NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1359-10T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.G.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF H.G.,

a minor.

__________________________________________

Argued May 18, 2011 Decided June 21, 2011

 

Before Judges R. B. Coleman and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-15-10.

 

Carleen M. Steward, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, on the brief).

 

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief).

 

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor H.G. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

 

PER CURIAM

In this appeal, defendant N.G., the mother of infant H.G., seeks to reverse (1) a June 10, 2010 order of the Chancery Division, Family Part, which approved the permanency plan of the New Jersey Division of Youth and Family Services (the Division) for termination of parental rights and (2) an October 1, 2010 order terminating litigation under Title Nine, the FN or abuse and neglect docket.1 Having considered defendant's arguments in light of the facts and applicable law, we affirm.

The controversy arose in the following factual context. H.G. was born to N.G. on July 30, 2009, and removed from the mother's custody pursuant to a "Dodd removal."2 Due to N.G.'s use of cocaine throughout her pregnancy, H.G. was born with cocaine in his system and he was deemed medically fragile.3 As a result, the Division commenced an action against N.G. by way of Verified Complaint and Order to Show Cause, and after a hearing on August 4, 2009, the Division was granted temporary custody of H.G. N.G. was granted weekly visitation rights, supervised by the Division.

On the August 27, 2009 return date of the Order to Show Cause, N.G. failed to appear at the hearing. Accordingly, the court entered default and pursuant to N.J.S.A. 9:6-8.50(e), ordered that custody remain with the Division; ordered continued visitation rights; and noted that N.G. had agreed (apparently at the August 4 hearing) to participate in services prior to a fact-finding hearing.

On November 19, 2009, the trial judge convened a fact-finding hearing to determine whether N.G. had engaged in abuse or neglect with respect to H.G. N.G. appeared with counsel, and default, previously entered as a consequence of N.G.'s earlier failure to appear, was vacated. At the hearing, N.G. entered into a stipulation of facts. N.G. was placed under oath and gave the following testimony under the voir dire examination by her counsel:

Q. [N.G.], you and I had an opportunity to talk regarding this case and where it is procedurally today, correct?

 

A. Yes.

 

Q. And I explained to you that today the court has to make a finding as to whether or not there was abuse or neglect as alleged in the complaint, correct?

 

A. Yes.

 

Q. And I explained to you that you have the right to take a trial in this matter, in which case the Division would present its evidence which might include the testimony of the caseworker and you would have an opportunity to present a defense and the court would make a determination by a preponderance of the evidence whether or not there was abuse or neglect, do you understand that?

 

A. Yes.

 

Q. And I --

 

. . . .

 

Q. And you and I spoke about the facts and you advised me that what you wish to do is to enter into a stipulation that in and around the time that your child was born you were under -- that you were using cocaine and that the baby tested positive for cocaine at birth, is that correct?

 

A. Yes.

 

Q. And you realize that by the baby testing positive for cocaine at birth, you placed him at risk of harm, you understand that?

 

A. Yes.

 

Q. You also understand that by entering the stipulation the court would not make its own determination, that you waive your right to a trial, correct?

 

A. Yes.

 

Q. Are you under the influence today of any alcohol, drugs or medication that may interfere with your ability to understand what you're doing?

 

A. No.

 

Q. Are you doing it knowingly, freely and voluntarily?

 

A. Yes.

 

Q. Has anybody offered you anything in exchange for it?

 

A. No.

 

Q. Has anybody pressured you or coerced you into it?

 

A. No.

 

Q. Have you had sufficient time to think about it?

 

A. Yes.

 

Q. And have I answered all your questions satisfactorily?

 

A. Yes.

 

Q. You also understand that going forward the court is going to enter orders that are going to require you to participate in reasonable and necessary services to safely parent your child, do you understand that?

 

A. Yes.

 

Q. And you understand that you have to comply with those court orders in order to effectuate reunification if that is the plan?

 

A. Yes.

 

Q. And you understand that if you don't abide by those court orders that the plan may not be reunification if you don't comply with the court orders, do you understand that?

 

A. Yes.

 

Q. And do you wish for the court to accept your stipulation?

 

A. Yes.

 

. . . .

 

THE COURT: I'm satisfied [N.G.] has given a knowing and voluntary stipulation under Title 9. Her answers were responsive to the questions. I'm satisfied she understood the questions in that regard, that she's here today giving this stipulation knowingly, freely and voluntarily and that the stipulation she gave that this child testing positive for cocaine at the time of birth and thereby her use of cocaine placed the child at risk of harm to constitute abuse or neglect under Title 9.

