NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.Q and R.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3845-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.Q.,

Defendant,

and

R.H.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF: D.H., a minor.

__________________________________

January 24, 2011

Submitted December 1, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-76-10.

Yvonne Smith Segars, Public Defender, attorney for appellant R.H. (Alan I. Smith, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor D.H. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.H. is the husband of L.Q. and they are the parents of D.H. Defendant R.H. appeals from a March 11, 2010 order of the Family Part, entered after an abuse and neglect hearing in which the court determined R.H. had placed D.H. at risk of harm. The order dismissed the Title 9 abuse and neglect complaint and ordered D.H. and L.Q. to show cause why their parental rights should not be terminated and their child, D.H., committed to the guardianship and control of the New Jersey Division of Youth and Family Services (the Division or DYFS). We affirm.

I

The Division first became involved with L.Q. on March 5, 2008, after receiving an anonymous call that she was four months pregnant, had been using crack cocaine for five years, and had psychiatric problems. In response, a Division screening worker interviewed L.Q. and her parents, with whom she lived. The Division referred L.Q. for appropriate evaluations and treatment, and notified area hospitals to contact the Division when L.Q.'s child was born.

On the day D.H. was born, a hospital employee contacted the Division and reported L.Q. had tested negative for substances, but had previously tested positive for crack cocaine during two prenatal visits. The hospital also reported that L.Q. suffered from bipolar disorder.

A DYFS intake worker, Karil Ferrare, responded to the call and went to the hospital, where R.H. and L.Q.'s parents were also present. After interviewing L.Q. and her parents, Ferrare explained that the Division proposed a safety plan to have the grandparents supervise L.Q.'s contact with the baby until L.Q. began treatment. All present, including, R.H., agreed to this arrangement. However, the plan changed after Ferrare received additional information during her continuing investigation.

On August 14, 2008, the Division filed an order to show cause for care and supervision of D.H. It is noteworthy that DYFS did not seek to gain legal custody of D.H. at this time. Defendant R.H. appeared with counsel and reserved his right to contest the verified complaint's allegations at a fact-finding hearing, but did not oppose the interim relief DYFS sought. After taking testimony from Ferrare, the court found sufficient grounds to warrant the Division's intervention, and approved a plan for D.H. to reside with L.Q. at her parents' home, but required L.Q. to be supervised by one of her parents whenever she was with the baby. The court also restrained R.H. from the home and ordered that his supervised visitation take place at the DYFS office.

Based on information received after the August 14, 2008 hearing, the Division decided that an emergency removal of D.H. was needed. On September 5, 2008, the Division filed an "Order to Show Cause and to Appoint a Law Guardian with Temporary Custody for D.H." The court entered an order making D.H. a ward of the court; placing D.H. in the custody, care, and supervision of the Division; directing L.Q. and R.H. to show cause why an order should not be entered continuing D.H. in the care of the Division and in the physical custody of L.Q.'s parents; restraining L.Q. and R.H. from the home of the grandparents; providing for supervised visitation at the Division office; and directing L.Q. and R.H. to show cause why they should not be ordered to undergo psychological and psychiatric evaluations and to submit to urine screens. On September 23, 2008, a "Return Order to Show Cause" hearing was conducted and the court entered an order continuing physical custody of D.H. with the maternal grandparents, providing for supervised visitation, requiring L.Q. and R.H. to undergo psychological, psychiatric and substance abuse evaluation, and restraining L.Q. and R.H. from the grandparents' home.

Thereafter, the court issued various compliance review orders which included requirements that L.Q. and R.H. attend psychological and psychiatric evaluations and substance abuse treatment programs. On December 23, 2008, L.Q. waived a fact-finding hearing and admitted to using cocaine while caring for D.H., thereby putting him at risk. On July 28, September 16, and October 8, 2009, the court conducted a fact-finding hearing. Two Division workers and R.H. testified at the hearing. Four exhibits were admitted into evidence: two DYFS investigation reports and two lab reports.

Caseworker Ferrare interviewed L.Q. in the hospital on the day of D.H.'s birth. The interview was conducted outside of the presence of L.Q.'s husband and her parents. According to Ferrare, L.Q. lived with R.H. at her parents' home, was bipolar, and had used crack cocaine in the past, but had not used it in at least three months. L.Q. met R.H. at a clinic in 2006 and they married in May 2008. They intended to live with her parents and have her mother help care for D.H. Ferrare also learned that L.Q. had not completed a drug program DYFS had recommended during her pregnancy.

Ferrare also testified that R.H. was interviewed by DYFS investigator Quesi Ithier while they were in the hospital. When questioned about alcohol abuse, R.H. said he started drinking after breaking his femur and had been arrested for driving under the influence five years earlier, but currently had no substance abuse issue. In the past he used alcohol and occasionally cocaine, but had been clean and sober for one and one-half years. He met L.Q. in 2006 in a clinic where he underwent electro-shock therapy for depression. He was not currently taking any medication for this illness.

