Opinion
DOCKET NO. A-0351-13T1
01-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.C., Defendant-Appellant, and J.H., Defendant. IN THE MATTER OF C.H.C., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H.C (Catherine Davila, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-114-13. Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.H.C (Catherine Davila, Designated Counsel, on the brief). PER CURIAM
Defendant S.C. appeals from a June 6, 2013 order of the Family Part finding that she abused and neglected her one-year old daughter C.H.C. (Carol) in violation of N.J.S.A. 9:6-8.21c. Because we agree with the Division of Child Protection and Permanency and the Law Guardian that there is substantial credible evidence in the record to support the trial judge's finding of abuse and neglect, we affirm.
We refer to the child by a fictitious name in order to protect her privacy.
The facts giving rise to this action are largely undisputed. In June 2012, the Division received a referral that defendant was using cocaine while caring for Carol. The Division was able to contact defendant by telephone and learned she was no longer living with her father, but she refused to reveal her address or cooperate with the Division's investigation. A few weeks later on July 18, while still trying to locate defendant, the Division received another referral that defendant was using cocaine, moving from hotel to hotel with Carol and had recently left the child with a baby-sitter and failed to return for her. The referent, Carol's father, claimed Carol was in the care of her maternal grandmother, a woman with a history of drug use. Carol's father, who lived in Florida, advised that he planned to travel to New Jersey to assume care of his daughter.
This was the second referral to the Division regarding Carol. The first had occurred at the time of her birth and concerned defendant's prior diagnosis of schizophrenia and bipolar disorder and her admitted past use of PCP and marijuana. Defendant did not test positive for drugs at the time of Carol's birth and the Division closed its case after defendant and Carol went home to live with defendant's father.
The Division found Carol with her grandmother the same day. The grandmother reported that defendant left Carol with a friend on Friday, July 13, with the understanding that she would pick her up the following day. Although aware that her friend planned to go to Florida the following week, defendant did not call or return for Carol as she said she would. When the friend could not reach defendant by telephone, she left Carol with defendant's mother, Carol's grandmother, on Tuesday, July 17. The grandmother allowed the worker to listen to a profane-laced voice mail message from defendant received on Sunday, July 15, in which defendant claimed she could not pick up Carol because she had been arrested on Long Island. Defendant's friend had left the grandmother with only a half dozen disposable diapers, a few bottles of formula and a playpen. The grandmother had no other supplies for the baby.
Unable to locate defendant, and learning the grandmother had a criminal history of assault and domestic violence, had received in-patient treatment for cocaine and marijuana dependence and that the Division had removed defendant from her care when defendant was a juvenile, the Division executed an emergency removal of Carol. Defendant called the worker to learn of Carol's whereabouts later that evening and met with the worker the following day.
Defendant explained that she had been acting in a film in production on Long Island over the weekend and was not able to return on Sunday as planned. She claimed that she had made appropriate arrangements for her friend to leave Carol with her grandmother and that the entire situation was simply the result of a misunderstanding. As for the phone message to her mother that she had been arrested, defendant asserted that she had not said she had been arrested but only that she could have been arrested. Defendant claimed that her mother had accused her of disappearing and using drugs, and defendant was simply trying to make the point that something bad could have happened to her because of her mother's negative thinking. Defendant denied current drug use and revealed that she had been previously diagnosed with manic depression bipolar disorder in her teens. She stated that she had been prescribed Seroquel, Aderall and Depakote but had ceased taking the drugs either when she was pregnant with Carol or in 2007. The worker reported that defendant was speaking very rapidly and could not sit still.
The court conducted an initial hearing on July 20. Having heard the testimony of the worker, the court deemed the removal appropriate and continued Carol's custody in the Division. The court also ordered Carol's father, who had traveled from Florida to appear at the hearing, to undergo paternity testing. He voluntarily agreed to a substance abuse evaluation.
After the paternity test confirmed that he was Carol's father, Florida social services had concluded a favorable assessment of his home, and he had tested negative for drugs, Carol's father was granted temporary legal and physical custody of Carol in December 2012.
The only witnesses to testify at the fact-finding hearing were the caseworker, who testified to the facts set out here and the Division's toxicology expert, who testified that defendant had tested positive for cocaine, amphetamines and methamphetamines on July 20 and August 13, 2012. Defendant did not appear at the hearing.
After hearing the evidence, Judge DeCastro issued a written decision in which she concluded that the Division had met its burden of proving by a preponderance of the evidence that defendant had abused and neglected her daughter in violation of N.J.S.A. 9:6-8.21c(4)(b). Although rejecting the Division's claim that defendant had willfully abandoned her daughter by failing to retrieve her when scheduled, the judge concluded that viewing the circumstances in their totality demonstrated that the Division proved that defendant had put Carol at risk of harm.
Specifically, the judge noted that Carol was a very young child and that defendant, her sole caretaker, had tested positive for high levels of both cocaine and amphetamines on the same day the child was removed. Further, defendant acknowledged that despite being diagnosed with bipolar disorder, she did not take the medications prescribed to control that condition. Finally, defendant's failure to pick up Carol, although not abandonment, resulted in the child being dropped off with inadequate supplies to be cared for by her grandmother, who had a history of both abuse and neglect and drug use. Considering all of these facts in their totality, the judge was satisfied that the Division had proved its case by a preponderance of the evidence.
The judge stated that defendant's positive drug test had occurred on the day of Carol's removal. Although there is some confusion about when defendant met with the worker upon her return from Long Island, the parties agree that her drug screen occurred two days later on July 20, 2012.
Following the fact-finding hearing, defendant was non-compliant with services, refusing to engage in assessments, a psychological evaluation or drug treatment. Although the Division attempted to arrange for defendant to visit Carol in Florida and purchased airline tickets for her to do so, defendant failed to respond or remain in contact with the Division. The trial court dismissed the litigation at the Division's request in August 2013. This appeal followed.
Defendant's counsel took no position on the Division's request to dismiss because he had been unable to contact his client.
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On appeal, defendant contends that the trial court's finding of abuse and neglect is not supported by a preponderance of the credible evidence and that there is no value in placing her name in the central registry because she does not pose a risk to the general public or other children. She contends that she did make appropriate provision for Carol while she was away pursuing acting work on Long Island, that the Division did not prove that the grandmother posed any risk of harm to Carol, or that defendant's actions had any effect whatsoever on the child. She also argues that the Division failed to link her positive drug screens, occurring subsequent to Carol's removal and thus at a time the child was not in her care, to any inability to effectively parent her daughter. Finally, she claims the Division did not offer any proof that she is mentally ill.
Defendant's arguments are premised almost entirely on alleged errors in the judge's fact finding. We, however, are not free to overturn the factual findings and legal conclusions of a trial judge "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Our review of the trial court's factual findings in this abuse and neglect proceeding is strictly limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc., supra, 65 N.J. at 484.
Although our scope of review is expanded in considering the legal implications to be drawn from established facts, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007), we do not conclude that the judge went wide of the mark in determining that defendant's failure to pick up her one-year old child from a baby-sitter for several days, resulting in the child being sent without adequate food, clothes or supplies to be cared for by her grandmother, who defendant was aware had a history of drug use and abuse and neglect, coupled with defendant's own significant drug use as the child's sole caretaker and her apparent willingness to disregard medical advice about treatment of her previously-diagnosed bipolar disorder, taken together, posed a substantial risk of imminent harm to Carol. See N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (explaining that a court must base its findings of abuse and neglect on the totality of circumstances because the elements of proof in such cases are often synergistically related).
The Supreme Court has explained that whether a parent has failed to exercise a minimum degree of care for a child must be analyzed "in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). Having reviewed the record with respect to the arguments raised on appeal, we are satisfied that Judge DeCastro carefully and conscientiously assessed all of the facts presented. We affirm the finding of abuse and neglect substantially for the reasons expressed in her written opinion of June 6, 2013.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION