DIVISION OF YOUTH AND FAMILY SERVICES v. A.H IN THE MATTER OF R.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1937-10T1

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.H.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF R.W.,

A Minor.

__________________________________

December 9, 2011

Submitted: November 10, 2011 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-90-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth A. Harrigan, Designated Counsel, on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth Cabot, Deputy Attorney General, on the brief).

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

PER CURIAM

A.H. appeals from the Family Part's March 17, 2010 order, following a fact-finding hearing, determining she abused and neglected her infant son R.W. by refusing to provide medical care and sustenance for him, relinquishing responsibility of him, and continuing to abuse drugs. We affirm.

I.

On August 24, 2009, the Division of Youth and Family Service (DYFS) filed an Order to Show Cause for Investigation under N.J.S.A. 30:4C-12, and a Verified Complaint for Investigation, of A.H., the mother, and R.D., the presumed biological father, regarding medical concerns pertaining to their one-month-old son R.W. Judge Bonnie J. Mizdol granted the order orally at a hearing, at which only R.D. was present. Immediately after the hearing, R.D. was arrested on outstanding warrants for motor vehicle violations and R.W. was placed in DYFS' custody pursuant to an emergency Dodd removal.

DYFS promptly filed an Amended Order to Show Cause and a Verified Complaint for Custody and to Appoint a Law Guardian with Temporary Custody, both under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-11.2, seeking temporary custody of R.W. and alleging A.H. and R.D. abused and neglected R.W. Following a hearing, Judge Mizdol granted DYFS legal and physical custody of R.W on August 27, 2009.

A subsequent DNA test established R.D. was not R.W.'s biological father. Accordingly, R.D. was removed from the case. Following a hearing on October 29, 2009, Judge Mizdol entered an order that R.W. was to remain in DYFS' custody and A.H. was to submit to both substance abuse and psychological evaluations.

An abuse and neglect fact-finding hearing was held on March 16 and 17, 2010, before Judge John A. Conte. A.H. was represented by counsel but did not attend. At the conclusion of the hearing, Judge Conte orally found DYFS proved by a preponderance of the evidence that A.H. had abused or neglected R.W. The ruling was memorialized in an order of March 17, 2010.

On October 26, 2010, DYFS filed a guardianship complaint (FG-02-65-11) seeking to terminate A.H.'s parental rights over R.W. and seeking to dismiss the "abuse and neglect" proceedings. By order of October 26, Judge Mizdol granted the request and directed R.W. to remain in the custody of DYFS.

On December 9, 2010, A.H. filed a notice of appeal of both Judge Conte's finding of abuse and neglect of March 17, and Judge Mizdol's dismissal of the FN litigation of October 26.

In a Judgment of Guardianship on May 9, 2011, Judge Conte terminated A.H.'s parental rights to R.W., and A.H. made an identified surrender of her son.

II.

As the challenges asserted in A.H.'s brief relate solely to Judge Conte's order, this opinion will focus on the abuse and neglect fact-finding hearing. Susan Lennon, a DYFS intake supervisor, testified about her involvement with R.W.'s case. The testimony was in accordance with an investigation summary she prepared in her capacity as a case investigator, which was entered into evidence. She explained DYFS first became involved with the family on July 27, 2009, three days after A.H. gave birth to R.W., because of a referral from the Englewood Hospital Pediatric Clinic. The hospital was concerned because the newborn had lost about six ounces, A.H. seemed overwhelmed, and she and R.D. refused to admit their son to the hospital.

Lennon related that she and Kari Ferrare, another DYFS investigator working on R.W.'s case, along with Elmwood Park Police officers, visited R.D.'s home on August 11, 2009 to speak with A.H. and R.D. about R.W. Various observations and discussions with R.D. prompted DYFS to request R.D. submit to a drug test, but he refused. They also discussed R.D.'s diabetic condition and his current prescription medications. A.H. told them about her history with Child Protective Services (CPS) in Pennsylvania, which resulted in her losing parental rights to another child due to unstable housing, and that she had spent six months in jail in Oklahoma for drug-related crimes and six months in jail in Pennsylvania for failure to pay child support. A.H. also disclosed she used crack-cocaine up until she learned she was pregnant with R.W., which was about two-and-one-half months into her pregnancy, and she smoked cigarettes during pregnancy. However, R.W. did not test positive for drugs upon birth. A.H. agreed to submit to a substance abuse evaluation and to comply with any subsequent recommendations made by DYFS.

