OFCHILD PROTECTION AND PERMANENCY v. L.W and K.N. and D.C IN THE MATTER OF R.N., D.C., V.C K.C. and A.C., minors
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(NOTE: The status of this decision is Published.) RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1931-13T2 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.W., Defendant-Appellant, and K.N. and D.C., Defendants. ______________________________________ IN THE MATTER OF R.N., D.C., V.C., K.C. and A.C., minors. ______________________________________ Submitted February 4, 2015 – Decided August 12, 2015 Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-150-13. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM L.W. is the biological mother and sole caretaker of five children, whose ages ranged from one to ten years old1 at the time relevant to this case. K.N. is the biological father of the oldest child. D.C. is the biological father of the four younger children. Neither one of these two men are parties to this appeal. It is not disputed that L.W. has a chronic addiction to heroin and a history of mental illness. She appeals from the order of the Family Part finding she abused and neglected her five children by using and being under the influence of heroin at the time she was the sole caregiver of these children. We affirm. On Friday, February 8, 2013, the Division of Child Protection and Permanency (Division) executed an emergency Dodd removal2 of all five children after a urinalysis indicated the 1 The children are R.G., who is now twelve years old; D.C., who is now seven years old; V.C., who is now five years old; and fraternal twins, K.C. and A.C., who are now three years old. 2 A "Dodd removal" refers to an emergency removal of a child by the Division from the person who has legal custody and acts as the child's primary caretaker. The removal is executed without (continued) 2 A-1931-13T2 presence of opiates in L.W.'s system. On February 11, 2013, L.W. admitted she was still using heroin on a regular basis and had last used heroin five days earlier, on February 6, 2013, while the children were in her care. The Division filed a verified complaint and order to show cause under N.J.S.A. 9:6- 8.21, N.J.S.A. 30:4C-12, and Rule 5:12-1, four days after the removal, on February 12, 2013, naming L.W. as defendant. The Division also disclosed to the court that in October 2012, approximately five months before the complaint was filed, defendant's heroin addiction became so severe that she required clinical intervention. She was discharged and returned home in late November 2012. Although the Division was involved in monitoring the family, defendant's addiction remained a persistent and serious problem. In light of these circumstances, the Family Part granted custody of the children to the Division at the return date of the order to show cause. On June 4, 2013, the trial court conducted the fact-finding hearing required under N.J.S.A. (continued) a court order due to the emergent nature of the circumstances. It was named after the author of the 1974 legislation, Senate President Frank J. "Pat" Dodd. The Act, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). 3 A-1931-13T2 9:6-8.44. Although defendant did not appear, she was represented by counsel. The parties stipulated to the admission of two pieces of documentary evidence, a screening summary and the investigation report of a Division caseworker. From this evidence, the court found L.W. admitted to the Division caseworker that she had been using heroin on February 6, 2013. The caseworker reported noticing visible needle marks on L.W.'s arms on February 8, 2013. L.W. also kept "nod[ding] off" during her interactions with the caseworker. Based on the evidence presented by the Division, Judge Philip E. Haines found the Division has established, by a preponderance of the evidence, that L.W. abused and neglected her children, as defined under N.J.S.A. 9:6-8.21(c)(4)(b), by being in a state of intoxication due to her admitted use and addiction to heroin. L.W.'s judgment was impaired and her ability to properly care for these five young children, including twins who were one years old at the time, was seriously compromised. Judge Haines transferred legal custody of the children to L.W., conditioned upon the Division's continued involvement in their care and supervision. L.W. now appeals arguing Judge Haines erred in finding the Division met its burden of proving the children were in an 4 A-1931-13T2 immediate and imminent risk of substantial harm. The Law Guardian agrees and joins L.W. in this appeal. In particular, the Law Guardian emphasizes that the Division caseworker interviewed the oldest child, a ten-year-old girl, who reported she felt safe in her home with her family. This child also claimed she had never seen her mother use drugs or alcohol. The Division argues the uncontroverted evidence shows it met its burden of proof. 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 [Part] factfinding.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (alterations in original) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). Furthermore, 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. 5 A-1931-13T 2 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. N.J.S.A. 9:6-8.21(c)(4)(b) 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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . 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) (emphasis added).] In N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 180 (2014), the Supreme Court recently held that "a minimum degree of care means that a parent's conduct must be grossly negligent or reckless." (Emphasis added) (internal quotation marks omitted). Applying this standard to the uncontested facts presented by the Division to Judge Haines, there is no question L.W.'s conduct was grossly negligent or reckless when she used heroin while caring for these five young children. It is 6 A-1931-13T2 reasonable to conclude that even a sober person would likely feel extremely anxious if he or she was required to manage an unexpected household accident or a medical emergency while caring for five young children. We cannot expect a person who is chronically addicted to a powerful opiate like heroin to care safely for one-year-old twins and three other young children while under the influence of this illicit drug. Mindful of our standard of review, we discern no rational basis to disturb Judge Haines' decision as memorialized in his letter-opinion dated June 13, 2013. Affirmed. 7 A-1931-13T2
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