DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.T IN THE MATTER OF K.G J.G., and J.G Minors

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NOT FOR PUBLICATION WITHOUT THE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.

T.T.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF K.G., J.G., and

J.G.,

Minors.

_________________________________

February 12, 2016

Submitted January 4, 2016 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-250-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

In this Title 9 matter, defendant T.T., the biological mother of K.G. (Karen),1 J.G. (Joseph), and J.G. (Justin), appeals from the August 7, 2014 Family Part order, which held that she abused or neglected Karen and Joseph within the meaning of N.J.S.A. 9:6-8.21(c). Defendant also appeals from the September 4, 2014 order, which terminated the litigation as to all three children. For the following reasons, we affirm.

I.

We derive the following facts from the record. In June 2011, the Division of Child Protection and Permanency (Division) first became involved with defendant and the children's biological father, D.G., after a hospital representative reported that defendant gave birth to Karen prematurely and she and the child tested positive for marijuana. The Division instituted a Title 9 action, and on July 7, 2011, obtained care and supervision of Karen. Thereafter, the Division provided services to defendant. The Division also provided services to D.G., who admitted using marijuana. D.G. never complied with the services offered to him during this litigation.

In October 2011, the Division learned that defendant was the victim of domestic violence by D.G. Defendant had reported that she relocated to North Carolina in order to flee from D.G., who had been physically abusing her "for quite some time." Defendant said she feared for her life and Karen's safety, and that D.G. was gang-involved, used drugs, and allowed others to use drugs and have sex in their home.

In December 2011, defendant returned to New Jersey and told the Division that she had no contact with D.G. for over six months and did not know his whereabouts. She complied with services and agreed to a safety protection plan that prohibited D.G. from having contact with Karen due to his domestic violence, substance abuse, and non-compliance with services.

In October 2012, defendant reported she had no contact with D.G. for over six months. She also reported that she was pregnant, and L.T., not D.G. was the unborn child's biological father. On October 24, 2012, the trial judge entered an order, which terminated the litigation and prohibited defendant from allowing D.G. to have any contact with Karen.

Less than a month later, on November 19, 2012, a hospital representative reported to the Division that defendant was having pregnancy complications and tested positive for marijuana. The Division went to defendant's home to investigate Karen's welfare, found D.G. there, and learned that he had unsupervised contact with the child while defendant was in the hospital. Defendant acknowledged she was prohibited by court order from allowing D.G. to have contact with Karen, but said D.G. was caring for the child because she had no one else to do so.

Joseph was born in December 2012. After his birth, defendant and D.G. admitted that D.G. was the child's biological father. The Division also learned that D.G.'s name was on the lease to defendant's apartment, he paid one-half of the rent, and he often telephoned the Division from the telephone in defendant's apartment. All of this information indicated to the Division that defendant and D.G. lived together, and defendant had been untruthful about her relationship with D.G. On December 14, 2012, the Division instituted a new Title 9 action. The court subsequently awarded the Division care and supervision of Karen and Joseph.

On January 28, 2013, D.G. reported to the Division that when he arrived home, he found defendant smoking marijuana and drinking with other men in the home with the children present. Defendant explained that D.G. came to the home, was intoxicated and under the influence of PCP, and attempted to kick in the door in the children's presence because she would not allow him inside. D.G. subsequently recanted and admitted he was under the influence of alcohol and PCP and upset that defendant would not allow him into the home. D.G. also admitted he smoked PCP a few days per week and drank alcohol two or three days per week. Defendant eventually obtained a final restraining order (FRO) against D.G. D.G. never complied with the services offered to him during this second litigation.

On January 30, 2013, Family Preservation Services (FPS) reported to the Division that it terminated defendant from the program due to her non-compliance with services and failure to address her substance abuse. As a result, on January 31, 2013, the Division obtained custody, care and supervision of Karen and Joseph and placed them in a non-relative foster home.

At a compliance review on April 3, 2013, defendant had a urine screen, which tested positive for marijuana. Following a fact-finding hearing on April 11, 2013, the judge found by a preponderance of the evidence that defendant abused or neglected Karen and Joseph pursuant to N.J.S.A. 9:6-8.21(c) by placing them at a substantial risk of harm through her continued marijuana use, violation of the court order and safety protection plan prohibiting her from allowing D.G. to have contact with Karen, and failure to comply with services.

At a compliance review on October 2, 2013, the Division reported that defendant was terminated from Family Connections due to non-compliance. The Division placed defendant at Integrity House with a plan for reunification with the children within six months, if possible.

At a compliance review on March 26, 2014, the Division reported that defendant was still in a relationship with D.G. and pregnant with their third child, Justin. The Division also reported that because defendant's attendance at Integrity House was inconsistent, it could not confirm she was drug-free. The judge ordered defendant to comply with mental health and substance abuse treatment and domestic violence counseling, and continued the Division's custody, care and supervision of Karen and Joseph.

