Opinion
DOCKET NO. A-5451-13T1
02-02-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.M., Defendant-Appellant. IN THE MATTER OF D.M., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert H. McGuigan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Matthew D. Lane, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-22-12. Joseph E. Krakora, Public Defender, attorney for appellant (Robert H. McGuigan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Matthew D. Lane, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant, S.M., appeals from a December 23, 2011 order following a fact-finding hearing determining that defendant abused or neglected her child. We affirm.
We discern the following facts from the record. S.M. is the mother of two children, D.M. (Diana, age ten) and Samantha. S.M. had a lengthy history with the Division of Child Protection and Permanency (Division) including prior substantiations of abuse or neglect as a result of past drug use.
We use initials and pseudonyms to protect the identities of the children involved in this matter.
On July 20, 2011, S.M. entered a pharmacy in New Milford and dropped off a prescription for 120 pills of a prescription-only pain killer, which listed a person with the initials "M.R." as the patient. Upon receiving the prescription, the pharmacist suspected that it was forged. The pharmacist called the doctor listed on the prescription, who told him that he did not know the patient and that he did not write the prescription. The pharmacist alerted the police.
When defendant returned to the pharmacy to pick up the fraudulent prescription, she brought Diana along. The pharmacist held defendant at the pharmacy until police arrived. When questioned by police, S.M. told them that her friend "Jady" asked her to pick up a prescription on her behalf. Jady was later determined to be the driver of S.M.'s vehicle, which fled the parking lot when the police arrived. When the police asked S.M. for identification, they noticed that her purse contained several blank prescription sheets, as well as medication bottles of various sizes, some of which were unlabeled. Upon seeing the contents of her purse, police arrested S.M. S.M.'s daughter, Diana, was still with her in the pharmacy. The officers escorted Diana to the police station as well.
At the police station, officers allowed Diana to play computer games while they sought out family members and friends who could take care of her while S.M. was in jail. Police also contacted the Division to report S.M.'s conduct and to obtain help in placing Diana with extended family, family friends, or with a temporary foster family. A family friend came to the police station late that evening and police released Diana so that he could take her to her grandparent's house. S.M. informed police that she was a "recovering crack addict" and was dependent on prescription medication. She had numerous prescriptions in her purse, some validly prescribed, some not.
On July 25, 2011, the Division filed for custody of Diana and Samantha, which the trial court ordered. On September 22, 2011, the trial court transferred custody of Samantha to L.B., her biological father. L.B. assumed physical custody of Diana (who was not his child) pursuant to an order that the trial court issued on October 7, 2011.
The trial court conducted a fact-finding hearing on December 16, 2011, wherein the Division submitted the screening summary and investigation report from the July 20, 2011 referral and the arresting officer's report, without testimony, and without objection. Neither S.M. nor the law guardian submitted additional evidence. The court rendered its decision and issued an accompanying order on December 23, 2011. The court found that the Division had, by a preponderance of the evidence, proven that Diana was an abused or neglected child pursuant to N.J.S.A. 9:6-8.21(c). S.M., who had a lengthy history with the Division due to her long term substance abuse problems, had submitted a fraudulent prescription to the pharmacist, in furtherance of her dependence on prescription medication while caring for her child, Diana. The judge also found abuse or neglect because Diana waited several hours at the police station when S.M. was arrested and S.M. was unable to provide for her care. The court terminated the instant litigation on April 30, 2014. This appeal followed.
Following the trial court's fact-finding order, L.B. maintained legal custody of Samantha, and physical custody of Diana. The judge required S.M. to undergo psychiatric evaluations, substance abuse treatment, anger management therapy, and medical examinations pursuant to orders the court issued on January 13, 2012 and March 1, 2012. Following S.M.'s failure to engage in therapy and treatment, the court approved the Division's permanency plan of termination of S.M.'s parental rights to Diana with adoption by L.B.
S.M. argues that the trial court's finding of abuse or neglect is not supported by sufficient credible evidence in the record. In order for a trial court to find that a child has been abused or neglected pursuant to Title Nine, a court must find that
a [child's] physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
[N. J.S.A. 9:6-8.21(c)(4)(b).]
To show that a parent failed to exercise the "minimum degree of care" required by N.J.S.A. 9:6-8.21(c)(4)(b), the Division must demonstrate that the parent or guardian acted "grossly or wantonly, but not necessarily intentional[ly]." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). A parent or guardian acts grossly or wantonly when they "fail adequately to supervise the child or recklessly create a risk of serious injury to the child." Id. at 181.
Our review of the trial court's fact finding is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We decline to disturb a trial court's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88-89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citation omitted).
S.M. asserts that her actions did not rise to the level of abuse or neglect. We disagree. The trial judge found that S.M.'s conduct in bringing the child along while attempting to commit a drug-related, fraudulent crime at the pharmacy that resulted in S.M.'s arrest, and could have resulted in the use of force by the pharmacist or police to effectuate the arrest or by S.M. or her confederates to resist the arrest, constituted gross or wanton conduct. Even though Diana was not harmed when S.M. was in the process of committing a crime, the trial judge found that the inclusion of the child in such activity could have subjected Diana to physical and psychological harm. Because the trial judge's finding in this regard is supported by sufficient, credible evidence in the record, we decline to disturb the trial judge's findings.
Our holding is limited to the circumstances surrounding Diana's presence at the pharmacy where S.M. dropped off and attempted to pick up her fraudulent prescription. We note here that Diana's wait at the police station does not constitute grossly negligent or wanton conduct amounting to abuse or negligence. Our Supreme Court has expressly declined "to apply a categorical rule that any parent or caretaker, who leaves a young child unattended for any length of time . . . has failed to exercise a minimum degree of care that places the child in imminent danger of impairing that child's physical, emotional, or mental well-being." Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 193 (2015). --------
Finally, S.M. argues that the mere fact of her arrest does not, on its face, constitute abuse or neglect. We agree. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 471 (App. Div. 2014) (explaining that the "mere act of committing a crime . . . with nothing more" does not constitute an act of abuse or neglect). However, when considering the totality of the circumstances, the potential for harm to Diana in this situation was apparent. S.M.'s actions placed Diana in "imminent danger" and "substantial risk" of experiencing physical and psychological harm pursuant to N.J.S.A. 9:6-8.21(c) when considered in the context of S.M.'s history, criminal behavior and subsequent arrest. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329-330 (App. Div. 2011) (explaining that courts should consider the totality of the circumstances in evaluating whether a Title Nine finding is appropriate). S.M.'s actions clearly had the potential to cause harm, either as a function of her arrest or as the function of her continued illegal drug activity. We accordingly decline to disturb the trial court's holding.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION