NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5683-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

T.W.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF D.D., T.P.,

M.W., P.D., C.P., and J.W.,

Minors

_______________________________

June 12, 2013

Argued May 15, 2013 Decided

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-342-11.

Douglas M. Greene, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Greene, on the briefs).

Delia DeLisi, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. DeLisi, on the brief).

David Valentin, Assistant Deputy Public Defender, argued the cause for minors D.D., T.P., M.W., P.D., C.P., and J.W. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).

PER CURIAM

Defendant mother T.W. (Theresa2) appeals from a September 21, 2011 Family Part order entered after a fact-finding hearing, which determined she had abused or neglected her children. The Family Part judge determined that she medically neglected her oldest child, eleven-year-old daughter J.W. (Jane), by waiting until the morning after the child was sexually assaulted to take her to the hospital. N.J.S.A. 9:6-8.21(c)(4)(a). The judge also determined that Theresa put all of the children in her care at risk by abusing illegal drugs and alcohol. N.J.S.A. 9:6-8.21(c)(4)(b). We reverse the finding of medical neglect because the record lacks substantial credible evidence that Theresa's conduct constituted gross negligence or recklessness in that regard. We affirm the finding that the ingestion of drugs and alcohol while caring for her children during the week following the sexual assault put her young children at substantial risk of harm.

We derive the following facts from the record. Twenty-four-year-old3 Theresa has six children, ranging in age from one to eleven. All but three-year-old C.P. live with her. Jane is the oldest.

On February 21, 2011, Theresa sent Jane to the store to buy cigarettes and Nyquil with Theresa's good friend's boyfriend, R.B. (Ron), at approximately 8:00 p.m. When the child did not return after thirty minutes, Theresa tried unsuccessfully to call Jane on her cell phone. Theresa then went to her friend's house in an attempt to contact Ron. While Theresa was out, Jane returned and revealed to Theresa's live-in boyfriend, Steven, that Ron had sexually assaulted her. Steven called Theresa who immediately returned home.

Theresa comforted her daughter. Jane had no obvious injuries and was not bleeding. The child was tired, and Theresa's mother suggested that Jane be allowed to go to sleep. The next morning Theresa brought Jane to the Jersey City Medical Center and the police were contacted. The police brought Jane to Christ Hospital for a forensic evaluation. The Division of Youth and Family Services (Division) was contacted by hospital staff.

After assessing the situation at the hospital, the Division assessed Theresa's home, finding broken bunk beds in the messy bedroom where her four girls slept. The Division worker advised Theresa that the room was unsafe and was informed by Theresa that she had moved from South Carolina where she had been involved with their child protective services agency.4

Two days later, Steven contacted the Division because PSE&G had cut off Theresa's electricity as no payment had been made since the account was set up seven months before. When the Division came to advise her that the children could not stay in the home without electricity, Theresa informed the worker that her mother had paid $350 to turn the electricity on right away. The five children were taken to their grandmother's house.

Four days after the electricity issue, the Division received a referral that Theresa used drugs and alcohol and leaves the children home with strangers and allows strangers into her home to "party" while the children are present. When questioned by the Division on March 1, 2011, Jane denied that her mother used drugs, although she said her mother drinks a lot of alcohol and "dances funny when she is drinking." Jane said that Steven uses and sells drugs and sleeps sitting up. Nine-year-old Melanie reported to the Division worker that Steven nods off when speaking to the children.5

Theresa was given an immediate substance abuse evaluation and urine screen. The screen was positive for marijuana. Theresa admitted during the evaluation that during the past week, following Jane's sexual assault, she took ecstasy on three occasions, drank alcohol (two 22 ounce beers and one pint of gin) and smoked marijuana on three occasions. A Division supervisor reported that Theresa admitted she "still is caring for her [young] children while under the influence of these illicit drugs." The supervisor "advised [Theresa] that she is putting her children at risk of imminent danger while caring for them under the influence of drugs and alcohol." Theresa "cried and stated she doesn't do it all the time." The children were temporarily removed on an emergent basis and placed in a resource home.6

At the fact-finding, the judge found by a preponderance of the evidence that "the children in this case were abused or neglected in that the mother placed the children at substantial risk of harm due to her drug use . . . in the time after her daughter was sexually assaulted." The judge also determined that "the fact that she didn't take [Jane] to the doctor or the hospital immediately that night, or call[] the police after her daughter said she was raped is medical neglect." The judge opined that even though Jane was not seriously injured, "there needed to be some sort of investigation. The rape kit should have been done immediately." The judge found that the fact the child was tired was no excuse, as Theresa should have called an ambulance or the police if she did not want to drive Jane to the hospital.

Theresa raises the following issues on appeal:

POINT I: THE TRIAL JUDGE'S FINDING THAT Theresa ABUSED OR NEGLECTED HER CHILDREN MUST BE REVERSED BECAUSE THE FINDING THAT Theresa PUT HER CHILDREN IN IMMINENT DANGER OF HARM OR SUBSTANTIAL RISK OF HARM IS NOT SUPPORTED BY THE EVIDENCE.

