NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.P.

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NOT FOR PUBLICATION WITHOUT THE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 YOUTH AND

FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.P., a minor.

__________________________________

November 26, 2014

Submitted October 7, 2014 - Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-169-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria Kryzsiak, Deputy Attorney General, on the brief).

Joseph E. Krakora Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief).

PER CURIAM

C.P. appeals from a June 7, 2012 Family Part order finding that he abused or neglected his autistic son, J.P., because of C.P.'s long history of substance abuse, mental health issues, and admitted alcohol relapse. We affirm.

We discern the following facts from the evidence adduced at the fact-finding hearing. The Division first became involved with this family in 2008, after a school bus driver reported that C.P. appeared intoxicated when the driver dropped J.P. off at home. The Division substantiated the allegations of neglect.

Another referral in May 2011, resulted in a determination by the Division that allegations of physical abuse of J.P. by C.P. were unfounded. However, at that time, C.P. tested positive for alcohol and marijuana, and acknowledged that he was receiving substance abuse treatment.

On September 28, 2011, C.P. called the police, reporting that he could not locate J.P. A police officer testified that his department received the call about a missing six-year-old. After being dispatched to the scene, he found C.P. to be upset and frantic. C.P. could not remember where his son was and proceeded to run down the street looking for him. At least ten officers from several police agencies responded to the report.

The officer described the home as being in disarray, with piles of garbage and clutter throughout the house, and four empty beer bottles in C.P.'s bedroom. After a few minutes, C.P. recalled that he had taken his son to the school bus earlier and became less upset. He could not initially remember what school his son attended. When he did, the school was called, and the police confirmed that J.P. was there. C.P. blamed his memory lapse on his failure to take his medication. Subsequently, the police notified the Division of the incident. At that time, C.P. did not appear to be intoxicated. However, his urine screen for that day was positive for alcohol and opiates.

Kimberly Roberts, a Division investigator, testified that J.P. is autistic and communication-impaired. The Division put a safety plan in place requiring supervision of C.P.'s contact with J.P. The Division interviewed J.P., determined that he was unresponsive to questions, and concluded that J.P. would not be able to help himself in an emergency and needed supervision.

C.P. reported that he had relapsed in September 2011. On October 19, 2011, the Division referred C.P. for relapse prevention after the September 28, 2011 incident. Tammy Jones, an alcohol and drug counselor, testified that C.P. was referred to her group, Preferred Children Services, first in 2008. C.P. had also been referred to a Mentally Ill Chemically Addicted (MICA) program at Bergen Regional Medical Center, and C.P. eventually participated in that program, but did not complete it. C.P. was referred again to Jones in October 2011, after C.P.'s relapse.

Jones indicated that C.P. had been diagnosed with Post Traumatic Stress Syndrome, had two prior arrests for driving under the influence, and had a history of narcotics charges. C.P. tested positive on September 28, 2011, for alcohol and opiates, but tested negative in October for all substances. Jones testified that alcohol and benzodiazepines should not be mixed, and the combination would depress one's systems, slow the respiratory system, and potentially cause confusion.

C.P. testified that he tested positive due to his prescription medication and cough medicine, which contained alcohol. He identified his medications at the time of the incident as Vicodin, Flexeril, promethazine with codeine, Celexa, hydrocodone-acetaminophen, and asthma medication. He also acknowledged suffering from psychiatric issues and having had an asthma attack which caused him to crack a rib. His explanation for the September 28, 2011 incident was that he had forgotten to take his anxiety medication, which caused him to become confused. He did acknowledge drinking beer the preceding weekend. He has attended relapse prevention groups, but did not find Alcoholics Anonymous to be helpful.

The trial judge found that C.P. was the primary caretaker for J.P., who suffers from autism. She concluded that C.P. suffers from mental health issues, alcoholism, and had a recent, unaddressed alcohol relapse which, coupled with C.P.'s primary caretaking role, placed J.P. at risk. On June 7, 2012, the trial judge entered an order memorializing her findings in support of the conclusion that C.P. had abused or neglected his child. Several months after the judge entered the order under review, she terminated the litigation because the family had stabilized.

On appeal, C.P. argues that the Division produced insufficient facts to sustain a finding of abuse or neglect under N.J.S.A. 9:6-8.21c(4)(b). C.P. also contends that the Title 9 action should have been dismissed. C.P. also maintains that the judge should have proceeded under Title 30 instead of Title 9. We affirm substantially for the reasons expressed by the judge in her thorough and well-reasoned oral opinion. We add the following remarks.

We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). This is especially so when, like here, "'the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "has a 'feel for 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) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

Here, the essential facts are undisputed. Therefore, the trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Title 9 of the New Jersey Statutes controls the adjudication of abuse or neglect cases. N.J.S.A. 9:6-8.21 to -8.73. An abused or neglected child is one

[W]hose 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.

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

Such minimum care is defined as "conduct that is grossly or wantonly negligent, but not necessarily intentional" and implies "that a person has acted with reckless disregard for the safety of others." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999). Whether a parent or guardian has engaged in abuse or neglect is considered on a case-by-case basis and must be "analyzed in light of the dangers and risks associated with the situation." Id. at 181-82.

Here, the court found by a preponderance of the evidence that once C.P. had consumed beer and relapsed, he should have taken measures to ensure that he was not the primary caretaker for J.P., a special needs child. The court also found that until C.P.'s substance abuse relapse and mental health issues had been adequately addressed, he should not have assumed the role of caretaker for J.P.

We previously stated that "[a]ddiction is not easy to successfully remediate; 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). Our courts have recognized that they need not wait until a child is actually harmed by parental inattention or neglect. See G.S., supra, 157 N.J. at 177 (emphasizing that child neglect includes the imposition of imminent danger of becoming impaired due to a failure of a parent or guardian). The trial court found that C.P.'s alcohol relapse placed J.P. at risk of harm by continuation of his primary caretaking role and that his inability to safely assume that role manifested itself on September 28, 2011. The record supports that finding.

C.P. also argues that the trial court should have dismissed the Title 9 action and handled the matter as a Title 30 action. C.P. relies on N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, cert. denied, I.S. v. N.J. Dep't of Children & Families, Div. of Youth & Family Servs., ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). The court in I.S., however, determined that a family court loses jurisdiction and a Title 9 action must be dismissed when there is no finding of abuse or neglect. Id. at 11-12. Here, the trial court made findings that C.P. neglected or abused J.P. Therefore, C.P.'s reliance on I.S. in misplaced.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency ("the Division"). L. 2012, c. 16.