Ferrare provided corroborating testimony. She described a scheduled meeting she had with R.D. on August 14, 2009, where she met him at his home to check on R.W. and ensure his crib was properly assembled. During this meeting, Ferrare observed R.D. in a state of diabetic shock. Although his condition seemed to improve after he drank a significant amount of root beer, she testified this behavior concerned her as it appeared he was not able to care for himself, "let alone a newborn."

She also explained the "flags" that were raised, causing DYFS' initial concern, such as the newborn's not gaining weight and the information from R.W.'s doctors that A.H. and R.D. had missed two or three of the baby's check-ups. Because of these missed appointments, Ferrare again visited R.D. at his home, but he refused to let her in to see R.W., stating DYFS had no business being there, and "his son was fine." A referral to the Elmwood Park Police Department to conduct a Child Welfare Check revealed that R.W. was safe.

Ferrare also discussed the results of A.H.'s substance abuse evaluation following the August 11 meeting at R.D.'s home. This evaluation concluded A.H. was cocaine-dependent and recommended she complete an intensive outpatient program; however, A.H. did not comply.

According to Lennon's investigation summary, on August 17, 2009, DYFS contacted Englewood Hospital Pediatric Clinic to inquire about R.W.'s weight. Dr. Hyatt, the baby's physician, reported that R.D. and A.H. had recently brought the child in for his scheduled appointment and that the baby had gained 1.2 ounces. Nevertheless, he had recommended R.W. be hospitalized but A.H. and R.D. had refused.

A.H. did not attend the August 24, 2009 hearing on DYFS' Order to Show Cause regarding R.W.'s potential failure to thrive. As Lennon and Ferrare testified at that hearing, and re-iterated at the fact-finding hearing, when they contacted A.H. about the hearing, she informed them she had signed papers giving up her rights to her son to R.D. because she did not want DYFS involved in her life. Lennon elaborated that R.D. had told her that A.H. had done so in a notarized letter and he was now the sole caregiver.1 At the conclusion of the August 24 hearing, R.D. was arrested for two outstanding warrants. Upon being taken into custody R.D. stated, "[l]et me make myself clear; if anybody removes my child, I will shoot them."

Ferrare explained that she then visited R.D.'s aunt's home where the child was temporarily staying while R.D. attended the court proceedings. After learning of the aunt's previous history with DYFS and the criminal history of her son, who was residing with her at the time, DYFS conducted an emergency Dodd removal2 and took temporary custody of R.W. According to Ferrare, after spending only a few days with foster parents, R.W. gained a "significant amount of weight." Ferrare also explicitly stated DYFS did not remove R.W. from R.D.'s care because he was diabetic, but rather because R.D. was arrested and because A.H. had told the agency she did not want to be involved.

Lavar Parker, a DYFS caseworker, testified about A.H.'s drug screens and A.H.'s visits with R.W. while the baby was in foster care. He stated A.H. tested positive for cocaine use in all of her drug screens subsequent to DYFS' involvement. He also explained that A.H.'s visitation rights were suspended because she visited R.W. while she was sick, placing both him and the employees at risk of illness, and she once fell asleep on the floor during a visit. Parker testified that the only time he was able to discuss R.W. with A.H. was when he ran into her at the grocery store, as all other attempts to contact her regarding her son were unsuccessful. During this meeting, A.H. told Parker she did not currently have a permanent residence, but was staying "from place to place." Parker also stated that as of A.H.'s last visit with R.W. in January 2010, she had failed to attend her court-ordered parenting classes, substance abuse treatments, and psychological treatments.

After making findings of fact, credibility assessments, and noting the applicable law, Judge Conte found DYFS had proved by a preponderance of the evidence that A.H. abused and neglected R.W., as defined by N.J.S.A. 9:6-8.21c(4) and c(5). He determined A.H. refused to furnish medical care, shelter, nurturing and sustenance, noting there was no evidence A.H. had ever provided food or clothing to R.W. The judge was satisfied A.H. had exercised "zero degree of care," which was evidenced by her signing a document saying she did not want the child any longer, using drugs after R.W. was born, refusing drug treatment, not seeking shelter for herself, or her child, and refusing to communicate or cooperate with DYFS.

Judge Conte also considered abandonment as a factor in determining abuse and neglect. Though recognizing A.H.'s letter signing away her rights to R.W. was not a legal document, the judge found it evidential of A.H.'s intent to relinquish "her duty, her obligation, her care [and] concern" for him. He further noted that if A.H. had any interest in parenting R.W., she had the means to do so with the assistance of DYFS. Instead, she chose not to cooperate with DYFS or the court, not to avail herself of the programs offered to her, and to continue to use cocaine. Judge Conte found such conduct "evidence[d] an intent to totally disregard any responsibility or rights" regarding R.W. The judge's ruling was memorialized in an order, which is the subject of this appeal.

III.

A.H. challenges the Family Part judge's findings as not supported by substantial credible evidence in the record. We disagree.

Our review of the trial judge's factual finding of abuse is limited. We must defer to the court's determinations
"'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (abuse and neglect case) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (abuse and neglect case). We extend special deference to the Family Part's expertise. Id. at 343; Cesare, supra, 154 N.J. at 413. However, we may disturb the judge's factual findings if they go "so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)).

In pertinent part, the statute defines an "[a]bused or neglected child" as:

(4) or 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 [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his [or her] parent or guardian, as herein defined.

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

A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. In re Guardianship of D.M.H., 161 N.J. 365, 383 (l999). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. M.C. III, supra, 201 N.J. at 344.

A judge must conduct a fact-finding hearing in order to make a determination of abuse and neglect, and such finding must be based on the preponderance of the evidence. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011). Judge Conte properly followed such procedure, and after hearing testimony from three DYFS caseworkers involved in R.W.'s case he specifically stated, "[t]here [was] no question actually the proofs are well-established beyond a fair preponderance of the evidence, well beyond that there this is clearly a case of abuse and neglect."

A.H. argues DYFS failed to meet its obligations to assist her once R.W. was removed from her care because the agency did not attempt to help find her housing. She points to N.J.S.A. 30:4C-11.1b for the proposition that DYFS should make all reasonable efforts to preserve the family order before accepting a child into its care or custody.

A.H.'s reliance on N.J.S.A. 30:4C-11.1b is misplaced as she is appealing a Title 9 abuse and neglect determination, and her parental rights to R.W. have already been terminated. As A.H. concedes in her brief, she is not asking the court to grant her custody of R.W. Thus her references to reunification and stability of the biological family are inconsequential.

Nevertheless, DYFS made many efforts to attempt to assist A.H. in caring for R.W., and offered her a variety of services, including substance abuse treatment, parenting classes and psychological treatment. A.H. declined all of these services despite being provided transportation by DYFS. When the agency attempted to follow up with A.H. regarding R.W.'s well-being, she was difficult to reach and often did not answer the phone. When A.H. was informed that DYFS had initiated a complaint for investigation based on a concern about the newborn's failure to thrive, she signed a letter giving sole caretaking rights to the child to R.D., chose not to attend the hearing, and requested DYFS leave her alone.

A.H. also contends DYFS' failure to make reasonable efforts to assist her with housing violated her due process rights. This claim is not only unfounded, but is inappropriately raised for the first time in A.H.'s reply brief, and therefore warrants no further discussion. Borough of Berlin v. Remington & Vernick Eng'rs., 337 N.J. Super. 590, 596 (App. Div.) (noting that using a reply brief to raise new arguments is improper), certif. denied, 168 N.J. 294 (2001).

While A.H. correctly asserts that poverty alone is not a basis on which a court can find abuse and neglect, Judge Conte was clear in stating he reached his decision based on the totality of the circumstances, including A.H.'s lack of housing, previous incarcerations, and her seeming lack of concern for R.W. In finding abuse and neglect, the judge also placed substantial weight on A.H.'s continued drug use and failure to seek help for her substance abuse.

A.H. challenges this reliance on her drug use, arguing it had no impact on her ability to care for R.W. She also emphasizes the testimony establishing that R.W. was not born with drugs in his system. A.H. argues a mother's decision to use drugs during her pregnancy is an insufficient basis for a finding of abuse and neglect unless there is some accompanying harm, citing New Jersey Division of Youth and Family Services v. L.V., 382 N.J. Super. 582, 590 (Ch. Div. 2005). However, L.V. pertained to a mother's decision "as to what medications she will take during her pregnancy, (as compared to controlled dangerous substances)," and holds that DYFS cannot interfere with a woman's constitutional rights to make medical decisions during pregnancy. Id. at 591 (emphasis added).

