NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J.

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NOT FOR PUBLICATION WITHOUT THE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.

S.J.,

Defendant-Appellant,

and

R.E.A., SR.,

Defendant.

____________________________________

IN THE MATTER OF R.A. AND C.A.,

MINORS.

____________________________________

May 4, 2015

Submitted April 15, 2015 Decided

Before Judges Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0092-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor children (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant S.J. appeals from an order finding she abused and neglected her two children. After reviewing the record and the applicable legal principles, we reverse.

I

Evidence adduced at the fact-finding hearing revealed the following. Defendant and the children were living in an apartment when, in June 2012, the electricity was shut off because defendant owed a balance of $1597 on her electric bill. Defendant's income was $1540.25 per month. Specifically she received $729.25 a month in Supplemental Security Income because the children suffered from disabilities; $489 per month in food stamps; and $322 in cash assistance from the Division of Welfare. Although not working, defendant was attending college. At that time, the children were ages ten and twelve.

After the electricity was shut off, defendant and the children moved into a neighbor's home. It is unclear how long defendant and the children lived without electricity in their home but the record indicates that, at the most, it was two to three weeks. On July 2, 2012, the Division received a referral from the director of a local Boys and Girls Club the children regularly attended. The director reported that the children complained of being hungry. The following day, a Division worker interviewed the children; they claimed they had never missed any meals. The Division assessed the neighbor's home and found it suitable for the children and that the care they were receiving was appropriate.

On July 10, 2012, the Division received a report that defendant was smoking marijuana and drinking alcohol while the children played outside, unsupervised. At the Division's request, defendant provided a urine sample, which tested positive for marijuana. Because of the test result the Division scheduled defendant for a substance abuse assessment. After missing two appointments, defendant submitted to an assessment on August 16, 2012. During the assessment she admitted to smoking marijuana and drinking twenty-four ounces of beer daily.1 She also submitted a urine sample that day, which was positive for marijuana. The assessor recommended that defendant attend intensive outpatient treatment, but defendant stated she was not going to participate in any treatment.

On October 17, 2012, the Division filed an order to show cause and complaint seeking the care and supervision of the children. On November 12, 2012, the court granted the Division's request, but defendant retained custody and the children continued to live in the neighbor's home, although the Division discovered the children went to the library every day after school and remained there until approximately 9:00 p.m. before retiring to the neighbor's home for the day. On November 29, 2012, defendant again tested positive for marijuana and was still refusing to engage in substance abuse treatment. In December 2012, defendant and the children moved in with the children's aunt, who lived in the same municipality.

On January 2, 2013, the Division filed a complaint for custody because defendant was still refusing to engage in substance abuse treatment and had not found permanent housing. On January 8, 2013, the court transferred custody of the children to the Division, who were placed in resource homes. On January 23, 2013, defendant tested positive for marijuana. In February and March 2013, however, defendant participated in substance abuse treatment and tested negative for substances on March 22, 2013.2

At the conclusion of the fact-finding hearing, held on March 26, 2013, the court found the Division proved defendant abused and neglected the children under N.J.S.A. 9:6-8.21(c). Although the court did not specify the section of the statute defendant allegedly violated, it is not disputed the applicable provisions are N.J.S.A. 9:6-8.21(c)(4)(a) and (b). The court found as follows.

[Defendant] walked a fine line here since July 2 [2012], and I myself flip-flopped during the course of this testimony today. And after [defense counsel] sat down I was going to rule in [defendant's] favor, and even more so after the law guardian indicated her position,[3] because I wasn't quite sure. I knew deep down inside I knew or actually I felt that she was walking a tight tight rope here, but and I was almost ready to rule that this should be a Title 30, where the family needed services. But and one of the things that I was thinking that, you know, you can't punish somebody for you know, for being poor, or close to poor, or on the poverty line. I understand that electrical bills are hard to pay. I understand that decent apartments are hard to find. But I can't I have a hard time reconciling these problems, though, with one who continues to buy alcohol and drugs. I I just I can't get over that. I can't get over that hurdle.

I've gotten over all the other hurdles for you, . . . but when it comes down to the nitty-gritty and what you're supposed to do, and what you didn't do, I find that the Division has proven their case simply by what you've chosen to spend your money on, and you've chosen to spend your money on beer and marijuana, and not the things that you're supposed to spend your money . . . on.

You didn't have electricity so you found a place for them to stay. So that was in your favor . . . .

You have continually abused alcohol and drugs in this matter, and during the course of this case. Unfortunately, for you, I am reversing myself, which is what I was going to do about 20 minutes ago, and I'm going to find that the Division has met its burden for abuse and neglect . . . not because you didn't have electricity, but because you consistently engaged in substance abuse, you used money towards these substances instead of food and electricity, and a place to live, and I don't think it's right that these children had to spend the night in the library, every night, before they went home to go to bed. Too much transience here.

