NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant,

and

C.N.,

Defendant.

______________________________

IN THE MATTER OF

A.C., minor.

________________________________________

October 15, 2014

Argued September 22, 2014 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-91-13.

Larry Leung, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Leung, on the brief).

Hannah F. Edman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Edman, on the brief).

James J. Gross, Designated Counsel, argued the cause for minor A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Gross, on the brief).

PER CURIAM

Defendant J.C. (Joan)1 appeals from an order entered June 4, 2013, finding that she abused or neglected her four-year-old son, A.C. (Alan). Following a fact-finding hearing, the court found that the New Jersey Division of Child Protection and Permanency (Division) proved by a preponderance of the credible evidence that Joan, who was the sole caregiver for Alan, knowingly took medication prescribed to her then-boyfriend, C.O. (Carl), then passed out and was unresponsive for several hours. The judge concluded that, under the circumstances in this case, ingesting another's prescription medication is grossly negligent because it creates a substantial risk of becoming impaired and unable to supervise a young child, thus exposing him to a risk of serious harm in violation of N.J.S.A. 9:6-8.21.

On appeal, Joan argues that there was insufficient credible evidence to support the court's conclusion that she failed to meet the minimal standard of care. She claims that leaving Alan in Carl's care meets the minimum level of care; her consumption of the medication was an aberration, not likely to reoccur; and her positive drug screening was sufficiently explained by her own prescriptions. Joan also claims for the first time on appeal that the trial court erred by adopting Carl's unverified version of the events. For the reasons that follow, we affirm.

I.

Alan was born on November 16, 2008, to Joan and C.N. (Caleb).2 Joan has two older children who do not reside with her. Since 2001, the Division has received seven allegations involving Joan and her children but all were determined to be unfounded.

November 16, 2012 was Alan's fourth birthday. Joan dropped Alan off at school at 8:30 a.m. and picked him up at 10:30 a.m. Although Carl did not live with Joan and Alan, he was present at their home that morning. When Joan complained to Carl that she was not feeling well, he gave her Klonopin (a benzodiazepine) and Percocet (a schedule II narcotic pain killer), which were prescribed for his use.

After Alan returned from school, Carl took the child with him to run some errands. When they returned, Carl found Joan unresponsive on the bathroom floor. Carl called an ambulance and Joan was taken to the hospital. Joan was admitted around noon. She was unconscious at the time of her arrival and drifted in and out of consciousness throughout the afternoon.

When hospital nurse Brittany Dudek learned that Joan was the sole caregiver for a young child, she contacted the Division. Caseworker Kevin Ginsberg arrived around 4:25 p.m. Dudek told Ginsberg that Carl initially admitted to giving Joan one 5mg Percocet, but later said he gave her two Percocet and two Klonopin. Dudek also informed Ginsberg that Joan had tested positive for opiates and barbiturates. Ginsberg interviewed Carl, who recalled giving Joan one of his prescription Klonopin and either a 5mg or a 10mg Percocet.

Around 4:25 p.m., Ginsberg attempted to interview Joan but she was unresponsive. Ginsberg tried again at 5:15 p.m., but had to ask each question more than once before Joan understood, and she delayed several seconds in answering each question. Joan could not remember what happened that morning, what medication she took, or how she came to be at the hospital.

Ginsberg told Joan that she was unable to care for Alan and that the Division was going to remove him to ensure his safety. When Ginsberg explained that Carl could not care for Alan, Joan agreed, stating she did not trust Carl to care for the child.

While Ginsberg was transporting Alan from the hospital to a foster home, the child told him that his mother "was [acting] weird and sleeping all day." When asked if he had ever seen Joan like this before, Alan said that "she sometimes sleeps and he cannot wake her up but she has never fallen asleep on the floor before."

On November 19, 2012, Ginsberg again attempted to interview Joan. Although her recollection of the events of November 16, 2012, had not improved, she denied ever having taken any of Carl's medication.

The Division substantiated abuse or neglect by Joan and filed an order to show cause (OSC) for temporary custody of Alan. At a subsequent hearing on the OSC, Joan consented to Alan's removal.

A fact-finding hearing was scheduled on April 10, 2013. All parties informed the court that, in lieu of testimony, they agreed to submit "on the papers" and allow the court to make a determination based entirely on documentary evidence. The Division submitted a Division screening summary, (P-1), a Division investigation report, (P-2), and Joan's hospital medical records from November 16, 2012, (P-3). Joan submitted letters from her primary care physician, (D-1), additional hospital medical records, (D-2), and a list of her prescriptions from a local pharmacy, (D-3).

In an oral opinion, the court found that: (1) Joan was brought to the hospital by EMT because her paramour, Carl, gave her an unknown amount of pills; (2) Joan tested positive for opiates and barbiturates at the hospital; (3) Joan had slurred speech and admitted to taking Carl's Percocet at the hospital; (4) Joan admitted to taking Carl's Klonopin in the past; (5) Carl told Ginsberg that he had given Joan one Percocet and one Klonopin, and she freely ingested both pills; (6) Carl told Ginsberg he found Joan unresponsive on the floor after running errands with Alan and called an ambulance; (7) Joan said she could not remember what led her to being hospitalized or if she took any medication that day; and (8) Alan told Ginsberg that he saw Joan "sleeping on the floor" and that Joan was acting weird and sleeping all day. The trial judge expressly discredited Joan's statement to Ginsberg that she has never taken Carl's medication.

The judge considered these facts "substantial credible evidence" that Alan's "physical, mental or emotional condition was in imminent danger of being impaired as a result of [Joan's] failure to exercise a minimum degree of care in providing [Alan] with proper supervision." The judge found that Alan, at barely four years old, required "attendant supervision," and explained that "[s]upervising a child after having taken prescription medication not prescribed to one's self creates a serious risk of harm because one cannot supervise as vigilantly as required. [Joan] put [Alan] under serious risk of harm when she ingested the medication."

The judge found that Joan "failed to properly supervise [Alan] when she took the prescription medication that belonged to [Carl] while caring for [Alan]. [Joan] having taken this medication while supervising [Alan] was grossly negligent because it was not prescribed to her[.]" Based on these findings, the judge held that the Division had proved "by inference and the bare preponderance" that Joan neglected Alan pursuant to N.J.S.A. 9:6-8.21(c)(4)(b).

II.

Appellate review of a trial court s factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Factual findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence. Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Because of the family courts special jurisdiction and expertise in family matters, we accord particular deference to family court fact-finding. Id. at 413. The trial court's interpretation of the law, however, is not entitled to deference on appeal. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 182 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Title Nine was adopted by the legislature out of "paramount concern" for the health and safety of New Jersey's children. N.J.S.A. 9:6-8.8(a). Under Title Nine, an "abused or neglected child" is defined in pertinent part as

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 . . . 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)(b).]

The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.44; 8.46(b). The trial court determines whether the child is abused or neglected by considering the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).

Generally, the Title Nine inquiry should focus on harm to the child, rather than on the intent of the caregiver. G.S. v. Dep't of Human Servs., 157 N.J. 161, 180 (1999). Where there is no injury to the child, "the statute requires a showing of imminent danger or a substantial risk of harm before a parent or guardian can be found to have abused or neglected a child." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8 (2013). Imminence of danger and risk of harm are determined by looking to whether the parent exercised the minimum degree of care under the circumstances. Id. at 23.

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." G.S., supra, 157 N.J. at 178. 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. Consequently, parents are liable for all foreseeable consequences of their intentional actions, regardless of whether they intended to cause harm. Id. at 179.

Importantly, where no injury occurs, the inquiry must focus on whether the risk "could have been prevented had the guardian performed some act to remedy the situation or remove the danger." Id. at 182. When a cautionary act by a parent would have prevented a child from having his or her physical, mental, or emotional condition impaired, the parent has failed to exercise the minimum degree of care as a matter of law. Ibid.

Joan argues that her objective conduct in taking Carl's medication was not grossly negligent. She also asserts that she was not aware of the dangers inherent in taking another's medication, so that her conduct was not willful or wanton. Finally, she argues that her consumption of another's medication was an aberration unlikely to recur because she no longer has a relationship with Carl. We reject all three arguments.

The mere ingestion of illegal substances does not automatically serve to substantiate a finding of abuse or neglect. V.T., supra, 423 N.J. Super. at 330. In V.T., we reversed a finding that the defendant father neglected his eleven-year-old daughter by testing positive for cocaine and marijuana at two supervised visits because the State had failed to demonstrate any risk, let alone a substantial risk, of harm to the child. Id. at 331.

V.T. is distinguishable. The child in V.T. was eleven years old and "unlike an infant, [she] was not vulnerable during these visits to the slightest parental misstep." Ibid. By contrast, Alan is a four-year-old child who, the court found, requires "attendant supervision." Joan's drug use, which resulted in her complete incapacitation, rendered her unable to care for a child of tender years.

We agree with the court's finding that while Alan was in her care, Joan purposefully ingested medication that she knew was not prescribed to her, and a foreseeable consequence of that was losing consciousness. This conclusion is fortified by evidence introduced by Joan that, at the time of this incident, she was prescribed several powerful medications. Between October and December of 2012, Joan was prescribed fourteen different drugs: Ventolin, Warfarin, Pantoprazole, Topamax, Dicyclomine, Asmanex, Metronidazole, Enoxaparin, Hyoscyamine, Ranitidine, Prometh, Vicodin, Fioricet, and Tizanidine. Between February and December 2012, Joan received these prescriptions from sixteen different doctors, and filled them at the same pharmacy. Joan was prescribed one-month supplies of Percocet from May to August of 2012, but that prescription was changed to one-month supplies of Vicodin in September 2012.

By ingesting unprescribed medication on top of her own assorted prescribed medications, Joan created a substantial risk of being rendered unable to supervise Alan and thereby exposed him to a risk of serious harm.

