NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01042-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

K.D.,

Defendant-Appellant.

____________________________________________

IN THE MATTER OF L.B., a Minor.

______________________________________________

June 17, 2014

Submitted April 29, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-84-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is an appeal from a Title Nine2 protective services proceeding. Following a September 12, 2012 Family Part order dismissing the Title Nine complaint, defendant K.D. (Katie),3 appeals from an August 23, 2011 Family Part order, which found that she had abused and neglected her daughter, L.B. (Lindsey). After a review of the record and applicable law, we affirm.

We derive the following facts from the record. Lindsey was born in November 2009 to Katie and her live-in boyfriend A.B. (Anthony). Soon after Lindsey was born, Katie was admitted briefly to the hospital due to depression. Katie later went to the emergency room for a mental health crisis on January 9, 2010, but was not admitted.

Katie was then admitted to Underwood-Memorial Hospital from January 28, 2010, through February 3, 2010, for depression and suicidal ideation. Katie reported having severe suicidal thoughts, threatening Anthony, and having thoughts of "hurting the baby" and "smash[ing] the baby against the wall." Katie was sure she would never do this, but she reported "very bizarre intense feelings about it." She was diagnosed with postpartum depression and anxiety and referred to an adult partial hospitalization program upon discharge.

On September 18, 2010, the Division received a referral, which alleged that Katie was admitted to Underwood Hospital Crisis on September 17, 2010, where she tested positive for cocaine and admitted using cocaine while caring for Lindsey, then ten months old. Additionally, the reporter stated that Katie had confessed thoughts of harming Lindsey and disclosed that she had instigated physical altercations with Anthony involving "knives, scratching, and biting."

Later that day, a Division caseworker visited the family residence where she was greeted by Anthony. Anthony was holding Lindsey, who had a visible black eye. Anthony stated that Lindsey's black eye occurred from falling off the changing table while Katie was changing her diaper. Anthony reported that Katie may have been "out of it" at the time, thereby contributing to the fall.

Anthony informed the caseworker that Katie's February 2010 admission followed an incident in which she pulled a knife on him. Anthony related that Katie did not follow through with the recommended treatment after her last discharge. The caseworker implemented a safety plan wherein Anthony's mother, J.B. (Julia), or S.B. (Steve), a cousin, would supervise all contact between Katie and Lindsey and would reside in the home with Anthony overnight. Anthony agreed to call the Division upon Katie's release so that the plan could be reassessed. The caseworker also spoke with Julia, who agreed to the safety plan.

The caseworker visited Katie in the hospital on September 19, 2010. Katie stated that she had been admitted to the hospital because of issues with her medications. Katie verified that she had been diagnosed with postpartum depression in February 2010; she had thoughts of harming her child, but took them out on Anthony; and one fight with Anthony involved her using a knife. She also acknowledged that she used cocaine and OxyContin, which she acquired illegally, and stated she had been using them for "a while." Katie agreed to the terms of the safety plan, but requested Steve be removed as a potential supervisor.

On September 29, 2010, the hospital discharged Katie. According to the hospital records, Katie was admitted due to "increased aggression and depression and thoughts about wanting to hurt her boyfriend." The records further reflected that Katie reported thoughts of harming Lindsey and herself, physical aggression towards Anthony, and addiction to cocaine and OxyContin, which Katie admitted obtaining illegally, beginning in March 2010. Katie also revealed she made a suicide attempt in July 2010. Katie's discharge diagnoses were bipolar depression and postpartum depression. The hospital referred Katie to the JFK MICA (mental illness chemical addiction) partial hospitalization program for follow-up care.

On the same day, the caseworker met with Katie and Anthony. Katie appeared withdrawn and claimed that she had actually only used cocaine one time, which was on the weekend she was admitted to the hospital. Anthony denied use of illegal drugs, but stated that he was prescribed anxiety medication. He agreed to a drug test, which resulted in positive results for his prescribed medication and for oxycodone. When confronted, Anthony admitted that he took Katie's Percocet prescription for his back pain.

The Division referred Anthony for a substance abuse evaluation and the family to Family Preservation Services. The caseworker also provided them with information on domestic violence services and implemented a new safety protection plan whereby Katie and Anthony would only use medications specifically prescribed for them and would cease the use of any illegal substances, Katie would comply with her aftercare requirements, Anthony would complete his evaluation, and Anthony's parents would provide sight and sound supervision of Lindsey at all times.

On November 10, 2010, the Division filed a verified complaint for custody, care, and supervision. On November 16, 2010, Judge Mary K. White held an order to show cause hearing. Both parents agreed to a provisional placement of Lindsey with Anthony's parents. Judge White approved the provisional placement, based on the allegations that Katie's psychological condition rendered her incapable of caring for Lindsey, and that both parents were using "substances which [were] mind-altering and ha[d] a negative [e]ffect on parenting capacity[.]" The judge ordered that Lindsey not be removed from Julia's physical custody until the next court date and that Julia supervise all parental visitation. The judge did not order a transfer of legal custody.

On July 8 and August 23, 2011, Judge White held a fact-finding hearing.4 The caseworker testified for the Division consistently with the Division reports, which were admitted into evidence along with Katie's medical records.