On the morning of August 12, 2008, Ferrare interviewed the maternal grandparents about responsibility for supervision and did a home assessment to assure that D.H.'s basic needs were being provided. Ferrare also spoke to L.Q. and R.H. about police reports from 2008 that documented two responses to the home where L.Q. and R.H. lived: one involving L.Q. allegedly being slapped in the face by R.H., the other involving an alleged suicide attempt by L.Q. When she spoke to L.Q. and R.H. on the morning of August 12, 2008, both adamantly denied that R.H. struck L.Q. in the face. L.Q. characterized her incident as a "cry for help."

Based on her investigation and review of the case with her supervisor, Ferrare decided to implement a safety plan that required contact between the parents and D.H. be supervised by the maternal grandparents.

Later that afternoon, accompanied by DYFS investigator Ithier, Ferrare returned to the hospital in response to a report that R.H. had alcohol on his breath, was being belligerent, and was threatening to take the baby from the hospital. When Ferrare and Ithier arrived, R.H. was in L.Q.'s hospital bed and the maternal grandmother was holding the baby. When Ferrare attempted to speak with R.H., he became angry and belligerent and began yelling at her. She thought she smelled alcohol but was not certain. Nevertheless, she believed that R.H. was under the influence of alcohol. Ferrare, Ithier, and R.H. went to another room where R.H. continued to be belligerent and would not let the Division workers finish their questions. R.H. characterized Ms. Ferrare's presence at the hospital as ridiculous, refused to answer their questions, and eventually left the hospital.

Ithier also testified about this incident with R.H. at the hospital. He spoke to nurses who said R.H. had been screaming, yelling, and causing a scene, but security did not need to be called. He entered L.Q.'s room where the maternal grandparents and a maternal uncle were present. He asked R.H. to accompany him to another room. He observed that R.H. was a bit disheveled, his hair was a little messy, his eyes were a bit glazy, and he had a strong smell of alcohol. Ithier was of the opinion that R.H. was under the influence of alcohol.

When they arrived in the other room, R.H. was angry, borderline belligerent, and would not allow Ithier to finish his line of questioning. R.H. was also very defensive. When Ithier instructed R.H. to breathe into his face, R.H. initially declined to do so. After being redirected to do so, R.H. breathed into Ithier's face, causing Ithier to conclude that R.H. had consumed alcohol and was intoxicated. R.H. became angry and left the hospital. Although Ithier tried to calm him down, R.H. wanted "no part of the Division at that time."

Ithier learned that R.H. lived with the baby's maternal grandmother, where L.Q. also lived during her pregnancy, and R.H. intended to return to the maternal grandmother's home with L.Q. and the baby. Ithier was concerned about R.H.'s unfettered access to the child both in the hospital and at home after the family left the hospital.

R.H. also testified. He met L.Q. in a clinic in 2006 where he was being treated for depression. He had previously been treated for anxiety and trouble sleeping. He attributed the onset of the symptoms to the "9-11" attacks.

In February 2008, R.H. and L.Q. moved into the home of L.Q.'s parents. R.H. intended to help out with expenses, and L.Q.'s mother intended to help L.Q. with her pregnancy and eventually with the baby.

R.H. was present during the birth of D.H. He remained in the hospital for four days to take care of L.Q. and D.H. When Ferrare appeared at the hospital asking him to sign a paper about L.Q.'s mental health, he refused. According to R.H., she returned later in the afternoon and directed him to go with her and Ithier. When he hesitated, Ithier grabbed his arm and "kind of dragged him out of the room" into the hallway. They went to an empty hospital room where R.H. questioned the Division workers about the Division's interests in this case. D.H. testified that the caseworkers told him that if he did not cooperate, DYFS would take the baby immediately.

When they entered the empty room, R.H. was asked to blow into Ithier's face. Ithier asked him if he had been drinking, and he responded, "No." The workers told him to leave, which he did.

On cross-examination, R.H. testified he had been to the clinic approximately three times before meeting his wife. Each time he was diagnosed with depression. The last time he was diagnosed with "bipolar type 2" which he described as an "environmental bipolar." Although he took medication in the past, he testified he was not required to take it presently. He last took the medication in February or March of 2009.

R.H. also testified that he was arrested for driving while intoxicated in 2003 and never had his license restored. In June 2008 he was arrested for narcotics possession. There was cocaine in a car he was driving owned by L.Q.'s family. L.Q. was in the car with him. Although he previously denied possessing the cocaine, he admitted that it was his. He denied smoking crack cocaine with L.Q. after the baby was born.

R.H. also testified that he went to AA meetings and therapy, though he had not been to therapy in two months. He described himself as a "problem drinker," using excessive alcohol to help him sleep when his depression "kick[s] in." His depression "comes and goes." R.H. also admitted to being intoxicated in the courtroom requiring the fact-finding proceeding to be rescheduled.

