DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.A.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF G.A. and G.A.,

Minors.

__________________________________

November 4, 2016

 

Submitted October 31, 2016 Decided

Before Judges Sabatino, Haas and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-165-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka Felipe, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Charles Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant E.A.1 appeals from the Family Part's August 27, 2014 order, following a fact-finding hearing, determining that defendant abused or neglected her two children.2 The children's Law Guardian supports defendant's appeal. Based upon our review of the record and applicable law, we reverse.

I.

We derive the following facts from the record developed at the August 27, 2014 fact-finding hearing. Defendant has two children who are the subject of this litigation, G.A. ("Gene"), born in April 2009, and G.A.3 ("George"), born in March 2010. The Division of Child Protection and Permanency ("Division") first became involved with defendant's family in May 2011 after it received a referral that one of defendant's children had been found alone on the street. The Division did not substantiate this allegation, but it began to provide substance abuse services to defendant and her husband.4 On several occasions in September and October 2011, defendant tested positive for opiates.

In February 2012, defendant went to the Division's office. Defendant smelled of alcohol and appeared to be under the influence. The Division removed defendant's children from her home. On October 2, 2012, defendant waived her right to a fact-finding hearing and stipulated that she abused or neglected her children and placed them at risk of harm by consuming alcohol and being intoxicated while the children were in her care and custody. As a result, the Division placed defendant's name in the Central Registry.

In January 2013, the Division initiated a termination of parental rights proceeding against defendant after she failed to complete her substance abuse treatment program. However, defendant then took steps to get her addiction under control. She began complying with substance abuse services. The Division administered random urine screens to defendant and the results were negative. Therefore, the trial court approved the Division's revised plan to reunite defendant with her two children.

The Division returned the children to defendant in October 2013. Unfortunately, defendant drank alcohol one month later. The Division continued the children in defendant's custody, and provided her with additional services. Defendant also returned to her outpatient program. The Division's permanency worker ("the worker") testified that defendant was thereafter "compliant" with the Division's requirements. Defendant continued to have negative urine screens. On March 11, 2014, the court transferred legal custody of the children to defendant, but ordered the Division to continue to provide care and supervision for them.

On Wednesday, April 9, 2014, the worker called defendant and directed her to come to the Division's office for a random urine screen. Defendant complied.5 At the office, defendant met with a counselor, "who attempted to get a urine from her." The counselor later told the worker that defendant "dropped the urine sample and that she left the building." The worker called defendant and asked her to return to the office "to redo the urine screen."

Defendant went back to the office and talked to the worker's supervisor. Defendant told the supervisor that, over the weekend, the two children were with their paternal grandparents at their home. While the children were away for the weekend, defendant "admitted to using opiates . . . by saying that she sniffed heroin and drank alcohol." The worker testified that defendant "appear[ed] sober" and "didn't appear under the influence" while she was at the office. Defendant gave another urine sample, which tested positive for opiates.

Two days later, the Division removed the children from defendant's home and sought a judicial declaration that defendant abused or neglected them by using heroin. The worker testified that the Division took this action because defendant used heroin and if defendant "would have returned to her home and she was under the influence, she would be placing her children at risk." The worker stated that when the children were taken from the home, they "appear[ed] well cared for[.]"

The worker was the only witness who testified at the hearing. The Division did not present any evidence that defendant used, or was under the influence of, drugs while caring for the children.

At the conclusion of the hearing, the trial judge rendered a brief oral opinion, concluding that defendant abused or neglected her two children "because she has a history with the use of heroin." The judge found "there is a substantial risk with a heroin user" and "the fact there was heroin in [defendant's] system within a . . . reasonable amount of time after its use" was "abusive and neglectful." The judge continued

There's the substantial risk of harm to a child if a person uses illicit substances, such as heroin, which . . . can be deadly. . . . She can overdose and die in front of the children and there can be a fire. She could . . . take her children out for a ride in the car and get into an accident because she's not sober.

Defendant subsequently returned to an inpatient treatment program, where she resided with her children. After she completed that program, defendant began an out-patient program and continued to provide negative urine screens. She gave birth to a healthy baby in February 2015. In March 2015, the trial court dismissed the litigation. This appeal followed.

II.

On appeal, defendant argues that the evidence presented by the Division was insufficient to establish that she abused or neglected the children. We agree.

We accord deference to the Family Court's fact-finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J.394, 413 (1998). We shall uphold the court's fact findings if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007). However, we will not hesitate to set aside a ruling that is "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 38 (2011).

We also accord no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995). The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J.at 32 (quoting 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

Courts need not wait for harm to occur, but the Division must present proof of "imminentdanger or a substantialrisk of harm to a child by a preponderance of the evidence." N.J. Dep't of Children & Families v. E.D.-O., 223 N.J.166, 178 (2015) (emphasis in original) (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013)). Also, "[t]o find abuse or neglect, the parent must 'fail . . . to exercise a minimum degree of care.'" Id.at 179 (quoting N.J.S.A.9:6-8.21(c)(4)(b)). This requires "conduct that is grossly negligent because it is willful or wanton . . . but not necessarily intentional." Ibid.(quoting G.S. v. Dep't of Human Servs., 157 N.J.161, 178 (1999)).