Based upon the above quoted testimony, a November 19, 2009 order was entered that stated N.G. had "knowingly, willingly and voluntarily agreed to give up [her] right to a Fact Finding Hearing at which the Division would have [had] the burden of proof," and she had "knowingly, willingly and voluntarily admitted that she use[d] cocaine during her pregnancy and she and the baby tested positive for cocaine at the time of birth." The order further recited that N.G.'s stipulated acts or omissions constituted abuse or neglect pursuant to law. N.G. acknowledged her stipulation and its effect by signing the order along with her counsel.

The next hearing, on January 21, 2010, was scheduled as a compliance review. N.G. failed to appear, but her counsel did. Default was not entered but the trial judge advised that default would be contemplated at the next hearing should N.G. not appear.

At the following compliance review hearing on April 15, 2010, N.G. again failed to appear, though her counsel was present. N.G.'s counsel explained to the court that she unsuccessfully attempted to discuss the case with N.G. several times. Default was entered for N.G.'s failure to appear. The court report in connection with that hearing indicated that N.G. had not been in compliance with her services for substance abuse, mental health or physical health needs. The court report also stated that N.G. had failed to appear for a scheduled substance abuse reassessment at the Division's office.

A permanency hearing was scheduled for June 10, 2010. Again, N.G. did not appear; her assigned counsel and the Law Guardian for H.G. were present. At that hearing, the Division advanced its permanency goal of termination of N.G.'s parental rights, followed by adoption. N.G.'s counsel having been unable to communicate with N.G., did not object to the permanency plan. After the hearing, the court entered an order indicating that the Division had provided reasonable efforts and services to N.G. to support reunification but that the issues leading to removal had not been rectified since N.G. continued to test positive for drugs and had not been compliant with referred services.4

The court concluded that "all parties in this matter are in agreement with the plan of termination of parental rights followed by adoption." Accordingly, it ordered the Division to file its guardianship complaint within sixty days to terminate parental rights or kinship legal guardianship or adoption and, if such complaint was not filed within that time, the next scheduled review was set for October 1.5 The permanency order indicated that since N.G. "has not appeared in court since November, 2009," the plan was appropriate.

On October 1, 2010, the court held a compliance hearing. Again, N.G. did not appear. Her counsel explained to the court that she had no contact with N.G. despite sending out investigators to attempt to locate her. Under such circumstances, the FN litigation was terminated "because a complaint for Termination of Parental Rights has been filed, [under docket] FG-11-14-11."6 On November 10, 2010, N.G. filed her Notice of Appeal from the June 10, 2010 permanency order and the October 1, 2010 order terminating litigation under FN-11-15-10.

Abuse or neglect proceedings are brought under Title Nine, N.J.S.A. 9:6-8.21 to -8.73. The definition of an abused or neglected child is provided in N.J.S.A. 9:6-8.21:

c. "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .

 

N.G. raises on appeal an anticipatory argument that this appeal is not moot based upon the outcome of the guardianship [FG] proceeding under Title Thirty in which her parental rights were terminated. The Division indeed argues in its respondent's brief that the appeal of the FN proceeding is moot due to the subsequent termination of N.G.'s parental rights under the FG docket. The Law Guardian does not address the issue of mootness focusing instead on whether the court correctly determined that N.G.'s use of illegal substances while pregnant created a risk of harm and warranted a finding of abuse and neglect.

Since Title Nine and Title Thirty are different statutory schemes,7 an appeal of the Title Nine abuse or neglect proceeding is not necessarily mooted by an adjudication terminating parental rights under a Title Thirty guardianship action. As defendant argues, the requirement that the name of a person found to have committed child abuse be entered into the Central Registry is an adverse impact sufficient to militate against a determination of mootness. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 237 (App. Div. 2009) (Carchman concurring) (noting "[t]he impact of the Registry is substantial[,]" and "[t]he entry of an individual's name on the Central Registry gives rise to a significant liberty interest on the part of that individual."). Thus, we agree that defendant's appeal is not foreclosed by the concept of mootness. On the other hand, we do not agree with N.G.'s contentions that the fact-finding proceeding was deficient and violative of fundamental fairness and her right to due process.

