Opinion
DOCKET NO. A-0076-13T1
01-26-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.F., Defendant-Appellant. IN THE MATTER OF C.F., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Dana Citron, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.F. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0036-13. Joseph E. Krakora, Public Defender, attorney for appellant (Dana Citron, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.F. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
In this Title 9 case, defendant S.F. appeals from a January 8, 2013 fact finding order determining that she abused or neglected her daughter by "being intoxicated while the child was in her care on several occasions," and by driving "while drinking alcohol with the child in the car." The court found that those actions "placed the child at risk of harm." For the reasons set forth herein, we vacate the Title 9 finding of abuse or neglect, and remand this matter to the trial court for reconsideration in light of New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super. 405 (App. Div. 2014), certif. granted, ___ N.J. ___ (2014), a case decided after the trial court entered the order on appeal.
The case became ripe for appeal when the trial court entered an order on July 17, 2013, terminating the litigation.
I
We discuss the facts and procedural history at some length, because it is important to put our decision in context.
By way of background, the child's parents are divorced. The final judgment of divorce, which was entered in Florida, granted the parents joint legal custody of the child and primary physical custody to the father. Thereafter, the father moved to New Jersey with the child, and the mother moved here as well so that she could maintain a relationship with the child. In New Jersey, the child initially spent Monday and Tuesday nights and alternate weekends with the mother. The parents later agreed that the child would only have dinner with her mother during the week, with overnight weekend visits. The father arranged for the child to see a psychologist (the therapist) due to concerns about the effect of the divorce on the child.
An official record, known as a screening summary, reflects that on August 16, 2012, the therapist called the Division of Child Protection and Permanency (Division) to report that during a therapy session on August 15, 2012, the child told her the following:
The Division's screening summary, investigation summary, and safety assessment plan were introduced in evidence at the fact finding hearing. However, we do not quote the screening summary for the truth of what the child told the therapist, but to put the Division's investigation in perspective.
[H]er mother has been getting drunk when she is there for overnight visits. The child reports that her mother is intoxicated; the behavior is described as stumbling, walking into things, and when she falls asleep the child [cannot] wake her up. The child has to help her mother get back into bed after she is "sleepwalking."
The child reports that when her mother picks her up during the week for a nightly
visit, she pours a glass of wine into a "big red cup" and puts it in the cup holder and drinks from it when the car is stopped at a stop light. . . . [The child] reports feeling scared in the car with her mother.Thus, the Division's investigation began with concerns about an alcoholic parent whose alcoholism was spiraling out of control, to the point where the child's welfare might be endangered.
The child reports that [the mother's apartment-mate] gets drunk, too, when she is at her mother's home. . . .
The [therapist] met with the child's mother to discuss these concerns further. The child's mother did admit to drinking alcohol when [the child] is in her care (weekends). The child's mother denied drinking while driving. The mother admits that she has been drinking lately. . . . The mother said that she is trying to get help but has no insurance.
On August 17, 2012, the day after the referral, a Division worker went to defendant's home and interviewed her. Defendant admitted to the worker that "when [the child] was at her home over the weekend she did get drunk and pass out." She admitted that the child "did see her fall into a wall." Defendant told the worker that when she woke up the next morning she felt "scared" for the child. Defendant admitted knowing that she needed treatment "to stop drinking." She "told the [w]orker that she will go for weeks without drinking alcohol but then she will begin and drink until she passes out." Defendant admitted to the worker that when she drinks alcohol, she "does tend" to drink it from a "big red cup," as the child described. However, she denied drinking while driving. Defendant told the worker that she had a drinking problem when she lived in Florida, there were domestic violence issues between her and the child's father, and the Florida child protection agency had become involved with the family.
The worker interviewed the child on August 17 as well. The child told her that "she was scared when [her mother] was drinking." However, the child said that "she is not scared anymore because 'mommy doesn't drink anymore, mommy hasn't drank in about two weeks.'" In response to the worker's question, the child stated that she would like to visit with her mother. The worker also interviewed the father, who stated, among other things, that he believed defendant was drinking again; she sometimes seemed to be under the influence when she showed up to take the child for visits; but he nonetheless let her drive away with the child in her car.
