NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5799-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.L.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF

T.L. and A.D., minors.

________________________________________________________________

Argued May 17, 2011 Decided June 10, 2011

Before Judges Wefing, Payne and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-34-08.

Clara S. Licata, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Licata, on the brief).

James D. Harris, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Harris, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for T.L. and A.D., minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

Following two fact finding hearings, defendant A.L. appeals from April 23, 2008 and March 4, 2010 Family Part orders finding that she abused and neglected her children in violation of N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.

I.

A. The April 23, 2008 order

On September 10, 2007, a member of the clinical staff at Shore Memorial Hospital in Somers Point, notified the Division of Youth and Family Services (DYFS) that defendant A.L. had just given birth to a child, A.D., whose stool, as well as the meconium present in the placenta, had tested positive for cocaine. The hospital also notified DYFS that a blood test administered to A.L. likewise tested positive for cocaine.

The next day, DYFS worker Jennifer Hirsch met with A.L. and T.D., the baby's father, to ask them why their son, A.D., had tested positive for cocaine. A.L. denied using any drugs during her pregnancy, but stated that on the night of September 8, 2007, two days before giving birth to A.D., she and T.D. went to pick up a friend at a bar. According to A.L., while the three were in the car, she turned around, and saw that the friend was about to use a bag of cocaine that was the size of a ping pong ball.

A.L. told Hirsch that when she tried to grab the bag of cocaine out of the friend's hands, it exploded, resulting in cocaine being spread all over the car, as well as on her body and face. A.L. claimed that she must have ingested the cocaine from it "being all over her." She insisted that she and T.D. were sober and drug-free at the time they picked up the friend at the bar. DYFS directed the hospital not to discharge the baby until further notification.

Hirsch also interviewed a hospital social worker who informed her that when A.L. was five months pregnant with A.D., she had come into the hospital for treatment of a urinary tract infection and had tested positive for marijuana. When Hirsch asked A.L. to explain the positive marijuana test, A.L. stated that she works for a pharmacy, and delivers prescription medication to the home of a patient with cancer. According to A.L., the man smokes marijuana and was smoking marijuana when she made the delivery. She explained that she must have inhaled the marijuana while standing at the doorway of the man's home. Hirsch informed A.L. that it is not possible to test positive for marijuana if the only contact with the substance is inhaling it from a doorway. Despite Hirsch's comment, A.L. continued to deny any drug use.

In connection with its investigation, DYFS also interviewed A.L.'s mother, C.L., who had legal custody of A.L.'s older child, her five-year-old son, T.L. Although C.L. disputed DYFS's contention that her daughter, A.L., was a drug user, C.L. nonetheless agreed to the implementation of a Safety Protection Plan, under which she would supervise all contact by A.L. and T.D. with the baby, A.D., until further notice by DYFS.

The hospital discharged A.D. when he was two days old, after notifying DYFS that the infant was not suffering from any withdrawal symptoms. Nonetheless, because A.L. tested positive for cocaine at the time of the baby's birth, and positive for marijuana during her pregnancy, and because A.D.'s stool and meconium were positive for cocaine, DYFS substantiated a charge of neglect against A.L. "for a substantial risk of physical injury" to the baby.

Based upon those findings, DYFS filed a verified complaint charging A.L. with abuse and neglect on October 9, 2007, seeking care and supervision of A.L.'s two children, T.L. and A.D. On November 7, 2007, the return date of the order to show cause, the judge granted DYFS care and supervision of both children, ordered A.L. to attend a substance abuse evaluation and to submit random urine screens, and required her to be supervised at all times when in the presence of her children.

DYFS's abuse and neglect complaint came before the court for fact finding on April 3, 2008, with DYFS seeking a judgment against A.L. under N.J.S.A. 9:6-8.21(c)(4)(b). The agency asserted that A.L. exposed A.D. to a substantial risk of harm by ingesting controlled dangerous substances while she was pregnant, resulting in A.D.'s meconium testing positive for cocaine. The judge considered A.L.'s arguments that she should not be held accountable for either the cocaine or the marijuana because the positive tests were the result of merely inhaling the substances while in a car, or while standing in a doorway, respectively. The judge also considered A.L.'s argument that the mere use of a controlled dangerous substance during pregnancy was "not enough" to support a Title 9 finding, because any in utero exposure to a controlled dangerous substance is of no consequence, unless the child experiences pain or suffering after his or her birth. In support of that latter argument, A.L. argued that there was no evidence that A.D. was born addicted to drugs or that he exhibited any withdrawal symptoms or pain.