We find no merit to Joan's claim that she was unaware of the dangers inherent in taking the unprescribed medication. In G.S., the Court held that "[s]o long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor." G.S., supra, 157 N.J. at 178.

We also reject Joan's claim that her ingestion of unprescribed medication was an isolated event that does not present a risk of future harm to Alan. Pharmaceutical records indicate a high volume of consumption of potent medications by Joan including prescriptions for Vicodin (an opiate) on July 21, August 2, September 24, October 24, November 10, and December 1, 2012; Percocet (an opiod) on May 30, June 22, July 24, and August 20, 2012; and Fioricet (a barbiturate) on February 22, April 12, May 18, October 8, and December 26, 2012. This pattern of drug consumption, taken together with Joan's demonstrated willingness to self-medicate, is probative on the issue of whether Joan is likely to subject Alan to the same risk in the future.

Other evidence in the record lends support to the court's conclusion. Joan admitted to Ginsberg that she had taken Carl's Klonopin in the past. Further, each of Joan's four prescriptions for Percocet was obtained from a different doctor, a telltale indicator of drug abuse. See Tucker v. City of Florence, 765 F. Supp. 2d 1320, 1325 (N.D. Ala. 2011) (discussion of the practice of "doctor shopping" whereby drug abusers seek multiple overlapping prescriptions from multiple medical professionals); United States v. Ilayayev, 800 F. Supp. 2d 417, 423-24 (E.D.N.Y. 2011) (defendant, who became addicted to oxycodone, obtained prescriptions by visiting multiple physicians during the same time period and receiving prescriptions from each); M.M. v. L.M., 42 Misc.3d 1235(A) (N.Y. Sup. Ct. 2014) (prescriptions for opiods and Klonopin from thirty-two doctors over seven years was evidence of drug abuse).

Joan next argues for the first time on appeal that the court erred by adopting Carl's unverified hearsay version of events occurring on November 16, 2012, as contained in the Division's investigation report. We reject this argument for several reasons.

Joan failed to raise this issue before the trial court and thus, we review this claim under the plain error standard to determine if the complained-of error was "clearly capable of producing an unjust result." R. 2:10-2. We first note that the admission of the Division's report containing Carl's statements was not dispositive. The court relied on the Division's report only in part and considered other evidence including Joan's medical records, the hospital drug screen, and the testimony of Ginsberg and Joan at the hearing on the OSC.

Also, Joan consented to the admission of the document at the hearing and has not presented evidence of a fundamental miscarriage of justice warranting relaxation of the invited error doctrine. The doctrine generally serves to bar litigants from taking a position on appeal contrary to their position at trial, and specifically prohibits appellants from contesting for the first time the admission of documents at the trial level. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010). The doctrine is relaxed only in cases that otherwise present a "fundamental miscarriage of justice." Id. at 342. In holding that M.C.'s case did not present a miscarriage of justice, the Court relied heavily on the fact that M.C. (1) did not object to the admission of the documents at the trial level, thereby precluding the court from making an admissibility ruling, (2) had sufficient time to review and object to the documents, and (3) the lack of objection could be construed as a defense strategy. Ibid.

Here, it is undisputed that Joan did not object to the admission of the Division's investigation report. Indeed, Joan's counsel noted a possible objection to another of State's exhibits, but expressly consented to the admission of the investigation report. Under M.C. III, the admission of the challenged report does not present a fundamental miscarriage of justice and the invited error doctrine precludes objection now to the Division's report.

Finally, even if Joan had timely objected, the Division's report and Carl's statements contained therein are admissible under Rule 5:12-4(d) and N.J.S.A. 9:6-8.46, as well as N.J.R.E. 803(c)(6) and 803(c)(25). In M.C. III, the Court held that Division reports and screening summaries are generally admissible in Title Nine cases. 201 N.J. at 347.

Normally, the admissibility of Division reports requires satisfaction of the prerequisites for admission as a business record under N.J.R.E.803(c)(6). M.C. III,supra, 201 N.J.at 346-47. In M.C. III,however, the Court held that where the Division had not satisfied the N.J.R.E.803(c)(6) prerequisites (or the "identical" requirements in N.J.S.A.9:6-8.46(a)(3), id.at 347), solely because the appellant had expressly consented to admitting the report at trial, its admission was proper "without the necessity of the Division's compliance with the strictures of the Rules." Id.at 348.

Here, it is undisputed that Joan expressly consented to the admission of the report at trial. Under M.C. III, the report was thus correctly admitted without the need for the Division to satisfy the N.J.R.E.803(c)(6) prerequisites.

The remaining arguments presented lack sufficient merit to warrant extended discussion in our opinion beyond this brief comment. R. 2:11-3(e)(1)(E). The voluminous records presented by Joan of her numerous prescribed medications do not, in any way, undermine the court's finding that she took Carl's prescription medication. This finding is supported by sufficient, credible evidence in the record.

Affirmed.

1 We employ pseudonyms to protect the minor and for ease of reference.

2 Caleb was named as a dispositional defendant in the complaint filed by the Division but was not residing with Joan at the time of the incident and the Division did not seek a finding against him.