Opinion
DOCKET NO. A-0024-14T2
07-01-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. W.R., Defendant-Appellant. IN THE MATTER OF J.R. AND S.G., minors.
Beth Anne Hahn, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hahn, on the briefs). Punam Panchal Alam, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Alam, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-328-13. Beth Anne Hahn, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hahn, on the briefs). Punam Panchal Alam, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Alam, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief). PER CURIAM
Defendant W.R. appeals from a trial court order finding her conduct amounted to neglect of a child, N.J.S.A. 9:6-8.21(c)(4). She argues the conclusion is not supported by the evidence. Following our review, we disagree and conclude the trial judge correctly analyzed the substantial, credible evidence in the record, which supported the conclusion there was an imminent risk of harm posed to the child's safety and welfare by defendant's actions, which necessitated intervention by plaintiff the Division of Child Protection and Permanency (Division) to prevent abuse or neglect. Accordingly, we affirm.
These facts are taken from the hearing evidence. Defendant and her thirteen-year-old son J.R. live with D.G., her fiancé, and his eight-year-old daughter, S.G. (the child). On the morning of June 8, 2013, defendant was responsible to transport the child to a dance recital at Edison High School. She mistakenly drove to East Brunswick High School, where a security officer stopped her from leaving with the child and contacted police.
East Brunswick Police Department Officer Justin Schlusselfeld testified he interviewed the security guard, who explained his decision to prohibit defendant from driving was because "he believed that she was impaired or intoxicated." Officer Schlusselfeld interviewed defendant. He observed her stumble as she walked in the parking lot, noted her speech was slurred and she appeared "dazed and confused." Officer Schlusselfeld concluded defendant was in no condition to drive.
Defendant gave the officer her first name, "but [was] unable to provide any further information[,]" and fumbled through her purse in search of her identification. Defendant "handed [Officer Schlusselfeld] her purse" and "the first thing [he] saw was a white powdery substance within the bag," which he believed was a controlled dangerous substance (CDS). He placed defendant under arrest. She continued to slur her speech, did not know the date, "really didn't know what was going on" and appeared lethargic.
A contents inventory of defendant's purse made at the police station revealed "tinfoil containing. . . suspected . . . cocaine, one blue pill suspected to be Oxycodone, two white pills suspected to be Alprazolam, and one blue pill crusher." A July 2, 2013 New Jersey State Police Office of Forensic Scientists certified laboratory report confirmed the substances were cocaine and further found prescription medications and a pill crusher. Defendant was charged with possession of CDS.
The Division's Special Response Unit Investigator Veronica M. Jackson interviewed defendant at the police station. She testified defendant's speech was "extremely slurred," causing the interview to last several hours. Defendant admitted she used cocaine at a party the prior evening, stating the drug was given to her by someone at the party to alleviate pain from a toothache. As to the pills, defendant maintained they were prescribed for back pain.
Jackson also interviewed the child, who confirmed defendant drove her to the wrong location. She also reported defendant bumped into the car in front of her "more than once," while in the car line at the school. The investigator later interviewed J.R., who reported he saw defendant that morning and she was not herself. J.R. described defendant as being "off" and not "herself."
Jackson concluded defendant was under the influence of some substance and effectuated an emergency removal of the two children. She placed them in the custody of a family friend. N.J.S.A. 9:6-8.29, 30:4C-12. The children ultimately returned home on July 1.
Pending the litigation, defendant participated in an outpatient rehabilitation service program at The Center for Great Expectations. The center reported she "appeared under the influence" on one occasion, "as evidenced by [her] slow rate of speech, difficulty following conversation and . . . nodding out behavior." Defendant was discharged from the rehabilitation program for noncompliance with requests for random urine screens.
At trial, defendant testified on her own behalf. She denied using cocaine, either at the party, on the day of the incident, or at any other time. Further, she denied telling Officer Schlusselfeld or Jackson that she used cocaine. She explained while at the party, she complained of a tooth abscess so someone at the party "gave her a parcel," which turned out to be cocaine. However, she did not use it. She also felt she could not flush the foil in the toilet and was hesitant to discard the package in the open trash receptacle, so she kept it in her purse to discuss how to discard it with her fiancé. Defendant admitted she did not reveal these facts to Jackson.
She also insisted her slurred speech resulted from swelling caused by a tooth abscess and accompanying sinus infection. She identified her June 27, 2013 dental records, which she asserted demonstrated the medications she possessed were prescribed. Further, she offered a report stating test results after she underwent a hair follicle test on August 5, 2013. A one and one-half inch of hair was tested to determine whether the subject used amphetamines, cocaine, opiates, phencyclidine and THC metabolites, during the prior 90 days. The results were negative.
At the close of defendant's case, she offered the hair follicle test into evidence. The Division objected, arguing the document, prepared for litigation, lacked authentication or the required certification allowing admission as a business record. The Law Guardian maintained, if admitted, the weight accorded the document was minimal because the report contained no quantification of the "cut-off" concentrations for which testing was conducted or the negative finding relates. The judge agreed the certification addressed only chain of custody and permitted defendant to cure the defect. Summations were presented and the judge rendered a written opinion on May 23, 2014.
The trial court judge found the child was a neglected child as defined by N.J.S.A. 9:6-8.21(c), requiring defendant's name being placed in the central registry. The judge found defendant was impaired, as supported by her admission of cocaine use to Jackson and Officer Schlusselfeld's observations on the date of the incident. The judge rejected defendant's proffer the hair follicle test proved she did not use cocaine or other CDS. She determined the report did not state the level to which the follicle was tested to assess the validity of the results.