Judge White concluded

that this child's mother withdrew herself from . . . anything but the most necessary for survival, i.e. food and diaper changing and the like care, as a result of an active abuse of cocaine and opiates without a doctor's care, all following a diagnosis in February, when the child was about . . . two months old, of postpartum depression in lieu of obtaining the recommended partial hospitalization program that was recommended to care for those issues.

The judge declined to base her decision on Katie's thoughts of harming Lindsey, but did rely on the fact that Katie received treatment in February 2010, and instead of following through on the aftercare recommendations, she "self-medicated in a way that was risky or illegal and withdrew her from the ability to care for her child[.]" Thus, the judge found that the Division had proven that Katie abused or neglected Lindsey by placing her at risk through drug use.

Subsequently, both parents, who were no longer living together, completed parenting skills classes, and Katie completed a substance abuse program and was in aftercare. On September 12, 2012, Judge White dismissed the Title Nine case, ordered that the couple participate in couples counseling, and granted joint legal custody to the parents with Katie as the parent of primary residence. This appeal followed.

On appeal, Katie argues that she did not abuse and neglect her child as she never harmed Lindsey or created a substantial risk of harm to her. She contends that no evidence demonstrates that she "brought drugs to the house and/or exposed her child to said contraband." Indeed, defendant claims that she "tested positive for illegal substances from an isolated event stemming from a party where [Lindsey] was not present." Defendant points to the holding in New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011) that drug use alone does not create a prima facie case of neglect for support of her argument that her single use of cocaine did not warrant a finding of abuse and neglect. We are not persuaded.

We begin with a review of the applicable legal principles that guide our analysis. Title Nine of the New Jersey Statutes sets forth the controlling standards for abuse and neglect cases. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). Title Nine's main precept is to protect children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." P.W.R., supra, 205 N.J. at 33. The court must look at the totality of the circumstances. Id. at 33-34 (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010)).

An abused or neglected child is defined as one

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 . . . 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; 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).]

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).

A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 299-300 (2011) (quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). 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 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995); McLaughlin, supra, 56 N.J. at 305). Gross negligence requires "an indifference to the consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted), but a parent's actual intent to cause harm is not necessary. G.S., supra, 157 N.J. at 179.

Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

"[A] failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." V.T., supra, 423 N.J. Super. at 331. "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." A.L., supra, 213 N.J. at 23. However, "the use of illicit drugs is illegal and . . . a parent should not exercise visitation, even supervised visitation, while impaired." V.T., supra, 423 N.J. Super. at 331. Moreover, use of drugs while caring for an infant puts the child at greater risk of harm "to the slightest parental misstep." Ibid.

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to the family court because of its "'expertise in family matters[.]'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

However, "[w]here 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).

In this matter, the record shows that Katie was diagnosed with postpartum depression and anxiety in February 2010, but instead of complying with her aftercare recommendations, she self-medicated using oxycodone and cocaine.5 While Katie later denied using illegal drugs regularly, the judge found her earlier admissions to be more credible, and we will not interfere with Judge White's findings, which are supported by the record. See A.G., supra, 344 N.J. Super. at 442-43. Thus, the evidence shows that Katie failed to exercise the requisite minimum degree of care because she acted with reckless disregard for the safety of Lindsey by using illegal drugs for many months while caring for her infant daughter. See G.S., supra, 157 N.J. at 179. She demonstrated an indifference to the consequences of her actions by using said drugs and ignoring the warning signs, including her deteriorating mental state, of the potential serious harm she could inflict on her daughter by caring for her in such a state. See Banks, supra, 218 N.J. Super. at 373. The court could not wait until Lindsey was actually harmed. See S.S., supra, 372 N.J. Super. at 24.

Katie's reliance on V.T. is misplaced as it is factually distinguishable. There, the father, who did not have physical custody, admitted using drugs days prior to his supervised visitation, but was not impaired at his visits. V.T., supra, 423 N.J. Super. at 325-26. We held that the Division had to prove actual impairment while caring for the child such that a risk of harm occurred. Id. at 331. Here, Katie's admitted use of mind-altering drugs over many months while caring for an infant clearly posed a substantial risk of harm to the child's safety.

Katie also argues that we should reverse the holding in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467 (App. Div.), certif. denied, 203 N.J. 439, 482 (2010), which held that the "successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect." Katie asks us to remand her case for a grant of suspended judgment, followed by a removal of her name from the Central Child Abuse Registry based on her compliance. This argument does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Sufficed to say, we decline to overturn our holding in R.M., which is fully supported by the statutory scheme.6

Affirmed.

1 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

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

3 We use pseudonyms for the parents and children to protect their privacy.

4 The fact-finding hearing only sought a finding of abuse and neglect as to Katie. The Division withdrew its complaint as against Anthony.

5 Mental illness alone would not disqualify Katie from raising Lindsey, but refusal to treat a mental illness that poses a threat to the child may be a basis for a finding of abuse and neglect. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012).

6 Katie's argument is also not properly before us as she failed to request suspended judgment below. See State v. Galicia, 210 N.J. 364, 383 (2012).