Opinion
DOCKET NO. A-2293-12T3
06-24-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. D.A., Defendant-Appellant, and D.G., Defendant. IN THE MATTER OF C.A., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Walter A. Norris, 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 (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-395-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Walter A. Norris, 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 (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant D.A. appeals from a Family Part order, entered following a fact-finding hearing, which determined she had abused and neglected her minor child. D.A. was arrested and charged with endangering the welfare of a child, two counts of possession of controlled dangerous substances, and three motor vehicle offenses, when stopped for driving under the influence of drugs.
D.A. argues the trial judge erred in applying the law to the facts. She contends the one-year old child, who was a passenger in the car at the time of the incident, was not harmed based on "a singular incident of indiscretion[,]" making her conduct insufficient to support the finding of abuse and neglect. D.A. additionally argues the judge erred in finding she used cocaine, simply because police found the drug in her vehicle, and the court's conclusion grounded on this erroneous fact must be reversed.
Plaintiff the Division of Youth and Family Services (Division) maintains the findings made by the judge were established by the evidence of record and substantially support the order of abuse and neglect, N.J.S.A. 9:8.21(c)(4)(b). The Law Guardian concurs with the Division's position.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).
We have considered the arguments presented on appeal in light of the record and applicable law. We affirm.
These facts are taken from the hearing record. At trial, Gloucester Township Patrolman Christopher Roznowski, Division caseworker Suzanne Smith and D.A. testified. Additional documentary evidence was admitted into evidence by agreement of the parties.
On November 22, 2011, Gloucester Township Police Officer Jason Fisher executed a motor vehicle stop after observing D.A. operate her vehicle erratically. One-year-old C.A. was a passenger in D.A.'s vehicle. After initially questioning D.A., Officer Fisher administered field sobriety tests. Following her unsatisfactory performance, he concluded D.A. was impaired, and arrested her.
At police headquarters, an Alcotest revealed D.A. had not consumed alcohol. Consequently, Patrolman Roznowski, a Drug Recognition Expert, performed psychophysical testing, which he detailed at trial. D.A. told Patrolman Roznowski she took 50 mgs of Tramadol to ease back pain, and because it was ineffective, she ingested Percocet. She also took 2 mgs of Lorazepam to control her general anxiety disorder. Patrolman Roznowski found "white powder residue" in D.A.'s nasal cavity. However, D.A. denied using cocaine.
Based on his ten years of experience and training, Patrolman Roznowski evaluated D.A.'s performance of the psychophysical tasks as unsatisfactory. Further, he considered her physical condition while at the police station, which included an inability to remain awake; slow, slurred and delayed speech; dilated pupils and sleepy eyes; and a lack of balance, and concluded D.A. was under the influence of a central nervous system depressant, a central nervous system stimulant, and a narcotic analgesic.
During a search incident to arrest, police found Lorazepam, Oxycodone, Tramadol, and cocaine in D.A.'s purse. D.A. insisted she was holding the cocaine for a friend. D.A. was charged, handcuffed and housed in the Camden County Jail pending bail. A family friend retrieved C.A. and she was later taken to a relative's home. Additionally, the police contacted the Division.
Division caseworker Smith interviewed D.A. following her release from custody. On the day of her arrest, D.A. admitted she had ingested three, rather than one Lorazepam, and "blacked out." She also stated she abused Ambien, having finished a thirty-day supply in eighteen days. D.A. presented other prescription medications that she took at various times, including Effexor, Lexapro, Xanax and Oxycodone, explaining she had been diagnosed with depression, anxiety and bipolar disorder.
At trial, D.A. testified on her own behalf. She stated her inability to perform the psychophysical tests resulted because she "ha[d] a brain tumor" that "disfunctions [sic] [her] equilibrium" and caused a "loss of balance." She stated on the date she was arrested she had taken one Lorazepam and two Tramadol. She could not say whether she blacked out, but "d[id not] remember everything."
On cross-examination, D.A. was asked about the cocaine found in her possession. When challenged about allegedly being unaware of the glassine bags found in her bra, she stated "I've already said . . . I don't really recall a lot of what went on."
At the close of evidence, the judge found C.A. was an abused and neglected child as defined in N.J.S.A. 9:6-8.21(c) and D.A.'s use of prescribed medication in excess of the prescribed dosage and driving with the child in a motor vehicle while under the influence of the medications placed C.A. in substantial risk of significant harm. In assessing the evidence, the judge found D.A. was not credible. Although the judge made clear it was impossible to determine exactly what combination of drugs D.A. ingested because her trial testimony differed from what she told the case worker, which also differed from what she told police, nevertheless, it was clear D.A. had ingested drugs exceeding her prescribed dosages, became impaired and drove her car with her daughter in the vehicle.
D.A.'s oral motion for reconsideration was denied; the judge stated:
It doesn't matter, ultimately, whether she took two of one and one of the other or three of one or whether she used all three of them and used cocaine also. The bottom line was that she was under the influence while she had the child in her car and she was driving. . . . .
Further dispositional hearings were held. N.J.S.A. 9:6-8.45. When the case was closed, D.A. filed this appeal challenging the court's factual determinations and the application of the law to the facts.
Our standard of review on appeal is narrow. We defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference to a trial court's supported factual findings is warranted because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [and] has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); accord, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation and internal quotation marks omitted).
The adjudication of abuse or neglect is governed by Title 9, N.J.S.A. 9:6-8.21 to -8.73, which is designed to protect children who suffer serious injury inflicted other than by accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.8). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c), and the proofs necessary to establish abuse or neglect are measured by a preponderance of evidence standard. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011); see also N.J.S.A. 9:6-8.46b ("In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted."). Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. supra, 157 N.J. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179.
In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as a
child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the 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[.]
Whether a parent has engaged in acts of abuse or neglect involves a totality of the circumstances analysis. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). We determine whether a minimum degree of care was exercised. N.J. Div. of Child Protection & Permanency v. J.A., ___ N.J. Super. ___, ___ (2014) (slip op. at 9). In V.T., we recognized that "the elements of proof are synergistically related. . . . One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J. Super. at 329-30 (internal quotation marks and citation omitted).
Importantly, a court does not have to wait until a child is actually harmed before it can act on behalf of the welfare of the minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 and 201 N.J. 272 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3502 and 3537, 117 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 344 (2010).
Applying these standards to the facts at bar, we reject D.A.'s arguments that the judge's findings were not based on the evidence and that the facts, as found, were insufficient to support the order of abuse and neglect. D.A. contends the Division did not prove she used cocaine, and the judge's reliance on that fact was error. We disagree with this premise as the judge found D.A. ingested drugs in amounts greater than prescribed, became impaired, and then drove a vehicle in which her one-year old child was a passenger. Contrary to D.A.'s suggestion, the judge's conclusion of abuse and neglect was not based on a finding D.A. was under the influence of cocaine.
Following our review of the record, we conclude the judge's findings are sufficient to support her conclusions. She found D.A. was impaired, which police testing confirmed, and drove her vehicle accompanied by her child. The facts establish conduct that N.J.S.A. 9:8.21(c)(4) proscribes. Here, D.A. was grossly negligent by ignoring and otherwise failing to protect C.A. from the imminent risk posed by her operation of a vehicle when she was impaired by drugs. See J.A., supra, slip op. at 9. ("[O]ur motor vehicle laws . . . show little tolerance for the mixing of alcohol and driving[.]"); N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575 (App. Div. 2010).
As we have held, "[n]o reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by and inebriated operator." J.A., supra, (slip op. at 10). In this regard, it is immaterial that the drugs were prescribed, rather than illicit. See N.J. Div. of Youth & Family Servs. v. Y.N. & P.C., 431 N.J. Super. 74, 76 (App. Div.) (rejecting the defendant's argument that abuse and neglect cannot be based on her use of methadone from a "legitimate program providing assistance from withdrawal," while pregnant, which actually harmed the baby at birth), certif. granted, 216 N.J. 13 (2013). Further, the finding of abuse and neglect is not militated because the conduct did not result in unspeakable tragedy to the child. V.M., supra, 408 N.J. Super. at 235-36.
Finally, we reject as meritless D.A.'s argument suggesting she pled guilty to a charge of careless driving, therefore driving while intoxicated was never proven. R. 2:11-3(e)(1)(E). Proof of D.A.'s impairment was shown by the Division's evidence of her condition at the time of arrest, as evinced by Patrolman Roznowski's testimony and the police reports admitted into evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION