Opinion
DOCKET NO. A-0553-14T4 DOCKET NO. A-0554-14T4
03-09-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.K. and D.K., SR., Defendants-Appellants. IN THE MATTER OF A.K. and D.K., JR., Minors.
Christine Olexa Saginor, Designated Counsel, argued the cause for appellant N.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant D.K., Sr. (Howard P. Danzig, Designated Counsel, on the brief). Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors A.K. and D.K., Jr., (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-273-14. Christine Olexa Saginor, Designated Counsel, argued the cause for appellant N.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant D.K., Sr. (Howard P. Danzig, Designated Counsel, on the brief). Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors A.K. and D.K., Jr., (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief). PER CURIAM
In these two appeals, calendared back-to-back and consolidated for the purpose of this opinion, defendants N.K. (Nancy) and D.K., Sr. (Dan) challenge the Family Part's April 15, 2014 order memorializing its determination that they abused or neglected their children within the meaning of Title 9, N.J.S.A. 9:6-8.21 to -8.73. On appeal, defendants argue there was insufficient evidence for the court to rely upon in support of its conclusion. They maintain plaintiff Division of Child Protection and Permanency (Division) did not meet its burden to prove that they harmed their children; acted or failed to act in a way which presented a substantial risk of harm; or exposed them to imminent danger. The Law Guardian supports defendants' arguments, contending the facts did not warrant a finding of abuse and neglect. The Division disagrees and argues the order should be affirmed.
We use pseudonyms to refer to the family members to protect their privacy.
We conclude the Division's proofs lacked substantial credible evidence demonstrating that defendants' conduct recklessly created a substantial risk of imminent harm to the children's mental health or physical safety. See N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8-9 (2013). Accordingly, we reverse the finding of abuse and neglect, and remand for entry of an order to remove defendants' names from the child abuse registry.
We discern the following facts from the hearing record. Nancy and Dan are the parents of now eight-year-old A.K. (Amy) and her six-year-old brother, D.K. (Daniel). Both parents are employed as educators in the community in which the family resides. This case was the family's only contact with the Division.
The parents, now in their thirties, had been abusing controlled dangerous substances and prescription medications for about twenty years. At the time the Division became involved in their lives, the parents were receiving outpatient treatment, which included being prescribed Suboxone for their heroin use.
On August 23, 2013, Nancy's mother brought her to a hospital after Nancy reported that, while the family was away for seven days at the shore, she attempted to commit suicide by trying to tie her arms and legs, cutting her wrists, and jumping into the ocean. The children were not aware of Nancy's suicide attempt.
A Division worker interviewed Nancy at the hospital while she was agitated and complained her skin was "crawling." Nancy admitted to using drugs for the past three years and consuming alcohol on a daily basis. She also expressed a desire to get help for her depression. Nancy reported that she and her husband had been using ten bags of heroin a day, and she had been using heroin for the past eighteen months. She admitted that she cared for her children while under the influence.
The same day, the caseworker met with Dan, who reported that Nancy tried to overdose on Xanax and began "acting weird." He claimed that he did not know why Nancy would have attempted to commit suicide and was unaware whether she suffered from depression. Dan stated that he and his wife were under a physician's care for their addiction, but had recently relapsed. He further reported that he and his wife used Suboxone daily. Dan initially denied using heroin, but upon further questioning, admitted that he had a history of heroin abuse and used heroin the previous week. He stated that although he used heroin when the children were in the home, they were always okay.
A report was made that, due to the parents' drug habit, they suffered financial hardships, which allegedly caused them to default in their mortgage payments and resulted in a foreclosure. However, no details concerning the foreclosure's status or an imminent eviction were reflected in the Division's records or the testimony of its representatives at the fact-finding hearing.
The Division also interviewed the children and did not discover any signs of abuse or neglect. The children did not display any symptoms of physical abuse, as the only mark observed on either child was a self-inflicted scratch on Daniel's nose. The home contained adequate accommodations, food, furniture, and working utilities. Both children reported that their parents did not hit either them or each other. They also stated that they were not afraid of anyone in their home. The children did not know what drugs or alcohol were, nor did they witness either parent using any substances, other than Amy having reported that she saw her mom drink white "medicine," which was vodka, out of a bottle in order to make her feel better and observed her parents were often sleeping.
Out of concern over the children being in their parents' care while they used drugs, the Division conducted a "Dodd removal" of the children, eventually placing them with a family friend on August 24, 2013. The Division also filed a complaint on August 27, 2013, alleging the children were abused or neglected by Nancy and Dan and seeking care and supervision of the children. On that same date, the court granted the Division continued custody of the children and appointed a law guardian. The parents were granted weekly visitation.
"A 'Dodd removal' 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)).
At a status hearing on October 9, 2013, the court continued the Division's custody of the children. By the end of October 2013, both parents were evaluated, participated in substance abuse treatment, and had visitation rights with their children. The court also granted liberal supervised visitation with both sets of grandparents. Dan was ordered to attend parenting skills training. On December 5, 2013, the court granted the parents an overnight visit with their children for Christmas.
The court conducted a fact-finding hearing on April 15, 2014. Two Division workers testified about their investigation and findings regarding Nancy, Dan, and the children. Neither parent testified or called any other witnesses on their behalf.
Title 9 requires that, in order to maintain the action against the parents, the Division must prove at a fact-finding hearing, by a preponderance of the "competent, material and relevant evidence," that the child is an abused or neglected child. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002) (quoting N.J.S.A. 9:6-8.46(b)).
After considering the evidence adduced at the hearing, the court concluded that the children were abused and neglected. The court placed its findings on the record, relying solely on the parents' addiction to support its decision. It stated:
[T]his is actually a very close case . . . . I do believe that the parents have long term substance abuse issues. I don't have a lot more than that.
. . . .
I'm going to make the finding that, in fact, that the parents did, based on the evidence of both caseworkers, I have admissions that are admissible by both parents that mom, for at least a year and a half, if not longer, ha[d] a heroin habit, and I feel for her, of ten bags a day.
. . . [T]hey seem like very nice people. And I don't have any doubt that they love their kids. But when push comes to shove the heroin wins out over the kids sometimes.
. . . .
. . . I don't think I need an expert to tell me someone who uses substantial amounts of heroin for a long time either is or may be under the influence while they are a caretaker for the children. And that puts the kids at substantial risk of harm.
. . . But that the willful act in ingesting the heroin. That's willful and wanton conduct that I find meets the burden
of failing to exercise a minimum degree of care.
. . . [A] reasonable person, two people who appear to be, they're teachers, I presume reasonably intelligent people. . . . One would think a reasonable person, I'm going to hold them to that standard, would believe that ingesting ten bags of heroin or a considerable amount of heroin and, then, being a caretaker for the kids would influence your judgment and all your capacity to care for the kids. . . .
So I'm going to make those findings. Even though there is no proof that they were under the influence at any given moment.
The court entered its fact-finding order and continued the Division's care and custody of the children.
The Division attempted to reunify the family, but Dan tested positive for opiates in March 2014, at which point the court reinstated supervised visitation for Dan. However, on June 16, 2014, the court returned the children to the care of their parents and, on July 31, 2014, terminated the litigation after determining that the parents' issues had been remediated.
On appeal from the court's fact-finding order, Nancy argues:
POINT I
THE TRIAL COURT'S FINDING THAT [AMY] AND DANIEL WERE ABUSED OR NEGLECTED IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE BECAUSE THE COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT
N.K.'S PAST SUBSTANCE ABUSE ALONE WAS SUFFICIENT TO PROVE THAT THE CHILDREN WERE ABUSED OR NEGLECTED.
POINT II
THE TRIAL COURT'S FINDING THAT [AMY] AND DANIEL WERE ABUSED OR NEGLECTED MUST BE REVERSED BECAUSE THE COURT FAILED TO CONSIDER RELEVANT EVIDENCE CONCERNING WHETHER THE CHILDREN WERE SUBJECT TO A PRESENT IMMINENT RISK OF HARM AT THE TIME OF THE FACT-FINDING.
In support of his appeal, Dan argues:
POINT I
THE JUDGE'S FACT-FINDING DECISION FAILED TO COMPORT WITH THE STATUTORY AND CASE REQUIREMENTS FOR FINDING ABUSE OR NEGLECT AS TO A PARENT; AS SUCH, APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED.
POINT II
ERROR WAS COMMITTED IN THE TRIAL COURT'S EVALUATION OF THE UNDERLYING FACTS. ACCORDINGLY, THIS COURT'S SCOPE OF REVIEW IS EXPANDED.
POINT III
RESPONDENT FAILED TO MEET THE STANDARD OF PROOF REQUIRED TO FIND APPELLANT GUILTY OF ABUSE OR NEGLECT.
A. DRUG USE ALONE IS AN INSUFFICIENT BASIS UPON WHICH TO MAKE A FINDING OF ABUSE AND NEGLECT.
B. THERE WAS NO PRESENT DANGER TO THE CHILDREN AS REQUIRED BEFORE A FINDING OF ABUSE AND NEGLECT CAN BE MADE.
The children's Law Guardian supports the parents' position, arguing that, while the Division was justified in its initial removal of the children, under the circumstances, "this matter [sh]ould have been addressed under Title Thirty considering the [parents'] full compliance with services." The Division disagrees, contending that the parents "had abused or neglected [their children] by exposing them to a substantial risk of harm."
N.J.S.A. 30:4C-12.
We begin our review by recognizing it is limited and narrow. We defer to the Family Part's factual findings "when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's interpretation of the law and the application of such legal conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"New Jersey's child-welfare laws balance a parent's right to raise a child against 'the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting A.L., supra, 213 N.J. at 17-18). "The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children who suffer serious injury inflicted by other than accidental means." S.I., supra, 437 N.J. Super. at 152 (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999)); see also N.J.S.A. 9:6-8.21 to -8.73. Title 9 is intended to safeguard children who have been abused or are at risk of imminent harm. A.L., supra, 213 N.J. at 18, 22. "To that end, Title [9] provides for the civil prosecution of a parent or guardian who abuses or neglects a child." Y.N., supra, 220 N.J. at 178 (citing N.J.S.A. 9:6-8.33).
N.J.S.A. 9:6-8.21(c)(4)(b) provides that a child is "abused or neglected" when his or her
physical, mental, or emotional condition has been impaired or is in imminent danger of
becoming impaired as the result of the failure of his [or her] parent or guardian, as herein defined, 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, . . . or by any other acts of a similarly serious nature requiring the aid of the court.
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." Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S., supra, 157 N.J. at 181). Therefore,
the primary question under Title 9 is whether [the children] . . . 'ha[d] been impaired' or w[ere] in 'imminent danger of becoming impaired' as a result of [their parent's] failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a 'substantial risk' of harm to be inflicted."
[A.L., supra, 213 N.J. at 22 (third alteration in original) (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).]
"Accordingly, Title 9 initially looks for actual impairment to the child. . . . [W]hen there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J. at 178. "[T]he standard is not whether some potential for harm exists." Id. at 183 (quoting N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009)). "[A] finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm." Id. at 178 (emphasis added) (quoting A.L., supra, 213 N.J. at 23).
Applying this statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. See N.J. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011) (describing the "continuum between actions that are grossly negligent and those that are merely negligent"). As we recently explained:
"[T]he elements of proof are synergistically related." [N .J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011)] (citation and internal quotation marks omitted). In this regard, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. Id. at 330 (citation and internal quotation marks omitted). A court need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare.
[S.I., supra, 437 N.J. Super. at 154 (final alteration in original).]
"Strict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J. at 179. Consequently, whether a parent has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "analyzed in light of the dangers and risks associated with the situation," N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82), and evaluated "at the time of the event that triggered the Division's intervention." E.D.-O., supra, 223 N.J. at 170.
At a fact-finding hearing, N.J.S.A. 9:6-8.44, 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); see also P.W.R., supra, 205 N.J. at 32 (holding the State bears the burden to present proofs to establish abuse or neglect, as defined in the statute); N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (explaining the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child), certif. denied, 182 N.J. 426 (2005).
After the parties present their evidence at the hearing, courts must not "fill in missing information on their own or take judicial notice of harm." A.L., supra, 213 N.J. at 28. In cases involving allegations of parental drug abuse, while courts have recognized "the societal concern that no child come under the care of an intoxicated parent[,] . . . 'not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect.'" N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 469-70 (App. Div. 2014) (quoting V.T., supra, 423 N.J. Super. at 332). Rather than "filling in missing information, an understandable response by judges who regularly witness the evils inflicted on children by their parents' drug use, judges must engage in a fact-sensitive analysis turning on 'particularized evidence.'" Id. at 470 (quoting A.L., supra, 213 N.J. at 28).