Before the agency filed the Title 9 complaint, a supervisor interviewed defendant on August 24, 2012. During that interview, defendant admitted that on August 12, 2012, she had gotten drunk and passed out. She told the supervisor that she was trying to "get herself in to a program." The supervisor explained to defendant that the agency was going to implement a ten-day safety plan, during which defendant could only have supervised visits with the child, pending a court hearing. A contemporaneous Division report noted concerns about the child's safety, due to both defendant's alcoholic drinking and the father's allowing defendant to have physical custody of the child when he believed she was drinking.
The agency then filed its complaint and order to show cause on August 30, 2012, naming both parents as defendants. On the return date the next day, defendant's counsel confirmed that she had consented to supervised visitation. The court acknowledged that the father agreed defendant should have supervised visitation. Defendant's attorney also told the court that defendant had made arrangements to enter a substance abuse treatment program.
The parties returned to court on October 11, 2012. On that date, the Division's attorney reported to the judge that defendant had entered a substance abuse treatment on September 12, and "[h]er urine screens have been negative." The Division's attorney also acknowledged that defendant had been seeing a therapist, and was participating in "therapeutic supervised visits" with the child. The child's Law Guardian reported that the child was happy and doing well. The father's attorney indicated that the parents were having some disputes over the conditions of the visits and defendant's telephone contact with the child. The judge noted that those sounded like issues more appropriate to be decided in the matrimonial case, but urged the parties to resolve the issue by providing for video conference visits through Skype.
Defendant's attorney agreed that all of her urine screens through the therapy program were negative, and he offered to provide copies to the court and all counsel. Defendant consented to undergo a urine screen at court that day.
The fact finding hearing took place almost three months later, on January 8, 2013. Before the testimony began, the Division's attorney reported to the court that the father had obtained a domestic violence (DV) temporary restraining order (TRO) against defendant in Bergen County on January 2, 2013, which precluded defendant from having contact with the child. The TRO resulted from an alleged verbal altercation between the two parents outside the location where defendant had her supervised visits with the child. At the Division's request, and pursuant to Judiciary policy, the judge ordered that the DV case be transferred to Passaic County, where the Title 9 case was pending. To prevent misuse of the Title 9 case to gain advantage in the ongoing matrimonial case, the judge also ordered that the evidence and other documents from the Title 9 case could not be introduced or otherwise used in the matrimonial case.
The judge's decision was memorialized in an "amended order as to services" dated January 8, 2013. The Division then proceeded with the Title 9 hearing only against defendant. The agency's counsel stated on the record that it was not seeking a finding of abuse or neglect against the father, and in response to the Law Guardian's objection, the judge precluded the father's attorney from cross-examining witnesses at the hearing.
The Division presented two witnesses — the child's therapist and the Division's assigned case worker. Defendant did not testify or present any witnesses.
The therapist testified that she began seeing the child in May 2012, because the child seemed to be experiencing some anxiety as a result of her parents' divorce and "recent changes in their visitation schedule." The therapist testified that on August 15, 2012, the child first disclosed to her that something happened that caused her to be afraid. The therapist described the child's statements to her in considerable detail. It was clear that the child told the therapist that the mother drank to excess in her presence on multiple occasions, both "early in the day" and "at night." The child told her that defendant appeared to be "sleepwalking" on these occasions and the child could not wake her up. The child also told the therapist that defendant drank while driving the child in her car on multiple occasions.
We do not name the therapist, to ensure the child's privacy.
According to the therapist, the child named the various restaurants to which her mother had taken her, and explained that the mother would "fill" a red plastic cup with "Blue Barefoot" wine, put it in the car's back seat cup holder near the child, and ask the child to hand her the cup when the car was stopped at red lights. The child told the therapist that, "[t]hen when they get to the restaurant they're going to which . . . usually would be Friendly's or Wendy's, mom brings the cup in with her, carries it in one hand and holds [the child's] hand in the other hand." The child also told the therapist that defendant's "roommate" and defendant got "drunk" together when the child was present. The child stated that she was "scared" when this happened.
The therapist testified that she notified the child's father, to be sure the child was going home with him that night, and she interviewed defendant the next day. The therapist testified that, when defendant came to see her, defendant admitted that she drank while caring for the child. Defendant further admitted "that she had indeed been unresponsive, that [the child] was unable to wake her up and that she had difficulty getting out of bed." Defendant acknowledged having "a drinking problem currently," and told the therapist that she had gone back to participating in Alcoholics Anonymous and intended to immediately enter a substance abuse treatment program.
In response to the Law Guardian's question, the therapist indicated that she was a "mandated reporter," meaning that she had a legal obligation to report the child's allegations to the Division.
