NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

__________________________________________

IN THE MATTER OF R.D.,

Minor.

__________________________________________

November 19, 2014

Submitted September 10, 2014 Decided

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0274-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.D. (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, S.B., appeals from a judgment of abuse or neglect of her then ten-month-old son after a caseworker reported that she was holding her baby while under the influence of PCP. S.B. argues the Family Part judge's factual findings are not supported by substantial evidence, were based on documents that were not competent and credible, and did not support his conclusion she failed to exercise a minimum degree of care under N.J.S.A. 9:6-8.21(c)(4)(b). S.B. contends the Division of Child Protection and Permanency (the Division) never proved that her son was actually impaired or was in imminent danger of being impaired as a result of her conduct. The Division and the Law Guardian, appointed to represent the minor's interests, disagree and maintain the evidence established abuse and neglect.

Following our review, we conclude the judge's factual findings are flawed as he drew credibility determinations without benefit of an evidentiary hearing. We reverse and remand for an evidentiary hearing by a different Family Part judge.

Defendant S.B. is the mother of R.D., born in 2011. T.D., the father, was a party to the underlying litigation, but is not the subject of this appeal. At the pretrial hearing on January 16, 2013, the court admitted into evidence, without objection, a redacted Division Screening Summary and a redacted Division Case Plan (the reports). At a fact-finding hearing on January 30, 2013, the Division presented the reports. No testimony was provided even though defendant and the caseworker were present. Following the hearing, the Family Part judge determined that the Division had established that defendant engaged in reckless conduct that put the child at substantial risk of harm. On the hearing date, the court entered an order memorializing its decision, finding that S.B. abused and neglected R.D. It is from that order that S.B. appeals.

As reflected in the Division's reports, S.B. first came to the Division's attention in 2000, when her substance abuse was substantiated during a prior pregnancy. While pregnant with R.D., S.B. also tested positive for PCP. S.B. did not test positive for drugs at the time of R.D.'s birth, nor did R.D. test positive.

On November 23, 2011, the Division became further involved with R.D. after S.B. again tested positive for PCP. On November 28, 2011, an in-home case plan was executed by the Division, and on that date, S.B. agreed that she would attend a drug treatment program, follow all recommendations of the program, and T.D. would assume primary caregiving. Thereafter, the Division continued to provide various services to S.B.

On September 28, 2012, early in the day, a Division caseworker spoke with S.B. in person and she "did not appear under the influence of substances. . . ." The court found that at "3:30 that afternoon an intake caseworker responding to a referral, arrived at the home and saw [S.B.] outside sitting on the steps holding the eleven-month old child." We note that the fact that the caseworker responded to a referral was redacted from the report and was not in evidence.

The caseworker's report stated

When [workers] arrived at the home [S.B.] was outside sitting on the front steps holding [R.D.] . . . . [Worker] observed [S.B.'s] eyes to be glassy and she appeared under the influence at the time of the visit as she continuously scratched herself throughout [worker's] visit to the home and appeared delayed in her responses to questions at certain times. [Worker] asked if [T.D.] was present at the home and [S.B.] stated that he was not and that he was still in Pennsylvania.

The report further detailed

[Worker] asked [S.B.] if she was permitted to be in a care giving role due to her substance abuse issues and she stated that she was not and that was why her cousins were present at the home. [Worker] then asked S.B. how long she had been abusing PCP and she responded, "a minute."

The report also noted that "S.B. reported that she knew she could not be alone with R.D. so she asked her friends to come help her. [Worker] asked the last time she used PCP and she stated the weekend prior." The report stated that the worker concluded, based on these observations, that R.D. should be removed from S.B.'s care "as she appeared to be under the influence of substances and was not to be in a care giving role." The report stated that S.B. admitted that she had been using PCP all summer, but that she never used in the home or around T.D. or her son R.D.

The trial judge determined, based on the caseworkers' observations as set forth in the reports, that S.B. "was not only under the influence of PCP but she was actually holding her child while under the influence." Solely based on S.B.'s statements recorded in the worker's report, the judge stated, "given her lack of credibility about PCP use that day, [S.B.'s] contention that the child was under supervision of her cousins the whole time is suspect. But even giving her the benefit of the doubt on that point, it was [S.B.] who was holding the eleven-month-old baby while visibly under the influence of PCP."

