NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.G.

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NOT FOR PUBLICATION WITHOUT THE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.

J.G.,

Defendant-Appellant,

and

S.V.,

Defendant.

IN THE MATTER

OF G.V.D.G.,

A Minor.

November 5, 2014

Submitted October 16, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-122-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorneyfor respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kent Anderson, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant J.G. (Jane)2 appeals from the August 10, 2012 order of the Family Part finding that she had abused or neglected her son G.V.D.G. (George), born January 2006, in violation of N.J.S.A. 9:6-8.21(c). Judge Richard M. Freid concluded that George met "the definition of an abused or neglected child under the statute, having been put at risk of harm by [Jane]'s continuing substance abuse with [George] in her residential custody and control." The child's father, S.V.D. (Sam) did not have residential custody at the time of removal. He does not join in the appeal. We affirm for the reasons stated by the trial court, with some additional comments.

Plaintiff New Jersey Division of Child Protection and Permanency (Division) filed a verified complaint and order to show cause on February 10, 2012, alleging the parents abused prescription medications and were involved in domestic violence. The filing of the complaint was triggered by a referral on February 7, 2012, from Officer Marc Loveland of the Bloomingdale Police Department regarding his observations of Jane during a motor vehicle stop.

As Loveland testified during the factfinding hearing, in the early afternoon of February 6, 2012, he arrested Jane after initially pulling her over because he noticed an expired inspection sticker on her car. The officer observed that "her pupils were very constricted," that she was "very nervous," and she "was fumbling" as she attempted to get documents out of the glove compartment, which had fallen open. She did not have her driver's license and told the officer she was enroute to pick George up from a bus stop.

The officer asked her to step to the rear of the vehicle. As he looked in the car, he saw a "white fold" in the glove compartment, which he said was frequently used to package heroin. He walked back towards the rear of the vehicle, intending to ask Jane to identify the item. Instead of remaining to the rear, Jane got back in the car and knelt on the driver's seat. She reached into the glove compartment and "had her fists clenched as if she was concealing something." As the officer tried to unclench her fists, she "spun away . . . [and] immediately began putting something in her mouth."

After being told the event had been captured on video, Jane admitted to the officer that she had swallowed the fold, which had "dope" in it, because she did not "want to get into trouble." When the officer asked Jane to identify the dope remaining in the fold, she said it was heroin. After obtaining her consent to search, the officer located three empty bags with white residue and a soda can in a center console that had "suspected cooked heroin residue." Jane was charged with "evidence tampering, hindering [] apprehension, and [possession of] drug paraphernalia."

The Division became involved with the family months earlier, in June 2011, after a referral from the West Milford Police Department. The Department had brought Jane in for questioning regarding a burglary. The referring officer observed that she "looked like death," "was filthy," had track marks "from her fingers to the top of both arms," and admitted to shooting up both heroin and suboxone. Jane then lived at her father's home with George. The referring officer claimed that Sam was a known drug dealer and heroin addict. The officer also reported that police records corroborated an extensive domestic violence history between Sam and Jane. After the Division investigated this referral, it made multiple drug assessments and domestic violence counsellingreferrals. Janedid not comply.

On October 11, 2011, Sam was pulled over in a motor vehicle; Jane was the passenger during this stop. It was reported that she was surrounded by drug paraphernalia and later found to have empty heroin packets and a hypodermic needle in her pants.

Over the intervening months, there were multiple drug screens, many of which were negative. For the few that were positive, Jane had only partial explanations. Some of these negative screens were for timeframes during which Jane later acknowledged using drugs.

Jane was discharged from an inpatient program in February 2012 for allegedly using oxycodone and distributing the drugs to others in the program. Jane acknowledged having a prescription for the drug, but denied distributing it to others. She claimed that in the prior two years she had been prescribed oxycodone by the same physician for a medical condition, and asserted that she had disclosed this to the inpatient program and was discharged as a result.3

The allegation in the verified complaint regarding domestic violence was dramatically highlighted by Jane's October 2011 diagnosis of a fractured arm. Sam inflicted the injury weeks prior when he struck her with a baseball bat. George had earlier reported the incident to the Division worker during a home visit, but Jane had denied it.

The court rendered detailed extensive findings of fact from the bench, reiterating Officer Loveland's testimony that he saw Jane swallow folds of paper she said contained heroin. The judge continued

[D]uring the stop, both initially and even after the ingestion of the heroin, [Jane] repeatedly stated she was on her way to pick up her son [George] up from school and needed to get there.

. . . .

[Jane] is a self-admitted heroin addict. She calls herself a former heroin addict. On both [motor vehicle stops,] paraphernalia particular to heroin use [was] discovered: baggies, a shoelace, a cooker and, on the most recent event, the Court finds she ingested a bag which she admitted had just contained heroin.

She said it was already empty at that time, but she says she ingested heroin from that bag. . . .

. . . .

. . . [S]he was actually on her way to pick up [George] from school and would have done that . . . the Court is convinced she thereby placed [George] at risk of harm.

The various negative drug screens days before this [] final arrest and the one a few days after . . . this Court finds do not negate this finding that she used heroin on this date.

. . . .

. . . . [Jane] has continually lied about her ongoing substance abuse. When interviewed after the October 2011 arrest, she said she was arrested because [Sam] who was also in the car was in possession of drug paraphernalia, and she [was] arrested just for being in the car.

We know, in fact, she had the empty baggies of suspected heroin and the hypodermic needle down her pants. . . .

. . . .

. . . [The Division]'s witness testified that she [] asked her three separate times during that interview about whether there was any continuing use of drugs by her, and she finally admitted using heroin she said, ["]about a month ago.["]

Now, the Court finds she used heroin a couple of days before that interview when she was arrested by the police. The Court finds from all the attendant circumstances that she was still an active heroin user on February 6th as she was on her way to pick up [George] from school.

. . . .

We know there were also negative random urine[ screens] at or around the time of ["]about a month ago["] when [Jane] admitted she was using heroin.

. . . .

The court [is] convinced of [Jane]'s continued substance abuse, putting [George] at risk of harm, especially in light of her stated intention to go and pick [George] up after all of the events which led to the stop.

. . . .

I find [George] meets the definition of an abused or neglected child under the statute, having been put at risk of harm by [Jane]'s continuing substance abuse with [George] in her residential custody and control.

Jane raises the following points for our consideration

POINT I

THE FINDING OF ABUSE/NEGLECT MUST BE REVERSED BECAUSE THE PROOFS ADDUCED AT TRIAL FAILED TO SUPPORT THE FINDING BY A PREPONDERANCE OF THE EVIDENCE.

POINT II

THE TRIAL COURT IMPERMISSIBLY ADMITTED EVIDENCE OF A PRIOR TRAFFIC STOP WHEREIN IT WAS ALL[E]GED THAT J.G. HAD DRUG PARAPHERNALIA THAT WAS NEITHER RELEVANT NOR PROBATIVE.

POINT III

THE COURT IMPERMISSIBLY ADMITTED EVIDENCE OF PRIOR UNSUBSTANTIATED REFERRALS.

POINT IV

THE TRIAL JUDGE ABUSED HIS DISCRETION.

The Division must establish abuse or neglect "by a preponderance of the competent, material[,] and relevant evidence[.]" N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations and internal quotation marks omitted). We deferentially review the factual findings of the trial court

because it 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. Indeed, we recognize that because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citations and internal quotation marks omitted).

The trial court's findings are not disturbed where supported by substantial credible evidence. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). We owe no deference to the trial court's legal conclusions, however, which are reviewed de novo. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

As to Jane's first point on appeal, the proofs adduced at trial clearly satisfied the preponderance of the evidence standard. The Division proved it was more probable than not that while caring for George, she was a substance abuser. The Division specifically established that on February 6, 2012, she consumed heroin while operating a motor vehicle in which she intended to pick up her child. This is a far cry from our decision in N.J. Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), which Jane cites in support of her position.

In V.T., we reversed a finding of abuse and neglect after a father attended two supervised visits with his eleven-year-old daughter, behaved appropriately, but tested positive for drugs. Id. at 325. There, those two events did not place the child at risk. Id. at 330. In contrast, in this case, shortly after having consumed drugs, Jane intended to pick up her child. Furthermore, her drug use was pervasive, rather than intermittent. When stopped, Jane was unable to remove the necessary documents from the glove compartment of the car she was driving to get her son, and her judgment was so impaired that she did not realize she had left it open, its contents visible to the officer who stopped her. This conduct establishes, as the judge found, the potential for grave harm to George, who would have been her passenger within minutes of the stop.

Jane also contends that the court's admission of the information related to the October 12, 2011 incident was highly prejudicial, and that it was not relevant within the meaning of N.J.R.E. 401. We certainly agree that relevant evidence is defined as probative and material. In this case, however, that the traffic stop may or may not have resulted in criminal charges against Jane was not the purpose of its admission. That does not define its probative value or its materiality. Admission of the evidence provided the court with another entry in the history of Jane's ongoing drug use while responsible for her child. It was not the principal event upon which the court relied, but aided the Division in proving, by a preponderance of the evidence, that months later, when Jane was driving to pick up her son, it was more probable than not that she had ingested heroin and was under the influence.

Jane also contends that the court erred by admitting evidence of unfounded referrals. Unfounded referrals are frequently admitted in factfinding hearings. See, e.g., N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 16 (2013) (fifteen unfounded referrals from the four years prior to the children's removal were admitted). Such reports are made admissible by statute. See N.J.S.A. 9:6-8.46(a)(3). They are necessary for the Division to develop the history of its involvement with a family. This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Jane also asserts that "the trial judge abused his discretion." This point, however, is not discussed in her brief. "It is, of course, clear that an issue not briefed is deemed waived." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015); Absecon v. Shan Enters., 406 N.J. Super. 242, 272 n.10 (App. Div.), certif. denied, 199 N.J. 541 (2009). We do not address it further.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families and renames the Division as the Division of Child Protection and Permanency. L. 2012, c. 16.

2 For the sake of anonymity and ease of reference, we use pseudonyms.

3 Counsel disputed these facts on the return date of the order to show cause. The appendices do not appear to include any relevant records supporting the claim.