Defendant's central argument on appeal is that the stipulation she entered into with the Division was "fundamentally wrong under the law of the State of New Jersey since it cites to a behavior which, in and of itself, does not constitute abuse/neglect." We disagree.

Stipulations of fact may substitute for the introduction of reliable evidence on a point, if the knowing and voluntary nature of the stipulation is established. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002); N.J.S.A. 9:6-8.46(b). N.G. emphasizes that she "never testified or acquiesced to a finding of abuse/neglect." She submits that by acknowledging in her testimony that H.G. was exposed to cocaine due to her usage throughout pregnancy, she did not stipulate to abuse and neglect. N.G. relies on In Re Guardianship of K.H.O., 161 N.J. 337 (1999), for the proposition that a mother's use of narcotics or alcohol during her pregnancy does not constitute abuse or neglect unless that child is born with signs of related consequences. Id. at 349-52.

Without a doubt, N.G.'s admitted drug use while pregnant was an essential part of the factual basis for the judge's finding of abuse or neglect on N.G.'s part, and it is paramount that any finding "must be based on competent reliable evidence." J.Y., supra, 352 N.J. Super. at 266. Although a trial judge's conclusions of law based upon its factual findings are not entitled to special deference, Manalapan Realty, L.P. v. Manalapan Township Committee, 140 N.J. 366, 378 (1998), a trial judge will be sustained on his findings of fact and conclusions of law so long as those facts and conclusions are supported by and consistent with the competent, relevant and reasonably credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

As defendant reminds us, our Supreme Court has recognized that a woman's "[p]renatal drug use does not, without more, establish parental unfitness or an inability to parent." K.H.O., supra, 161 N.J. 337, at 349. Similarly, "[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. Ibid. The situation changes, however, if the child is born and suffers some harm at or following birth, where that harm is the result of the mother's drug use during pregnancy. Ibid. "[A]n infant born addicted to drugs and suffering the resultant withdrawal symptoms has suffered harm that endangers her health and development within the meaning of [the statute]." Id. at 351 (citations omitted).

This rationale from the K.H.O. case, a termination-of-parental-rights case, was applied to abuse and neglect litigation in New Jersey Division of Youth and Family Services v. L.V., 382 N.J. Super. 582, 589-90 (Ch. Div. 2005), a case upon which defendant places substantial reliance. In L.V., the Family Part judge observed:

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. (citations and quotation omitted).]

 

In L.V., the Chancery Division concluded that the 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. Without embracing that broad extension of K.H.O., we note the obvious distinction between the circumstances of L.V., where the mother balanced and weighed the risks and benefits of a proposed medical treatment, and the circumstances presented here, involving the mother's ingestion of a controlled dangerous substance in disregard of the potential effects upon the infant after birth. Id. at 591.

N.G. admitted using cocaine during her pregnancy. Although that admission, in and of itself, is not sufficient to support a finding of abuse or neglect, where the manifestation of post-birth injury to H.G. can be traced to N.G.'s drug use, there is a sustainable basis for a determination of abuse or neglect. Moreover, as the Law Guardian points out, Title Nine provides for the protection of children who are at risk of significant harm. Thus, an "abused or neglected child" includes one whose parent or guardian "creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted . . . loss or impairment of the function of any bodily organ." N.J.S.A. 9:6-8.21(c). It is undisputed and, indeed, admitted that H.G. was born with cocaine in his system, and there is credible evidence that H.G. exhibited suffering and injury after he was born. A nurse's report suggests H.G. suffered withdrawal systems. In addition, he has been classified as medically fragile; he had low weight; he experienced chronic vomiting; and he suffered a four to six month developmental delay. Although N.G. did not concede that nexus, the trial court's inference in that regard is not unreasonable or illogical. In short, N.G.'s substance abuse during her pregnancy had repercussions after H.G. was born.

We next address N.G.'s due process argument. We have recognized that when a stipulation is to be accepted at a fact-finding hearing, the Division "after consultation with defense counsel, should advise the judge which specific provision of N.J.S.A. 9:6-8.21(c) is expected to be proven by way of defendant's stipulated facts." M.D., supra, 417 N.J. Super. 583 at 617. Our recent decision in M.D., provides a current clarification of the importance of notice and other due process protections in the context of Family Part litigation generally.