Our Supreme Court has noted that drug use, by itself, does not constitute harm and neglect to a child. In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999). Rather it is the harm accompanying a mother's decision to use alcohol or narcotics during pregnancy, such as when a child is born addicted to drugs or suffers the symptoms of withdrawal at birth, that constitutes the harm that endangers a child's health and development. Id. at 349-50.

A court does not have to wait until a child is actually harmed before taking action. D.M.H., supra, 161 N.J. at 383. Thus, it is of no moment that A.H. did not use drugs around the baby. A.H. had a history of substance abuse that resulted in her serving a six-month jail term in Oklahoma, and she used drugs during the first two months of her pregnancy. After R.W. was born and removed from her care, A.H. went back to using drugs, as evidenced by three drug screens entered into evidence that tested positive for cocaine. She ignored court-ordered substance abuse treatment and refused to participate in any of the programs offered by DYFS. As Judge Conte astutely noted, "[t]here was a question of whether . . . [A.H.] was appropriately caring for the child . . . [i]f she wanted to retain her interest or right to [R.W.], she would have stopped using drugs and gotten the treatment that was offered to her by [DYFS], but she didn't."

A.H. further contends the judge erred in finding medical neglect as such determination was not supported by facts and thus she was not properly on notice to defend herself against such allegation. See P.W.R., supra, 205 N.J. at 21. In P.W.R., the Court held DYFS' inability to demonstrate proof of any physical condition other than possible pregnancy and falling behind in check-ups for braces, did not prove the parents' conduct rose to the level of medical neglect. Id. at 38. We are satisfied the testimony of DYFS employees established that A.H. missed medical appointments and failed to adhere to physicians' suggestions regarding R.W.'s weight loss, which provided credible evidence of medical neglect. Standing alone, this would not have constituted abuse and neglect under the statute; however, it can be considered as part of the totality of the circumstances for such a finding.

A.H. views her relinquishment of daily control to R.D. as responsible because he was someone she trusted and she felt R.W. would be well cared for under his custody. This is not, as A.H. contends, equivalent to placing a child in foster care when a parent is unable to provide stable housing. See In re Guardianship of K.L.F., 129 N.J. 32, 35 (1992). First, foster homes are those that are licensed or approved by DYFS. N.J.S.A. 30:4C 27.6. Furthermore, not only was R.D. not an approved caretaker, but A.H. relinquished control to a man who was not the child's father, had a criminal history, was argumentative, and showed an inability to care for his own diabetic condition. R.D. also refused to cooperate with DYFS and threatened both DYFS workers and the court by stating, "if anyone takes my child, I will shoot them."

A.H. challenges the judge's finding that she abandoned R.W. when she relinquished control of her son to R.D. She claims her decision to leave R.W. with R.D. would allow her to maintain a parental relationship with the child and was only meant to be temporary.

As emphasized by Judge Conte, the record belies this assertion. A.H. made no effort to maintain a parental relationship with R.W. She told Ferrare she signed her legal and physical rights to R.W. over to R.D. so DYFS would leave her alone. A.H. clearly demonstrated lack of concern for R.W. by choosing not to attend the investigative hearing and her own fact-finding hearing on the abuse and neglect claims. She sporadically visited R.W. and her visitation rights were terminated in January 2010 as a result of her inappropriate behavior during visitation and her continued positive testing for cocaine. A.H. has since executed a voluntary surrender of her parental rights and a judgment of guardianship has been entered.

A.H. further argues the judge placed too much weight on her prior CPS action. We disagree. Because Judge Conte admitted he did not know the facts of A.H.'s prior CPS case, he could not find it was so closely connected to R.W.'s case as to prove abuse and neglect. He only found it was a factor he could consider. It is clear from the ample record supporting the finding of abuse and neglect that the prior case was given insignificant weight.

A

1 This letter is not part of the record and was not entered into evidence during the fact-finding hearing as DYFS alleged R.D. refused to produce a copy.

2 A Dodd removal refers to the emergency removal of child from the home without a court order pursuant to N.J.S.A. 9:6-8.21 to - 8.82, as amended. The legislation was authored by former state senator, Frank J. "Pat" Dodd in 1974.