The Division investigator, Alice McKnight, authenticated the reports she had prepared as part of her investigation of the therapist's referral. She testified that defendant admitted being intoxicated during her last visit with the child. Defendant also told her that when she drank, she used a big red plastic cup. However, defendant denied drinking with the child in the car. Defendant told McKnight that she previously had a drinking problem when she lived in Florida. She showed McKnight a pamphlet from a treatment program to which she was trying to gain admission. McKnight interviewed the child, who told her that her mother "does drink" but was "not drinking any more." The child told McKnight that she wanted to visit her mother.
The judge declined to consider an allegation that defendant had a DUI charge twenty years earlier; he stated that it was "too remote." The judge also declined to consider an uncertified 2009 Florida police report concerning a domestic violence incident.
According to McKnight, on August 24, 2012, both parents signed a safety plan, providing for supervised visits between defendant and the child. On cross-examination by the Law Guardian, McKnight admitted that during the week between August 17 and August 24, the Division permitted defendant to continue having unsupervised visits with the child. The Law Guardian also confirmed with McKnight that the child was "pretty well-spoken . . . for her age," but had told McKnight that defendant had not "had a drink in two weeks" after apparently telling the therapist that defendant "had been drinking the prior weekend." On cross-examination, McKnight confirmed that, when interviewed, defendant was drinking soda from a big red plastic cup and did not appear intoxicated.
In summation, defendant's attorney contended that the child's statement about drinking and driving was insufficiently corroborated. He also contended that the episode in which defendant admittedly passed out while caring for the child was an isolated incident, and there was another adult present who could have cared for the child. The father's attorney argued that a Title 9 finding was justified to allow the Division and the court to continue involvement with the family. The Law Guardian argued that although the child was placed at risk when defendant was intoxicated and "bumping into walls" on the weekend prior to August 15, 2012, this "was an isolated incident." She also argued that the Division itself did not treat the matter as serious, because the agency waited a week to intervene. The Division's attorney argued that defendant placed the child "at risk of harm" by passing out drunk while caring for the child. She also argued there was no evidence that the roommate was responsible for the care of the child.
None of the attorneys argued that the court should consider defendant's post-complaint situation, including her immediate promise to re-engage in treatment and her current compliance with substance abuse therapy. No one argued or even mentioned that, even without a finding of abuse or neglect under Title 9, the court could still retain jurisdiction, under Title 30, to exercise supervision over the family for the child's protection, at least until the court was satisfied that defendant's alcoholism was fully in control.
In an oral opinion, placed on the record immediately after the hearing, the trial court addressed the issues the parties presented. The judge concluded that "even one incident and that specific incident of driving this child while intoxicated is enough for me to find that the defendant . . . was abusive or negligent . . . in her care of her child." The judge found that the child's statement about the drinking and driving was sufficiently corroborated by defendant's admissions about her out-of-control drinking on other occasions. He noted that defendant admitted "walking into the wall, that she had to be helped into bed [and] . . . that . . . her daughter had trouble waking her up."
The judge found the child's statements credible because the child could remember the brand of wine defendant was drinking, a detail that "doesn't sound like something that a child would make up that was not true." The judge also noted the child's detailed description of how the mother put the plastic cup in the backseat cup holder and asked the daughter to pass it to her when the car was stopped at a light. He considered it unlikely that a six-year-old child would invent those details and reasoned that "it sounds exactly like something someone who has a problem with alcohol would do." The judge concluded, based on defendant's admissions and the child's statement, that defendant was intoxicated in the child's presence more than once and "was neglectful of her child pursuant to the statute."
The judge did not specifically address whether the child was harmed or only subjected to the risk of harm, or whether she was currently at risk. Perhaps because no one raised the issue, the judge did not consider whether the protection of the child, or other children, required that defendant's name be placed on the Central Registry of child abusers. See N.J.S.A. 9:6-8.11; N.J. Div. of Child Prot. & Permanency v. Y.N., ___ N.J. ___ (2014) (discussing the serious consequences of a parent's name being included on the Registry).
Immediately after the judge placed his decision on the record, he conducted a compliance review. The Division's attorney recited that defendant had completed her substance abuse outpatient program, "which is something very positive in this case." The attorney then acknowledged "that alcohol abuse is a life-long condition, [and defendant] needs to continue to seek treatment by attending AA meetings and we're asking that today's court order indicates that she is to attend AA meetings regularly." The attorney also told the court that defendant had cooperated with a psychiatric evaluation, resulting in a recommendation that she continue to take anti-depressant medication, but avoid taking Xanax for anxiety because it was contra-indicated for persons with substance abuse problems. The court directed that Dr. Sostre share his recommendation with defendant's treating psychiatrist.
