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

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NOT FOR PUBLICATION WITHOUT THE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.

A.C.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF J.R.,

Minor.

_______________________________

July 21, 2015

Submitted April 27, 2015 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-393-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

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

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

PER CURIAM

In this Title 9 matter, defendant A.C., the biological mother of J.R. (John),1 born in March 2010, appeals from the November 30, 2012 Family Part order, which held that she abused or neglected the child within the meaning of N.J.S.A. 9:6-8.21(c) by allowing or creating a substantial risk of harm and not adequately supervising the child. Defendant also appeals from the February 3, 2014 order, which terminated the litigation. For the following reasons, we affirm.

I.

We derive the following facts from the record. The Division of Child Protection and Permanency (Division) first became involved with defendant in March 2010, after a hospital representative reported that defendant gave birth to John, had a history of noncompliance with prenatal care, tested positive for marijuana shortly before the child's birth, and drank alcohol and smoked marijuana during the pregnancy. Defendant disclosed during a subsequent substance abuse evaluation that she drank alcohol and used marijuana and ecstasy. She was diagnosed with cannabis dependence. After defendant produced several negative urine screens, the Division closed the case, but recommended defendant to a level-one outpatient substance abuse treatment program based on her substance abuse history.

The Division became involved with defendant again on March 16, 2012, after an anonymous caller reported that John was in "bad shape" and in "danger." According to the caller, John had marks all over his body and a large third-degree burn on his arm, defendant did not seek medical treatment for fear that the Division would be notified, defendant barely fed John, and the child "[was] very small and appear[ed] weak." The caller also said that defendant smoked marijuana daily in John's presence.

A Division caseworker testified at the fact-finding hearing that on March 16, 2012, she went to the residence where plaintiff was renting a room and saw that defendant was disheveled and there was "a strong smell of marijuana" emanating from the room. Defendant admitted that she smoked marijuana in the room, but denied that she did so when John was present. Defendant did not respond when the caseworker asked if she smoked marijuana that day.

The caseworker also saw that the room had no kitchen, but there was a refrigerator containing only milk. The room was extremely cluttered and dirty, and the caseworker had to climb over clothes, boxes and other items in order to move around the room. In addition, there were plastic bottles and cables alongside toys in John's play pen, food crumbs on the floor, and an ashtray full of cigarette butts on a mattress lying on the floor.

The caseworker saw John sitting on the mattress next to the ashtray and playing with a cigarette lighter. He was wearing a wet diaper, had a rash over most of his body, had red patches on his extremities, stomach and back, and was wheezing. Defendant explained that John had a fever since the previous night and had sustained a burn three weeks prior by spilling hot tea on himself. Defendant admitted she did not seek medical treatment for the child. Photographs the caseworker took of the condition of defendant's room and John's rash were admitted into evidence.2

John was taken to the hospital and treated with antibiotics for an ear infection. The Division removed him from defendant's care and, with defendant's consent, temporarily placed him with his maternal grandmother.

The caseworker returned to defendant's room on March 19, 2012, and saw it was mostly clean; however, there was a wine bottle on the dresser. Defendant admitted she had consumed "a few drinks" over the weekend because she was "sad" and "a little depressed" over John's removal. Defendant submitted to a urine screen, which tested positive for marijuana.

During a substance abuse evaluation on March 30, 2012, defendant, then age twenty-five, admitted that she began using alcohol and illegal drugs at age sixteen; presently smoked marijuana at least three times a week or at least twenty days in a thirty-day period; and last smoked marijuana on March 27, 2012. Defendant submitted to a urine screen, which tested positive for marijuana. The Division referred defendant to an intensive outpatient substance abuse program. Defendant began the program, but did not complete it. The Division filed a complaint for care, custody and supervision of John. Physical custody of John was later granted to the maternal grandmother.

