NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.B

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3678-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.M., a minor.

___________________________________

May 21, 2013

Submitted April 16, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-465-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorneyfor respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

This is an appeal of a Title Nine2 protective services proceeding. Defendant, S.B. (Selma),3 appeals from the trial judge's determination that she abused and neglected her six-year-old son, J.M. (Jake), by using PCP.4 She argues that the Division of Youth and Family Services (the Division) failed to prove that her admitted use of the drug PCP while being Jake's primary caretaker harmed or created a substantial risk of harm to her child. We disagree and affirm.

The record reveals the following facts. The Division most recently became involved with defendant on April 11, 2011, when Jake's school reported that he had brought a small clear vial of white powder into his classroom. When questioned, Jake gave inconsistent versions of where he found the vial. That day, two Division caseworkers went to Jake's home and spoke to Selma. The workers observed that Selma's speech was slow and slurred. Selma explained that she was taking a muscle relaxer four times a day but denied any illegal drug use. Selma reported that only she and Jake lived in her home and that Jake's godmother, a neighbor, picked Jake up from his school most afternoons when Selma attended business school. Due to the drug-related nature of the referral, the caseworker asked Selma if she was willing to have a substance abuse evaluation and screening, and she agreed.

After Selma missed the first two scheduled substance abuse evaluations, on May 24, 2011, the caseworker contacted her by telephone. During the conversation, Selma was incoherent, insisting that the Division send a taxi or a limo. Two caseworkers proceeded directly to the home but they were unable to locate Selma. The next day they persuaded defendant to come to the local Division office and take part in a drug screening. The result of the drug screen was "abnormal," which suggested that the testing procedure had been compromised.

On June 15, 2011, the Division received a referral from the Substance Abuse Initiative (SAI), where defendant had been sent by the Temporary Assistance to Needy Families program, that Selma had recently tested positive for PCP. That day, the Division caseworker spoke to Selma, who admitted that she had "flushed out" her system before the May 25, 2011 drug screening to avoid detection of her drug use. She also acknowledged she had tested positive in the recent SAI screening and that she smoked PCP twice a week. The Division immediately removed Jake from his mother's custody.

At the June 17, 2011 order to show cause on the removal, the judge entered an order continuing Jake in the Division's custody. After the removal, defendant started to attend an outpatient drug treatment program. After some time, she entered an inpatient treatment center.

At the fact-finding hearing on October 27, 2011, defendant appeared by phone from her treatment center. The Division presented testimony of the caseworker and several exhibits concerning the Division's investigation were also admitted into evidence. The trial judge found the caseworker's testimony credible and also noted that her testimony concerning defendant's admissions of drug use was uncontradicted. The judge found that the Division had met its burden of proof that defendant's admitted bi-weekly drug use, while having sole custody of a six-year-old child, put the child at a substantial risk of harm. Thus, she concluded that Jake was an abused and neglected child as defined by N.J.S.A. 9:6-8.21(c)(4).

Shortly after the fact-finding, Jake went to live with his mother at her inpatient treatment center. At the next hearing on February 7, 2012, after the Division reported that Selma and Jake were doing well at the program and that Selma expected to successfully complete the program in a few months, the judge, with the consent of the parties, dismissed the litigation. This appeal followed.

The court's power "to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). These safeguards are designed to serve two functions: to protect innocent parents against government interference with their fundamental right to parent and to spare children unnecessary emotional trauma. Ibid. Yet, the Division and the courts "need not wait until a child is actually harmed by parental inattention or neglect before it acts in the welfare of the child." N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div. 2009) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

The Division brought this case under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, the statute covering non-criminal abuse and neglect of children. Title Nine requires that, after a child has been temporarily removed from his or her parent's custody, a fact-finding hearing must be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.44. The evidence presented at a fact-finding hearing must be competent, material and relevant. N.J.S.A. 9:6-8.46(b)(2).

An "abused or neglected" child is defined as one who is less than eighteen years of age and

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 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 . . . .

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

In determining whether action or inaction constitutes abuse or neglect, the court must base its decision on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999). In G.S., the Court explained that "[t]he phrase 'minimum degree of care' denotes . . . . something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citations omitted). Thus, a parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (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. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "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)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant argues that the evidence does not support the conclusion that Selma s use of PCP two times per week presented a substantial risk of harm to Jake. Rather, according to defendant, the evidence shows that Jake was a happy, healthy child who was well cared for even though his mother was periodically abusing illegal drugs. Defendant relies on V.T., supra, 423 N.J. Super. at 332, to support her argument that a parent's admitted substance abuse alone does not put a child at risk of harm. We find this argument unpersuasive.

First, the facts in this case are vastly different from those in V.T. There, we reversed a finding that the defendant abused and neglected his eleven-year-old daughter by failing to cooperate with drug treatment and testing positive twice during supervised visitation. We found that the defendant's behavior did not "inherently create[] a substantial risk of harm to" the child. Id. at 330. However, unlike the present case, the defendant in V.T. did not have custody of his child, and we rejected the trial judge's findings that the child was at risk of imminent harm during the few hours of supervised visitation per week.

Additionally, the New Jersey Supreme Court recently held that "not every instance of drug use by a parent . . . standing alone, will substantiate a finding of abuse and neglect . . . ." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). In A.L., the Court considered a question of statutory interpretation, namely, "whether a court can find 'abuse' or 'neglect' of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born." Id. at 1. The record in A.L. contained no evidence that after the child was born the mother continued to use drugs while caring for the child. Hence, this case is not factually or legally analogous to A.L.

In contrast to A.L. and V.T., the totality of the circumstances here clearly demonstrates that Selma exposed her six-year-old child to a risk of imminent harm by indulging in an illegal drug twice a week while having sole custody of him. While Selma had some assistance from Jake's godmother, she and Jake lived alone and she was his primary caretaker. Thus, her use of PCP recklessly created a risk of serious injury to the child.

Consequently, we find that the trial judge's finding of abuse and neglect was appropriate under the circumstances.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, which included the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 N.J.S.A. 9:6-8.21 to -8.73.

3 We use pseudonyms to protect the privacy of defendant and the minor child.

4 Phencyclidine or PCP is a controlled dangerous substance, N.J.S.A. 24:21-7, and its possession and use is illegal. N.J.S.A. 2C:35-10.