NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY

(formerly DIVISION OF YOUTH

AND FAMILY SERVICES),

Plaintiff-Respondent,

v.

L.J.,

Defendant-Appellant,

and

J.R.,

Defendant.

___________________________________

IN THE MATTER OF S.E.A.J., a minor.

___________________________________

Argued April 10, 2013 Decided

Before Judges Sapp-Peterson, Haas and Happas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-453-11.

Mary Potter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Potter, on the brief).

Joyce Calefati Booth, Deputy Attorney General, argued the cause for respondent

(Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Calefati Booth, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minor S.E.A.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

Defendant, L.J., appeals from the Family Part order, entered following a fact-finding hearing, determining that she abused or neglected her son, S.E.A.J. On appeal, L.J. urges that the fact-finding order must be reversed because the record lacked substantial credible evidence that S.E.A.J. had been abused or neglected. We disagree and affirm.

At the fact-finding hearing, the Division of Child Protection and Permanency (Division) presented testimony from two witnesses who had been involved in the investigation and efforts to implement a safety plan with L.J., Sasha Marroquin and Julia Borass. L.J. did not testify nor present any witnesses on her behalf at this hearing. The evidence revealed that on April 4, 2011, the Division received a referral that L.J. and her paramour at that time, C.C., were smoking marijuana in the presence of S.E.A.J., who was sixteen months old. During the course of the Division's investigation, L.J. admitted to drug use and tested positive for phencyclidine (PCP)

and marijuana. L.G. voluntarily entered into a safety plan, which called for a homemaker to be placed in her home. However, the homemakers were unable to gain access to L.J.'s home. As a result, a second safety plan was initiated under which L.J. agreed to participate in outpatient drug treatment.

On May 16, 2011, L.J. once again tested positive for marijuana and PCP. The Division proposed homemakers, but L.J. would not agree. One week later, L.J. tested positive for PCP and marijuana. At this time, however, she disclosed to the Division that she was being treated for bipolar disorder and was being prescribed psychotropic medication. She also refused to execute the necessary release forms in order that the Division could confirm her attendance at an outpatient drug treatment facility.

During a home visit on June 8, 2011, the Division learned that L.J. was involved with a new person. L.J. only knew his first name, "Jun Jun", that he was on probation, and that he had a daughter who was in foster care. She advised the caseworker that he was at her home "five times a week." She agreed to bring Jun Jun to the Division office. Although L.J. appeared at the office, Jun Jun was not with her, and L.J. complained to the worker that two of her relationships had gone "down the drain" because of the Division.

At the conclusion of the fact-finding hearing, the trial judge placed her findings on the record, concluding, by the preponderance of the evidence, that L.J. placed S.E.A.J. at a substantial risk of harm by the choices she had made, specifically, being involved with an individual whose last name she did not know, but who she knew had a criminal record, had been incarcerated, had violated his probation, has a child who is in foster care, and whom she permitted to be in her home on a daily basis while barely knowing him. Additionally, the judge also found the substantial risk of harm to which L.J. subjected S.E.A.J. was evidenced by her admitted ongoing use of illicit drugs while at the same time being prescribed psychotropic medications. The present appeal followed.

The right to raise one's children is a fundamental liberty interest constitutionally protected by the Due Process Clause of the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). However, the right to raise one's biological children is tempered by the State's parens patriae responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Our review of a trial judge's factual finding of abuse or neglect is limited. We defer to the court's determinations "'when supported by adequate,

substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We accord this deference because the trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

Proceedings brought under Title Nine begin with the filing of a complaint alleging "facts sufficient to establish that a child is . . . abused or neglected . . . ." N.J.S.A. 9:6-8.33. In pertinent part, N.J.S.A. 9:6-8.21(c)(4) 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[.]

A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that 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 and neglect. M.C. III, supra, 201 N.J. at 344.

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). In V.T., we recognized that "the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be substantial or the sum of many acts may be substantial." Id. at 329-30 (alteration in original) (internal quotation marks and citation omitted). A

finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).

In G.S. v. Dep't of Human Servs., the Court analyzed the "minimum degree of care" language set forth in Title Nine. 157 N.J. 161, 177-82 (1999). 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." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the judge's determination that L.J. engaged in a course of deliberate conduct that placed S.E.A.J. at imminent risk of substantial harm. L.J. has acknowledged that she abuses illicit drugs. However, "[a]ddiction is not easy to successfully remediate; a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect[.]" V.T., supra, 423 N.J. Super. at 331. Thus, Title 9 is not intended to categorize as abusive or neglectful every instance of substance abuse. Ibid. Rather, the focus is upon "the risk of

substantial, imminent harm to the child[.]" N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013).

Here, L.J. acknowledged her ongoing use of illicit drugs along with the psychotropic medication prescribed to treat her diagnosed schizoaffective disorder. She also refused to provide information or execute releases in order that the Division could confirm her participation in an outpatient drug treatment program. These decisions on the part of L.J., along with her choice to become involved with an individual about whom she knew very little other than that he had a prior criminal record, had previously been incarcerated, had the then status as a probation violator, and was the father of a daughter who was in foster care rather than being raised by him, represents conduct that created a risk of harm to S.E.A.J. A.W., supra, 103 N.J. at 616 n.14 (stating "it would make no sense to wait until [the child] had been injured to decide the issue").

Under the totality of these circumstances, we do not conclude the trial judge's factual findings were "so wide of the mark that a mistake must have been made[.]" M.M., supra, 189 N.J. at 261. While we may not have made the same decision if we had heard the case in the first instance, we discern no basis to disturb these findings on this record. Ibid.

Affirmed.

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