In a written decision rendered on April 23, 2008, the judge rejected A.L.'s claim that she tested positive for cocaine on September 8, 2007, two days before giving birth, only because she was in a car with another person who used cocaine. The judge described that explanation as "preposterous." The judge concluded that A.L.'s "prenatal drug use, without more, when corroborated by [A.D.'s] positive meconium testing, is sufficient to establish by a preponderance of the evidence that [A.D.] is an 'abused or neglected child' as that term is defined at N.J.S.A. 9:6-8.21(c)(4)(b)." A confirming order was entered the same day.

B. The March 4, 2010 order

Approximately sixteen months later, on September 1, 2009, DYFS filed an amended complaint in which it alleged that A.L. had abused and neglected the children by allowing T.D. to have contact with them in violation of a September 10, 2008 order. That order barred him from the home, and required that his visits with the children be supervised at the DYFS office.

To place DYFS's allegations in proper context, we pause briefly to explain the circumstances leading to the entry of the September 10, 2008 order. DYFS established that T.D. had relapsed, as evidenced by his September 20, 2007 positive drug screen for Hydrocodone, also known as Vicodin. Indeed, in light of his relapse, on April 3, 2008, T.D. stipulated that he was a member of a "family in need of services," and a civil judgment so stating was entered against him at that time. Additionally, at the time of the September 10, 2008 compliance review hearing, DYFS reported that T.D. "ha[d] not been compliant with his substance abuse treatment . . ., nor ha[d] he been compliant with submitting random urine screens." DYFS also notified the judge that T.D. admitted to A.L. that he had relapsed and was using heroin. Upon learning of T.D.'s relapse, the judge entered the September 10, 2008 order, which barred T.D. from any contact with the children unless such contact was supervised by DYFS.

Thereafter, from three separate sources, DYFS received information that A.L. violated the order by permitting T.D. to have access to the children. Those three sources were: 1) Penny Anderson of Addiction Recovery Services, who notified DYFS that when she saw T.D. on July 10, 2009, he disclosed to her that he had started using heroin again, and admitted that he had been to A.L.'s home where he had been in contact with the children; 2) A.L.'s older child, T.L., who by now was seven years old, told DYFS caseworker, Shannon Ewell, that T.D. had been sleeping in the home that summer, and had visited the home when he and A.D. were present; and 3) T.D.'s sister, D.D., who reported to DYFS that on August 27, 2009, T.D. and A.L., accompanied by the children A.D. and T.L., came to her home, and A.L. and T.L. told her they were planning to take the children to the boardwalk.

Based upon those three reports, DYFS performed an emergency removal of the children from A.L.'s custody on August 28, 2009, because A.L. was permitting T.D. to have contact with the children in violation of the September 10, 2008 order. DYFS filed its amended complaint on September 2, 2009. At a fact finding hearing held on March 4, 2010 to consider the allegation that A.L. had abused and neglected the children by allowing T.D. to have contact with them in violation of the September 2008 order, DYFS relied on a stipulation T.D. had provided at a January 6, 2010 compliance review hearing. At the hearing, he admitted that he had had contact "with the children with an unapproved supervisor, [A.L.] . . . ." The court also considered T.D.'s stipulation that he was a substance abuser. Last, the court considered T.L's statements that his father had been at the home over the summer. However, the judge disregarded Ewell's testimony describing the comments from T.D.'s sister, and from Penny Anderson of Addiction Recovery Services, in light of their hearsay nature.

A.L. testified at the March 4, 2010 fact finding hearing, claiming that T.D. had not had contact with the children in her presence since the court order was entered barring such contact in September 2008. She insisted that her son, T.L., lied when he said T.D. was at the home during the summer of 2009.