The trial judge inferred from the evidence that defendant smoked marijuana on March 16, 2012 in John's presence. The judge acknowledged that defendant's admitted marijuana use alone was insufficient to establish abuse or neglect, but found, based on the totality of the circumstances, that her marijuana use placed John at a substantial risk of harm, as evidence by the poor condition of the room, John's inability to move freely about the room, the lack of adequate food or access to a kitchen, and the fact the John was playing with a lighter. Accordingly, the judge held that defendant abused or neglected John within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

The proceedings continued in the Family Part for the next fourteen months with periodic compliance reviews. Custody of John remained with the maternal grandmother due to defendant's continued substance abuse. The grandmother eventually obtained legal custody. This matter was dismissed on February 3, 2014. This appeal followed.

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (internal quotation marks and citations omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). The court may make rational inferences "grounded in a preponderance of probabilities according to common experience" derived from the credible evidence. N.J. Div. of Youth and Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Applying these standards, we discern no reason to disturb the judge's ruling.

"To prevail in a Title 9 proceeding, the Division must show by a preponderance of the competent and material evidence that the defendant abused or neglected the affected child." N.J. Div. of Child Protection & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014). "The Division need only show that it was more likely than not that the defendant abused or neglected the child." Ibid.

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen years

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, 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).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 172-73 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result," and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179.

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999).

II.

Defendant contends that the Division failed to prove she abused or neglected John within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). She argues that because there was no evidence she used marijuana in John's presence and no evidence linking her drug use to neglect or a threat of imminent harm, her conduct did not constitute a failure to exercise a minimum degree of care. Relying on N.J. Dep't of Children & Families v. A.L., 213 N.J. 1 (2013), and N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), defendant posits that her admitted drug use alone was insufficient to prove she inherently created a substantial risk of harm to John.

In A.L., an expectant mother used drugs during her pregnancy, but there was no evidence of actual harm when the child was born. A.L., supra, 213 N.J. at 26-27. The record also lacked evidence that the mother continued using drugs while caring for the child. Id. at 27-28. The Court reversed a finding of abuse or neglect, holding that the mother's past drug use alone did not prove actual harm or imminent danger. Id. at 29-30.

In V.T., the defendant did not have custody of his eleven-year-old daughter. V.T., supra, 423 N.J. Super. at 323. He had ingested cocaine and marijuana prior to two supervised visits with the child and tested positive for those substances on each occasion. Id. at 323, 330-31. We disagreed that such behavior inherently created a substantial risk of harm to the child, and held that the "use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect." Id. at 331.

In contrast to A.L. and V.T., defendant had sole custody of John and it was reasonable for the judge to infer that she used marijuana while caring for him. Defendant's use of marijuana impacted her ability to properly supervise the child, as evidenced by the lack of food in the home, the poor condition of the room where they resided, and John's playing with a lighter. We are satisfied that under the totality of the circumstances, the record amply supports the judge's finding that defendant abused or neglected John within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by failing to exercise a minimum degree of care in providing John with proper supervision as a result of her substance abuse.

III.

Relying on N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif. granted, 220 N.J. 41 (2014), defendant contends for the first time on appeal that because she had remedied her living conditions and no longer had custody of John, the judge erred in failing to consider that the child was no longer in imminent risk of harm at the time of the fact-finding hearing. Although we generally decline to address issues such as this that were not raised before the trial judge and are not jurisdictional in nature or substantially implicate the public interest, Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997), we shall nevertheless address this meritless argument.

In M.C., we held that in cases based only on imminent danger of impairment of the child's physical, mental or emotional condition, there must be proof of a "present danger" to the child. Id. at 418. We reversed the finding of abuse or neglect, citing the evidence that the defendant had remediated his parenting deficiencies, completed substance abuse treatment, maintained sobriety, was successfully reunited with his children, and no longer presented a danger to them. Id. at 413. In contrast to M.C., defendant did not complete recommended treatment, she continued using marijuana, and she was not successfully reunited with her son. Accordingly, she continued to present an imminent danger to John's physical, mental or emotional condition even after his removal.

In any event, we adhere to the traditional understanding that it is sufficient that the parent or guardian created an imminent danger to the child at the time averred in the complaint. To rule otherwise would permit parents or guardians to create imminent danger to children without being placed on the child abuse registry, make the outcome of an abuse or neglect complaint dependent on the timing of the fact-finding hearing, and conflate Title 9 with Title 30.

Affirmed.

1 This name is fictitious.

2 Defendant did not testify at the hearing or present any documentary evidence.