DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.E.S.

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NOT FOR PUBLICATION WITHOUT THE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.

D.E.S.,

Defendant-Appellant.

_________________________________________________

IN THE MATTER OF S.K.,

A Minor.

_________________________________________________

April 25, 2017

Submitted January 31, 2017 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0104-13.

Joseph E. Krakora, Public Defender, attorney forappellant (FabiolaRuiz-Doolan, Designated Counsel, on the briefs).

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

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

PER CURIAM

Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part judge entered an order finding defendant, D.E.S., had abused or neglected her daughter, S.K. (Sally). The judge's stated reasons as contained in the order were

[Defendant] was [u]nable to remediate her substance abuse problems placing the child in imminent risk of harm. At the time of the child's removal, [defendant's] criminal case for endangering the welfare of her twin children was still pending and she had not yet remediated the conditions that led to the placement of those children and had not yet resumed custody of those children. In addition, the court takes into account that [defendant's] parental rights to her two oldest children were terminated by this court on [January 5, 2011].

The court's subsequent order entered more than two years later terminated the litigation and returned Sally to her mother's custody. This appeal of the fact-finding order followed.

Defendant argues the Division of Child Protection and Permanency (the Division) failed to demonstrate she actually harmed Sally or placed her at substantial risk of imminent harm, and the trial court relied upon inadmissible hearsay evidence in making its findings and conclusions. The Division and Sally's Law Guardian urge us to affirm, arguing the Division proved by a preponderance of "competent, material and relevant evidence" defendant abused or neglected her daughter. N.J.S.A. 9:6-8.46(b)(2).

Having considered these arguments, in light of the record and applicable legal standards, we reverse.

I.

Defendant gave birth to Sally on January 12, 2013. The hospital notified the Division, advising that defendant had been diagnosed with depression and had a history of "cutting" and cocaine use.

The Division was familiar with defendant. In 2011, the Family Part terminated defendant's parental rights to two of her children, O.H. and D.H. In August 2012, the Division filed a verified complaint seeking the care, custody and supervision of defendant's twin children, R.S. and S.S., who were born in November 2011. In December 2012, defendant stipulated to a finding of abuse and neglect with respect to the twins. When Sally was born, that action was still pending.

On January 15, 2013, the Division removed Sally from the hospital on an emergent basis. The court granted the Division temporary care, custody and supervision of the baby on January 17. During the ensuing weeks prior to the fact-finding hearing in May, defendant complied with the services provided by the Division, including in-patient substance abuse counseling.

The Division called only one witness at the fact-finding hearing, Marxlenin Burgos-Zajac, a permanency worker assigned to defendant's family. She testified regarding the termination of defendant's parental rights to her two older children, and the placement of the twins with their biological father. Burgos-Zajac also testified that defendant had left the twins, eight-months-old at the time, home alone for ten to twelve hours in August 2012. She also testified that, when she met with defendant in jail shortly after the twins' removal, defendant was pregnant with Sally and admitted having relapsed on cocaine.

Burgos-Zajac identified two Division screening summaries, both admitted into evidence at the fact-finding hearing. The January 2013 report indicated that, when Sally was born, defendant's drug test was negative, but Sally had not yet been tested. Defendant had received limited pre-natal care, and Sally was of normal weight and gestational age. Burgos-Zajac testified at the hearing that both defendant and Sally "did not test positive" at the hospital.

The other screening report, from December 10, 2012, elicited significant debate and objection from defense counsel at the hearing. Ostensibly, the report detailed a call made to the Division when defendant appeared at a hospital stating she was "homeless" and "feeling suicidal." Defendant was pregnant, tested positive for cocaine and appeared "to be having active withdrawal symptoms."

Defense counsel objected on hearsay grounds. Without making a ruling, the judge permitted the testimony to continue. Burgos-Zajac stated that after the December 2012 referral, she spoke to defendant who admitted she had relapsed into cocaine use after being released from jail in October.

On cross-examination, however, Burgos-Zajac acknowledged defendant was "doing good on her own . . . trying to find" a substance abuse program that would accept her upon her release from jail. However, "because she was pregnant and almost due with [Sally], no substance abuse treatment [program] w[ould] take her in until the baby was born."

Burgos-Zajac also acknowledged that during her pregnancy with her twins, defendant continuously tested negative for drug use, and upon their birth, the twins tested negative. Defendant tested negative for drugs in November 2012, shortly before Sally's birth. Additionally, Burgos-Zajac testified defendant had contacted Mommy and Me, a substance abuse program recommended by the Division, before Sally was born, and was prepared to enter the program, which had available space. Burgos-Zajac also acknowledged the Division never recommended defendant to any outpatient substance abuse program during her pregnancy.

In rendering his oral opinion, the judge succinctly stated the reasons for the Division's decision to remove Sally directly from the hospital: "[defendant's] prior history with the Division," which includes "a prior termination of parental rights, a substance abuse history, [and] criminal charges that were still pending in regard to the removal of her . . . twins back in . . . August of 2012." The judge considered the evidence in light of the then-recently decided New Jersey Department of Children and Families v. A.L., 213 N.J. 1 (2013).

The judge acknowledged defendant and Sally were both "drug free" when the child was removed in January 2013, and Sally was born without "withdrawal symptoms." However, he noted defendant's history of drug abuse. The judge stated his "biggest concern" was that when the twins were removed in August 2012, "they were not returned to [defendant] by the time that this child was born." The judge, who was familiar with that litigation, explained, "not that [defendant] did anything wrong, but she had not done everything apparently at that point to justify the return of the . . . twins to her." The judge concluded the Division had met its burden of proof, finding Sally "would have been placed in imminent risk i[f] not removed."

II.

We "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[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.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). When the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).

"In general, 'Title 9 controls the adjudication of abuse and neglect cases.'" Dep't. of Children and Families, Div. of Child Prot. and Permanency v. E.D.-O., 223 N.J. 166, 177 (2015) (quoting M.C. III, supra, 201 N.J. at 343). Title Nine defines an "abused or neglected child" as one under the age of 18 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).]

"The statute makes clear that parental fault is an essential element for a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. and Perm. v. Y.N., 220 N.J. 165, 180 (2014).

"The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-8.8). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." E.D.-O., supra, 223 N.J. at 178 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "However, when there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." Ibid. (citing N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013)). "Under those circumstances, 'the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.'" Ibid. (quoting A.L., supra, 213 N.J. at 22).

In this case, the facts relied upon by the judge were not in significant dispute. Rather, the sole issue was whether those facts demonstrated by a preponderance of evidence that on January 15, 2013, defendant's past actions placed Sally in imminent danger or a substantial risk of harm.

In A.L., the defendant tested positive for marijuana during the course of her pregnancy, and both she and the child tested positive for cocaine on the day of birth. 213 N.J. at 9-10. She denied using drugs and offered possible explanations for these findings. Id. at 10-11. After concluding the Division failed to show actual harm to the child, the Court considered whether the defendant's drug use was sufficient to establish imminent danger to the child or posed a substantial risk of harm. Id. at 23. The Court stated

Proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to that issue. But not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the statute. The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone.

[Ibid.]

The Division and the Law Guardian seek to distinguish A.L. by arguing, as they did at the fact-finding hearing, that defendant's substance abuse was not infrequent or sporadic, but rather intransigent and marked by repeated relapses. However, there was no evidence of drug use at the time of Sally's birth and the Division admitted defendant's drug screens during the pregnancy of her twins were negative. The August and December 2012 referrals resulted in defendant admitting to having used cocaine, but the drug screen performed in November 2012 was also negative. Undoubtedly, defendant was in need of services and, like so many others in her circumstances, her relapses demonstrated the intractable nature of her disease.

The judge placed great emphasis upon the fact that the twin children had not been "returned" to defendant between their removal in August 2012, and January 2013, when Sally was born. The fact-finding order provided defendant "had not yet remediated the conditions that led to the placement of those children and had not yet resumed custody of those children." However, the fact that defendant had not regained custody of the twins in less than five months provides no support for the conclusion that Sally was in imminent danger or faced substantial risk of harm.

First, as a result of the circumstances that led to the August 2012 removal, defendant was incarcerated until October. Second, defendant's advanced pregnancy thwarted any effort she made to comply with the Division's recommendation that she attend inpatient substance abuse treatment. Third, the Division admitted it offered no substance abuse services to defendant on an outpatient basis during this time. Defendant's failure to regain custody of her twins in four months was not evidence that Sally faced imminent danger or substantial risk of harm, nor, under the circumstances, was it proof that defendant willingly failed to address her substance abuse. Further, the Division's acknowledgment that an available in-patient treatment program, Mommy and Me, was ready to place defendant at the end of her pregnancy rebutted any proof of the risk of imminent harm to Sally upon leaving the hospital.

We commend the Division's recognition that Sally's birth would only heighten the need for services to defendant and continued vigilance, given defendant's prior history, and we suggest no criticism by this decision. However, "the Legislature intended N.J.S.A. 30:4C-12 to authorize the Division to intervene when children need services and a parent cannot provide that help for no fault-based reason." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 15, cert. denied, ____ U.S. ____, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). "N.J.S.A. 30:4C-12 allows for 'intervention by the Division . . . to protect a child who, although not abused or neglected, is in need of services to ensure its health and safety.'" A.L., supra, 213 N.J. at 19 (citation omitted).

The Court has made clear there need not "be the equivalent of Title 9 abuse or neglect level of culpability on the part of the parent in order to file a complaint under Section 12." I.S., supra, 214 N.J. at 35-36. "Imposing a fault-based finding in respect of a parent or parents would impede the apparent legislative intent to facilitate services to children in need . . . ." Id. at 36.

We conclude the Division's proof of abuse and neglect at the fact-finding hearing was insufficient. We therefore reverse the order under review, and order the removal of defendant's name from the Central Registry with respect to this incident.1

Reversed.

1 In light of our conclusion, we need not consider defendant's evidentiary challenge.