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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02433-13T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.P., JR.,

Minor.

__________________________________

May 28, 2015

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-372-13.

Joseph E. Krakora, Public Defender, attorney for appellant C.P. (Amy Kriegsman, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; James Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.P., Jr. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.P.1 appeals from a September 23, 2013 Family Part disposition order2 that followed a September 12, 2013 fact-finding order determining that she abused or neglected her eighteen-month-old son Allen by repeatedly using Phencyclidine (PCP), heroin and illegally obtained Percocet while her young child was in her sole care. The Law Guardian urges us to affirm and we now do so, because the trial judge found by a preponderance of the evidence, based on substantial credible expert and factual testimony, that defendant put her young child at risk by using illegal drugs that impaired her ability to care for him.

The Division of Child Protection and Permanency (Division) first became involved when it received an anonymous referral in October 2012 reporting that C.P. was ingesting PCP and unprescribed Percocet. It was also reported that she would leave her one-year-old son home alone while she bought drugs, and would pass out after taking drugs when she was alone caring for him. C.P. agreed to submit to a drug screen, but evaded the screen for several days. After litigation began, C.P. admitted to using Percocet and PCP, but denied that she used PCP when caring for her son. Her urine and hair follicle tests were consistent with her admitted recent use of Percocet and PCP. Allen was removed from C.P. in December 2012 when C.P. tested positive for drugs. Subsequently, C.P.'s attendance at drug programs was sporadic. She told one of the programs that she had a long history of illegal drug use and an ongoing addiction to Percocet.

At the September 2013 fact-finding hearing, the Division called a forensic toxicologist to confirm C.P.'s positive urine and hair follicle tests. In addition, Dr. Frank J. Schwoeri, a licensed clinical psychologist with a specialty certification in treatment of substance abuse disorders, testified as an expert in drug use, in particular the use of PCP as it affects parenting capacity. Dr. Schwoeri testified that he had reviewed, among other things, C.P.'s drug tests, her substance abuse and psychological evaluations, Division contact sheets, and the Division investigative summary. In his report, which was admitted into evidence, Dr. Schwoeri opined

PCP can produce a number of significantly problematic effects on behavior and psychiatric status. PCP has been known to produce abnormal overall behavior and appearance to a marked degree, moderate disorientation to person, place, or situation, dysfunctional memory, a markedly inappropriate degree of emotional expression, altered moods either in the direction of depression or elation, marked confusion and disorganization, markedly bizarre behavior, a moderate suicidal risk as well as a marked homicidal risk and physical danger to others. In addition, PCP is known to produce marked impairment of judgment. It can be readily seen that all of these factors are not supportive of good parenting and can certainly impair parent/child interactions and parental caregiving.

Dr. Schwoeri noted that PCP users "may continue to experience intoxicating effects for days." He wrote that PCP was originally developed as an anesthesia for veterinary medicine and tested in human surgical patients, but it is no longer prescribed to humans for any purpose because of adverse side effects, including psychosis and withdrawal. Dr. Schwoeri later testified that one possible effect of the drug is to become out of touch with reality, which can lead to "[v]ery risky parental behavior," especially for a child under the age of three.3 He said the effects of PCP are dose-dependent, and the person who buys the drug illegally does not know what dose she is taking. He opined that when eighteen-month-old Allen was removed from C.P.'s care, she was not able to safely parent him due to the risks posed by her use of PCP.

Although notified of the date of the fact-finding hearing and subpoenaed, C.P. voluntarily chose not to attend. The judge granted the Division's request for a negative inference because C.P. "has not come here to really contradict any of the facts that have been presented."4 The evidence at the hearing revealed that C.P. had been taking care of Allen as a single parent while his father was incarcerated for violating the rules of Drug Court.5

Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise . . . ." Id. at 413. Unless the judge's factual findings are "so wide of the mark that a mistake must have been made[,]" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

Through the admission of "competent, material and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, 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 . . . 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 . . . .

As we recently stated in the context of an intoxicated parent who rolled onto her baby, causing brain damage to the infant

Parents who use illegal drugs when caring for an infant expose that baby to many dangers due to their impaired judgment. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011) (commenting that, unlike an infant, the twelve-year-old child was not vulnerable "to the slightest parental misstep" when visiting in a Division-supervised setting with her father, who tested positive for drugs). [The infant-victim] was completely dependent on his parents to protect him from danger. Although a sober parent could also inadvertently smother a baby when co-sleeping, a parent who falls asleep after ingesting illegal drugs is less likely to exercise good judgment in protecting the baby in bed. Just as a sober driver may have an automobile accident, an impaired driver is much more likely to do so.

[N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 385 (App. Div. 2014).]

C.P. argues that the evidence does not support a finding that she neglected her son because when the Division first investigated her home, the home was well-equipped and Allen appeared healthy. C.P. had baby sitters who cared for Allen when she was at work, who may have been caring for him when C.P. was under the influence of drugs. C.P. did not appear under the influence of drugs when the Division conducted its investigation, and the Division introduced no specific evidence that C.P. experienced any of the harmful side effects described by Dr. Schwoeri while Allen was in her sole care.

The court, however, need not wait until actual harm has been inflicted. See N.J.S.A. 9:6-8.21(c)(4)(b). The fact that C.P. continued to use PCP while caring for Allen under the court's supervision, and did not appear at the fact-finding hearing to refute the implications of the drug tests, as well as her statements to the drug programs, speak clearly to the depth of her involvement with PCP, a dangerous drug. Based on the experts' testimony, the drug tests, the child's young age and the inconsistent stories C.P. told about her drug usage, the judge had substantial evidence to find that C.P.'s drug use put Allen's safety at risk. The very unpredictability of the side effects of PCP and the inability of the user to gauge the dosage make it extremely unlikely that a single parent could arrange for a baby sitter to safeguard the welfare of her young child during all the times when she is under the influence of the drug.

Affirmed.

1 We use initials and fictitious names to protect the identity of the child.

2 This order became appealable as of right after the trial court entered a final order terminating litigation on December 12, 2013.

3 Dr. Schwoeri also discussed research within the last twenty years demonstrating the important developmental needs of a young child that require parental care and attunement that an intoxicated parent is unable to provide. We do not, however, rely on this rather more wide-ranging testimony to substantiate the judge's findings.

4 "When 'a party fails to produce a witness who is within its power to produce and who should have been produced,' the adverse inference rule permits the factfinder 'to infer that the witness's evidence is unfavorable to the party's case.'" Washington v. Perez, 219 N.J. 338, 352 (2014) (quoting Black's Law Dictionary 62 (9th ed. 2009)). A negative inference is "improper if the witness were unavailable, if the witness were biased against the party who would otherwise be expected to call him or her, or if the witness's testimony 'would be cumulative, unimportant or inferior to what had been already utilized.'" Id. at 354 (quoting State v. Clawans, 38 N.J. 162, 171 (1962)).

5 Drug court is governed by N.J.S.A. 2C:35-14.