NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.F IN THE MATTER OF G.F., J.T. and M.T

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1846-07T41846-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.F.,

Defendant-Appellant.

IN THE MATTER OF

G.F., J.T. and M.T.,

Minors.

______________________________________________

 

Submitted January 28, 2009 - Decided

Before Judges Rodr guez, Payne and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FN-05-133-07.

Yvonne Smith Segars, Public Defender, attorney for appellant J.F. (Laura M. Kalik, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors G.F., J.T. and M.T. (Aleli M. Clemente-Crawford, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

J.F., the biological mother of three children, G.F., a boy born on March 28, 2004; J.T. Jr., a boy born on May 1, 2006; and M.T., a girl born on May 26, 2007, appeals from the July 24, 2006 fact finding order adjudging her to have abused or neglected J.T. Jr. The order was entered pursuant to N.J.S.A. 9:6-8.52 by the Cumberland County Family Part. She also appeals from the October 17, 2007 order by the Cape May County Family Part, which dismissed the abuse/neglect litigation without vacating the fact finding order. The abuse/neglect litigation was dismissed "because a complaint for Termination of Parental Rights has been filed." We reverse the fact finding order for two independent reasons: (1) there was insufficient evidence to find abuse or neglect; and (2) the procedures for entering a suspended judgment were not followed.

We note parenthetically that, during the guardianship trial, J.F. voluntarily surrendered her parental rights as to her three children. Thus, insofar as J.F. is concerned, this appeal has no bearing on the placement and permanent custody of the three children. However, a judgment of abuse/neglect bears other consequences, including registration as a child abuser in the Central Registry of the Bureau of Children's Services, N.J.S.A. 9:6-8.11, and the numerous trial court orders finding J.F. non-compliant with court-ordered services requirements, where the court's authority to require such services was derived from its prior erroneous abuse/neglect judgment. See N.J.S.A. 9:6-8.58. A final consequence is that DYFS has issued an "administrative substantiation" that J.F. abused M.T., apparently based upon the fact that J.F. consumed drugs while pregnant with M.T., a circumstance identical to the one now before us. J.T., the father of J.T. Jr. and M.T., is not a party to this appeal.

When she was pregnant with J.T. Jr., J.F. underwent prenatal medical tests. The tests revealed the presence of illicit substances in J.F.'s bloodstream. The New Jersey Division of Youth and Family Services (DYFS) filed an abuse/neglect complaint in Cumberland County. One month later, J.T. Jr. was born with opiates and amphetamines in his bloodstream. At a hearing on the abuse/neglect complaint, J.F. admitted that she took "vicodine" [sic] and some "other pill."

On July 24, 2006, J.F. appeared with counsel before a judge for a fact finding hearing. At this proceeding, DYFS sought J.F.'s stipulation, based both on the "positive" drug tests on J.F. and J.T. Jr. at the child's birth and on the "questionable prenatal care" J.F. had received prior to J.T. Jr.'s birth, that she had exposed J.T. Jr. to a risk of injury amounting to child abuse. J.F.'s counsel pointed out that there was no evidence to support an admission by J.F. of "inadequate prenatal care," and DYFS essentially agreed. The judge then indicated that he would "allow the stipulation to exist solely on the positive drug test," and he asked J.F.'s counsel whether J.F. would be:

willing to admit to the fact that at the birth of the child [J.T. Jr.], she and the child tested positive for a controlled dangerous substance that may have placed the child's physical, mental, or emotional condition in imminent danger of being impaired as a result of her failing to exercise a minimum degree of care.

J.F.'s counsel indicated J.F. would make that admission.

Thereafter, in support of the stipulation, J.F. testified that she was consciously giving up her right to a fact finding trial in which DYFS would have been called upon to prove the allegation against her of child abuse/neglect. In response to questions from her counsel, J.F. admitted only that she had taken and had tested positive at J.T. Jr.'s birth for non-prescribed controlled dangerous substances; however, she also indicated that she had been told at the hospital that "the baby did not test positive." On cross-examination, DYFS's counsel asked a single question: whether J.F. would "admit that your use of controlled dangerous substances while pregnant placed your child [J.T. Jr.] at possible risk of - - of harm." J.F. responded in the affirmative.