At the conclusion of the March 4, 2010 hearing, the judge found by clear and convincing evidence that A.L. had abused and neglected the children "in that she knowingly exposed the children to [T.D.] who had not completed substance abuse treatments . . . ." The judge explained that in reaching such a conclusion, he had made "a credibility call" that "boils down to whether [he] believe[d] [A.L.]." The judge then stated, "[t]he reality of it is that I do not believe [A.L.]. That I do not believe that her son was lying, when there was all the corroboration that has been set forth here, that [T.L.] indicated in some detail exactly the nature of these contacts." The judge explained that his unwillingness to believe A.L.'s testimony -- that she had not permitted T.D. to have access to the children -- was based on her history of being untruthful, which included "the exploding ball of cocaine in the car" and her exposure to marijuana "because she worked at a pharmacy."

The judge entered a dispositional order at the conclusion of the March 4, 2010 hearing, finding that A.L. abused and neglected the children by allowing T.D. to have contact with them. The judge continued the children under the care and supervision of DYFS, and specifically authorized DYFS to make unannounced visits to the home. The judge ordered DYFS to provide an array of services, including substance abuse aftercare treatment for A.L., random urine screens for both T.D. and A.L., individual therapy and parenting skills counseling for A.L., and family counseling for T.L. and A.L. together. The March 4, 2010 order limited A.L. to supervised contact with her children, but specified that upon providing three "clean consecutive drug screens," the supervision restriction would be rescinded.

On appeal, A.L. argues: 1) the April 23, 2008 order of abuse and neglect should be reversed "because a fetus'[s] exposure to cocaine in utero is not a recognized 'harm' under the abuse and neglect statute and because the court did not find any risk of harm to the child after birth"; and 2) the March 4, 2010 determination of abuse and neglect should be reversed because DYFS failed to prove abuse and neglect by a preponderance of the evidence. The Law Guardian agrees with the position A.L. advances concerning the April 23, 2008 order; however, the Law Guardian urges us to affirm the March 4, 2010 order. DYFS, in turn, argues that both orders should be affirmed.

II.

As the Supreme Court recently observed in New Jersey

Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 346 (2010), Title 9 is a comprehensive legislative scheme designed to protect the welfare of children in this State. "The safety of children is the paramount concern." Id. at 343 (citing N.J.S.A. 9:6-8.8). In relevant part, Title 9 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, 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[.]

[N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).]

When reviewing the factual findings of a trial judge in an abuse and neglect case, we must accord deference to the judge's findings of fact and credibility determinations "unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). If the court finds by a preponderance of the evidence, N.J.S.A. 9:6-8.46(b)(1), that a child has been abused or neglected, the court may enter an order of protection, N.J.S.A. 9:6-8.55, setting forth reasonable conditions governing the offending parent's relationship with the child. Such conditions may include ordering the parent to accept therapeutic services, N.J.S.A. 9:6-8.58, requiring the parent to "undergo substance abuse assessment and treatment," N.J.S.A. 9:6-8.58a, or requiring the parent to "refrain from acts . . . that tend to make the home not a proper place for the child." N.J.S.A. 9:6-8.55.

We turn first to point one, in which A.L. argues that the fact finding order of April 23, 2008, should be reversed because exposing a fetus to cocaine "is not a recognized harm" under Title 9. She maintains that, as a matter of law, actual harm after birth must be proven; exposing a fetus to a risk of harm is not enough. In support of that argument, she relies on N.J. Division of Youth & Family Services v. L.V., 382 N.J. Super. 582 (Ch. Div. 2005), which is not binding upon us, and which is entirely inapposite. L.V. concerned an HIV-positive mother's decision not to take prescribed medication during pregnancy after being told that it might significantly reduce the chances of the virus being passed to her unborn child. Id. at 586-87. Although the child was exposed to HIV, she did not contract the disease, id. at 587, and the Chancery Division held that the mother's refusal to take the medication did not constitute abuse and neglect of her child, id. at 590.

We do not perceive any similarity between a refusal to take prescribed medication, as in L.V., and the ingestion of a substance -- cocaine -- whose possession is unlawful, and whose use is dangerous, under all circumstances. L.V. implicated competing constitutional rights, which include the right of a pregnant woman to refuse medical treatment, and the right of children to be free from abuse. In contrast, A.L. had no right, even if not pregnant, to use cocaine, an illegal and dangerous drug.

We need look no further than the Legislature's enactment of the Comprehensive Drug Reform Act, L. 1987, c. 106. In what became N.J.S.A. 2C:35-1.1, the Legislature declared it to be the public policy of this State to seek to combat the dangerous effects of narcotics, such as the cocaine A.L. ingested two days before A.D. was born. The Legislature declared:

b. [T]he unlawful use . . . of controlled dangerous substances continues to pose a serious and pervasive threat to the health, safety and welfare of the citizens of this State. . . .

c. In order to be effective, the battle against drug abuse . . . must be waged aggressively . . . . It is also the policy of this State to afford special protection to children from the perils of drug trafficking . . . .

[N.J.S.A. 2C:35-1.1(b), (c).]

Cocaine is dangerous not only to adults, ibid., but it also creates grave risks for infants. Ingestion of cocaine during pregnancy "can result in life-threatening cardiovascular and central nervous system complications, low birth weight, lower gestational age at delivery, irritability, convulsions, poor feeding patterns [and] increased tremulousness[.]" In re Guardianship of K.H.O., 161 N.J. 337, 350 (1999) (citation omitted). For those reasons, the Supreme Court held in K.H.O. that a mother's use of cocaine during pregnancy, which resulted in her child being born addicted to cocaine, was sufficient to establish the first prong of the termination of parental rights standard, as articulated in N.J.S.A. 30:4C-15.1(a)(1). Id. at 349.

We recognize that in K.H.O. the Court commented, in dicta, that drug use during pregnancy, in and of itself, without a continuing objective harm after birth such as withdrawal symptoms, does not meet the definition of harm in the first prong of N.J.S.A. 30:4C-15.1(a)(1). In light of the vastly different objectives of a Title 9 abuse and neglect case (providing supportive services to parents to protect children from further harm or risk of harm), and a Title 30 guardianship case such as K.H.O. (terminating parental rights), we do not deem the dicta in K.H.O. to have a bearing on the issue before us. A Title 30 guardianship case, unlike a Title 9 abuse and neglect case, seeks the most devastating form of intrusion into the parent-children relationship -- its destruction. Under those circumstances, we would expect the bar to be set high. See Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599, 610 (1982) (insisting on an elevated burden of proof, beyond a mere preponderance of the evidence, when the State seeks to "end" the "fundamental liberty interest" that inheres in a parent-child relationship).

Our focus remains on the conduct of A.L. In light of the grave risk of harm that cocaine poses to a child, we have no hesitancy in concluding, as did the trial judge, that A.L.'s use of cocaine two days before A.D.'s birth created the very risk of harm that N.J.S.A. 9:6-8.21(c)(4)(b) is designed to prevent: "imminent danger" to A.D.'s "physical . . . condition" by reason of A.L.'s "failure . . . to exercise a minimum degree of care" and such failure allowed harm to be inflicted on A.D., or created "a substantial risk thereof." In reaching that conclusion, we reject the distinction A.L. advances between a fetus, which is her characterization of A.D. at the time she ingested cocaine, and a "child" as specified in N.J.S.A. 9:6-8.21(c)(4)(b). Following his birth, A.D. was not a fetus, but was instead a living child born with a dangerous drug in his body because his mother used cocaine while pregnant with him. We affirm the April 23, 2008 order.

III.

We turn to point two, in which A.L. maintains that the judge erred when he based his finding of abuse and neglect in the March 4, 2010 fact finding order on the uncorroborated statements of seven-year-old T.L. She maintains, correctly, that abuse and neglect cannot be established by the testimony of a child alone, without corroboration. See N.J.S.A. 9:6-8.46(a)(4); N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). We disagree with her assertion, however, that T.L.'s out-of-court statements that T.D. had been to the home during the summer of 2009 were uncorroborated.

As we have already noted, the judge disregarded Ewell's testimony at the March 4, 2010 fact finding hearing describingher conversations with Anderson and with T.D.'s sister. Thejudge gave considerable weight, however, to T.D.'s stipulation on January 6, 2010, in which he admitted that he had had contact "with the children with an unapproved supervisor,

[A.L.]."1

Viewing the evidence as a whole, we are satisfied that the finding of abuse and neglect contained in the March 4, 2010 order was "based on a preponderance of the evidence" derived from the "competent, material and relevant evidence" that N.J.S.A. 9:6-8.46 requires, as it was based on T.D.'s stipulation and T.L.'s statement. We therefore reject A.L.'s claim that the judge erred by basing a finding of abuse and neglect on the child, T.L.'s, uncorroborated statement.

1 The January 6, 2010 stipulation contains A.L.'s full name.