NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.R.

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NOT FOR PUBLICATION WITHOUT THE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.

C.R.,

Defendant-Appellant,

and

V.R. and E.I.,

Defendants.

________________________________________

IN THE MATTER OF A.K.R. and L.J.I.,

Minors.

________________________________________

June 16, 2015

Submitted May 19, 2015 Decided

Before Judges Guadagno and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-111-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, 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 minors (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

C.R. appeals from an order finding that she abused or neglected her two children by exposing them to marijuana use and marijuana paraphernalia in their home. Because the findings of significant risk of harm to the children are supported by substantial credible evidence, we affirm.

I.

The record establishes the following facts and procedural history. C.R. (Carol) 1 is the mother of two children, A.K.R. (Abby), a girl born in 2005, and L.J.I. (Louis), a boy born in 2009. E.I. (Edward) is the biological father of Louis and V.R. (Vick) is the biological father of Abby.

In 2011, Carol was living with Edward and the two children. Vick had a strained relationship with Carol.

On June 3, 2011, Abby's school reported to the Division of Youth and Family Services (Division)2 that it had concerns about Abby's potential exposure to domestic violence in her home. That same day, a Division worker went to Carol's home. During that initial investigation, the Division worker spoke with Abby who informed the worker that she had not witnessed any domestic violence. Abby also reported to the worker that she lived with her mother and Edward.

The child told the Division worker that Edward would smoke "a Dutch," which Abby described as a "big brown one." The child also described that Edward makes a Dutch "by rolling it, he puts little things that come in the bag, then rolls it and [smokes] it." While providing this description, the child made a rolling motion with her fingers. Abby also told the Division worker that she observed Edward rolling Dutches "a lot of times." The child also stated that her mother smoked the "big brown ones" sometimes. Finally, the child told the Division worker that both her mother and Edward acted normal when they smoked.

The Division worker questioned Carol concerning what Abby had reported. Carol denied using any drugs. According to the Division worker, Carol acknowledged that Edward smoked marijuana several days a week, but she denied he smoked in the presence of the children.

On June 13, 2011, the Division worker conducted a follow-up visit to Carol's home. When the worker knocked on the door, Edward appeared behind the window, but did not let the worker into the home. Approximately twenty-minutes later, Carol and the children arrived at the home. Carol informed the Division worker that Edward would not speak with her and that the worker could not come into the home.

The Division worker then contacted the police for assistance. Several minutes later, Carol allowed the worker inside the home. Upon entering the home, the worker smelled a strong odor of marijuana. At the fact-finding hearing, the worker testified that the odor was "so strong it literally made my stomach turn." Carol denied smelling any odor, but eventually Carol told the Division worker that she could not control Edward and she was not responsible for his actions.

When the police arrived, Carol's home was inspected. During that inspection, the living room couch was moved and the Division worker saw two butts of marijuana cigarettes or "roaches." Carol denied knowing about the roaches, but she stated that they must have been left by Edward. During the investigation, Edward also admitted to living with Carol and the children.

The Division then implemented a safety protection plan for the children due to its concerns about marijuana use in the home. That plan included twenty-four hour homemaker services. Thereafter, the mother and Edward submitted to substance abuse evaluations, they both tested positive for marijuana use, and they were both recommended for intensive out-patient drug treatment.

II.

On July 15, 2011, the Division filed a verified complaint against Carol, Edward and Vick for custody of the children, Abby and Louis. The court denied the request for custody, but granted the Division care and supervision of both children.

On January 17, 2012, a fact-finding hearing was held before Judge Lois Lipton. Carol and Edward were each represented by counsel at that hearing. Vick did not appear and has not participated in any of the court proceedings. At the fact-finding hearing, the Division called one witness, the Division worker. The Division also entered a number of exhibits into evidence. Those exhibits included the Division's screening and investigative summaries, substance abuse evaluations for Carol and Edward, and the results of the drug tests for Carol and Edward. Neither Carol nor Edward testified at the hearing and they did not call any witnesses.

After hearing the testimony and reviewing the exhibits submitted into evidence, the judge rendered an oral decision on the record. Judge Lipton found that Carol and Edward had abused or neglected Abby and Louis by failing to exercise a minimum degree of care by exposing them to marijuana use and marijuana paraphernalia and that Carol had failed to protect the children from Edward's drug use. In reaching that conclusion, the judge made fact and credibility findings. The judge found the Division worker to be "extremely credible." Judge Lipton also noted that she did not find credible Carol's statement to the Division worker denying drug use. The judge went on to find that the children had been exposed to marijuana use in the home, and Abby's exposure included witnessing how to roll a marijuana cigar, and that Louis, who was one year old at the time, had been exposed to marijuana roaches lying on the living room floor.

Following the fact-finding hearing, Judge Lipton conducted a compliance review. The judge continued the Division's care and supervision of the children and, thus, the children continued to reside with Carol. The judge also ordered Carol to engage in counseling and to attend parenting skill training. Judge Lipton then ordered Edward to submit to random drug screens and to attend AA/NA meetings or further substance abuse treatment.

Over the next several months, the court held a series of compliance hearings. Carol was found to be compliant with the Division services, but Edward was non-compliant with drug treatment. Accordingly, the court ordered that Edward's contact with the children be supervised by Carol. In October 2013, the Division's litigation was dismissed with the directive that Edward's contact with the children remain supervised by Carol.

III.

Carol now appeals the January 17, 2012 fact-finding order. Edward has not appealed. On appeal, Carol argues (1) the trial judge erred in finding abuse or neglect because there was no nexus between the presence of marijuana and harm to the children; (2) the trial judge abused her discretion by making a credibility determination concerning Carol; (3) the trial judge erred in admitting the Division worker's testimony about the smell of marijuana and seeing the marijuana cigarette butts; and (4) the judge erred in basing her finding on unreliable statements by a child.

Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the health and safety of children. N.J.S.A. 9:6-8.8(a). Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when

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 [or her] parent or guardian . . . to exercise a minimum degree of care . . . 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)(b).]

The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).

The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that the Division need not wait until a child experiences an actual injury); In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect"). Instead, a child can be abused and neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus is to preserve the safety of the child. N.J.S.A. 9:6-8.8(a).

The Supreme Court has held that the abuse and neglect standard is satisfied when the Division demonstrates that a parent has failed to exercise a minimum degree of care. G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 178 (citing Miller v. Newsweek, Inc., 660 F. Supp. 852, 858-59 (D. Del. 1987)). Wanton negligence is conduct that was done with the knowledge that injury is likely to result. Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. Id. at 179. Moreover, a parent can be liable for the foreseeable consequences of his or her choices. Ibid.

When drug use is a basis for an allegation of abuse and neglect, there must be proof that the drug use exposed the child to imminent danger or a substantial risk of harm. V.T., supra, 423 N.J. Super. at 330-31. For example, in V.T. we reversed a finding that the father neglected his eleven-year-old daughter by testing positive for cocaine and marijuana at two supervised visits because the Division had failed to demonstrate any risk of harm to the child. Id. at 331-32. Similarly, the Supreme Court has held that a mother's use of cocaine during pregnancy, standing alone, is not enough to substantiate abuse or neglect. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22-23 (2013). The Court explained that the "proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." Id. at 23.

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the judgments of the Family Part judge if those findings are supported by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). A decision should be reversed or modified on appeal only if the findings were "'so wholly unsupportable as to result in a denial of justice.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting J.N.H., supra, 172 N.J. at 472). We review de novo a trial court's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

IV.

Applying this scope of review, we conclude that there is substantial credible evidence in this record to support the finding that Carol abused or neglected her children by exposing them to marijuana use and marijuana paraphernalia.

Carol argues that there was no proof of a link between the drug use and a risk of harm to the children. The record, however, proves the opposite. Here, there was evidence of a substantial risk of harm to the children. The trial judge found that Abby, who was six years old at the time, could describe in detail how a marijuana cigar was rolled and smoked. Thus, Abby was exposed to behavior that put her at substantial risk of harm. The trial judge also found that Louis, who was one year old at the time, was exposed to marijuana roaches being left on the floor. Thus, Louis was exposed to a substantial risk of harm because he could have picked up and ingested those drugs. Finally, the trial judge found that Carol acknowledged to the Division worker that she could not control Edward's drug use and, thus, there was a substantial risk of ongoing drug use exposure to the children.

Given these findings, this case is distinguishable from V.T. and A.L. Unlike in those cases, here there was credible evidence establishing a substantial risk of harm to the children.

Carol also makes three evidence-based arguments. First, she argues that the trial judge abused her discretion by making a credibility determination concerning Carol. Next, she argues that the trial judge erred in admitting the case worker's testimony that she smelled marijuana and found marijuana cigarette butts in Carol's home. Finally, Carol argues that the judge erred in relying on Abby's statements as reported to the Division worker concerning how to roll a marijuana cigar. None of these arguments is persuasive.

Reviewed in appropriate context, the trial judge did not make a credibility finding concerning Carol. Indeed, Carol did not testify at the fact-finding hearing. Instead, the Division worker during her testimony reported Carol's denial of drug use. Carol's statements to the Division worker are admissible against her as hearsay statements made by a party opponent. N.J.R.E. 803(b)(1); see also N.J. Div. of Child Prot. & Permanency v. M.C.; 435 N.J. Super. 405, 424 (App. Div.), certif. granted, 220 N.J. 41 (2014). Given the context of the fact-finding hearing, there was nothing inappropriate about the judge pointing out that she did not find credible Carol's statement to the Division worker denying the use of drugs.

The trial judge also did not err in allowing the Division worker to testify about the smell of marijuana and the marijuana cigarette butts in Carol's home. Such testimony was clearly relevant to the issues at the fact-finding hearing. See N.J.R.E. 401 (defining relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action").

Finally, we find no error in the trial judge's decision to allow the Division worker to testify as to what Abby told her about Carol and Edward smoking marijuana and about Abby's description of how a marijuana cigar was rolled. N.J.S.A. 9:6-8.46(a)(4) provides "previous statements made by the child relating to any allegation of abuse or neglect shall be admissible in evidence, provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." In this case, Abby's reported statements were corroborated by other evidence. The Division worker testified to smelling marijuana in the home and to observing marijuana cigarette butts on the floor. Carol and Edward both tested positive for marijuana use on several occasions and ultimately admitted to marijuana use.

In summary, we find no error or abuse of discretion by the trial judge. We also find that the trial judge's findings of abuse or neglect were substantially supported by credible evidence of marijuana use in the home, which exposed the children to a substantial risk of harm. Finally, our review discloses no misapplication of legal principles.

Affirmed.

1 To protect privacy interests and for ease of reading, we use fictitious names for the mother, the fathers and the children. See R. 1:38-3(a); R. 5:12-4(b).

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