The judge then concluded that J.F. had "knowingly, willingly, and voluntarily admitted to the fact that she did in fact use a controlled dangerous substance during the time that she was pregnant with the child [J.T. Jr.]." The judge concluded further that J.F.'s use of such illicit drugs during pregnancy "did place that child's physical, mental, or emotional condition in eminent [sic] danger of being impaired as a result of her failing to exercise a minimum degree of care, and the Court hereby does enter a finding of abuse/neglect against . . . [J.F.] for that reason."

The judge stated on the record that "[p]ursuant to N.J.S.A. 9:6-8.21c4 . . . [J.F.] tested positive for THC Pre-maturely [sic] and admits her use of controlled substance during pregnancy placed her[] child at risk" and that "these acts or admissions constitute abuse or neglect pursuant to law." Significantly, the judge directed that "[t]his order is entered under the suspended judgment rule," which is set out in N.J.S.A. 9:6-8.52.

J.F. later became pregnant with M.T. The trial court made DYFS responsible for the care and supervision of M.T. At birth, M.T. tested positive for the presence of illicit drugs in her bloodstream. DYFS filed an amended abuse/neglect complaint to include M.T. Another abuse/neglect hearing took place on June 1, 2007. Because both J.F. and J.T. now resided in Cape May County, the judge transferred the abuse/neglect complaint from Cumberland County to Cape May County. DYFS subsequently filed a guardianship complaint in Cape May County to terminate the parental rights of J.F. and the children's fathers with respect to the three children. At a hearing on October 17, 2007, J.F. voluntarily surrendered her parental rights to her three children. The existing abuse/neglect litigation was dismissed.

J.F. now appeals from the order entered on October 17, 2007, terminating the abuse/neglect litigation without dismissing the July 24, 2006 fact finding order. She contends that the trial court proceedings violated her constitutionally protected rights and did not comport with statutory requirements.

J.F.'s first argument is that the judge erred by accepting her "stipulation as to abuse/neglect because there was insufficient proof as to abuse or neglect and [because] the protections of the abuse/neglect act do not extend to an unborn child." In other words, her stipulation of circumstances that purportedly constituted abuse/neglect on her part was without a factual basis because "one cannot be found responsible for [the] abuse/neglect of a fetus." We agree.

It is settled that before accepting a parent's or guardian's stipulation in an abuse/neglect case, a judge "must be satisfied that there is a factual basis from which to conclude that defendants have committed some specific act or acts which constitute abuse or neglect as defined in N.J.S.A. 9:6-8.21(c) and that the parents willingly, knowingly and voluntarily agree that they have committed these acts." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 266 (App. Div. 2002).

Here, J.F.'s stipulation was that her improper use of a controlled dangerous substance during her pregnancy with J.T. Jr. had placed J.T. Jr. at risk of injury. The judge found that such drug use by J.F. while she was pregnant constituted abuse/neglect, pursuant to N.J.S.A. 9:6-8.21(c)(4), because it exposed J.F.'s "child" to a risk of harm. Thus, J.F.'s admitted drug use while pregnant was the sole factual basis for the judge's finding of abuse/neglect on J.F.'s part.

First, case law recognizes that a woman's "[d]rug use during pregnancy, in and of itself, does not constitute a harm to the child" for purposes of a termination-of-parental-rights proceeding. In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999). In short, "[p]renatal drug use does not, without more, establish parental unfitness or an inability to parent." Ibid.

The situation changes, however, if the child is born and suffers some harm at or following birth, if that harm is the result of the mother's drug use during pregnancy. According to K.H.O., the "child is harmed by the mother's drug use [during pregnancy], however, when that drug use results in the child being born addicted to drugs with the attendant suffering caused by such addiction." Id. at 350.

This rationale from the K.H.O. case was applied to abuse/ neglect litigation in N.J. Div. of Youth & Family Servs. v. L.V., 382 N.J. Super. 582, 589-90 (Ch. Div. 2005).

