which remains the court's "paramount concern." N.J.S.A. 9:6-8.8(a). See also N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 21 (App. Div. 2010). We find no error in mandating K.E. have supervised visitation.
Next, we consider whether the judge abused her discretion in denying M.E. the role of K.E.'s supervisor.
"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.
[Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013) (quoting Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952)).]
On appeal, we defer to the discretion of the trial judge who has a "feel of the case." Khan v. Singh, 397 N.J. Super. 184, 202 (App. Div. 2007) (citation omitted). We will not reverse unless we determine a clear abuse has occurred.
Contrary to M.E.'s suggestion, the record contains sufficient evidence to demonstrate her supervision of visits would likely pose a risk of harm to the children. M.E. repeatedly dismissed the detrimental consequence of K.E.'s drug use even though K.E. acknowledged past illicit drug use and admitted he used marijuana and drank beer on October 6, 2012. The hospital toxicology screen detected additional illicit drugs in K.E.'s bloodstream and no evidence supported his subsequent claim that he was surreptitiously drugged. Despite being responsible for the care and safety of his seven-year-old, K.E. cannot explain what happened from 11 p.m. to 5:30 a.m., because he blacked out after ingesting drugs and alcohol.
During the litigation, M.E. resisted the prospect K.E. suffered from drug addiction or was in need of psychiatric care. Further, she would not allow J.E. to discuss the events, distrusted the Division and the Law Guardian, and instructed the children not to speak to the Law Guardian unless she or someone else was present. Although she never revealed her motives, it seems clear she sought to maintain control of events and did not want the children to freely communicate with authorities. Despite orders requiring the Law Guardian's communication with his clients, M.E. continued to resist and ignore the obligation, seemingly because she believed her judgment was best.
M.E. does not refute any of these facts, she merely argues, without factual support, the order denying her the supervisory role was "punitive," "overzealous," the result of "institutional bias" or an unnecessary intrusion on her parenting rights. We reject these contentions. Rather, we conclude the order was essential to guarantee K.E.'s conduct would not further harm J.E. or the other three children. M.E. demonstrated a lack of objectivity when assessing what had occurred and what could occur because of K.E.'s untreated substance abuse. The trial judge weighed the seriousness of the potential harm, M.E.'s dismissive conduct, and her parents' past effective supervision efforts. The judge's decision to decline the request to change supervisors was neither error nor an abuse of discretion. Further, K.E. resided in his in-laws' home, which made visitation in their residence not only practical, but also freed the parent-child interaction from any possible negative emotions evoked between estranged spouses.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION