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

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NOT FOR PUBLICATION WITHOUT THE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.

D.D.,

Defendant-Appellant.

___________________________________

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

___________________________________

August 5, 2015

Submitted December 10, 2014 Decided

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0521-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Ioannis S. Athanasopoulos, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.K.M. (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

D.D. (mother) and A.M. (father) are the biological parents of A.K.M. (Ann),1 a little girl born in 2010. Defendant D.D. appeals from the order of the Family Part finding she abused and neglected Ann within the meaning of N.J.S.A. 9:6-8.21(c).2 We affirm. We derive the following facts from the evidence presented to the Family Part by the Division of Child Protection and Permanency (Division) at a fact-finding hearing held on June 24, 2013.

I

At approximately four o'clock in the afternoon on February 13, 2013, the central dispatch operator at the Pine Hill Police Department received an anonymous call reporting "a physical fight between several males" at a specific address subsequently identified as the second floor apartment where D.D. and A.M. resided with their two-year-old daughter Ann. The Pine Hill Police Report of this incident authored by Patrolman William Heron is included as part of the appellate record. According to Heron, "the anonymous caller reported one of the males involved in the physical altercation mentioned something about a gun."

The alleged victim of the fight was subsequently identified as A.M.'s father. He told the responding officers he had gone to his son's apartment to retrieve his "prescription bottle." When he knocked on the front door of the apartment, his son "came downstairs grabbed him by his neck and threw him to the ground." When Heron knocked on the front door, D.D. responded. According to Heron, as soon as D.D. opened the door, he detected "the strong odor of raw [m]arijuana coming from inside the apartment." D.D. told Heron that A.M. was upstairs with his friends. When D.D. attempted to close the door, Heron "told her to keep the door open . . . and ordered everyone to exit the apartment."

A.M. came out of the apartment "carrying his two year old daughter, [Ann]." In addition to defendant and A.M., there was a total of five adults inside the apartment ranging in age from twenty-eight to twenty-three years old. A.M. turned Ann over to D.D. to permit the police officers to effectuate his arrest. D.D. refused to give the police permission to enter the apartment; A.M. also yelled to her, "[d]on't sign any consent." D.D. turned Ann over to her "sister-in-law" D.M. (whom we presume to be A.M.'s sister), who arrived after the police responded to the anonymous call. D.M. took Ann to her mother's house "and then quickly responded" and told the police officers at the scene that she needed to get "the baby's diaper bag."

Accompanied by Pine Hill Police Lieutenant Charles Stettler, D.D. was permitted to enter the apartment to retrieve the bag. Moments later, Lieutenant Stettler and D.D. came out of the apartment with D.D. carrying "a purple backpack" with "a zippered pouch in front, approximately a foot and a half square with two back straps." Immediately after D.D. handed the backpack to D.M., Pine Hill Police Sergeant Christopher Witts "took the backpack from [D.M.] and commented that the bag was too heavy to be just a diaper bag." D.D. refused to consent to the search of the backpack.

Witts placed the unopened backpack on the ground "approximately twenty feet from the apartment" and "a canine sniff" conducted soon thereafter "alerted for the presence of narcotic odor at the backpack." At 10:16 p.m. that same day, the police searched both the apartment and the backpack pursuant to duly issued search warrants. Inside the backpack the police found a Taurus .38 Special, a Ruger 9mm, and ammunition cartridges. The handguns were beneath a baby blanket, toddler socks, a t-shirt, a washcloth, a Crown Royal bag, and a Ziploc bag containing diaper rash cream and lotion.

The search of the apartment revealed one pound of marijuana found in the bedroom closet, another quantity of marijuana behind "a pile of toys, clothes and boxes" in the family room closet, a safe containing magazines in the bedroom closet, an air rifle in the bedroom closet, a backpack in the laundry room containing a quantity of ammunition of undisclosed caliber, shotgun shells on the living room floor, a plastic jar containing marijuana seeds on the living room floor, a plastic Huggies container containing fifteen plastic containers of marijuana seeds, digital scales, and $155 in cash.

According to Heron, A.M. claimed the purple backpack had never been used as a diaper bag. When Heron asked A.M. why D.D. would take the purple bag if it had never been used as a diaper bag, A.M. allegedly replied, "she probably thought it was a diaper bag." Finally, A.M. claimed exclusive ownership of the contraband and firearms found in the apartment. In his own words, he told the arresting officers, "everything is mine."

The Pine Hill Police Department alerted the Division that the biological parents of a two-year-old child had been arrested and charged with unlawful possession of firearms and illicit narcotics. The officers emphasized these items were found concealed in what appeared to be the child's diaper bag and in various other areas in the apartment where the child resided with her parents. The child was in the apartment at the time the police responded to what was subsequently characterized as an act of domestic violence perpetrated by the child's father against his own father, the child's paternal-grandfather.

The Division caseworker arrived at the Pine Hill Police Station at approximately three o'clock in the morning on Thursday, February 14, 2013. The caseworker interviewed D.D. in an open room at the police station where D.D. was handcuffed to a bench. She told the caseworker Ann was at her paternal grandmother's house when the police arrived at her apartment on the afternoon of February 13, 2013. When the caseworker told D.D. that the police report indicated the child was in the apartment when they arrived, D.D. claimed the police found a different child in the apartment, not Ann. D.D. also said she did not know the identity of this child. After the caseworker told D.D. the report identified the child as "Ann" (using her actual name), D.D. claimed no children were in the apartment at the time the police responded; D.D. insisted Ann's paternal aunt brought her to the apartment after A.M.'s father began banging on the door.

In response to the caseworker's question, D.D. admitted the police found an undisclosed quantity of marijuana on her person, but claimed she was holding it for her "boyfriend" A.M. D.D. also told the caseworker she did not know the identity of the person who placed the guns and marijuana the police found inside the apartment. Under these circumstances, the Division determined an emergency removal of Ann was warranted.3 The Division placed Ann in a foster home after determining the paternal grandmother's home was not appropriate due to the number of children already residing in the home.

The matter first came before the Family Part on February 15, 2013, when the Division filed a verified compliant and order to show cause under Rule 5:12-1 charging D.D. and A.M. with child abuse and neglect as defined under N.J.S.A. 9:6-8.21(c) and requesting an order granting the Division legal custody of Ann. The court granted the Division's application for Ann's legal custody, placed the child with her maternal grandparents, and scheduled a return date of March 13, 2013.

At the conclusion of the March 13, 2013 hearing, the court continued the existing custodial arrangement and ordered D.D. to submit to a psychological evaluation and substance abuse treatment, and temporarily suspended D.D.'s and A.M.'s visitation rights "pending further order of the court."4 Represented by counsel, D.D. filed a motion seeking visitation with her daughter. The motion was heard by the court on April 8, 2013. Both the Division and the Law Guardian did not oppose D.D.'s application, provided the visits were supervised. The court granted D.D.'s motion provided the visits were supervised by the maternal grandparents or the Division "if they [were] not willing."

The next time the case came before the court was on June 4, 2013, in the form of a case management conference. The Deputy Attorney General representing the Division informed the court that D.D. had been compliant with services offered by the Division, and had consistently tested negative for any illicit drugs. The Division thus recommended Ann be returned to her mother's care at the home in which she was residing at the time. The Law Guardian joined in the Division's motion. Without objection, the court transferred legal and physical custody of Ann to D.D., but directed the Division to remain involved and provide care and supervision as warranted. The court also ordered D.D. to submit to substance abuse treatment and individual counseling.

The court conducted the fact-finding hearing required under N.J.S.A. 9:6-8.44 on June 24, 2013. The Division's case against D.D. consisted of the testimony of Officer Heron and Sergeant Witts. D.D. did not call any witnesses and opted not to testify. Based on the evidence presented, the trial judge determined the Division had proved by a preponderance of the evidence that D.D. abused or neglected her two-year-old daughter Ann pursuant to N.J.S.A. 9:6-8.21(c)(4), which defines an "abused or neglected child" 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 or guardian, as herein defined, 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[.]

The trial judge did not find credible D.D.'s "claim that she didn't know what was going on at all, had no idea[.]" In support of his credibility finding, the judge specifically noted that D.D. returned to the apartment at D.M.'s request to get "a diaper bag," and retrieved a backpack containing two handguns and one pound of marijuana concealed by items customarily found in a baby's diaper bag. Based on the totality of these circumstances, the judge found D.D. was "aware of an extensive drug dealing operation going on in her home[.]" The judge also found this was not an isolated event. "It's clear that this was an ongoing drug dealing operation in the home in which a young child lived."

In the order entered after the fact-finding hearing, the trial judge handwrote that "[A.M.] used child's residence for drug distribution; [D.D.] allowed [her] child to be exposed [to] illegally obtained weapons, over 1lb marijuana, ammunition and materials used for drug distribution and for other reasons stated on the record." The court permitted D.D. to continue to have legal and physical custody of Ann and the Division continued to have care and supervision over Ann after the fact-finding hearing. The case directing the Division's continued intervention ended after a case compliance review on September 9, 2013.

II

D.D. now appeals arguing the trial court did not articulate or identify with particularity the admissible evidence that supports a finding that Ann was placed at a substantial risk of harm. Defendant also argues her conduct did not place Ann at substantial risk of harm because she provided her daughter with proper shelter, food, clothing, and family support. Both the Division and the Law Guardian argue the evidence described here support the trial court's findings that Ann was placed in substantial risk of harm by defendant's conduct.

Our standard of review is well-settled. We are bound to uphold the trial court's factual findings provided they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, as the Supreme Court recently reaffirmed, "by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [P]art fact-finding.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).

Here, the court found D.D.'s conduct made Ann an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21(c)(4). A judge is required to "articulate, with particularity, the facts upon which [the] determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). Although the judge here may not have adhered strictly to this standard, he clearly identified D.D.'s decision to allow her two-year-old daughter to reside in an apartment that was being used to run an illicit drug distribution operation, which included the unlawful possession of loaded handguns, as an act of abuse because it exposed Ann to a significant risk of imminent physical or emotional harm. G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (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.")

A Family Part Judge is not required to "wait until a child is actually harmed by parental inattention or neglect before [he or she] acts in the welfare of such child." N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div. 2009) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "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.'" Id. at 240 (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004)). No rational argument can made in favor of allowing a child to reside with parents who engage in the type of conduct D.D. engaged in here.

The trial court recognized D.D. complied with all court-ordered services and was able to restructure her life in a positive direction. The Division and the Law Guardian both petitioned the court to return Ann to her mother's custody because the record showed she was no longer involved in the conduct that triggered the Division's intervention. However, the record supported the court's finding that D.D. abused and neglected her daughter within the meaning of N.J.S.A. 9:6-8.21(c)(4), when she exposed Ann to an inherently dangerous situation that recklessly created a significant risk of serious injury to her child.

Affirmed.

1 "Ann" is a fictitious name. We use initials and fictitious names to protect the confidentiality of the participants in these proceedings pursuant to Rule 1:38-3(d)(12).

2 Although the Family Part also found A.M. abused and neglected his daughter, he did not appeal.

3 Otherwise known as a "Dodd removal," this involves the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

4 The court authorized the paternal grandmother to "visit with the child as arranged" by the maternal grandparents.