NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. H.G.

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NOT FOR PUBLICATION WITHOUT THE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-04639-14T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

H.G.,

Defendant-Appellant,

and

F.C.,

Defendant.

-

IN THE MATTER OF K.G., a minor.

November 14, 2016

Argued September 29, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-156-13.

Ifeoma A. Odunlami, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Odunlami, on the briefs).

Steven J. Klein, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kelly Levy, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant H.G. appeals1 from a January 25, 2013 Family Part order finding her homelessness and drug use caused her to abuse or neglect her fifteen-year-old son, K.G. (Kevin).2 We affirm.

I.

The New Jersey Division of Child Protection and Permanency3 (Division) first became involved with defendant and Kevin on February 9, 2012, when the Division received a welfare assessment concerning Kevin. Because the report noted Kevin had behavioral issues and defendant suffered from mental illness, the Division assisted them in obtaining treatment.

The events of this case arose on October 1, 2012, when the Division received a referral from the Verona Police Department expressing concern for Kevin, who was at the precinct station with no parent to care for him. The Verona Police had received a call from defendant's aunt, J.M., who reported defendant appeared at her office with Kevin and became disruptive. J.M. reported defendant was a drug user and was having a "panic attack." At the time, defendant and Kevin were homeless. Defendant was subsequently admitted to Mountainside Hospital in Glen Ridge, leaving Kevin alone. Police believed defendant was "detoxing" from methamphetamine.

According to the police, J.M. was related to defendant and Kevin, but she refused to care for Kevin due to her own family issues and because Kevin had a prior juvenile incident. J.M. also stated she had been financially supporting defendant for a year, but she would no longer continue to do so. J.M. further stated defendant's family refused to deal with defendant because she had previously stolen from them to support her drug habit.

Division caseworkers also interviewed Kevin at the Verona Police station. Kevin stated he and his mother had traveled to Verona to ask J.M. for help after they were forced to leave a friend's house where they had been staying. The workers asked Kevin if his mother used drugs, and he responded he believed she used them, but he had never personally observed her doing so. He also overheard his mother talking about using and obtaining drugs with friends over the phone, but he did not specify which drugs she discussed.

Division caseworkers then travelled to Mountainside Hospital to meet with defendant. The attending physician told the Division defendant admitted to previously using drugs, and he believed defendant's current condition could be due to a combination of drugs and anxiety. However, blood test results remained pending.

The workers then interviewed defendant, who stated she was homeless and had gone to J.M. hoping she might give her and Kevin a place to stay. When J.M. refused, defendant became hysterical.

Defendant further stated she had a drug problem in the past and had recently used "meth," but was unclear when she last used drugs. Defendant also appeared agitated, unfocused, and jittery, repeatedly sitting up and laying down every few minutes. She also had scratched herself all over her face.

Defendant said she and Kevin had been living in Montclair but had to leave because she could not pay the rent. They moved to Levittown, Pennsylvania, but were forced to leave when defendant lost the apartment. They next went to temporarily stay with a friend in Little Falls, but had to leave because defendant could not give her friend any money to stay. After that, defendant tried to get an apartment in East Orange; when that attempt failed, she asked J.M. for help.

Defendant further stated none of her family members were willing to help her or Kevin. Defendant mentioned her father lived in Lakewood, but he would not let Kevin stay with him. She also noted she has a five-year-old son with another man, but he refused to help because Kevin is not his biological child. Kevin noted during his interview he did not know the whereabouts of his own father.

Based upon its investigation, the Division served defendant with a notice of emergency removal without court order. On October 3, 2012, the Division filed a verified complaint seeking an order placing Kevin in the custody and supervision of the Division. The Division's complaint alleged defendant admitted she was homeless and had recently used methamphetamine. On that date, the court granted the Division custody of Kevin, finding removal was required to avoid an ongoing risk to Kevin's health and safety. The Division placed Kevin at a children's shelter in Newark.

After the hearing, the Division served defendant at the hospital with a verified complaint and order to show cause. The caseworker asked defendant if she had any resources or a plan upon her discharge, and she said she did not. Defendant also stated she had been terminated from the temporary rental assistance (TRA) program in Passaic County once she was discovered living in Essex County. She was encouraged to go back to Essex County and try to find housing upon discharge from the hospital.

Upon completing its investigation, the Division concluded defendant was "actively drug involved." The Division further concluded defendant and Kevin were homeless, and defendant was unable to provide a safe environment for him.