The Division's attorney also brought to the court's attention ongoing problems between defendant and the child's father. The attorney noted that the father seemed to "pick and choose every little issue and detail in the matter and make a big issue out of it," including for some reason taking umbrage at defendant giving his new wife a present. The attorney expressed concern that the father was trying to alienate the child from her mother. The Law Guardian likewise expressed concern that "whether it's in this court or the DV court or a FM court, [the child] should not be the one to suffer because of grown-ups' inability to work this out and put their feeling behind them."
When both the Law Guardian and defense counsel asked the court to order that visitation resume at defendant's home, and the father's lawyer objected, the judge stated: "Well, the only thing is I have a woman here who completely, who's done what she's supposed to do. You know, and I have to admire people who . . . finish these programs." By the next compliance review hearing, on March 14, 2013, the Division's attorney once again reported that defendant was finished with her substance abuse treatment and was attending AA meetings, providing consistently negative urine screens, and was "doing really well." At the Law Guardian's recommendation, the judge directed that defendant, the father, and his new wife attend a counseling program aimed at encouraging them to cooperate in the child's best interests.
The court held a subsequent compliance review hearing on May 23, 2013, and one last hearing on July 17, 2013, at which time the court dismissed the case. Throughout that time, defendant continued to maintain her sobriety, as documented by a series of negative urine tests. In fact, the Law Guardian advised the judge at the May 23 hearing that "this case is about abuse and neglect issues which have been remediated . . . And in fact, from the day this case came into court, it's one of those unusual cases where there's a hundred percent compliance."
II
We begin with first principles. The purpose of both Title 9 and Title 30 is to protect children, not to punish negligent parents. N.J.S.A. 9:6-8.8; N.J.S.A. 30:4C-1.1; N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18-19 (2013). Where warranted by the circumstances, both statutes permit the State, through the Division of Child Protection and Permanency and the Family Court, to intervene in the parent-child relationship for the child's protection. See N.J.S.A. 9:6-8.21(c); N.J.S.A. 30:4C-12; N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 14-15, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013); A.L., supra, 213 N.J. at 9.
Relevant to this case, pursuant to Title 9, the Division may seek court intervention where a child's "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of [the parent's] failure . . . to exercise a minimum degree of care . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ." N.J.S.A. 9:6-8.21(c)(4)(b); A.L., supra, 213 N.J. at 12. Title 30 "empowers the Division to seek temporary care and custody of a child who is part of a family in need of services." A.L., supra, 213 N.J. at 18 (citing N.J.S.A. 30:4C-12). Title 30 allows the Division to intervene to protect a child who is in need of services to ensure her health and safety, even if the child is not abused or neglected. Id. at 19. I.S., supra, 214 N.J. at 36-38. As the Court has observed, "[a]buse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011 ).
In the recent case of M.C., Judge Grall cogently explained that a parent's action may warrant intervention by the Division but ultimately may not justify a finding of abuse or neglect under Title 9 if the child has not been harmed and the Division's intervention is successful. Supra, 435 N.J. Super. at 422. As here, M.C. involved a parent with a substance abuse problem, who placed his children at risk but promptly responded to the Division's intervention by overcoming his addiction. Ibid. "Because there was no evidence of actual harm, the Division was obligated to present competent evidence adequate to establish that [defendant's] children were presently in imminent danger of being impaired physically, mentally or emotionally." Id. at 409. Focusing on the present in addition to the past, the court observed:
Where a finding of abuse or neglect rests only on imminent danger of impairment of the child's physical, mental or emotional condition, the question is whether the child "is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4) (emphasis added). This statutory language plainly requires an evaluation of the present danger. Thus, prior parental conduct posing a risk of harm in the past that did not materialize is pertinent to imminent danger only to the extent that it is probative of current danger. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575-77 (App. Div. 2010).
A determination of abuse or neglect requires consideration of the totality of the circumstances and their synergistic relationship. P.W.R., supra, 205 N.J. at 39. Thus, in determining whether a child "is in imminent danger," risk demonstrated by past conduct should be assessed in light of actions since taken to address prior dangerous parenting—for example, parental action that has eliminated a previously existing danger of impairment before the risk materialized.