The trial court rendered a written fact-finding decision in which it found the testimony of the DYFS workers credible. The court concluded DYFS proved by a preponderance of the competent, material and relevant evidence that R.H. placed the child at risk of harm. The court's conclusion was based on R.H. "acting in a violent and aggressive manner while under the influence of alcohol, in the presence and same room as the newborn child, and in a condition wherein he had unfettered access to the child." The trial court further concluded that "[w]ithout the intervention of the Division, the child would have been exposed to an environment which could have significantly affected his health and safety based on the use of drugs and alcohol, and lack of mental health treatment by [R.H.]." Finally, the trial court concluded that given R.H.'s "aggressive and erratic behavior in the presence of his newborn child, and his failure to adequately address his substance abuse issues, the child needed the protection of the Division."

Defendant filed a motion for reconsideration which was denied on February 16, 2010. Meanwhile, on October 29, 2009, the court entered a permanency order approving a three-month extension to determine whether L.Q. and R.H. "can remain sober and provide a safe and stable environment." On January 21, 2010, the court entered a second permanency order that (1) required the Division to file a guardianship complaint within forty-five days, (2) approved the Division's plan for termination of parental rights and adoption by the maternal grandparents, and (3) scheduled a review on March 11, 2009. An order to show cause for guardianship and dismissing the abuse and neglect complaint was filed on March 11, 2010. R.H. filed a notice of appeal on April 23, 2010. L.Q. also filed a notice of appeal on April 23, 2010. An order consolidating the appeals was entered on May 4, 2010. On September 8, 2010, L.Q. surrendered her parental rights to her parents so that they could adopt D.H. She filed a dismissal of her appeal on October 28, 2010.

II

Where the Division seeks temporary custody of a child based on a belief that a child has been neglected or abused, the trial judge presiding over the matter has a duty to conduct an evidentiary hearing wherein the judge must make specific factual findings to determine "whether the child is an abused or neglected child." New Jersey Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261-62 (App. Div. 2002). At the fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). DYFS bears the burden of proving abuse and neglect by a preponderance of such competent evidence. Ibid. If the court is satisfied that this burden has been established, it "shall state the grounds for [such] findings." N.J.S.A. 9:6-8.50(a).

Substantively, an "abused or neglected child" is defined in the statute as to include:

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, as herein defined, to exercise a minimum degree of care . . . (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.

[N.J.S.A. 9:6-8.21(c)(4).]

Mere negligence does not constitute abuse and neglect of a child. Our Supreme Court held in G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999):

The phrase "minimum degree of care" [in N.J.S.A. 9:6-8.21(c)(4)] denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

The Court also stated that "the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

"Whether a parent or guardian has failed to exercise a minimum degree of care" in protecting a child is determined on a case-by-case basis and "analyzed in light of the dangers and risks associated with the situation." Id. at 181-82; New Jersey Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010). We also recognize that the court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." New Jersey Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005). "However, as a part of its burden of proof, the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46b) the probability of present or future harm." Ibid.

We will not disturb the trial court's findings unless they are demonstrated to lack support in the record or are inconsistent with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted). "[E]ven in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid.

In this case, the trial court's factual findings are supported by the evidence and are entitled to our deference. R.H. had a history of depression, for which he was not taking medication, and admitted that he was a "problem drinker" because he would sometimes drink too much when his depression "kick[ed] in." He was not forthcoming about his possession of cocaine before the baby was born, but admitted during the fact-finding hearing that the cocaine was his. He was intoxicated at the hospital on August 12, 2008, when he argued with family members and then became angry, agitated and belligerent with two DYFS workers.

R.H. insists that the testimony of the DYFS workers was not credible, and that neither worker witnessed any aggressive, erratic or violent behavior on his part. R.H. also insists that the workers' testimony concerning his intoxication was inconsistent and uncorroborated. These arguments turn on credibility determinations. The trial court resolved those credibility issues against R.H. There is substantial, credible evidence to support the credibility determinations.

R.H. also contends that when he displayed anger in the hospital it was directed toward the DYFS workers, not the baby, and that the baby was being held by his grandmother in the presence of other adults. However, the trial court found that R.H.'s erratic hospital behavior combined with his use of drugs and alcohol, lack of mental health treatment, and failure to adequately address his substance abuse issues, exposed D.H. to an environment which could have significantly affected his health and safety. The preponderance of the competent, material and relevant evidence supports the trial court's finding of the probability of future harm.

We therefore determine that the trial court's finding of neglect was proper under a preponderance of the evidence standard. Under this standard and in light of the evidence before the trial court, R.H. failed to "exercise a minimum degree of care ... in providing the child with proper supervision or guardianship." N.J.S.A. 9:6-8.21.

A