Upon her discharge from the hospital on October 19, 2012, defendant planned to go to the welfare office to seek inpatient drug treatment. Defendant was placed in a program at the Real House in Montclair. During this time, Kevin was moved to another temporary shelter in Newark, while awaiting a more permanent placement.

A December 28, 2012 substance abuse report from Real House indicated defendant tested positive for methamphetamine on December 13, 2012. The report further stated defendant refused to provide a urine sample for testing on December 21, 2012.

The court conducted a Title 9 fact-finding hearing on January 25, 2013. Defendant did not attend the hearing, and her whereabouts at the time were unknown. Without objection, the Division introduced into evidence its screening summary, SPRU (special response unit) summary, and investigation summary, along with the December 28, 2012 substance abuse report.

The court then heard testimony from Division caseworker Charles Baker of the SPRU. Baker was one of the Division workers who responded to the referral from Verona Police and interviewed Kevin at the station. Later the same day, he also interviewed defendant at the hospital. Baker testified to the facts already summarized. In addition, Baker testified police escorted Kevin to defendant's car so Kevin could gather his belongings and clothes. Baker observed Kevin and defendant kept all their belongings in the car, including clothes, a television, and a computer. He also noted Kevin had a calm demeanor, but stated Kevin expressed concern over how long he would remain in placement.

Following this testimony, the court made its factual determinations. Considering the Division's documentary evidence and the caseworker's testimony, the court first noted, at the time of Kevin's removal from her custody, defendant (1) had acknowledged recently using methamphetamine, and (2) her physical appearance, agitated demeanor, and the police reports corroborated the recent use of an illegal substance. The court also reviewed defendant's living situation, noting she and Kevin had to leave the friend's home in Little Falls because defendant was unemployed and was unable to pay the friend to stay. The court further found Baker's testimony corroborated defendant and Kevin were homeless at the time of the incident. The court also referenced the substance abuse report indicating defendant had tested positive for methamphetamine on December 13, 2012.

On this basis, the court found defendant was unable to provide adequate shelter for Kevin, pursuant to Title 9, as both defendant and Kevin were homeless "and living out of a vehicle" on October 1, 2012. Furthermore, noting defendant's admitted use of "meth," the court found defendant was "most likely" under the influence of drugs on the same date, creating "a substantial risk of harm to [Kevin]." Based on these findings, the court concluded the Division demonstrated defendant abused or neglected Kevin by a preponderance of the evidence.

The Division and Family Part remained involved with defendant and Kevin over the next two years. Upon Kevin turning eighteen in April 2015, the court transferred legal and physical custody to Kevin and dismissed the case. Thereafter, defendant filed a notice of appeal from the court's fact-finding order.

II.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). In our review, we defer to the trial court's findings because of the judge's ability to examine witnesses and develop a "feel of the case," which cannot be experienced by reviewing the record. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (citations omitted). We further defer to determinations based on supported factual findings "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Id. at 343 (alteration in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

The focus in abuse and neglect cases is to protect children who have been abused or are at risk of being harmed. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18, 22 (2013). Under Title 9, an abused or neglected child is defined as

[A] child less than 18 years of age . . . 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 (a) in supplying the child with adequate . . . shelter . . . though financially able to do so or through offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .

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

If there is no actual harm, a "finding of abuse and neglect can be based" on proof, by a preponderance of the evidence, of imminent danger or substantial risk of harm. A.L., supra, 213 N.J. at 23. A court does not have to wait until a child is "irreparably impaired by parental inattention or neglect" before it acts. Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). In addition, several acts analyzed together can be viewed as causing a "substantial" risk of harm. Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div.) (citations omitted), adhered to on reconsideration, 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).

In her appeal, defendant argues there was insufficient evidence supporting the trial court's conclusion of abuse or neglect. Regarding her drug use, she argues the Division never proved any facts with "particularized evidence" that her substance use caused Kevin harm or substantial risk of harm, arguing any such risk was "purely speculative." We disagree.

We recognize drug addiction alone does not always support a finding of abuse or neglect. This court has held "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time." N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). Our Supreme Court has further warned trial and appellate judges not to take "judicial notice" of harm; instead, fact-finding should be based on "particularized evidence." A.L., supra, 213 N.J. at 28 (citation omitted). Defendant relies on these cases, as well as New Jersey Division of Child Protection & Permanency v. R.W., 438 N.J. Super. 462 (App. Div. 2014), in support of her argument. We consider each case in turn.

