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

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NOT FOR PUBLICATION WITHOUT THE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.

A.J.,

Defendant-Appellant,

_________________________________

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

____________________________

November 14, 2014

Submitted October 8, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-22-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel and on the brief).

PER CURIAM

In this appeal from an order finding abuse or neglect of a baby, the issue is whether defendant-mother's history of failing to get treatment for her mental illness and alcohol abuse is sufficient to show a substantial risk of harm to the baby. We conclude it is and affirm the order.

Defendant A.J., then thirty-three years old, gave birth to her fifth child in March 2012. None of her four other children remained in her custody. She had a long history of cases with the Division of Youth and Family Services, now renamed the Division of Child Protection and Permanency (DCPP). In 2007, DCPP had received several referrals regarding defendant's oldest child. After various proceedings, defendant voluntarily placed that child in the care and custody of a relative, and the DCPP case was closed. In subsequent years, DCPP filed complaints for the guardianship of defendant's next three children, and the Family Part eventually terminated defendant's parental rights to all three. Last year, another panel of this court affirmed the latest of those termination and guardianship judgments. N.J. Div. of Child Prot. & Perm. v. A.J., No. A-365-12 (App. Div. Sept. 16, 2013).

While that last case was pending, defendant became pregnant with and gave birth to the baby that is the subject of this appeal. She purposefully left New Jersey to give birth so that DCPP would not know her whereabouts or be notified of the birth. The baby was born in South Carolina. In fact, DCPP did not become aware of defendant's and the child's circumstances until they returned to New Jersey a few months after the birth.

On July 26, 2012, DCPP received an anonymous referral alleging that defendant was on a street corner in Paterson with the baby and the child's father, S.A. According to the referral, the four-month-old baby was drinking Gatorade and had severe diaper rash. At that time, DCPP also learned that both defendant and S.A. had outstanding warrants for their arrest S.A. for violating the terms of a probationary sentence and defendant on a charge of simple assault.

On July 27, 2012, DCPP investigative worker Isabel Castillo followed up on information that defendant, the baby, and S.A. were seen outside Eva's Village, a homeless persons shelter in Paterson. Castillo went immediately to Eva's Village, along with law enforcement officials who arrested defendant and S.A. Castillo learned that defendant had successfully procured a bed at Eva's Village and that the bed would be held for her until she was released from incarceration.

According to Castillo, the baby "appeared to be very well cared for. She was in a stroller . . . half asleep, very well dressed, appeared healthy . . . rosy cheeks." Defendant and S.A. had recently purchased "all the baby essentials, her diaper bag had everything that the baby needed, formula, diapers. She also was carrying groceries." Although DCPP removed the baby from defendant's care because of her history of mental illness and alcohol abuse, Castillo did not see specific evidence that the baby had been neglected as described by the anonymous referral.

Later that day at the DCPP office, defendant submitted to a urine test for drugs and alcohol, which came back negative. Castillo described defendant as calm and cooperative. Defendant informed DCPP that she was receiving social welfare funds and was enrolled in the Passaic County Workforce Development Center.

Nevertheless, on July 31, 2012, DCPP filed a complaint against defendant and S.A. pursuant to N.J.S.A. 9:6-8.33 (Title 9) and N.J.S.A. 30:4C-12 for custody, care, and supervision of the baby. The complaint alleged that defendant had abused and neglected the baby because she suffered from untreated and unresolved mental illness and also had not addressed her substance abuse problem. In subsequent court proceedings, the Family Part authorized DCPP not to provide mental health and substance abuse services for defendant because she had failed to take advantage of such services in the past and had made no serious attempt to attend and complete treatment during the prior DCPP cases.

The Family Part held a fact-finding hearing on November 8, 2012. DCPP presented two of its workers as witnesses, Castillo to testify about the current investigation and Kelly Herrera to testify about defendant's prior cases with DCPP. The court also received the reports of two mental health experts who had examined and evaluated defendant in preparation for the last of the termination of parental rights cases conducted in 2012. Neither defendant nor S.A. presented any witnesses at the fact-finding hearing.

In connection with the previous termination of parental rights case, defendant underwent mental health evaluations in December 2011 and January 2012 by DCPP contract psychiatrist Samiris Sostre, M.D., and DCPP contract psychologist Robert Kanen, Psy.D.

Dr. Sostre's December 20, 2011 report noted that defendant has "a history of mental illness and had, in the past, been diagnosed with schizophrenia and bipolar disorder." It added that defendant had "multiple psychiatric hospitalizations in the past" and had been treated with antipsychotic medications, which were discontinued because of her pregnancy. Defendant relayed to Dr. Sostre that she was supposed to be attending an outpatient psychiatric program but was not attending and missed her intake appointment. She expressed "irritability and confusion" and complained that DCPP and the Family Part "keep tell[ing] me the same thing; to go to a program, and I don t go . . . I am pushing out healthy babies and they take them, they are not helping me."

Dr. Sostre diagnosed defendant's mental condition as schizoaffective disorder. She concluded that "[t]he course of [defendant's] underlying mental illness is that symptoms will recur over time," even though defendant was not demonstrating symptoms of her illness at the time of the evaluation. The doctor explained that "[d]uring pregnancy symptoms are often improved only to worsen in the postpartum period." She reported that defendant's history of noncompliance with treatment recommendations placed her at a high risk of noncompliance in the future, in particular because defendant had expressed a belief that she did not need to take medication and routinely missed appointments.

Dr. Sostre recommended that defendant participate in intensive outpatient mental health treatment and resume antipsychotic medications after her pregnancy. The doctor's impressions and conclusions were that

[Defendant] has a history of schizoaffective disorder. This is a chronic psychotic disorder that will require medications for stabilization and to prevent relapses. At the present time, she does not have serious acute symptoms of psychosis; however, the occupational and social dysfunction associated with the disorder is chronic and [is] very evident in [defendant]. Her interactions are socially inappropriate and her ability to understand how her noncompliance and how her mental illness affect her current life and her outcome with [DCPP] is very poor. Her judgment is poor. At the present time, it is my impression that her ability to parent is very impaired.

Dr. Kanen's January 27, 2012 report recounted his attempt to administer psychological tests to defendant. He was not able to complete his evaluation because defendant "became hostile, agitated . . . . She threw the test materials at [Dr. Kanen], refused to cooperate, became aggressive, left the room, and slammed the door behind her." Dr. Kanen also noted that defendant was refusing to comply with the mental health treatment program that DCPP was recommending for her.

Dr. Kanen concluded that defendant

continues to show evidence of severe parenting deficits. She is mentally ill with bipolar disorder, severe personality problems, and cognitive limitations. She is not complying with psychiatric treatment and has not taken medication for bipolar in many years. She is not able to support herself independently and cannot take care of a child.

The doctor concluded: "It is this examiner's opinion that [defendant] cannot provide her child with a permanent, safe, and secure home. Returning her child to her care would expose the child to an unnecessary risk of harm."

Although Dr. Sostre's and Dr. Kanen's reports were prepared with reference to another child, both reports were admitted in evidence at the November 8, 2012 fact finding hearing regarding the baby that is the subject of this case. Neither doctor testified at the November 8 hearing.

At the conclusion of the hearing, the judge expressed some doubt in finding abuse or neglect of the baby, given that DCPP had found the child in good health and apparently well-cared for. But in the end, the judge determined that defendant's failure to address her mental illness and substance abuse presented a substantial risk of harm to the baby. The judge concluded that DCPP had proven by a preponderance of the evidence that the child was an abused or neglected child, as defined in N.J.S.A. 9:6-8.21.

After the fact-finding hearing, defendant failed to appear for case management conferences, but counsel appeared on her behalf. Defendant also did not appear at the permanency hearing on March 21, 2013. The court approved DCPP's plan for termination of defendant's parental rights to the latest baby. The Title 9 case was dismissed on May 9, 2013, when DCPP filed a guardianship complaint.

N.J.S.A. 9:6-8.21(c)(4) defines a child as 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 or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . .

DCPP must prove abuse or neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010).

In G.S. v. Department of Human Services, 157 N.J. 161, 176 (1999), the Court reviewed the meaning of the quoted statutory language and held it did not require that the parent intended to harm the child. "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178.

On appeal in this case, defendant contends the Family Part applied the statute incorrectly. She argues there was insufficient evidential support to meet the statutory requirement of "imminent danger of harm" to her latest baby. She also challenges the admission of the reports of Drs. Sostre and Kanen without their availability to be cross-examined on the issues pertinent to this case.

A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of 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); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). This deferential standard of review is especially appropriate because of the Family Part s "specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

An appellate court may expand its highly deferential scope of review when the alleged error does not involve credibility of witnesses but turns on the trial court's application of the law to the underlying facts. G.L., supra, 191 N.J. at 605. Nonetheless, an appellate court should only disturb the trial court's findings and conclusions if they are "so wide of the mark that the judge was clearly mistaken." Ibid.

Defendant cites New Jersey Division of Youth and Family Services v. A.L., 213 N.J. 1, 22 (2013), for the proposition that DCPP must present "evidence of imminent danger" where actual impairment of the child has not been shown by the parent's inappropriate conduct. In A.L., a case where the mother was using cocaine while pregnant but there was no evidence of actual impairment of the newborn baby, id. at 12-13, the Court held that abuse or neglect could be found where the evidence showed "imminent danger or substantial risk of harm." Id. at 22-23 (emphasis added). The Court held that abuse or neglect had not been proven in that case, id. at 34, but it also confirmed that the Family Part "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect[,]" id. at 23 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

Here, DCPP did not have evidence that the baby was actually harmed at the time of her removal from defendant's custody. The baby was in good health, defendant had found a temporary home at Eva's Village, and she was providing sustenance and comfort for the child. But the court had evidence that defendant's untreated mental illness and alcohol abuse presented a substantial risk of future harm and impairment of the child.

In New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super.405, 418 (App. Div.), certif. granted, ___ N.J.___ (2014), we stated that "prior parental conduct posing a risk of harm" must be "probative of current danger[,]" and that "[t]he statute permits a focus on past conduct alone only when the child's condition 'has been impaired.'" Id.at 420 (quoting N.J.S.A.9:6-8.21(c)(4)). But cf.N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575-77 (App. Div. 2010) (discussing assessment of risk to the defendant's children by evidence of his history of domestic violence in prior relationships, despite inconclusive evidence that the children had been impaired).

We also said in M.C., supra, 435 N.J. Super.at 418, that "risk demonstrated by past conduct should be assessed in light of actions since taken to address prior dangerous parenting for example, parental action that has eliminated a previously existing danger or impairment before the risk materialized."

Defendant is correct in arguing that the risk of harm to her baby as a result of her mental illness should not be assessed without evidence of a present danger. But present danger was demonstrated in this case through the experts' recent reports that defendant suffers from a chronic mental illness, and also continues to abuse alcohol, without accepting treatment for those conditions. Instead of complying with treatment recommendations, defendant fled New Jersey to give birth and to avoid the protective supervision of DCPP. If instead defendant had coupled her demonstration that she can care for a baby with efforts to treat her illness and alcohol abuse, she would have a better argument that DCPP failed to show an imminent danger or substantial risk of impairment of her latest child.

As we have stated, DCPP is not required to prove defendant intentionally abused or neglected the child. It is sufficient to show that defendant has been grossly negligent in preventing or eliminating the risk of harm to the child. G.S., supra, 157 N.J. at 176, 178. Gross negligence falls on a continuum of conduct from ordinary to gross based on the level of risk created, and it is determined on a case-by-case basis. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. Here, neglect of defendant's baby was shown through evidence that, in her several DCPP cases, defendant has repeatedly been offered the opportunity to undergo mental health and substance abuse treatment but has refused or has abandoned all such efforts to treat her conditions for the protection of her children.

"[A] psychiatric disability can render a parent incapable of caring for his or her children." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008). "That the parents may be morally blameless is not sufficient to tip the scales in their favor." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

We conclude that the proofs were sufficient for the Family Part to find by a preponderance of the evidence that defendant neglected her newborn baby by continually failing to accept and complete treatment for her schizoaffective or other mental disorders and for her alcohol abuse.

Defendant also argues that under New Jersey Division of Youth and Family Services v. M.G., 427 N.J. Super.154, 172-75 (App. Div. 2012), the Family Part erred in admitting the reports of Dr. Sostre and Dr. Kanen since neither expert testified at the fact-finding hearing.

Rule5:12-4(d) permits the admission of "reports by staff personnel or professional consultants" into evidence provided the documents satisfy the requirements of the business records exception to the hearsay rule, N.J.R.E.803(c)(6) and 801(d). N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super.118, 129 (App. Div. 2010). When a report is offered in evidence without supporting testimony from an expert, the trial judge must make specific findings regarding the report's trust-worthiness, as referenced in N.J.R.E.808.1 M.G., supra, 427 N.J. Super.at 174.

As with most any evidentiary challenge, a ruling on admissibility is only required when an objection is timely made by opposing counsel. SeeN.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 339-41 (2010). Here, counsel for defendant stated that he had no objection when the reports of Dr. Sostre and Dr. Kanen were offered in evidence at the fact-finding hearing.

When counsel objected later in the proceedings, the objection was that the reports were not relevant because no witness testified that DCPP had relied on them when it determined that the baby should be removed from defendant's custody. There was no objection that the reports were untrustworthy or did not meet the requirements of Rule5:12-4(d). The Family Part did not err in overruling defendant's relevance objection.

In any event, the Family Part appropriately found that the experts' reports were trustworthy, having been prepared for a guardianship case just months before the proceedings in this Title 9 case. We find no reversible error in the admission of the experts' reports in lieu of live testimony by one or both of them.

Affirmed.

1 N.J.R.E. 808 states

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.