NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1250-09T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

IN THE MATTER OF D.S., B.S., and

C.S., Jr., minors.

________________________________________________________________

 

Submitted August 10, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FN-02-249-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, S.S., appeals from the October 23, 2008 order of the Family Part in which the judge found that S.S. neglected her children D.S., then twelve years old, B.S., then six years old, and C.S., Jr., then three years old, in violation of N.J.S.A. 9:6-8.21.

On appeal, S.S. argues the trial judge erred in allowing the Division of Youth and Family Services (DYFS or the Division) to proceed with its case as its verified complaint violated Rule 5:12-1 in that it contained only unsubstantiated allegations and no prima facie evidence of abuse and neglect. S.S. further argues the trial court erred because DYFS failed to establish neglect by a preponderance of the evidence. We reject these claims and affirm.

I.

S.S. first became involved with DYFS on November 2, 2005 when a referral was received reporting that S.S. abused alcohol, frequently held parties, and could not manage her children. It was also alleged that A.M., S.S.'s paramour who resided with her and her minor children, abused heroin, marijuana, and alcohol. Upon investigation, A.M. admitted to occasional alcohol use, as well as being a recovering heroin addict. S.S. denied any alcohol or drug use. This referral, as well as referrals on November 10, 2005, February 28, 2006, and April 17, 2006, which made similar allegations, were all ultimately determined to be unfounded.

Despite these referrals being unfounded, S.S. agreed to restrain A.M. from her home if he failed to initiate substance abuse treatment. A.M. began such treatment on April 20, 2006.

On May 12, 2006, DYFS was notified by A.M.'s treatment program that he had tested positive for opiates and marijuana. DYFS thereafter filed a verified complaint and order to show cause seeking care and supervision of S.S.'s children.

At the June 12, 2006 return date on the order to show case, Judge Mizdol ordered S.S. to submit to psychological evaluations and random urine screenings. A.M. was required to attend both psychological evaluations and intensive substance abuse treatment and was restrained from S.S.'s home and from unsupervised contact with S.S.'s children. A.M. was permitted to return to S.S.'s home on August 24, 2006 following his satisfaction of the order's requirements but was still restrained from unsupervised contact with the children.

The complaint against S.S. was modified on November 6, 2006 to add A.M. as a defendant. On November 15, A.M. stipulated to testing positive for opiates in July of that year, while residing with S.S.'s children. That litigation was ultimately terminated on February 22, 2007, and A.M. was required to attend and complete parenting skills classes.

DYFS received another referral on December 6, 2007 reporting drug use by S.S. S.S. was thereafter scheduled for a substance abuse evaluation, in which she tested positive for opiates and benzodiazepines. After S.S. provided prescriptions for these substances, the referral was deemed unfounded.

When DYFS later determined that S.S.'s prescriptions did not account for her positive drug screen, another referral was generated. During this investigation, concerns were raised regarding A.M.'s unsupervised contact with the children, as it was discovered that he had been convicted of narcotics possession in the past, and with respect to the large number of prescription drugs S.S. was taking and the frequency of her filling these prescriptions. As a result, S.S. agreed to restrict A.M. from her home and from unsupervised contact with her children and to have the children's maternal grandmother supervise S.S.'s interaction with the children. No proceedings, however, were brought against S.S. and the referral was deemed to be unfounded.

On April 29, 2008, DYFS received yet another referral regarding S.S. and A.M., alleging that S.S. had two paramours living with her, that all parties were abusing heroin and prescription pills, that the children were malnourished, and that the police were investigating S.S.'s home for drug activity. When questioned by DYFS, S.S. and A.M. both denied drug use and involvement in criminal activity.

DYFS was contacted the following day by the Lodi Police Department, who reported that A.M. had been arrested on April 3 for two instances of selling drugs at S.S.'s home. When questioned by DYFS regarding this criminal activity, S.S. and A.M. claimed to be acting as informants for the police department. However, Lodi Police informed DYFS that neither A.M. nor S.S. had been acting as informants at the time of A.M.'s arrest and that A.M.'s arrest was legitimate. An emergency removal of S.S.'s children was then executed, and the children were placed with their father, C.S.

On May 2, 2008, DYFS filed a verified complaint and order to show cause alleging abuse and neglect.