The Family Part judge indicated:

Clearly, it is well settled that where a mother abuses narcotics or alcohol during her pregnancy, and her abuse results in her child being born addicted to drugs and forced to suffer the consequences of that addiction, the mother can be shown to have abused or neglected her child. However, it is the attendant suffering to [sic] the child, after birth, that a court must rely on in making a finding of abuse or neglect under those circumstances. The mother's decision to use narcotics or alcohol during her pregnancy alone is an insufficient basis for a finding of abuse or neglect. To otherwise hold a mother culpable for her incorrect decision would be an unauthorized punishment for her "past transgressions against the child in utero or in esse."

[Ibid. 589-90 (citations and quotation omitted).]

According to L.V., New Jersey's child abuse/neglect statute "cannot be construed to permit government interference with a woman's protected right to control her body and her future during her pregnancy." Id. at 590.

In light of that case law, J.F.'s admitted use of illicit drugs during her pregnancy with J.T. Jr. was insufficient to sustain a finding of abuse/neglect, absent some manifestation of post-birth injury to J.T. Jr. that could be traced to that drug use. DYFS's counsel at the fact finding hearing was unaware of any "actual injury" suffered by J.T. Jr. that could be attributable to J.F.'s prenatal drug use. Therefore, DYFS's counsel agreed that any finding of J.F.'s abuse/neglect could only be based on the "risk" of injury and not any actual injury to the unborn child.

Although J.T. Jr. tested positive for both opiates and amphetamines at birth, there was no evidence indicating he suffered any deleterious effect from that drug exposure or suggesting that he suffered from drug addiction or withdrawal. Rather, his health soon after his birth was reported by a hospital worker as "normal." Fifteen months later, a physician examined him and determined that his health was normal and that he was a "well child."

Accordingly, because there is no medical evidence indicating J.T. Jr. suffered from any injury at or following his birth attributable to J.F.'s drug use while pregnant with him, J.F.'s admitted drug use, by itself, provided an insufficient basis for a finding of abuse/neglect on her part.

The other problem with the factual basis set out in J.F.'s stipulation is that it assumes that an unborn child is a "child" for purposes of New Jersey's abuse/neglect statutes. N.J.S.A. 9:6-8.21(b) indicates only that the word "child" in those statutes "means any child alleged to have been abused or neglected." Other statutory provisions, however, plainly suggest that the statutory scheme contemplates its application to children who have actually been born rather than to unborn children. For example, it is possible to place a child who has already been born with a relative of an abusive parent, but that is not an option when the child has not yet been born. See N.J.S.A. 9:6-8.54.

The inapplicability of New Jersey's abuse/neglect statutes to unborn children was discussed in the L.V. case, where the court indicated that:

This proscription against finding that a mother committed an act of abuse or neglect against her child by her actions before the child's birth, without attendant suffering or injury [to the child] after birth, recognizes that the protections afforded by the [New Jersey child abuse/neglect] Act are limited to the child's situation after his or her birth and not while a fetus. Also, since the Act clearly does not expressly include a fetus in its definition of a child, its protection does not extend to the child before birth. This conclusion is equally supported by the express provisions of the Act, which contemplate the removal and placement of an abused and neglected child into DYFS's custody. Those provisions simply could not apply to a fetus.

[N.J. Div. of Youth & Family Servs. v. L.V., supra, 382 N.J. Super. at 590 (citations omitted).]

Therefore, we agree that the judgment of abuse/neglect is not supported by a factual basis.

J.F. also contends that the order establishing her abuse/neglect was suspended and that this suspension was never revoked before the abuse/neglect action was dismissed. Thus, J.F. argues that she is entitled to "an Order declaring that no judgment of abuse/neglect has been entered against" her. We agree.

"Suspended judgment" is mentioned in only two sections of Title 9. N.J.S.A. 9:6-8.52 indicates in its entirety that:

a. The court shall define permissible terms and conditions of a suspended judgment. These terms and conditions shall relate to the acts of commission or omission of the parent or guardian.

b. The maximum duration of any term or condition of a suspended judgment shall be 1 year, unless the court finds at the conclusion of that period, upon a hearing, that exceptional circumstances required [sic] an extension thereof for an additional year.

