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

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NOT FOR PUBLICATION WITHOUT THE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.

P.P.,

Defendant,

and

C.M.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF A.P. and

M.P., minors.

____________________________________

June 4, 2015

Submitted May 26, 2015 - Decided

Before Judges Sabatino and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0249-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.P. and M.P. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Appellant C.M., the biological mother of two minor sons, appeals from the Family Part's determination that she abused or neglected her sons within the meaning of N.J.S.A. 9:6-8.21(c) as the result of her ongoing substance abuse. For the reasons that follow, we affirm.

The following relevant background emerged at the fact-finding hearing conducted on July 9, 2013. Appellant gave birth to the older son, A.P. ("Andy"),1 in January 2005 and to the younger son, M.P.2 ("Marty"), in July 2011. At the time of the fact-finding hearing, Andy was nine years old and Marty was twenty-three months old. P.P. is the biological father of Andy and was a co-defendant with appellant at the fact-finding hearing. A different man, R.I., is the biological father of Marty and he was added as a co-defendant at the end of the trial court proceedings.

The record shows that appellant has a long history of drug abuse. The Division of Child Protection and Permanency ("the Division")3 has been involved with appellant, P.P., and the children since December 2010, when both appellant and P.P. were referred for substance abuse evaluations. Thereafter, appellant repeatedly tested positive at various times in 2011, 2012, and 2013 for cocaine, opiates, and other illegal substances. In addition, she admitted to experimenting with heroin during that time period. She also twice failed to successfully complete substance abuse programs arranged by the Division. P.P. also tested positive for illegal drugs numerous times, failed to complete substance abuse programs, and eventually became incarcerated.

During the relevant time frame, appellant lived with her own mother and the two sons. After Hurricane Sandy occurred in October 2012 and the maternal grandmother's residence lost electricity for several days, appellant left with Marty, who was then only a year old, for approximately two weeks. During that time, appellant failed to inform anyone of her whereabouts. Although appellant claimed that she had been at a city shelter, she did not testify or otherwise substantiate that claim.

In December 2012, the Division filed a complaint under Title Nine in the Family Part seeking the care, custody, and supervision of the two boys. The trial court approved the Division's request and the family was monitored pending a fact-finding hearing.

The sole witness at the fact-finding hearing was a Division case worker who described the long history of substance abuse of appellant and P.P. The Division also placed into evidence numerous documentary exhibits, including the repetitive positive drug tests. Neither appellant nor P.P. appeared at the hearing, although both were represented by counsel.

At the end of the hearing on July 9, 2013, the trial judge issued an oral decision concluding that both appellant and P.P. had abused or neglected the children. Among other things, the judge noted the mother's persistent substance abuse problems, her repeated positive drug tests, and her failure to complete the treatment arranged by the Division. The judge found "an abundance of circumstantial evidence" that appellant had used drugs while she was responsible for caring for the children. The judge also found that appellant's unexplained absence with the infant Marty "during the aftermath of an extremely serious hurricane with no contact," as well as her other aberrant behavior, supported a conclusion that she had placed the children at "substantial risk of harm."

The judge entered an order on the same day, finding by a preponderance of the evidence that appellant, among other things, had "placed her children at substantial risk of harm due to her inability, unwillingness and/or failure to address her serious substance abuse problem." The judge further noted in the order that appellant's conduct in taking flight with the infant after the hurricane and not informing anyone of her whereabouts violated "the safety protection plan established by the Division." The judge concluded, however, that P.P. had not abused or neglected the children.4 We have been advised that since the conclusion of the fact-finding hearing, the trial court has approved, with the consent of both appellant and P.P., a Kinship Legal Guardianship as to Andy.

On appeal, appellant contends that the trial court erred in finding that she had placed her children at substantial risk of harm. We disagree.

The applicable statute defines an "abused or neglected child," in pertinent part, as a child under the age of eighteen

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, including the infliction of excessive corporal punishment[.]

[N.J.S.A. 9:6-8.21(c)(4)(b).]

In applying these statutory criteria, a court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986)). The "pattern of parental conduct can place the children at risk of harm as contemplated in N.J.S.A. 9:6-8.21(c)(4) without proving a particular episode" of abuse or neglect. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 582-83 (App. Div. 2010).

A parent's long-term drug abuse can satisfy this statutory test. To be sure, "'[n]ot all instances of drug ingestion by a parent will [serve to] substantiate a finding of abuse or neglect.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 24 (2013) (quoting N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011) (bracketed words in Appellate Division opinion)). Even so, this case presents a more extreme situation than the facts in A.L. in which a mother tested positive for cocaine at the time of a child's birth but there were no objective indicia that the child's own well-being had been endangered. A.L., supra, 213 N.J. at 9.

Here, appellant repeatedly tested positive in a three-year period when she was serving in the role of an unsupervised caretaker5 responsible for her sons. She twice failed treatment programs offered by the Division, and then essentially vanished with her infant son for two weeks after the calamity of a hurricane. Her irresponsible conduct, none of which was tempered or explained by any defense proofs at trial, was sufficient to support the judge's finding of abuse or neglect.

Our task on appeal is a limited one. We will not disturb the Family Part judge's findings of abuse or neglect as long as there is "substantial credible evidence in the record" to sustain those findings. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). Applying that deferential review standard here, we concur with the Division and the Law Guardian that the trial court's determination in this case should be upheld. Our appellate review also detects no misapplication of legal principles. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (calling for de novo review of a trial court's legal conclusions).

Affirmed.

1 We use fictitious names or initials for the parties for privacy reasons.

2 As the result of a name change in December 2014, M.P.'s initials are now M.I.

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

4 The Division has not cross-appealed the court's finding with respect to P.P.

5 Appellant's role as an unsupervised caretaker distinguishes her circumstances from those of the child's father in V.T., supra, 423 N.J. Super. at 323-27, where the father, who tested positive for illegal drugs, had only supervised visitation with his child, who was significantly older, rather than an infant.