Whether a parent has failed to exercise a minimum degree of care "is fact-sensitive and must be resolved on a case-by-case basis." Id.at 192. Courts undertaking this analysis "must avoid resort to categorical conclusions." Id.at 180 (citing Dep't of Children & Families v. T.B., 207 N.J.294, 309 (2011)). For example, in E.D.-O., the Court rejected a "categorical rule" that leaving a child in a motor vehicle for any length of time automatically constituted abuse or neglect. Id.at 192-93.

Our decisions have likewise eschewed a categorical approach to cases involving the mixture of drugs and parenting. We recognize that a parent's use of drugs while caring for an infant puts the infant at risk at "the slightest parental misstep." SeeN.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). However, proof of a parent's drug use by itself was not enough to sustain a finding of abuse or neglect in V.T., where a parent used drugs prior to his visits with an eleven-year-old child. Ibid. We held that a father's use of cocaine and marijuana and failure to complete drug treatment did not "inherently create[] a substantial risk of harm" to the child. Id.at 330. "[A] failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." Id.at 331. We noted there was no expert proof showing how the father's drug use posed a risk of harm to the child. Ibid.

We reached a similar conclusion in New Jersey Division of Child Protection & Permanency v. R.W., 438 N.J. Super.462, 468-70 (App. Div. 2014), where we reversed a finding of abuse or neglect that was based solely on the mother's use of marijuana on one occasion while the child was in her care. We noted the absence of detailed proof regarding the "circumstances of her ingestion," whether "the baby was solely in her mother's care when she was intoxicated," and "the magnitude, duration, or impact" of the intoxication. Id.at 470. "Instead of filling in missing information, an understandable response by judges who regularly witness the evils inflicted on children by their parents' drug use, judges must engage in a fact-sensitive analysis turning on 'particularized evidence.'" Ibid.(quoting A.L., supra, 213 N.J.at 28).

In A.L., supra, a newborn tested positive for cocaine after delivery as a result of his mother's prenatal cocaine use. 213 N.J.at 9-10. The Court noted that the newborn did not experience any complications and held that the presence of cocaine, "without more, does not establish proof of imminent danger or substantial risk of harm." Id.at 27-28. The Court recognized that "[p]roof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant" to the issue of imminent danger or substantial risk of harm. Id.at 23. However, "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect[.]" Ibid.

A court must also be mindful of the standard-of-care language in the governing statute. Proof of imminent danger or significant risk is not enough. "The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A.9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J.165, 181 (2014). "Whether a parent exercised a minimum degree of care must be analyzed in light of the dangers and risks associated with the situation." Id.at 184 (internal quotation marks and citation omitted).

In Y.N., a mother's newborn suffered from neonatal abstinence syndrome as the result of the mother's participation in a methadone program. Id.at 170. The Court concluded that proof that the child was born suffering from an actual impairment was insufficient by itself to establish abuse or neglect, without proof of parental fault. Id.at 183-84. Parental fault was not established where the child's impairment resulted from the mother's participation in a medically prescribed methadone maintenance program, and no other evidence of parental fault was presented. Id.at 183-86.

Applying these principles, we are persuaded that the Division's proofs fell short under the circumstances presented in this case. Defendant's admission that she used heroin and drank alcohol did not establish that she did so while she was responsible for the children's care. Instead, defendant stated the children were at their grandparents' home for the weekend. Thus, accepting the truth of defendant's undisputed statement to the worker's supervisor, she attempted to avoid mixing drug use and parenting.

Nor did the Division present expert testimony to describe defendant's level of use, or connect defendant's level of use with impairment. We therefore find insufficient evidence for the court's determination that defendant placed the children in harm's way because she could have "overdose[d] and die[d] in front of the children" or caused a fire. SeeE.D.-O., supra, 223 N.J.at 183 ("the standard is not whether some potential for harm exists") (quoting N.J. Div. of Youth & Family Services v. J.L., 410 N.J. Super.159, 168 (App. Div. 2009)); A.L., supra, 213 N.J.at 28 ("Judges . . . cannot fill in missing information on their own or take judicial notice of harm.").

Even if the Division had proved the children were present when defendant was impaired, that would not suffice. The Division did not elicit any evidence regarding how the children's physical, mental or emotional condition might have been affected by defendant's alleged drug use. SeeA.L., supra, 213 N.J.at 330 (stating that a parent's drug use, standing alone, is not enough to sustain a finding of abuse or neglect). In sum, the Division failed to present sufficient, credible evidence that the children were in imminent danger or at a significant risk of harm as a result of defendant's failure to exercise a minimum degree of care.

Our decision should not be understood to condone defendant's use of drugs. However, because the evidence was insufficient to establish abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b), we are constrained to reverse the trial court's decision and order the Division to remove the April 9, 2014 incident from defendant's existing entry in the Central Registry.

Reversed.

1 We use initials and fictitious names to protect the family's privacy.

2 This order became appealable as of right after the trial court entered a final order on March 2, 2015, returning legal custody of the children to defendant and dismissing the litigation.

3 The two children have the same initials.

4 Defendant's husband died in October 2012 and was not involved in the litigation leading to the present appeal. Defendant also has two older children who were not involved in this case.

5 On April 9, 2014, a Division service provider drove defendant to and from the Division's office. The children remained at home in the care of defendant's friend.