The judge found

[T]he supervision component of the safety plan was not a license for [S.B.] to use PCP whenever she wanted and then to be able to take care of her child so long as some other adult was present. Supervision does not mean being there to catch the baby if a drug-using parent drops the baby.

The judge concluded that the Division established by a preponderance of the evidence that S.B. "engaged in reckless conduct that put the child at substantial risk of harm" and that the allegations as to Title Nine were proven against S.B.

II.

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Normally, we must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to fact-finding because of the family court's "expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)(internal quotation marks omitted)).

However, when a trial court's determination results from review of documentary evidence, such as the case here, our standard of review is broader than if the court made findings based on testimonial evidence presented in an evidentiary hearing. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009); State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). Further, "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citation omitted). Finally, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Division filed this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The purpose of Title Nine is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when the child's

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 . . . 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, . . . or by any other acts of similarly serious nature requiring the aid of the court[.]

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

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013).

Where the evidence is inadequate to "satisfy the standard articulated in N.J.S.A. 9:6-8.21(c)(4)," reversal is required. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 21, 39-40 (2011); see also A.L., supra, 213 N.J. at 29-30.

Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 299-300 (internal quotation marks and citation omitted). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Gross negligence requires "an indifference to the consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted), but a parent's actual intent to cause harm is not necessary. G.S., supra, 157 N.J. at 179.

Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

We note that if the Division can prove abuse or neglect, that finding has "significant consequences." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 619 (App. Div. 2010). The court can enter a dispositional order that places the child in the custody of a relative or another suitable person for a substantial period of time. See N.J.S.A. 9:6-8.50(d), -8.51(a), -8.54(a). The Division can also bring an action to terminate parental rights, which may rely on a Title Nine judgment. See N.J.S.A. 30:4C-15(a); N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 111-12 (2011).

In addition, when an allegation is substantiated, the Division enters "the name of the person found to have committed child abuse and any identifying information" into a Central Registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998); see also N.J.S.A. 9:6-8.11. Although those records are kept confidential, see N.J.S.A. 9:6-8.10a(a), they may be disclosed, on written request, to doctors, courts, child welfare agencies, employers who are required by law "to consider child abuse or neglect information when conducting a background check or employment-related screening," and others, see N.J.S.A. 9:6-8.10a(b)(1)-(23).

We recognize that "a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." A.L., supra, 213 N.J. at 23. However, "a parent should not exercise visitation, even supervised visitation, while impaired." V.T., supra, 423 N.J. Super. at 331. Moreover, use of drugs while caring for an infant puts the child at greater risk of harm "to the slightest parental misstep." Ibid.

However, here, based solely on the opinion of the caseworker in the Division reports, the court found that S.B. was holding her baby "while visibly under the influence of PCP." In State v. Bealor, 377 N.J. Super. 321, 329 (App. Div. 2005), rev'd, 187 N.J. 574 (2006), we held the intoxication by narcotic, hallucinogen, or habit-producing drug, specifically marijuana, "is not a matter of common knowledge such that an inference of intoxication may be drawn solely from a lay witness's testimony respecting defendant's behavior." We held that "a per se rule cannot be applied to a DWI charge involving marijuana in the absence of any evidence as to the effect of marijuana on defendant's behavior or physical appearance." Id. at 330. We concluded

if the State had produced expert testimony--or even lay testimony from the trooper based upon his training, knowledge and experience--respecting the effects of marijuana intoxication on defendant's behavior, physical appearance and condition, it would have met its burden of proving beyond a reasonable doubt that defendant was driving under the influence of marijuana.

[Id. at 331.]

In reversing our holding, the Supreme Court reaffirmed the rule that lay opinion alone is not enough to prove marijuana intoxication. Bealor, supra, 187 N.J. at 576. The Court held, however,

that competent lay observations of the fact of intoxication, coupled with additional independent proofs to demonstrate defendant's consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant's arrest, constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a conviction under N.J.S.A. 39:4-50.

[Ibid.]

The Supreme Court specifically rejected the rule adopted by this court, "that the nexus between the facts of intoxication and the cause of intoxication can only be proved by expert opinion," finding that such a rule "impermissibly impinges on the traditional role of the fact-finder and is explicitly disavowed." Id. at 591.

Noting that while expert testimony is still the preferred method of proof of drug intoxication, the Court held that New Jersey police officers are eligible to qualify as experts on marijuana intoxication under N.J.R.E. 702 because their required training includes a course in detecting drug-induced intoxication. Id. at 592-93.

In light of the holding in Bealor, the trial judge here was required to evaluate the caseworker's qualifications for rendering the opinion that S.B. was under the influence of PCP, in conjunction with considering and analyzing other evidence of PCP intoxication. However, the only evidence before the court to establish S.B.'s conduct consisted of a statement by the caseworker in the report that she observed S.B.'s eyes to be glassy and she appeared under the influence at the time of the visit as she continuously scratched herself and appeared delayed in her responses to questions at certain times. Since the caseworker did not testify, there is no support that S.B.'s delayed responses at certain times was not her normal speech pattern. Further, there is no support in the record for the proposition that continuous scratching is an indication of PCP use. The record is also devoid of any evidence that S.B. was in any way unsteady or unsafely holding R.D., thereby subjecting her son to imminent risk of harm. Of course, had the Division administered a drug test to S.B., the results would have inculpated or exculpated her. Also, had the caseworker testified, she may have been qualified based on her training and experience to testify as to the physical manifestations of a person high on PCP. Thereafter, S.B. would be given the opportunity, through the crucible of cross-examination to challenge the testimony showing there was no basis to form a belief S.B. was under the influence of PCP.

In A.L., supra, 213 N.J. at 22, the Court stated that a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) requires that the Division prove "present or future harm to a child." The Court referred to the statutory requirement that the child was either actually impaired by the parent's conduct or was in imminent danger or at substantial risk of harm. Ibid. Unquestionably, to care for a young child while under the influence exposes the child to a high risk of harm. N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 481 (App. Div.), certif. denied, 203 N.J. 439 (2010).

Because there was no evidence to support the caseworker's recorded observation of intoxication, the reports alone cannot support a conclusion S.B's action of holding her baby was grossly or wantonly negligent, made knowing that injury was likely or made with reckless disregard that substantial likelihood of harm would befall the child. No evidence was presented to demonstrate the child's physical, mental, or emotional condition was impaired by his mother's actions. The decision to not offer any witnesses, but to simply rely on the reports, placed the court in the position of having to "read between the lines," which cannot support the basis for a finding of abuse or neglect. Accordingly, the judge's conclusion to the contrary cannot withstand scrutiny and the underlying evidence is insufficient to show abuse or neglect.

Fact-finding hearings must also adhere to fundamental rules of evidence and must be conducted with the formality and decorum we expect from any other adjudicative proceeding. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). The procedure employed here, that is submitting redacted documents in lieu of testimonial evidence, also fails to provide the evidential support to allow the judge to resolve disputed issues or make credibility determinations. S.B. challenged the worker's view and denied being under the influence. The judge's determination, in part based on a credibility assessment, cannot be drawn from a document review.

Our holding intends to underscore the need for evidence to support a claim of abuse or neglect, as interpreted by the Court in A.L. This includes proof of actual harm or, in the absence of actual harm, "the Division was obligated to present competent evidence adequate to establish [the child was] presently in imminent danger of being impaired physically, mentally or emotionally." N.J. Dep't of Children & Families v. M.C., 435 N.J. Super. 405, 409 (App. Div. 2014) (citations omitted). These essential proofs cannot merely be based on the Division's view that the parent's actions were ill-advised. Rather, the Division must demonstrate harm or show the likelihood of an imminent substantial risk of harm rising above mere negligence. A.L. supra, 213 N.J. at 28; S.S., supra, 372 N.J. Super. at 24.

In sum, given the totality of the circumstances, we conclude the reports alone simply do not support a finding of abuse and neglect. Further, because the court did not conduct its own independent analysis under Bealor, and based on its credibility determinations without any witness testimony, we reverse and remand to a different judge for a new hearing. Reversed and remanded.