In V.T., we reversed the trial court where the defendant father ingested drugs two days before each supervised visit with his child, of whom he did not have custody. V.T., supra, 423 N.J. Super. at 323, 331. The father "behaved appropriately at both visits and demonstrated no indicia of impairment." Ibid. The trial judge still found neglect, reasoning a parent who attends a supervised visit with drugs in his system exposes his child to a substantial risk of harm. Id. at 327-28. We reversed, finding no neglect because the State was unable to demonstrate any risk to the child during these supervised visits stemming from the drug use. Id. at 331-32.

In R.W., we reversed the trial court where a mother admitted to using marijuana on one occasion while accompanied by her infant child. R.W., supra, 438 N.J. Super. at 464-65. During the fact-finding hearing on abuse or neglect, the Division relied solely on its contention the mother in question "was using substances while caring for the child." Id. at 466. The trial judge found the mother did not properly care for her child because she was under the influence of a controlled substance. Ibid. We reversed, finding the legal conclusion of substantial risk of harm lacked evidentiary support, as the trial court knew nothing of the "magnitude, duration, or impact of [the mother's] intoxication." Id. at 470-71.

In A.L., our Supreme Court found no abuse and neglect where a mother used drugs prior to the birth of her child, but the Division failed to demonstrate any imminent danger to the child. A.L., supra, 213 N.J. at 29-30. Although the defendant, an expectant mother, tested positive for cocaine upon admission to the hospital to give birth, and her newborn's stool toxicology report showed cocaine metabolites in the baby's system, the baby was otherwise healthy. Id. at 26-27. In support of its argument the newborn was at risk of harm, the Division submitted documents showing the presence of "[b]enzoylecgonine" in the baby's system. Id. at 27. However, the Division provided no testimony or other information to demonstrate how and to what degree this chemical posed a risk of harm to the child. Ibid. As such, the Court held "a report noting the presence of cocaine metabolites in meconium, without more, does not establish proof of imminent danger or substantial risk of harm." Id. at 27-28.

The facts in this matter are distinguishable from the cases cited by defendant. Here, we first note defendant admitted recently using drugs at the time of the incident under review, and testimony from the caseworker regarding her agitated behavior in the hospital corroborated her drug use. The attending physician also reported defendant admitted recently using drugs, and stated a combination of drugs and anxiety could have caused defendant's panic attack. Kevin further reported he had heard his mother discussing drugs over the phone in the past. Although defendant correctly notes the record lacks a positive drug test from the hospital, the evidence nevertheless indicates defendant very likely used drugs leading up to the incident triggering the Division's involvement.

We further hold the trial judge was correct in finding a substantial risk of harm to Kevin due to defendant's drug use. Unlike the father in V.T., who was under the influence of drugs during supervised visitation, defendant had sole custody of Kevin and thus was solely responsible for his care and wellbeing. Defendant's drug use likely caused or contributed to her panic attack and subsequent hospitalization, which left Kevin alone at the police station with nowhere else to go and without an adult to care for him. Kevin was subsequently placed into various shelters and group homes while defendant was hospitalized and later sought treatment.

In addition, unlike in R.W., this was not just a one-time drug use, but likely involved repeated use that contributed to defendant's homelessness and nomadic lifestyle. Defendant was using drugs when her and Kevin's living situation was precarious and highly unstable, and according to J.M., defendant's family members refused to take her in because of this drug use. As such, even though Kevin was not an infant or young child, we find the Division presented sufficient evidence of a risk of harm to Kevin due to defendant's conduct. In contrast to A.L., the trial judge here did not take "judicial notice" of this harm.

Defendant also argues the trial judge erred in finding she abused or neglected Kevin by failing to provide adequate shelter. Defendant relies on New Jersey Division of Child Protection & Permanency v. L.W., 435 N.J. Super. 189 (App. Div. 2014) in her reply brief, arguing the trial judge impermissibly failed to make a finding on defendant's "financial capabilities." In L.W., we held that in order to make a finding of abuse and neglect based upon a parent's failure to provide shelter, the court must make a finding the parent had the ability to provide housing, either financially or through social services, and failed to do so. Id. at 195-96.