"N.J.S.A. 9:6-8.11 creates a child abuse registry that serves as 'the repository of all information regarding child abuse or neglect that is accessible to the public pursuant to State and federal law.'" Dep't of Children and Families v. E.D.-O., 223 N.J. 166, 170 n.2 (2015).
The judge concluded defendant's conduct "was in reckless disregard to the well-being of [the child]" in her care as she "inadequately supervise[d] her [and] placed the child at imminent risk of substantial harm that, but for the actions of Officer Schlusselfeld, could have resulted in physical injury to the child." At the conclusion of the fact-finding hearing the child was returned to defendant's care. This appeal ensued.
Title 9 governs the adjudication of abuse and neglect cases. E.D.-O., supra, 223 N.J. at 177 (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). The law does not focus on "the 'culpability of parental conduct' but rather 'the protection of children.'" Id. at 178 (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999)). When a child does not suffer actual harm, as is the case here, our review "shifts to whether there is a threat of harm," to the child, id. at 178, and "[c]ourts need not wait to act until a child is irreparably impaired by parental inattention or neglect," id. at 187 (alteration in original) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
N.J.S.A. 9:6-8.21(c) defines an abused or neglected child as
a child less than 18 years of age . . . whose physical . . . condition . . . 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 . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ."Thus, 'a finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm.'" E.D.-O., supra, 223 N.J. at 178 (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013)). The Division bears the burden of proving the child was abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
A determination of whether a parent or guardian fails to exercise "a minimum degree of care" hinges on whether the parent or guardian objectively "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." E.D.-O., supra, 223 N.J. at 179 (quoting G.S., supra, 157 N.J. at 181). Such a failure "must rise to the level of gross negligence." Id. at 180 (citing Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011)); see also N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014) ("The parent is held to what 'an ordinary reasonable person would understand' in considering whether a situation 'poses dangerous risks' and whether the parent acted 'without regard for the potentially serious consequences.'" (quoting G.S., supra, 157 N.J. at 179)).
Challenging the judge's conclusion the child was in imminent danger because defendant was cognitively impaired while using and attempting to use her vehicle, defendant maintains the judge failed to consider all evidence. She urges the record shows the child was never harmed or even at risk of harm. We disagree.
Defendant's argument in part maintains an evaluation of the danger as it exists at the time of the fact-finding trial. Such an interpretation of N.J.S.A. 9:6-8.21(c) has explicitly been rejected by the Supreme Court. E.D.-O., supra, 223 N.J. at 170 (reasoning a similar temporal interpretation determining it "is not supported by the text of the statute, the legislative history, the Court's long-standing interpretation and application of the statute, or common sense").
The judge credited the observations of Officer Schlusselfeld and Jackson, who each spoke to defendant on the day in question for a significant period of time. Defendant was incoherent, unable to walk or pull her identification from her purse. Each witness separately believed defendant was under the influence of a substance and unfit to drive a car. The judge rejected defendant's general denials of the testimony of these two witnesses and found defendant's testimony not persuasive.
We are obliged to defer to a trial judge's credibility findings based upon the opportunity to see and hear witnesses. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 99, 104 (2008) (stating trial courts have a "'feel of the case' that can never be realized by a review of the cold record"). Therefore, we defer to the trial judge's determination of the facts as testified to by the Division's witnesses and her rejection of defendant's version of events.
Additional support for the finding defendant was impaired include she: drove the child to the wrong school; could not state the date when asked; was stumbling; possessed CDS; and admitted to Jackson she tried cocaine the night before. The totality of all evidence easily met the statutory standards, showing defendant's conduct placed the child "in imminent danger of becoming impaired as a result of the failure of his parent or guardian . . . to exercise a minimum degree of care."
The judge's finding that defendant's documentary evidence did not refute the Division's proofs is also supported. First, defendant's dental records were for treatment post-dating her arrest. Second, the judge rejected the hair follicle test as inconclusive of defendant's drug use because the parameters for testing were not defined. On this issue, we note the hair follicle test did not detect oxycodone, an opiate, which defendant admitted she took as prescribed.
"We have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Id. at 578 (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)).
Following our review, we find the judge's findings are supported and discern no error in her evaluation of the implications drawn from the underlying facts. Whatever defendant ingested compromised her physically and cognitively, making it extremely dangerous for her to operate a motor vehicle. "[N]o reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by an inebriated operator." J.A., supra, 436 N.J. Super. at 69. Defendant's conduct placed a defenseless child in her car, which she drove while impaired. Under these circumstances her actions constitute gross negligence and a failure to exercise a minimum degree of care as mandated by N.J.S.A. 9:6-8.21(c). See J.A., supra, 436 N.J. Super. at 64 ("[A] parent fails to exercise the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4) when permitting children to be passengers in a vehicle driven by a person who appears to be inebriated.").
"Inebriation" in this context pertains not only to alcohol and CDS, but also prescribed medication if it is found the defendant is too cognitively impaired to drive as a result of such use. See, e.g., N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 257 n.3 (App. Div. 2012) (considering defendant's use of prescribed Xanax on the date in question led to "testimony that [she] was 'shaky,' unstable on her feet, had slurred speech, or was not 'normal,' [which] support[s] the conclusion that she was intoxicated or inebriated."). --------
Defendant's remaining arguments, including (1) expert testimony was required to establish intoxication or impairment; and (2) the finding of neglect was erroneously based on the child's uncorroborated statement that defendant bumped into cars, lack sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(1)(E). We simply add these points. Lay opinion testimony may establish intoxication. State v. McLean, 205 N.J. 438, 457 (2011). Further, an uncorroborated statement by a child is admissible, "but may not be the sole basis for a finding of abuse or neglect." J.A., supra, 436 N.J. Super. at 67 (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION