NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.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NOT FOR PUBLICATION WITHOUT THE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

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.T., L.T., and

P.T., minors.

__________________________________

June 23, 2015

Submitted March 25, 2015 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0109-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Olivia

Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this Title Nine abuse or neglect appeal, the issue is whether defendant-mother's daily marijuana use was improperly found to show a substantial risk of harm to her three children. We conclude that defendant's substance abuse, in conjunction with additional risks to the children created by the family's circumstances, demonstrated defendant's neglect of the children within the meaning of N.J.S.A. 9:6-8.21(c). We affirm the Family Part's order.

Defendant R.G. is the biological mother of a girl born in 2009 and a boy born in 2007. She is also the stepmother of a girl born in 2000. J.T. is the biological father of all three children. The family lived together in an apartment in Hudson County. At the time that the Division of Child Protection and Permanency (DCPP or the Division) first became involved with the family, the girls were two and eleven years old and the boy was five. Defendant was then twenty-three years old.

In the early afternoon of July 11, 2012, the Division received a referral from a medical clinic that defendant was displaying "mental health issues," specifically, that she was having suicidal thoughts and had tried to attack J.T. with a crowbar and attempted to "run him over" earlier that morning. In addition, defendant admitted she used marijuana daily.

A Division caseworker went to the home that afternoon to investigate. Defendant was not home but was apparently at work when the caseworker arrived. None of the children appeared to have bruises or marks. The caseworker interviewed the eleven-year-old girl privately in her bedroom. The girl said she knew what marijuana was and that defendant "buys a small stick cigarette at the corner store and empties it and fills it with marijuana." The girl said that defendant smokes marijuana in her bedroom "sometimes at night or the day." The girl added that she and her brother and sister are home when defendant smokes and sometimes J.T. is home but sometimes he is not. According to the girl, defendant "cries a lot" and has said "she wants to kill herself." The girl also reported that she has seen her parents hit each other, recalling the last violent fight to have occurred about six months earlier.

When defendant was questioned later that day, she disclosed that she uses marijuana "to calm herself down," "mostly every day and usually at night time." Defendant claimed she smokes when J.T. is home and she goes outside to do so. She admitted, however, that sometimes she smokes inside and during the day.

Defendant confirmed that she threw a crowbar at J.T. earlier that morning and that the two-year-old child was present during the incident. According to defendant, J.T. has hit her in the past, but the most recent incident occurred about a year earlier. Defendant informed the caseworker she was told she may have post-partum depression, but she had never been treated for it. She said she has experienced suicidal thoughts. The caseworker suggested she go to the hospital to get evaluated.

Defendant agreed to go for screening but said J.T. would not be able to drive her because he had already consumed one beer and their vehicle was equipped with an interlock device as a result of his conviction for driving while intoxicated the previous year. No family member was available to come to the home to care for the children. The caseworker contacted an agency to provide the services of a homemaker while defendant was at the hospital. The caseworker explained that the homemaker was not a caregiver but would only oversee the home in defendant's absence. The homemaker arrived at about 5:00 p.m., and defendant left for the hospital at about 8:00.

At 11:00 p.m., the homemaker called the Division and made a second referral for that day.1 A Special Response Unit (SPRU) worker from the Division went to the home, arriving at about 12:55 a.m. She found the two girls awake but J.T. sleeping and drunk in his bedroom. The SPRU worker could not rouse J.T. by shaking him and yelling his name. Four 22-ounce bottles of beer were in the garbage can.

The worker spoke to the eleven-year-old girl, who told her that J.T. "drinks a lot" and "goes crazy" after he drinks. She said J.T. would argue with defendant and he has punched defendant at times. The girl also repeated that defendant smokes marijuana in the house. When asked how she knows it is marijuana, the girl replied it "smells funny" and she "just knows it is marijuana."

When J.T. finally woke up, his "words were slurred" and he was "a little off balance" when he stood. He admitted he had consumed the four beers and reached for a partially consumed fifth bottle of beer. The Division worker prevailed upon him to dump its contents down the sink. At one point, J.T. "clenched his fists and jerked" at the homemaker, after which the homemaker left.

The Division conducted an emergency removal of the children that same night, and subsequently obtained an order to take temporary custody, care, and supervision of the children pursuant to N.J.S.A. 9:6-8.29 and -8.30.

On December 19, 2012, the Family Part conducted a fact-finding hearing on abuse or neglect. The Division caseworker and SPRU worker were the only witnesses. In addition, the Division s screening and investigative summaries were admitted in evidence, the court indicating that it would not rely on any inadmissible hearsay contained in the summaries.

The court found that defendant and J.T. had abused or neglected the children by their excessive use of marijuana and alcohol respectively in the home and in the presence of the children, and that the substance abuse coupled with the acts of domestic violence and defendant's untreated mental health problems placed the children at risk of harm. The court entered an order on December 19, 2012, finding abuse or neglect by both parents.

After several compliance review hearings, at which defendant's adherence to treatment and counseling recommendations was discussed, and after defendant's drug screening was negative for a period of time, the children were returned to the custody of defendant and J.T. in May 2013. The Title Nine litigation was concluded in August 2013, and defendant filed this appeal. J.T. did not appeal.

Defendant argues there was no evidence that the children suffered harm because she smoked marijuana, and also the court improperly relied on inadmissible hearsay to reach its decision. The Division and the law guardian for the children oppose the appeal, arguing that the court properly found that abuse or neglect of the children was proven by the preponderance of the evidence and that the court did not base its decision on inadmissible hearsay within the Division reports.

We will address the evidentiary issue first. Defendant contends the Division workers' testimony and reports were insufficient to support a finding of abuse or neglect because neither witness had personal knowledge of defendant's alleged abuse of marijuana and that information was only contained in hearsay within the reports. Defendant argues further that the court never made a definitive ruling in response to her objections to the admission of the hearsay information in the Division reports, and that no expert witness was presented to prove the children were at risk of harm from defendant's use of marijuana.

First, an expert witness is not routinely required to prove abuse or neglect. See N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 29 (2013); see also Dep't of Children & Families, Div. of Child Prot. & Family Servs. v. E.D.-O., 434 N.J. Super. 154, 159 (App. Div.) ("[T]he standard we must apply is whether 'an ordinary reasonable person' would recognize the peril." (quoting G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 179 (1999)), certif. granted, 218 N.J. 530 (2014). Here, the court did not find specifically that the children had suffered psychological damage because of defendant's marijuana use, for which expert testimony may have been required. Rather, the court found that the children's exposure to the substance abuse of both parents placed them at risk of harm and that the oldest child had manifested that risk through her detailed knowledge of marijuana use. To make that finding, the court properly relied on the Division workers' testimony and records.

Reports "prepared by Division staff are admissible pursuant to Rule 5:12-4(d), 'provided [they] 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 Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 466 (App. Div. 2014) (alterations in original) (citation omitted); see also N.J.S.A. 9:6-8.46(a)(3) (business records of hospital or other public or private institutions or agencies admissible in evidence in a Title Nine proceeding as prima facie proof of their contents).

The reports submitted at the fact-finding hearing contained the Division workers' observations made during their investigations. Moreover, the Division workers testified at the hearing and elaborated upon their observations. Defendant's statements contained within the Division reports were not hearsay and constituted admissible evidence against her. See N.J.R.E. 803(b). The eleven-year-old child's statements, while not independently sufficient to support a finding of abuse or neglect, were also admissible to the extent corroborated by defendant's own admissions or other evidence. N.J.S.A. 9:6-8.46(a)(4). The trial judge stated that she did not take into consideration inadmissible hearsay within those reports, and nothing in her oral decision indicates that she did. The court did not err in admitting the Division reports in evidence.

Defendant argues further that the child's statements that defendant smokes marijuana when the children are in her care alone was not corroborated by other evidence and should not have been admitted. This argument reads the corroboration requirement of N.J.S.A. 9:6-8.46(a)(4) too narrowly. The child's description of the circumstances in the home and defendant's marijuana use were fully corroborated by her detailed knowledge, by defendant's admissions, and otherwise by the totality of the evidence.

Moreover, it was hardly a defense that defendant only smoked marijuana when J.T. was also present to care for the children. J.T. was himself a severe substance abuser who displayed to the personal observation of the Division worker that he got "stone drunk" and could not be awakened when defendant was away at the hospital. We find no error in the Family Part's admission of the Division reports.

As to the merits of the case, defendant argues: (1) the evidence was insufficient to support a finding that her marijuana use placed the children in imminent danger or substantial risk of harm, and (2) the trial court failed to find her conduct was willful, wanton, or reckless, and also made no mention of gross negligence, which is the minimum requirement for a finding of unintentional abuse or neglect.

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). 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.

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 . . . .

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., supra, 157 N.J. at 176, the Court held the statutory language we quoted does 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.

In A.L., supra, 213 N.J. at 12-13, where the mother was using cocaine while pregnant but there was no evidence of actual impairment of the newborn baby, 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. The Court concluded 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)); 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 a history of domestic violence despite inconclusive evidence that the children had actually been impaired at the time of the Division's intervention).

Proof of gross negligence in preventing or eliminating the risk of harm to the child is sufficient to prove abuse or neglect. G.S., supra, 157 N.J. at 176, 178. Gross negligence falls on a continuum of conduct from ordinary to negligent to grossly negligent based on the level of risk created, and it is determined on a case-by-case basis. Dep't of Children & Families, Div. of Youth & Family Servs. 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. "The focus of the court's concern must center on whether the parent 'caused injury to the child and, if not, whether that parent is likely to do so in the future.'" N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 240 (App. Div. 2009) (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)), certif. denied, 200 N.J. 505 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3537, 177 L. Ed. 2d 1095 (2010). In addition, the trial court's decision must be based on the totality of the circumstances because "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329-30 (App. Div. 2011) (alterations in original) (citation omitted).

Here, it was the sum of all the days and nights of defendant's marijuana use, together with her mental health impairment and the parents' domestic violence, that created a substantial risk of harm to the children. The trial court did not expressly use the phrase gross negligence in describing defendant's conduct but that conclusion was implicit in the descriptive terms the court did use to express its bewilderment that defendant would allow her children to be subjected to the conduct and circumstances that were described in the testimony.

Defendant relies on our holding in V.T. that a parent who was using drugs was not proven to have abused or neglected his child, but the facts of V.T. are readily distinguishable from this case. In V.T., the defendant father tested positive for cocaine and marijuana use at two supervised visits with his eleven-year-old daughter, but there was no evidence that he was intoxicated on drugs at the time of the visits and he behaved appropriately during the visits. Id. at 325. We stated that, without expert evidence, the Division did not prove the defendant was impaired at the visitations "to the point of posing a risk to" the child. Id. at 331. There was also no evidence that the defendant used drugs in the child's presence or on a daily basis.

In contrast, defendant in this case used marijuana every day, and at least the oldest child was fully aware of that use. Furthermore, defendant suffered from psychological problems, including suicidal thoughts and possible post-partum depression. The children's father was also a substance abuser in the home, who rendered himself incapable of caring for the children by drinking alcohol to the point of severe intoxication. Thus, defendant's daily use of marijuana placed the young children at risk in the sense that it deprived them of a responsible and attentive caregiver. While "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect," id. at 332, there is a "societal concern that no child come under the care of an intoxicated parent." R.W., supra, 438 N.J. Super. at 469.

Also significant in this case, the parents engaged in arguments and violence in the presence of the children. As recently as the date of the Division's first intervention, defendant had thrown a crowbar in the direction of J.T. while the two-year-old was present. The drug use, the psychological impairment, and the domestic violence together created a highly risky home for the children.

Additionally, there was substantial evidence that the eleven-year-old had become acclimated to the abuse of intoxicating substances by her parents. She was fully familiar with the nature and means of marijuana use at a very young age. Defendant's casual use of marijuana in the home and in the presence of the children would likely engender acceptance and predictably similar conduct by the child. In that regard, we decline defendant's invitation to muse about changing social and cultural attitudes toward marijuana use. Whatever the changes in the law have been in other states, we do not accept a suggestion that children do not need to be protected from involvement with an intoxicating drug.

We conclude that the proofs were sufficient for the Family Part to find by a preponderance of the evidence that defendant neglected her children by using marijuana on a daily basis in the home, especially because the other parent was also a substance abuser and defendant herself suffered from other impairments that put the children at risk of harm. The Family Part did not err in finding neglect of the children.

Affirmed.

1 The homemaker did not testify at the Title Nine fact-finding hearing. Defense counsel objected to the contents of the referral being admitted in evidence through the Division's reports, and the judge ruled that the homemaker's statements were hearsay and would not be considered.