At the order to show cause hearing, Susan Lennon, DYFS supervisor, discussed DYFS's concerns for the children's well-being, stating:

I think the Division has always had concerns about [S.S.] and [A.M.]. The problem is we have never been able to prove it until these police reports became proven. We've always had concerns about her ability to care for the kids because of her ailment and because of the amount of prescription medication she takes. . . . [T]he Division has so many concerns about [A.M.] back from 2006, this is somebody she continues to be with, he continues to . . . sell drugs . . . in her house where her children are. She puts her kids at risk and she doesn't even realize it.

Judge Mizdol thereafter issued the order to show cause, finding that removal of the children was necessary to avoid an ongoing risk to their safety and health.

The fact-finding hearing began on September 15, 2008 before Judge Mizdol with testimony from Detective Justin Bertone of the Lodi Police Department. Bertone testified that he received information from a confidential informant that A.M. was selling prescription medicine from the driveway of the multi-family home in which S.S. lived. Bertone then arranged for an undercover drug purchase, in which he purchased hydrocodone pills from A.M. in the parking lot of S.S.'s residence. Bertone arranged for a second undercover drug purchase, in which he purchased hydrocodone pills from A.M. in the common hallway outside S.S.'s residence. During this second purchase, Bertone heard children when A.M. reentered the residence to make change. Bertone also testified that, following A.M.'s arrest, S.S. offered to provide him with names of individuals selling narcotics and participated in a controlled buy. Neither S.S. nor A.M., however, had provided such services to Lodi police prior to A.M.'s arrest.

DYFS caseworker Quessie Ithier also testified, stating S.S. informed him that A.M. was not engaged in any criminal behavior, had not been arrested because he had been working as an informant, and he did not live in her home. S.S.'s children, however, informed Ithier that S.S.'s two paramours, A.M. and A.D., often stayed at S.S.'s home.

Judge Mizdol issued an oral opinion on October 23, 2008, finding that S.S. had neglected her children. The judge stated:

[S.S.'s] choice of men, even multiple partners, both of whom had criminal histories, does not in and of itself equate to abuse or neglect. Her choices must be viewed in the context of [A.M.'s] significant drug-related criminal history, his arrest for distribution from the very home in which the children reside, and her decision to invite his continued occupancy, and her continued entrustment of [A.M.], with the care and supervision of the children which does rise to the level of . . . abuse and neglect.

. . . .

Based upon the facts, I find by a preponderance of the evidence that [S.S.] neglected her children pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), by knowingly entrusting their care to her paramour [A.M.] whom she knew was drug involved, creating a substantial risk of harm.

I find that [S.S.] neglected her children pursuant to the same statutes by allowing [A.M.] to remain in the home after [he had] been arrested for distribution of controlled dangerous substances out of the home in which she, [A.M.], and the children resided, creating a substantial risk of harm to the children.

I find that [S.S.] neglected her children pursuant to the same statute, by offering her services as a confidential informant to the Lodi Police Department to aid her paramour, placing her continued relationship with [A.M.] above her duty to protect her own children, thereby placing the children at substantial risk of harm.

I find she neglected her children pursuant to the same statute by either facilitating [A.M.'s] sale of controlled dangerous substances from the residence in which the children resided, by supplying him with prescription medications, specifically Hydrocodone, to offer for sale, or by ignoring the distribution, refusing to acknowledge the seriousness of his behaviors, and in fact minimizing them.

I also find that [S.S.'s] history of poor judgment demonstrates that she cannot provide a safe and stable home for the children in accordance with N.J.S.A. 9:6-8.21(c)(4)(b).

S.S.'s motion for reconsideration of the neglect finding was subsequently denied on December 9, 2008.

DYFS filed an amended verified complaint on November 26, 2008 when S.S. tested positive for benzodiazepines, was terminated from Preferred Children's Services for prescription drug abuse, and a police raid of her home uncovered drug paraphernalia and revealed S.S. was caring for the children alone. The litigation was ultimately terminated on September 29, 2009. S.S. consented to retaining legal custody of the children with C.S., who would have physical custody. S.S. was afforded unsupervised parenting time, including overnight visits, while A.M. and A.D. were restrained from contact with the children.

On appeal, S.S. does not question the custody arrangement and contests only the finding of neglect and her subsequent placement on the Central Registry. She argues:

I. DYFS DID NOT MEET ITS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT THE MINOR CHILDREN'S PHYSICAL, MENTAL, OR EMOTIONAL CONDITION WAS IMPAIRED OR IN IMMINENT DANGER OF [I]MPAIRMENT.

A. DYFS'S COMPLAINTS VIOLATE GUIDELINES SET FORTH IN RULE 5:12-1.

B. DYFS' OWN TESTIMONY AND RECORDS DEMONSTRATE THAT DYFS KNOWINGLY INCLUDED UNFOUNDED ALLEGATIONS IN ITS COMPLAINTS.

C. S.S. EXERCISED HER PARENTAL DUTY TO PROTECT HER CHILDREN FROM HARM.

II. BECAUSE NONE OF THE ALLEGATIONS AGAINST S.S. WERE SUBSTANTIATED, DYFS MUST IMMEDIATELY REM[O]VE HER NAME FROM THE CENTRAL REGISTRY.

II.

In Point I(A), S.S. argues that DYFS should not have been allowed to proceed with this action because its verified complaint contained only unsubstantiated allegations. Rule 5:12-1 sets forth the requirements for complaints brought by DYFS. This Rule states that each such complaint shall allege

(1) the name, age, and birthplace of the child in whose name the action is brought, (2) the names of the natural parents of the child, if known, (3) the names and relationship of those having custody of the child at the time the action is brought, if different from the natural parents, (4) a brief statement of the facts upon which the complainant relies, and (5) the exact nature of the relief which the complainant seeks and the statutes relied upon.

[R. 5:12-1(a) (emphasis added).]

S.S. contends in Point I(B) that because DYFS included the full history of its involvement with S.S., including referrals deemed to be unfounded, that its complaint violated this Rule by including false information.

We are not persuaded by either argument. Rule 5:12-1 does not bar the inclusion of DYFS's prior involvements with S.S. in its complaint, even though those referrals were ultimately deemed to be unsubstantiated. Rather, this Rule merely requires that DYFS's complaint contain the facts upon which it is based. The present complaint does so, listing the details of A.M.'s arrest for selling prescription medication. These facts were substantiated, and S.S. does not argue otherwise. Furthermore, to the extent that DYFS included its prior, unfounded referrals in the present complaint, they were clearly denoted as unfounded. We decline to find DYFS violated this Rule by including these prior proceedings. Such a ruling would invalidate nearly every DYFS complaint, as these complaints often include DYFS's prior involvement with a parent in order to establish a complete and thorough history of the action. We therefore reject the arguments S.S. raises in Points I(A) and I(B).

III.

In Point I(C), S.S. argues that the trial court erred in finding that she neglected her children because DYFS failed to prove neglect by a preponderance of the evidence, which is the burden of proof in a Title Nine abuse and neglect case. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). Specifically, S.S. argues neglect was not proven because she did not know A.M. was involved in criminal activity and because she did appreciate the seriousness of A.M.'s behavior, as evidenced by her prior cooperation in restraining A.M. from her home.

Abuse and neglect is defined by N.J.S.A. 9:6-8.21(c)(4), which provides, in relevant part, that an abused or neglected child is

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, as herein defined, 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[.]

A failure to "exercise a minimum degree of care" does not require an intentional act; rather this phrase "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).

In evaluating a finding of neglect, the scope of our review of the trial judge's findings of fact is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). This court awards deference to a trial court's findings of fact because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it 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). Such deference is afforded unless it is determined that the trial judge "went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Therefore, when the trial court's findings of fact are "supported by adequate, substantial and credible evidence," these findings are "binding on appeal." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

In this case, the trial judge's factual findings that S.S. allowed A.M. into her home and entrusted him with the care and supervision of her children, even after he was arrested for selling drugs from her residence were supported by the evidence and are entitled to our deference. At the fact-finding hearing, Judge Mizdol heard testimony from both Detective Bertone and Ithier, who established A.M. was arrested for selling prescription medication, A.M. frequently stayed at S.S.'s house, including overnight visits, and S.S. either facilitated or ignored A.M.'s criminal behavior. Judge Mizdol accepted this testimony and deemed it credible. We will not disturb these findings, as they were supported by adequate and credible evidence.

We therefore determine that the judge's finding of neglect was proper under a preponderance of the evidence standard. Under this standard and in light of the evidence before Judge Mizdol, it is clear S.S. neglected her children by failing to "exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship." N.J.S.A. 9:6-8.21(c)(4). Thus, we reject the claims S.S. makes in Point I(C).

IV.

Finally, in Point II, S.S. argues that her name should be

removed from the Central Registry because the allegations of neglect against her were unfounded. However, as we have determined that the trial judge's finding of neglect was proper, there is no basis to order removal of her name from the Central Registry. See N.J.S.A. 9:6-8.11.

 
Affirmed.

(continued)

(continued)

14

A-1250-09T1

RECORD IMPOUNDED

August 17, 2010