Following a permanency hearing on July 2, 2014, the judge approved the Division's plan of termination of defendant's parental rights to Karen and Joseph followed by adoption by their foster parents. The judge found that defendant: had a history of serious domestic violence with D.G.; violated the court order prohibiting her from allowing D.G. to have contact with Karen; tested positive for marijuana while pregnant with Joseph; violated the FRO she obtained against D.G.; and had ongoing contact with D.G. The judge noted that an updated psychological evaluation revealed that defendant continued to lack the psychological capacity to meet the children's needs for safety and separate herself from D.G. The judge also found that defendant failed to demonstrate she could safely care for the children, the children were in foster care for one and one-half years and in need of permanency, and their foster parents committed to adoption. The judge concluded it was contrary to the children's welfare to return them to defendant under the current circumstances.

Justin was born a month later. The Division conducted an emergency removal and made an emergent application for custody and to amend the complaint to add Justin to the litigation. At a hearing on August 7, 2014, the judge found that nothing had changed since the permanency hearing on July 2, 2014, when he found there was sufficient evidence it was not safe to return Karen and Joseph to defendant and approved the Division's plan of termination of defendant's parental rights. The judge emphasized that defendant's psychological evaluation indicated she was not capable of parenting; she did not comply with keeping D.G. away from the children; and her continued relationship with D.G. was a concern throughout the Division's involvement with the family. The judge reasoned that

we still are not in a situation where I have any indication that [defendant] is capable of parenting. She still has mental health . . . [and domestic violence] issues. She still has other issues that she has not fully addressed and . . . I was satisfied last month that it was not safe to have [Karen and Joseph] returned to her, that, in fact, there was a need to proceed with termination of parental rights, at that point and for those reasons, the risk to [Justin] is essentially the same.

The judge never explicitly ruled that defendant abused or neglected Justin. Rather, the judge held that Justin's removal was necessary due to imminent danger to his life, safety or health. The judge granted the Division temporary custody of Justin and leave to file an amended complaint to add him to the litigation.

On August 19, 2014, the Division filed an amended complaint. That same day, the Division filed a Title 30 action, seeking to terminate defendant's parental rights to all three children. The judge awarded the Division care, custody and supervision of the children in the Title 30 action, and on September 4, 2014, terminated the Title 9 action. This appeal followed.

II.

On appeal, defendant contends the Division failed to prove that she: (1) either harmed the children or exposed them to imminent substantial risk of harm by her marijuana use; and (2) either harmed the children or exposed them to imminent, substantial risk of harm from alleged domestic violence and failure to comply with FPS. We disagree.

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) (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." L.L., supra, 201 N.J. 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 . . . to exercise a minimum degree of care . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . 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).]

A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). 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 D.M.H., 161 N.J. 365, 383 (1999). A parent can be found to have abused or neglected a child with a showing of imminent danger of substantial risk of harm. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8 (2013). For this reason, the court must consider the totality of the circumstances to determine whether a parent's conduct placed a child at an unacceptable risk. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011); see also N.J. Div. of Youth & Family Servs. v. E.D.-O., 223 N.J. 166, 170 (2015) (emphasizing that whether a parent has abused or neglected a child "requires an evaluation of the totality of the circumstances").

The totality of the circumstances in this case established that defendant abused or neglected Karen and Joseph within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Defendant's marijuana use while she was Karen's sole custodian, and her continued use while pregnant with Joseph, was not the sole reason for the judge's finding of abuse or neglect. In addition to her drug abuse, defendant failed to fully comply with services, violated the court order prohibiting her from allowing D.G. to have contact with Karen, violated the FRO, and refused to extricate herself from a domestic abuser and admitted drug user. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012) (finding termination of parental rights proper when the child's mother, contrary to court order, permitted the child's father to maintain contact with the child despite the risk he posed to the child because of, in part, his past acts of violence toward the mother, thereby failing to protect the child from a dangerous parent); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282 (2007) (finding abuse or neglect where the father refused to separate from the child's mother who posed a serious risk to the child due to her substance abuse problems, among other things); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 425-26, 435-36 (App. Div. 2009) (finding abuse or neglect based on the violation of an order prohibiting the father into the home).

We are satisfied that the record amply supports the judge's finding that defendant abused or neglected Karen and Joseph within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

III.

Defendant contends that the judge erred in dismissing the Title 9 matter as to Justin without a fact-finding hearing. Alternatively, defendant contends that the judge erred in granting the Division custody of Justin in the Title 9 action without the filing of a formal pleading. These contentions lack merit.

The Division "may obtain custody of a child in need of care and supervision in a proceeding brought under Title 30 without any prior action under Title 9." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 260 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). The Division "may obtain an order for custody of a child under the 'best-interests standard' of N.J.S.A. 30:4C-12 even if [the Division] failed to show abuse or neglect in an action brought under Title 9." Ibid. "[The Division] is not required to try a Title 9 action to conclusion before bringing a Title 30 action for the termination of parental rights." Ibid. The Division has the authority to dismiss a pending Title 9 action when it commences a Title 30 action. Id. at 261.

Because the Division was not required to show abuse or neglect in the Title 9 action before dismissing the action and bringing a Title 30 action, the judge did not err in dismissing the Title 9 action as to Justin without a fact-finding hearing. Once the Division commenced the Title 30 action and obtained custody of Justin in that action, there was no need to continue the Title 9 action. Defendant may challenge the removal of Justin in the Title 30 action.

Affirmed.

1 To maintain confidentiality, we use pseudonyms or initials for those mentioned in this appeal.