Where the evidence does not support a finding of either actual harm or substantial risk of imminent harm, Title 30 authorizes the Division, outside the parameters of Title 9, to protect a child. See N.J. Dep't of Children & Families v. I.S., 214 N.J. 8, 32-33, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013); A.L., supra, 213 N.J. at 33-34. N.J.S.A. 30:4C-12 is an "additional tool afforded [to] the Division to discern the most appropriate course of action for a child and his or her family in need of the Division's assistance." I.S., supra, 214 N.J. at 33 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 267-68 (App. Div. 2011)). In a Title 30 action, "the court's determination is based on the best-interests-of-the-child standard, not the specific language in the abuse and neglect law." A.L., supra, 213 N.J. at 33.
"Regardless of whether a finding of abuse or neglect is established under Title 9, the Legislature intended to permit the Division to obtain custody, care, or supervision of a child under [N.J.S.A. 30:4C-12]." I.S., supra, 214 N.J. at 33. Indeed, should it appear that the child requires such care and supervision "or other action to ensure the health and safety of the child, the division may apply to the Family Part . . . for an order making the child a ward of the court and placing the child under the care and supervision or custody of the division." A.L., supra, 213 N.J. at 33 (alteration in original) (quoting N.J.S.A. 30:4C-12). Under the statute, "a court could order a parent to undergo treatment for substance abuse." Id. at 34. The Division is allowed to "seek to provide services or place a child under its care and supervision," even if a parent does not cooperate, "'whenever it shall appear' that a parent or guardian 'shall fail to ensure the health and safety of the child, or is endangering the welfare of such child.'" Id. at 32-33 (quoting N.J.S.A. 30:4C-12). "[T]he statute expressly empowers the Division to obtain a court order to require a mother to accept services." Id. at 32.
Applying these controlling principles here, we first observe it was undisputed that the children were not harmed in any way. To the contrary, the evidence established they were healthy and well cared for by their parents. The Family Part instead found that defendants neglected their children by subjecting them to a "substantial risk of harm" through "the willful act [of] ingesting the heroin," relying solely on their addiction "[e]ven though there [was] no proof that they were under the influence at any given moment." That finding, however, cannot support a substantial likelihood of imminent danger to the children, particularly when at the time of the events that triggered the Division's involvement, the evidence failed to demonstrate any risk of harm to the children.
Importantly, there was no proof that either parent was ever impaired to the extent it interfered with their ability to properly care for their children or exposing them to any imminent harm at any specific time. Cf. N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 481 (App. Div.) (holding that a mother created a substantial risk of harm to her children when "[she] had used drugs and alcohol at a time when she was caring for her young children and there was a strong basis to conclude that she would have driven with them under those circumstances had she not been prevented from doing so"), certif. denied, 203 N.J. 439 (2010). Proof of the parents' drug use, which does not implicate harm to them, fails to establish grossly or wantonly negligent conduct performed knowing injury was likely to occur or performed with reckless disregard for the substantial likelihood of harm to befall the child. A.L., supra, 213 N.J. at 28.
The Family Part's reliance on defendants' drug use under these circumstances could not support a finding of abuse or neglect. See V.T., supra, 423 N.J. Super. at 331-32 (reversing a finding of abuse and neglect based on positive drug screens — verifying prior drug use — because the Division failed to establish a parent posed a risk to the child during supervised visits). Absent proof that defendants' conduct placed the children in imminent danger of being impaired physically, mentally, or emotionally, A.L., supra, 213 N.J. at 8, 23, 30; see also N.J.S.A. 9:6-8.21(c), we are constrained to conclude the court's finding cannot be sustained, even accepting the Family Part's findings of fact and credibility determinations, because the record only demonstrated some potential for harm.
Our decision should not be understood either to condone the parents' abuse of drugs or to imply that the Division was not correct in taking action towards protecting the children. Rather, we concur with the Law Guardian that while the Division's initial actions were proper under the circumstances, the Division should have proceeded under Title 30 in its efforts to protect the children and provide services to the parents.
Reversed and remanded for entry of an order removing defendants' names from the Central Registry. I hereby certify that the foregoing is a true copy of the original on file in my office.
When an allegation is substantiated, the Division enters "the name of the person found to have committed child abuse and any identifying information" into a Central Registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998) (citing N.J.S.A. 9:6-8.11). Where the evidence is inadequate to "satisfy the standard articulated in N.J.S.A. 9:6-8.21(c)(4)," reversal is required. P.W.R., supra, 205 N.J. at 21, 39-40; see also A.L., supra, 213 N.J. at 29-30.
CLERK OF THE APPELLATE DIVISION