N.J.S.A. 9:6-8.66 provides:

If a parent or guardian responsible for a child's care is brought before the court for failing to comply with the terms and conditions of a suspended judgment issued under . . . [N.J.S.A. 9:6-8.52], and if, after hearing, the court is satisfied by competent proof that the parent or guardian did so, the court may revoke the suspension of judgment and enter any order that might have been made at the time judgment was suspended.

Thus, reading these two sections together, we glean that the intention of the suspended judgment procedure is to give a parent or guardian an opportunity to comply with conditions set by the court in order to avoid the entry of a permanent judgment of abuse/neglect. If the conditions are met, the suspended judgment is vacated. If it is determined at a hearing that the conditions are not met, the abuse/neglect judgment becomes permanent and final.

Here, in making his finding of abuse/neglect, the judge indicated that he would "allow this matter to be entered under the suspended judgment rule possibility." The judge explained to J.F. that, under the suspended judgment rule, the judgment of abuse/neglect against her would be "dismissed as though it never happened," if she satisfactorily accomplished the "services" requirements that were to be imposed upon her. The judge then outlined those services, including a requirement that "there will not be positive drug screens."

At the subsequent hearing in Cape May County, there was no mention made of the circumstance that the earlier order establishing J.F.'s abuse/neglect had been suspended. The order ending the abuse/neglect litigation is silent on this point. This apparent oversight lies at the heart of J.F.'s argument.

Here, pursuant to the requirements of N.J.S.A. 9:6-8.52a, the judge set out both at the hearing and in the resulting order "terms and conditions" that J.F. had to satisfy in order to reap the benefit of the suspended judgment rule, which were closely tied to J.F.'s drug problem. Over the next year, J.F. failed to comply with those terms and conditions; most notably, she repeatedly tested positive for drugs.

The course of action a court should take in the face of a parent's failure to satisfy the terms and conditions underlying a suspended judgment is set out in N.J. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 41 (App. Div.), certif. granted, 195 N.J. 520 (2008). There, the court noted that, "[i]f a parent or guardian fails to comply with the conditions attached to an order of suspension, the 'court may revoke the suspension . . . and enter any order that might have been made at the time judgment was suspended.' N.J.S.A. 9:6-8.66." Ibid. However, a hearing to determine non-compliance is required. The problem here is that, although N.J.S.A. 9:8-66 provides the route courts must follow when dealing with a parent, like J.F., who has failed to comply with the terms and conditions of a suspended judgment, the trial court in this case did not follow that route. J.F. did not have a hearing regarding her violation of the conditions. The suspended judgment establishing J.F.'s abuse/neglect was not revoked.

DYFS argues that such a conclusion "elevates form over substance, as it is undisputed in the record that J.F. violated the condition that she not test positive for drugs." However, this "form" is contained in a controlling statute that cannot be ignored. Thus, we agree with J.F.'s contentions that there is no valid judgment of abuse/neglect against her because the trial judge did not revoke the suspension of the judgment nor enter any findings that J.F. failed to comply with the conditions of the suspended judgment. Or, the judgment is not valid because it lacks a factual basis to support it. Either way, J.F. is entitled to relief from the consequences of that erroneous abuse/neglect judgment.

Given this holding, we need not address J.F.'s other arguments, i.e. that: (1) she did not make a knowing and voluntary waiver of her right to a fact finding trial prior to entering into the stipulation of child abuse/neglect; (2) she was denied effective assistance of counsel; and (3) her due process rights were violated when the return on an order to show cause hearing was held before she was represented by counsel. J.F.'s final argument, that dismissal of the abuse/neglect litigation was improper, is moot because, during the ensuing guardianship litigation, J.F. voluntarily surrendered her parental rights concerning her three children.

 
The July 24, 2006 fact finding order, which was suspended, is vacated.

(continued)

(continued)

15

A-1846-07T4

RECORD IMPOUNDED

March 3, 2009