The judge must [] explicitly inform the defendant[] that by agreeing to enter into a stipulation, she is waiving her right to a hearing at which DYFS must prove abuse or neglect by a preponderance of the evidence; that at such a hearing, the judge would determine what documentary evidence and testimony would be admitted, and that defendant, through counsel, would have the right to challenge the evidence and cross-examine the witnesses; that if the judge accepts defendant's stipulated facts and concludes they demonstrate abuse and/or neglect, the judge will enter an order finding that defendant has abused and/or neglected her child; and, that as a result of that order, DYFS may seek termination of the defendant's parental rights, and the judge may remove, or continue the removal of, the child from the defendant's custody, N.J.S.A. 9:6-8.50(d), and/or require DYFS to "provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life," N.J.S.A. 9:6-8.50(e).

 
[Id. at 617-18 (internal citations omitted).]

 

There are "'numerous collateral consequences [that] flow from such a finding [of abuse or neglect].'" Id. at 618 (quoting N.J. Div. of Youth & Family Servs. v. N.S., 417 N.J. Super. 593, 619 (App. Div. 2010)). As noted, a finding of abuse and neglect is forwarded by the Division to a Central Registry maintained by the Department of Children and Families (DCF). Hence, the trial judge should advise the defendant that due to "a finding of abuse and/or neglect, the defendant's name shall remain on the Central Registry of confirmed perpetrators, and that defendant is waiving any ability, either through the administrative process or through the proceedings in court, to challenge the inclusion of her name on the Central Registry." Ibid. However, the question remains whether such advice would have made a difference or brought about a different result.

In M.D., the Family Part judge entered an order finding that defendant had neglected her children after she stipulated to "le[aving] the burners and oven on in the home to heat the home thus posing a risk to the minor children." Id. at 590. There, we reversed since "neither defense counsel, nor the judge, ever advised defendant that by stipulating to certain facts -- using the stove to heat her home after being advised by [the Division] not to do so -- she was admitting to the abuse and/or neglect of her children. Indeed, that entire proceeding was bereft of any mention of the terms 'abuse or neglect.'" Id. at 598. The cause and effect relationship was not readily apparent. Ibid. The court thereby found that defendant's assistance of counsel was ineffective because "had she known the full consequences of her stipulation, she would have proceeded and insisted that [the Division] prove her actions amounted to child abuse or neglect." Id. at 615.

N.G. similarly submits that her due process rights were violated since the judge did not advise N.G. that by stipulating to cocaine use during her pregnancy she was admitting abuse and neglect. Unlike M.D., the transcript here reveals that defense counsel advised and then inquired of N.G. in open court whether, by stipulating to certain facts -- using cocaine throughout her pregnancy with H.G. -- she realized she placed H.G. at risk of harm. N.G. acknowledged she did and that she had the right to have a fact-finding trial instead of entering into the stipulation. She knowingly waived her right to a trial.

Our review of the record in particular, the extensive voir dire quoted earlier in this opinion, convinces us that the judge's finding of abuse and neglect and his decision to accept the permanency plan and terminating the FN action were supported by the record, and do not offend notions of fundamental fairness or due process.

A

ffirmed.

 

1 Although not specified in the Notice of Appeal, the appeal also implicates a November 17, 2009 stipulation of abuse and neglect. Defendant contends her stipulation relating to abuse and neglect was wrongly construed by the court as an admission of abuse and neglect. See N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 589 (App. Div. 2011) (considering two Family Part orders not listed in the Notice of Appeal since the facts and issues implicated the orders).

2 See N.J.S.A. 9:6-8.29 to -8.30.

3 Upon discharge from the hospital, H.G. was placed in a home with foster parents who have been trained to care for medically fragile children, known as a "special home service provider."

4 The court report submitted in connection with the June 10 hearing explained that: N.G. (1) failed to attend her three scheduled substance abuse evaluation appointments; (2) did not complete her dual diagnosis program; (3) was discharged from a separate dual diagnosis program for continued substance abuse; (4) completed a five-month parenting class from September 2009 to January 2010; and (5) noted her poor attendance at a separate individualized parenting class, in which N.G. was not allowed to participate because of her drug use. In addition, counsel for the Division represented that N.G. had not visited H.G. in four months.

5 Although the guardianship complaint is not part of the record on this appeal, an affidavit of personal service included in defendant's appendix recites the service of the Guardianship complaint and Order to Show Cause upon N.G. by handing them to her on August 25, 2010.

6 A judgment of guardianship terminating N.G.'s parental rights to H.G. also was entered by default on October 1, 2010. That judgment is not a part of this appeal by N.G.

7 See N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 393-94 (1990).