A. THERE IS NO EVIDENCE THAT . . . [JANE] WAS IN IMMINENT HARM AS A RESULT OF Theresa's DELAY IN SEEKING MEDICAL CARE.

B. THERE IS NO EVIDENCE THAT THE CHILDREN WERE IN IMMINENT HARM AS A RESULT OF Theresa's DRUG OR ALCOHOL USE.

POINT II: THE TRIAL JUDGE'S FINDING OF ABUSE AND NEGLECT MUST BE REVERSED SINCE THE TRIAL JUDGE MADE NO FINDING THAT Theresa'S CONDUCT WAS WILLFUL, WANTON, OR RECKLESS AND SUCH A FINDING IS NOT SUPPORTED BY THE EVIDENCE.

POINT III: THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER BECAUSE ALL OF THE EVIDENCE [THE DIVISION] SUBMITTED AT FACT FINDING CONTAINED IMPERMISSIBLE HEARSAY OR WAS BASED ON TESTIMONY LACKING PERSONAL KNOWLEDGE.

The trial judge has a duty to conduct a fact-finding hearing to determine whether the Division has proved abuse or neglect "by a preponderance of the competent, material and relevant evidence . . . ." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations and internal quotation marks omitted).

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:

[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. Indeed, we recognize that [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, 342-43 (2010) (second alteration in the original) (citations and internal quotation marks omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. State v. Smith, 212 N.J. 365, 387 (2012) (citations omitted), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen

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 . . . medical or surgical care . . . 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[.]

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

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 178).

Although the distinction between willful or wanton negligence and ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of willful or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179 (citations omitted). Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result[,]" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (citations omitted). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. (citation omitted).

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).

We agree with Theresa that the record lacks substantial, credible evidence to support a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a) with regard to the allegation of medical neglect. Jane told her mother she was tired and wanted to go to sleep the night she was assaulted. Theresa saw no evidence of any physical injury to Jane, and Theresa's mother advised her to let Jane go to sleep. It may have been more prudent to take Jane for a medical evaluation that night, but the decision to wait until morning was not "grossly negligent." No evidence of any ill effect to Jane from the brief delay was demonstrated. It might well have benefitted Jane to be able to sleep before confronting the stress of medical and forensic examinations and answering the questions of law enforcement.

The Division has not demonstrated any way in which Theresa's failure to report the assault to law enforcement immediately is relevant to the allegation of medical neglect. Thus, we reverse the finding of medical neglect against Theresa.

We affirm the judge's finding that Theresa exposed her young children to a substantial risk of harm by her repeated use of ecstasy, marijuana and excessive alcohol within one week while caring for them. Theresa admitted she took these mood-altering substances while caring for the children, but said she did not do it all of the time. No level of ecstasy use has been deemed safe. The two youngest children were too young for school. Theresa's live-in boyfriend, who was not the father of any of her children, was himself drug-involved and not a reliable caretaker. Our Supreme Court has defined willful and wanton negligent care as "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences . . . ." G.S., supra, 157 N.J. at 179 (citations omitted). Theresa admitted that on one day alone, February 26, 2011, she consumed ecstasy, marijuana and drank a large quantity of alcohol. As the Law Guardian points out, the only purpose for engaging in this behavior "is to achieve a level of intoxication." Repeated intoxication while caring for young children exposes them to a substantial risk of harm.

Theresa points to two cases to support her position that her behavior did not rise to the level of abuse or neglect. In one case, we reversed a finding of neglect where the trial judge did not make a finding as to whether the mother's overdose of prescribed Xanax was grossly negligent. N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 257 (App. Div. 2012). Here, the level of culpability in knowingly taking two different illegal substances while drinking to excess is a clear risk to the ability to care for a one-year-old child. The level of culpability in using illegal drugs is not in question in the same way as it is in taking prescribed medication.

Theresa also relies on our decision where we reversed a finding of neglect after a father attended supervised visitation with his eleven-year-old daughter, behaved appropriately, but tested positive for drugs. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). The father in V.T. indicated he had taken the drugs two days before the supervised visits. Ibid. We noted in that case "that not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." Id. at 332. Here, however, the drug use was extensive and took place while Theresa was caring for younger children unsupervised by a sober person.

Theresa also argues that the judge should not have relied on statements not based on personal knowledge. The Division presented the testimony of the caseworker who first interviewed Theresa and investigated the initial allegations. The worker also relied on Division records in her testimony.

Division records are admissible in Title 9 proceedings under certain safeguards.

[A]ny writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility . . . .

[N.J.S.A. 9:6-8.46(a)(3).]

Rule 5:12-4(d) specifically indicates:

The Division of Youth and Family Services shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d) [regarding records of regularly conducted business activity], reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.

Theresa did not choose to rebut the records. She had the opportunity to cross-examine the Division worker. She chose to testify only that when she allowed Jane to go with Ron, she did not know that Ron had a history of molesting other girls. Theresa's admissions as to her drug use were clearly against her own interests and thus admissible hearsay. N.J.R.E. 803(c)(25).

The judge had substantial credible evidence in the record to support her finding that Theresa subjected her young children to neglect by her extensive drug and alcohol use while caring for them.

Affirmed in part and reversed in part.

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

2 All names used are fictitious.

3 We report the ages of the individuals as of the time of the incident.

4 Theresa indicated that she had left her children alone to look for a cigarette in South Carolina, and that the children lived with a relative for six months while she completed a program. Theresa did not recall the nature of the program, but said her children returned to her physical custody shortly before she moved to New Jersey a year before. The Division later verified that Theresa was substantiated twice for environmental neglect in 2008.

5 The Division verified that Steven was on a methadone program and he tested positive for heroin, opiates and barbiturates.

6 The matter was dismissed from litigation more than a year later on June 5, 2012.