NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. G.G.

Record impounded

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4293-12T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

G.G.,

Defendant-Appellant.

IN THE MATTER OF M.B.,

Minor.

October 27, 2014

Submitted September 29, 2014 - Decided

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20 106-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant G.G. (Grace),2 M.B.'s (Michael) biological mother, appeals the Family Part's July 12, 2012 order finding that she abused or neglected Michael when he was six-weeks-old because she failed to complete a drug treatment program, take her psychotropic medications and refrain from using drugs. We affirm, substantially for the reasons stated by Judge James Hely in his July 12, 2012 written opinion.

I.

Grace was diagnosed with and was prescribed medicine for bipolar disorder, attention deficit hyperactivity disorder (ADHD) and manic depression at the age of twelve. She also had a history of using marijuana and phencyclidine (PCP) since she was eighteen. At age twenty-three, while pregnant with her second child, Michael, she tested positive for PCP during a prenatal visit to a hospital, which prompted a referral to the Division.3

Michael was born in good health on January 6, 2012. The Division did not substantiate Grace for abuse or neglect because Grace agreed to continue with inpatient substance abuse and mental health treatment, to be drug free and to continue taking her medication. She signed a case plan which said that if she did not comply with the plan, the Division would seek legal custody of Michael.

Grace complied with the plan for the first few weeks after Michael's birth. However, on January 23, 2012, Grace stated to a Division worker that she was going to stop taking her bipolar medication once she finished her current supply of pills. A Division worker reported that she "[wa]s beginning to go against the case plan."

When Michael was only six-weeks-old, Grace decided to leave inpatient drug treatment. According to a Division report, she went to a fast food restaurant on February 19, 2012 with Michael and another patient from the program. Grace left the restaurant with an unknown man, leaving Michael with the other patient. When she later returned, the other patient observed Grace appeared to be under the influence of drugs. Grace took Michael and left the restaurant without a coat, formula or diapers for her infant son.

On February 24, 2012, the Division located Grace and Michael, who was not harmed. Grace said she was tired of programs. The Division reported her eyes were red and her body language looked like she was under the influence of drugs. Grace was immediately informed she violated her safety plan with the Division. As a result, the Division conducted a "Dodd removal" of Michael.4

On February 28, 2012, Grace attended the "Dodd hearing," in which the court determined it was necessary for the Division to continue to have custody of Michael. Her counselor reported to the Division Grace recently stopped taking her medication and she seemed to be "overwhelmed with the care of the baby." On the same day, the Division filed a verified complaint and an order to show cause seeking custody, care and supervision of Michael.

Grace was unable to attend two hearings while incarcerated at three different county jails over a twelve month period.

Grace appeared for the fact-finding hearing. She testified she made a conscious decision to leave the inpatient program. The Division presented evidence that Grace failed to take her prescription medication, which Grace disputed.

On July 12, 2012, Judge Hely issued an oral and written opinion, finding Grace recklessly neglected Michael by leaving an inpatient treatment program she "knew was necessary for her and her child" as she had a "drug habit which she is having great difficulty getting away from." In addition, the judge found Grace acted with gross negligence by leaving the inpatient treatment program without any specific living arrangements or treatment plan. She also failed to take her prescription medication, which violated her commitment to the case plan. Judge Hely concluded Grace's "actions in violating the case plan put her child at clear risk" and "her conduct [wa]s such that [the Division] has proven that she recklessly risked the health of her newborn."

The Division filed a complaint seeking termination of Grace's parental rights and the court dismissed the Title Nine litigation on March 19, 2013. This appeal followed.

II.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These findings may not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974) (citation and internal quotation marks omitted). In our review, we defer to the trial court's findings because of the judge's ability to examine witnesses, develop a "feel of the case," which cannot be experienced by reviewing the record, N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (citations and internal quotation marks omitted), and "'[b]ecause of the family courts' special jurisdiction and expertise in family matters.'" Id. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

The focus in abuse and neglect cases is to protect children who have been abused or are at risk of being harmed. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18, 22 (2013). Under Title Nine, an abused or neglected child is defined as

[A] child less than 18 years of age 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 . . . .

[N.J.S.A9:6-8.21(c).]

If there is no actual harm, a "finding of abuse and neglect can be based" on proof, by a preponderance of the evidence, of imminent danger or substantial risk of harm. A.L., supra, 213 N.J.at 23. A court does not have to wait until a child is "irreparably impaired by parental inattention or neglect" before it acts. Ibid. (quoting In re Guardianship of D.M.H, 161 N.J. 365, 368 (1999)).

A minimum degree of care, as required by N.J.S.A.9:6-8.21(c)(4), is less than a duty of ordinary care; it is something more than ordinary negligence and refers to grossly or wantonly negligent conduct, but not necessarily intentional conduct. N.J. Div. of Youth & Family Servs.v. G.S., 157 N.J.161, 178 (1999). A parent's failure to exercise a minimum degree of care is "analyzed in light of the dangers and risks associated with the situation." Id. at 181-82. The trial court must "base its findings on the totality of circumstances." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). In addition, several acts analyzed together can be viewed as causing a "substantial" risk of harm. N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).

In her appeal, Grace argues that there was insufficient evidence to support the trial court's conclusion of abuse and neglect. She argues her departure from the treatment program and deviation from the case plan did not rise to "gross negligence." We disagree.

We recognize that drug addiction alone is not a valid reason to support a finding of abuse or neglect. We examined whether a parent who did not cooperate with recommended drug treatment and who tested positive for illicit substances during supervised visits created a substantial risk of harm to the child. V.T., supra, 423 N.J. Super. at 330-31. We found that failing to defeat a drug addiction is not necessarily enough to constitute abuse or neglect. Id.at 331.

The facts in V.T. are distinguishable from the facts in this matter. V.T. involved an eleven-year-old child compared to Michael, who was only six-weeks-old. We noted in V.T. that "unlike an infant, [the child] was not vulnerable during these visits to the slightest parental misstep." Ibid. In contrast, Michael, as a very young infant, was susceptible to any parental mishap while with Grace, who was not aided by professional assistance as she was in her treatment program. Furthermore, the likelihood of a mishap is likely increased when a parent of a six-week-old child fails to complete his/her drug treatment and to take his/her prescribed psychotropic medication as Grace had done.

Further, Grace's failure to comply with the safety plan adds to the significant risk of harm to Michael. Grace's acts of purposefully abandoning drug treatment; failing to have a coat, formula or diapers for Michael; and failing to take her medication, when viewed collectively, reflect conduct that posed a substantial risk of harm to Michael. These actions demonstrated that Grace failed to exercise a minimum degree of care as she acted with a reckless disregard for the consequences of her actions.

Judge Hely carefully considered the evidence and found Grace recklessly neglected Michael by failing to comply with the Division's case plan to complete an inpatient treatment program and to take her medication. These findings were supported by competent, relevant and credible evidence in the record to which Judge Hely appropriately applied the applicable law. We have no reason to disturb the July 12, 2012 order.

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. We refer to it as the Division in this opinion.

2 We have fictionalized the names of the parties.

3 Grace had a previous history with the Division when she was a child and when she gave birth to her first child.

4 A "Dodd removal" is the emergency removal of a child from home, on an emergent basis and without a court order, pursuant to the Dodd Act. N.J.S.A. 9:6-8.21 to -8.82; N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).