Our understanding of the court's decision is that it found defendant abused and neglected the children because she: (1) abused drugs and alcohol; and (2) used money for drugs and alcohol instead of for food, electricity, and shelter.

II

"The purpose of the fact-finding hearing in an abuse or neglect proceeding is to determine whether a child is an abused or neglected child [pursuant to] N.J.S.A. 9:6-8.44 . . . ." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). Appellate review of a trial court's finding of abuse or neglect is limited; we defer to the court's determinations if supported by adequate, substantial, credible evidence. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).

However, "deference is not appropriate if the trial court's findings are 'so wide of the mark that the judge was clearly mistaken.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Further, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007). It is also "well-settled that poverty alone is not a basis for a finding of abuse or neglect." N.J. Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 195 (App. Div. 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976), aff'd sub. nom., 74 N.J. 196 (1977)).

This appeal presents a legal question: whether the facts support a finding of abuse or neglect. N.J.S.A. 9:6-8.21(c)(4)(a) and (b) states that an "abused or neglected child" includes

[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 . . . 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 . . . .

The statute does not define the word "impaired," but N.J.S.A. 1:1-1 requires that words in a statute "be read and construed with their context, and shall . . . be given their generally accepted meaning . . . ." The legislative history does not does not mention this word. We therefore resort to the dictionary definition of "impaired." See In re Taylor, 196 N.J. 162, 172-73 (2008) (dictionary definition to be used where legislature has not defined the term in question). The Oxford English Dictionary defines "impaired" to mean "rendered worse; injured in amount, quality, or value; deteriorated, weakened, damaged." Definition of Impaired, Oxford English Dictionary, http://www.oed.com/view/Entry/92051 (last visited April 24, 2015).

Defendant argues the Division failed to prove that by spending money on substances rather than on food, electricity and shelter she impaired or placed the children's physical, mental or emotional condition in imminent danger. She also argued the Division did not prove her use of substances placed the children at substantial risk of harm. We agree.

The court did not fault the mother for not having electricity in her home, but it did find she abused and neglected the children because she spent money on substances instead of food, shelter, and electricity. First, there is no evidence the children ever went without food or shelter. Although they did live in temporary quarters, there is no evidence they suffered any impairment as a result. In fact, the Division found the neighbor's and aunt's homes suitable for the children.

As for the trial court's finding defendant abused and neglected the children because she spent money on substances rather than on the electric bill while simultaneously finding she was not at fault for failing to provide electricity there was no evidence of the amount of money defendant spent on beer and marijuana. Without such evidence there was no basis to assume defendant would have been able to pay the electric bill had she not spent money on substances. Stated another way, there was no evidence defendant, who was clearly impoverished, was financially able to but refused to pay the electric bill. Moreover, although it was undoubtedly inconvenient to live without electricity for, at most, two to three weeks, and then be uprooted and forced to move, nevertheless, the children were never impaired as that term is defined.

As for using substances, our Supreme Court has recognized that using an illicit substance, without more, does not establish abuse and neglect. See N.J. Div. of Youth and Family Services v. A.L., 213 N.J. 1, 24 (2013). Neither does the mere use of alcohol. While the use of marijuana in our state is illegal and, under certain circumstances, the use or being under the influence of alcohol may also be illegal, nevertheless "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time." N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). We have recognized that not only is an addiction to substances difficult to remediate, but also the failure to overcome an addiction to substances does not automatically equate to child abuse or neglect. Ibid.

Here, while defendant drank the equivalent of two beers a day and smoked an unspecified quantity of marijuana, the children were not harmed and there is no competent evidence she placed them at a substantial risk of harm while they were under her sole supervision. To the contrary, the Division's investigation consistently revealed that not only were the neighbor's and aunt's homes adequate, but also the children received proper care.

There being no basis to find defendant abused and neglected the children under N.J.S.A. 9:6-8.21(c)(4)(a) or (b), we are constrained to reverse.

Reversed.

1 This is equivalent to two servings of beer; a serving of beer is twelve ounces. See What is a Standard Drink,

National Institute on Alcohol Abuse and Alcoholism, National Institutes of Health, U.S. Department of Health and Human Services, http://www.niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/what-standard-drink (last visited April 27, 2015).

2 The record reveals defendant did complete substance abuse treatment and, as of June 12, 2013, had eleven negative drug screens. She was reunited with the children and the litigation was terminated on November 12, 2013.

3 The law guardian argued the Division failed to prove defendant abused and neglected the children.