DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.M.

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NOT FOR PUBLICATION WITHOUT THE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.

J.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF K.C. AND K.C.,

Minors.

______________________________________________________

December 14, 2015

Argued November 17, 2015 Decided

Before Judges Fisher and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-110-13.

Thomas W. MacLeod, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. MacLeod, on the brief).

Mary C. Zec, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Zec, on the brief).

Todd Wilson, Designated Counsel, argued the cause for minors K.C. and K.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Linda Vele Alexander, Designated Counsel, on the brief).

PER CURIAM

In this appeal we are asked to consider whether defendant J.M.'s conduct on a single occasion adequately demonstrated that her children were abused or neglected. Because no actual harm occurred, the trial judge was required to determine whether defendant placed the children in "imminent danger" or whether she created "a substantial risk of harm." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8 (2013) (quoting N.J.S.A. 9:6-8.21(c)). The trial judge engaged in the required "fact-sensitive analysis," N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470 (App. Div. 2014), and her findings were supported by adequate, substantial and credible evidence, thereby commanding our deference, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). And, although conclusions drawn by a judge in light of the found facts are reviewed de novo, R.W., supra, 438 N.J. Super. at 470, we are convinced after a close review of the record that defendant's conduct and the circumstances she created on the occasion in question posed imminent danger for the children and exposed them to a substantial risk of harm. We, therefore, affirm.

The evidence adduced at the fact-finding hearing came from a police officer and two Division representatives; the Division called the police officer as its only witness, and defendant called the Division representatives to testify. Defendant did not testify. The trial judge found all three witnesses to be credible while recognizing that their observations which, on the surface, appeared to conflict were made at different times.

To explain, the event that ultimately gave rise to the matter now before us occurred in a parking lot of a drugstore on Broad Street in Newark, at approximately 6:50 p.m., on January 30, 2013. In responding to a 9-1-1 call, Officer Mario DaSilva, a thirteen-year veteran of the Newark Police Department, arrived in the drugstore's parking lot. It was after sundown and "pouring rain." Defendant was standing outside her car, an adult male was seated in the front passenger seat, and two young children were in the backseat.1 Officer DaSilva approached defendant and

began to ask her questions, you know, what's your name, are you okay. She just had a blank stare on her face. Her eyes were glazed. She had absolutely no idea where she was at. I kept asking for identification. She was just standing there, not doing anything. I asked for identification again and she went into . . . her [purse] and began to look for identification. When I shined my light in the bag, the bag was completely empty. There was nothing in it.

. . . .

At this time it was raining really heavily and the windows to the car were open. So I wanted to get her in the back seat and I wanted to try to find maybe her mom or somebody to come and take the kids. When I attempted to put her in the back seat to get her out of the rain, she completely turned berserk. . . .

. . . .

[Defendant] was there, but her mind wasn't present. She was, in my experience, she was high. She was [on] something narcotic. I don't know what, but she was completely high. She was not in a mental state of taking care of two kids.

Q. Did she answer any of your questions?

A. None, not one question.

The officer also described that when he attempted to have defendant sit in the backseat of his vehicle, she

became belligerent, aggressive, trying to push me out of my push me out of her way, trying to get to her kids, kept screaming, "My babies, my babies." It just didn't even make any sense. She went from zero to 100 in half a second.

The officer attempted to restrain defendant after she went "berserk," but she fought with him and prevented the officer from handcuffing her. As all this was occurring, the children "had run out of the car and now they were in the middle of the parking lot" where bystanders attempted to "shelter them from what was going on." Order was finally restored when other police officers arrived.2 Defendant was arrested and charged with child endangerment.

The Division was called and two Division representatives those called by the defense to testify met and spoke with defendant at the police station at approximately 9:00 p.m. that evening. The Division representatives observed nothing out of the ordinary about defendant. She looked directly at them when they spoke, and her eyes appeared "normal." They had what one Division representative described as a "normal conversation," and defendant did not appear to them to be under the influence of a narcotic. Defendant told them that "she had a cold and was . . . prescribed Motrin . . . and a cough syrup."

As noted earlier, the judge found all three witnesses to be credible but found the Division representatives' testimony essentially inconsequential because they did not observe defendant when Officer DaSilva saw her hours earlier. In addition, the judge found the officer's observation that defendant appeared to be under the influence of a narcotic to be corroborated by positive drug tests administered in the weeks and months that followed; the judge also recognized there were negative test results during this time period.

Although defendant forcefully alludes to the lack of evidence to substantiate the claim she was under the influence of a narcotic on January 30, 2013, we find that to be irrelevant. It is not what caused defendant's condition but the fact she was in a "zombie-like" condition that is relevant. Whatever the cause, the judge was entitled to conclude, on the basis of Officer DaSilva's credible testimony, that defendant was in such an altered state as to place the children in imminent danger or at substantial risk of harm.3

In addition, the trial judge drew permissible inferences that the children were endangered because they were passengers without car seats in a vehicle likely operated by defendant while in her "zombie-like" condition. The record suggested defendant would likely have driven away from the drugstore in this condition had Officer DaSilva not arrived.4 This potential amplified the danger for the children on this occasion. See, e.g., N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 69 (App. Div. 2014). It is well established that our child protection laws do not absolve bad parenting whenever actual harm has fortuitously been avoided. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999); N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 59 (App. Div. 2014). The protection of children is the overriding goal, not the stigma imposed on parents who engage in irresponsible conduct.

We conclude that the evidence the judge found credible, together with inferences that were permissibly drawn, adequately demonstrated the children were abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c).

Affirmed.

1 Officer DaSilva described the children, who both appeared to be about four years old, as dressed "just in tee shirts" despite the fact that "[i]t was freezing. It was pouring rain and the windows were wide open. [A]s I began to talk to [defendant], they began to cry and stuff like that." Defendant was the mother of one of the children, K.C., who was born on July 23, 2008; the other child present defendant's niece, M.M. was also four years old. Defendant's youngest child was only a few months old at the time and not present during this incident. Defendant also has an older child A.M., who was born in 2000, resides with her biological father.

2 Officer DaSilva also testified that the adult male, Q.B., seated in the front passenger seat, was in the same condition as defendant a "zombie state, eyes glassed." When Officer DaSilva inquired about the children, Q.B. first responded, "what kids"? When the officer alluded to the children in the backseat, Q.B. said, "those are my babies." They weren't.

3 There was no evidence to suggest that defendant's condition was involuntarily induced or that she was having an unanticipated adverse reaction to prescribed medication.

4 Officer DaSilva testified that when he encountered defendant she had her car keys in hand; Q.B., who also was in no condition to operate a vehicle, was seated in the front passenger seat, suggesting he was not the vehicle's most recent driver. This likelihood is further supported by the information garnered by the Division representatives in their interview of defendant, who described how, earlier in the evening, she saw Q.B. in Plainfield and agreed to give him a ride to Newark; she stopped at the drugstore for motor oil because her vehicle was overheating.