. . . Just as parental inaction in addressing past conditions posing a danger to a child is a circumstance pertinent to a finding of abuse or neglect based on the child being in "imminent danger," parental action eliminating a danger is also pertinent. To the extent the judge concluded that improvement of M.C.'s conduct and conditions in the home was irrelevant to that issue in this fact-finding hearing, the judge erred.
[Id. at 418-19.]
Where a child has not actually been harmed, the court must focus first on the events that precipitated the Division's intervention, and then on whether the intervention succeeded. This case presents a classic example of a situation where prompt intervention was required. Defendant had a history of alcoholism. Her daughter told the therapist, and later told a Division worker, that her mother was drinking alcohol to the point of being intoxicated and passing out while the child was visiting her, and that the mother was drinking while driving with the child in the car. That information clearly warranted an immediate investigation.
Further, defendant admitted to the Division investigators that she had a drinking problem, she had being drinking while the child was visiting, and that she had passed out while the child was in her care. She admitted drinking her alcohol from a large red plastic cup, consistent with the child's report, but denied drinking while driving. The husband, on the other hand, reported to the Division that, on occasion, when defendant came to pick the child up for visits he suspected she had been drinking, but he allowed her to drive off with the child in the car.
The Division's case notes indicate concern about the father's actions as well as the mother's actions. The notes also indicate that the Division felt compelled to file a Title 9/Title 30 case because there was an outstanding child custody order in the matrimonial case, and the Division proposed to take action contrary to that order — by suspending the mother's unsupervised visits with the child until she got her alcohol abuse situation under control. The Division also advised the father to file a motion in the matrimonial case so that judge could address the visitation issue in the context of that case.
In all of those respects, the Division acted consistent with its mission to protect children, and appropriately recognized the interplay between the child protection action and the matrimonial case. In essence, the picture before the Division was that of an alcoholic parent who had lost control of her alcoholism, and a child who was at risk from the parent's alcoholic drinking even if the child had not yet been injured. It is well established that the Division does not need to wait until a child is actually injured before it acts to protect the child. See A.L., supra, 213 N.J. at 23; In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
We also agree that defendant's actions put her child at risk, during the time frame when defendant had relapsed into drinking. One need not blame an alcoholic for her disease in order to recognize the reality that defendant herself acknowledged: once she started drinking, she was unable to stop herself. As a result, even when her child was with her, she drank to the point where she was walking into walls and passing out. Even if defendant's co-worker/housemate was present, he was a stranger to the parent-child relationship who had no responsibility for the child's care. Bearing in mind the deference we owe to the trial court's factual findings, there was sufficient corroboration of the child's statement that defendant was drinking while driving in the car with her. See M.C., supra, 435 N.J. Super. at 424; N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). That conduct was not only illegal, but particularly dangerous when engaged in by someone with, admittedly, no control over the amount she drank once she started. In short, the child was placed at risk, even though she was not actually harmed, and the Division's intervention was warranted.
On the other hand, we must also consider defendant's response to the Division's intervention. She immediately acknowledged that she had a drinking problem, consented to supervised visitation, and sought professional help in addressing her alcoholism. Ironically, within minutes after the judge rendered his Title 9 finding, the Division's attorney acknowledged that defendant had successfully completed a substance abuse program and was doing well in maintaining her sobriety. Succeeding hearings reflected defendant's continued success, to the point where the Law Guardian observed that this was one of the few cases where a parent was one hundred percent compliant with recovery. See M.C., supra, 435 N.J. Super. at 422 (noting "this case was one of the Division's success stories").
Apparently, no consideration was given by the Division or the attorneys involved in this process as to whether the child was currently at risk, or the purpose, if any, to be served by placing or maintaining this parent's name on the Central Registry of child abusers. After carefully reviewing the record in light of M.C., which we acknowledge was decided after the trial judge entered the order on appeal, we conclude that the Title 9 finding cannot stand without considering those issues, and a remand is required for that purpose. Accordingly, we vacate the fact finding order, direct that defendant's name be removed from the Central Registry, and remand this case to the trial court for further proceedings consistent with this opinion.
We are aware that the Supreme Court has granted certification in M.C. However, we find Judge Grall's opinion persuasive in the interim and consistent with the Court's precedent in cases such as A.L. and P.W.R. We also consider that defendant's conduct in this case was less egregious than that of the parent in M.C.
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Vacated and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION