NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.S.

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NOT FOR PUBLICATION WITHOUT THE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.

K.S.,

Defendant-Appellant,

and

M.S. and V.S.,

Defendants.

_______________________________________

IN THE MATTER OF M.A.S., a minor.

________________________________________

February 3, 2015

Submitted January 12, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-35-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

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

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

PER CURIAM

K.S. (Katrina)2 appeals from the Family Part's February 19, 2013 order entered following a fact-finding hearing, determining she3 abused or neglected her son, M.A.S. (Mark). We affirm.

I.

Mark was born in 2006. The Division's involvement with the family began in 2007 when it received a referral that Katrina had neglected Mark. The Division requested that Katrina submit to a drug and alcohol assessment. Although she completed an initial assessment, she failed to complete an extended assessment. Ultimately, the allegation was deemed unfounded.

A second referral was received by the Division in August 2008, alleging drug abuse by Katrina and Matthew. Both parents admitted to drug use, and Mark was removed by the Division. Services were offered to both parents; Matthew took advantage of them, but Katrina did not. In June 2009, Mark was returned to Matthew's custody. At the time, Matthew was residing with his mother, V.S. (Vanessa); Katrina was not living with them.

The incident that gave rise to this litigation occurred on August 23, 2012. Officers from the Wanaque Police Department responded to a report of domestic violence and learned that Matthew threw a can at Vanessa, which hit her head and caused a laceration. Katrina and Mark were present during this incident. While in the home investigating the incident, the police observed empty glassine bags in a bedroom. Because of possible drug activity and the domestic violence, the police notified the Division.

Caseworkers Grace Barrientos and Paula Melo responded and investigated the incident. At the fact-finding hearing, Barrientos described the condition of the home

[T]here [were] a lot of cats in the home. The floor was stained. There [were] feces in the cat litter in the kitchen area. There [were] garbage piles in the home. Upstairs on the second floor there was broken glass, the door was off the hinge.

. . . .

There [were] silver spoons on top of the dresser [in the second floor bedroom] because there [were] also allegations that there were six to eight empty glassine heroin bags, so I asked [Vanessa] to show me where they were. When she opened the dresser I noticed that there [were] the silver spoons on top of the dresser.

. . . .

There was chicken on a plate and prior to us going into the house, [Mark] was eating the chicken on the plate in the living room area. We went upstairs. We came downstairs. The cat was now eating the chicken . . . in the living room area.

Mark, who was five years old, told Melo that he saw his father hit his grandmother in the head. When asked about drug use in the home, Mark told the caseworker that his mother uses needles in a bedroom downstairs. Mark then told Melo that he sleeps in the same bed with his parents and showed her the room. The caseworker confirmed that this was the same bedroom where the police had earlier observed six to eight empty glassine heroin bags on the dresser.

Melo confirmed the testimony of Barrientos as to the condition of the home

I had observed the home to be very dirty. It was cluttered with clothes, with paperwork, trash. It smelled of cat urine. There were many animals in the home running around. There were dirty stains, black dirty stain on the carpet. There was trash around the garbage can, inside the trash can, on the kitchen counter tops, and there was like a foul odor in the home. There [were] food containers that were in his bedroom . . . that [Mark] stated that he shared with his mother and his father. There were dirty, crusty plates in the sink. There were flies in the home.

At the conclusion of the hearing, the judge found that the Division had established abuse or neglect by a preponderance of the evidence. While the judge referenced the domestic violence incident between Matthew and Vanessa, he made extensive findings as to the drug use in the home and how it affected Mark

Both parties have a history of drug abuse, certainly arrests. [Katrina] didn't finish any . . . substance abuse treatment programs. The young boy said his mother uses needles . . . . No child should make that observation of his parent or one of his parents. There were spoons and empty heroin bags found in the bedroom. Now, I'll accept that . . . the officer does not believe that [Katrina] was high on heroin at the time. However, she allowed her son to be in a home where she admitted that there were drugs in the home. When you have alleged empty heroin bags, dirty spoons, I don't think somebody was eating cereal up there. I mean, you know, my kids have left a spoon in the family room and in my bedroom, but under these circumstances I find that [it was] . . . not a child . . . eating something in the bedroom. I find that the spoons were being used to heat up heroin to be injected.

The judge also discussed the condition of the home

There were numerous cats in the house. And, again, numerous cats is not a violation of the law nor is it neglect or abuse. However, when there are numerous cats that are prying into couches and living in and out of a couch, a litter of cats upstairs, cat litter that is . . . just strewn with fecal matter, the house smells of fecal matter, the house smells of cats, the house smells of urine, the house has a foul odor, the garbage isn't being taken out, broken glass on the floor, his grandmother drinking while DYFS is there I mean, have I said enough?

I think adding all of that together, it's clear that that there is abuse and neglect here and I find that the Division has met its burden by a preponderance of the evidence.

Oh. And then there's . . . also the flies in the house too. Just everything adds up to one big deplorable mess and no child should be living in those kinds of conditions. While I'm not finding that it may have affected his leukemia,[4] there's no medical testimony in that regard, but still, whether you have leukemia or not, no child should live that way and I find the Division has met its burden.

On appeal, Katrina presents the following arguments

point i

the division of child protection and permanency failed to prove by a preponderance of the evidence that [MARK] was abused or neglected by [KATRINA].

point ii

[KATRINA] was denied her fourteenth amendment right to due process when the court permitted the division to present evidence of allegations without prior notice of the allegations.

II.

Our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). These factual findings are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Particular deference is afforded to family court fact-finding because of the family courts' special jurisdiction and expertise in family matters. Id. at 413. A trial court's legal conclusions, however, are not entitled to deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A.

Katrina's first argument is that the trial court erred in finding that she abused or neglected Mark because there were no charges substantiated against her, there was no evidence that she possessed or used drugs, and she was attempting to remove Mark from the home. We disagree.

Under Title Nine, an "abused or neglected child" is defined, in pertinent part, as

a child 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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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. 9:6-8.21(c)(4).]

Findings of abuse and neglect must be proved by a preponderance of the evidence at a fact-finding hearing. N.J.S.A. 9:6-8.46(b). The trial court determines whether the child is abused or neglected by considering the totality of the circumstances because "the elements of proof are synergistically related." 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). "One act [of neglect] may be substantial [584] or the sum of many acts may be substantial." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011) (quoting C.H., supra, 414 N.J. Super. at 481).

The proper focus of a Title Nine inquiry is on the harm to the child regardless of the caregiver's intent. G.S. v. Dep't of Human Servs., 157 N.J. 161, 180 (1999). Where there is no evidence of actual harm to the child, however, "the statute requires a showing of 'imminent danger' or a 'substantial risk of harm' before a parent or guardian can be found to have abused or neglected a child." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013) (quoting N.J.S.A. 9:6-8.21(c)). Imminence of danger and risk of harm are determined by looking to whether the parent exercised a minimum degree of care under the circumstances. Id. at 22. Minimum degree of care "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178.

As the trial judge explained, the condition of the home was deplorable. There was broken glass on the floor, garbage throughout the home, and a foul smell of cat urine. In the bedroom shared by the parents and Mark, there was drug paraphernalia, specifically empty glassine heroin bags and spoons. Katrina lived in this home with Matthew and exposed Mark to these conditions. By her actions, she failed to provide a minimum degree of care and placed him at an imminent risk of harm. See N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 551-53, 562 (1994) (affirming a finding of abuse or neglect based, in part, on deplorable living conditions.)

Katrina argues that "there was no evidence that she possessed or used drugs." We note that the trial judge did not rely exclusively on the drug evidence, and conceded that each of the allegations standing alone would probably not be sufficient. But when all of the evidence was considered in the totality of the circumstances, it was adequate to establish abuse or neglect. It was not necessary for the Division to prove that Katrina actually possessed the drugs or the paraphernalia for Mark to have been harmed by its presence in the home. Moreover, the court's findings, that (1) Katrina failed to complete any of the substance abuse treatment programs and (2) Mark observed Katrina using needles, find ample support in the record, which includes the police observation of empty heroin bags in the bedroom.

Katrina also argues that she was attempting to leave the home, thus it was improper to substantiate her for abuse and neglect. Other than Katrina's statements to the police officers who responded to the domestic violence incident, the record is devoid of any evidence to support this claim.

B.

Katrina next argues that she was denied her right to due process when the court allowed the Division to present evidence of abuse and neglect allegations without prior notice.

Caseworker Barrientos testified that the Division received a referral on June 20, 2012, and thereafter offered services to Katrina. When Mark was removed after the August 23, 2012 referral, Barrientos testified that she explained to Vanessa that one of the reasons was the failure of Katrina and Matthew to comply with a drug and alcohol assessment. Katrina's trial counsel objected to the line of questioning, claiming that he had not received notice or discovery relating to any contact between the Division and Katrina from June 20 to August 23. Katrina now argues that this testimony violated her right to due process.

Under the Fourteenth Amendment to the U.S. Constitution, no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend XIV, 1. Procedural due process requires notice and an opportunity to be heard. Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992).

Despite counsel's assertion to the contrary, there was notice in the complaint about Katrina's noncompliance with the Division's services and how that noncompliance was one of the reasons for Mark's removal. The complaint states

At 2:56 p.m., the worker spoke to [Katrina] over the phone to explain why the Division needed to remove her child. The worker stated that the Division took [Mark] due to the conditions of the home, empty heroin bags in the home, domestic violence in the home, allegations of drugs and alcohol in the home and [noncompliance] with recent drug and alcohol assessments.

Furthermore, the record contains an August 23, 2012 investigation summary noting that Katrina failed to show up for her drug and alcohol assessment. That same report noted that a Division worker was going to refer Katrina to complete a drug and alcohol assessment and that Katrina "missed all to date appointments." Finally, the report notes, "On 6/20/12, [Katrina], [Vanessa], and [Matthew] agreed to complete a drug and alcohol assessment and to date have not complied."

We are satisfied that there is sufficient notice in the record that the Division offered Katrina services following the June 20, 2012 referral and that Katrina failed to comply.

The trial court's finding that Katrina abused or neglected Mark was supported by ample evidence in the record. We find no support for Katrina's claim that she was denied her Fourteenth Amendment right to due process.

Affirmed.

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

2 We employ pseudonyms to preserve the privacy of the minor and for ease of reference.

3 The court also entered a finding of abuse or neglect against co-defendant M.S. (Matthew), Mark's biological father, who has not appealed.

4 In January 2010, Mark was diagnosed with leukemia.