Here, the court did not make a specific finding that defendant could have provided housing but failed to do so. In our view, however, a finding that defendant had the ability to take steps to avoid her homelessness was implicit in the court's determination of abuse and neglect based upon a failure to provide shelter. We nonetheless exercise original jurisdiction to render our own independent finding based on the record, "giving consideration to the trial judge's having fully credited the evidence presented." State in the Interest of N.L., 69 N.J. 342, 345 (1976); R. 2:10-5.

While the record contains no testimony regarding defendant's financial capabilities, defendant had previously obtained assistance from the TRA program in Passaic County, thus demonstrating her ability to contact agencies when necessary to address her shelter problems. Similarly, upon her release from the hospital, defendant went to the welfare office for help and succeeded in entering an inpatient drug treatment program. In reversing the neglect finding in L.W., we emphasized the defendant mother "sought housing through government agencies[,] [s]he sought employment to no avail[,]" and then did what was in the best interest of her children "by coming to the Division for help instead of subjecting her children to further homelessness." L.W., supra, 435 N.J. Super. at 196. Defendant here chose to stay outside the system by repeatedly imposing her housing situation upon relatives, whose patience defendant finally exhausted.

Defendant also argues the trial judge impermissibly expanded the definition of abuse and neglect in finding defendant did not meet the "minimum degree of care" required by N.J.S.A 9:6-8.21(c)(4). This minimum degree of care is less than a duty of ordinary care; it is something more than ordinary negligence and refers to grossly or wantonly negligent conduct, but not necessarily intentional conduct. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999). Conduct may also be "willful or wanton" if undertaken with reckless disregard for the consequences. Ibid. (citations omitted). A parent's failure to exercise a minimum degree of care is "analyzed in light of the dangers and risks associated with the situation." Id. at 181-82. The trial court is required to "base its findings on the totality of circumstances." V.T., supra, 423 N.J. Super. at 329.

Defendant contends her conduct fell short of gross negligence or recklessness. We disagree. In support of her argument, defendant relies on Department of Children & Families, Division of Youth & Family Services v. T.B., 207 N.J. 294 (2011), and New Jersey Department of Youth & Family Services v. J.L., 410 N.J. Super. 159 (App. Div. 2009). In T.B., the Court held a mother did not meet the gross negligence standard where she accidentally left her child home alone, believing the child's grandmother was at the house because her car was in the driveway and because she was almost always home at that time. T.B., supra, 207 N.J. at 309-10. Similarly, in J.L., we found a mother did not meet this standard by allowing her young children to return home alone, where they accidentally became locked inside the house and had to call the police for help. J.L., supra, 410 N.J. Super. at 161-62, 168.

These cases are distinguishable, as they address specific instances where the question turned on a parent's attentiveness or awareness. Here, defendant used methamphetamine while having the responsibility to care for Kevin, at a time when their living situation was highly unstable. We find these actions demonstrated defendant failed to exercise a minimum degree of care, as she acted with reckless disregard for the consequences of her actions.

Finally, defendant argues the Division failed to establish defendant's conduct amounted to more than mere negligence, and further the trial court erred by failing to specifically apply the facts to the principles in G.S. and T.B. Although not cited by defendant, in New Jersey Division of Youth and Family Services v. S.N.W., 428 N.J. Super. 247, 257-58 (App. Div. 2012), we remanded a case where a mother appeared intoxicated while caring for her children, but it was unclear whether the mother's culpability in taking Xanax exceeded mere negligence. We noted the trial judge erred by failing to make a finding as to the defendant's degree of culpability, stating he should have applied the facts to the principles of G.S. and T.B. S.N.W., supra, 428 N.J. Super. at 257.

While the trial judge here did not make a specific finding regarding defendant's culpability, we decline to reverse on this basis, and instead find defendant's recklessness was implicit in the trial judge's determination. See N.L., supra, 69 N.J. at 345. We further exercise original jurisdiction to render our finding based on the record that defendant acted in a reckless manner. R. 2:10-5.

Affirmed.

1 The child's father, F.C., was named as a party for dispositional purposes only. F.C. did not appear in the litigation and is not part of this appeal. H.G. advised the court she has had a restraining order barring F.C. from having any contact with her and Kevin since 1998.

2 For ease of reference and to protect the identity of the child, we identify him using a fictitious name.

3 The Division's involvement with the family occurred prior to the passage of the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. See L. 2012, c. 16, 20 (amending N.J.S.A. 9:3A-10(b)). To avoid confusion, we refer to the Division by its current name.