NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.O.

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NOT FOR PUBLICATION WITHOUT THE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.

N.O.,

Defendant-Appellant.

______________________________

IN THE MATTER OF A.O.,

A Minor.

____________________________________

July 24, 2014

Submitted April 9, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-140-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard B. Tat, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, A.O. (David B. Valentin, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant N.O. appeals from a January 26, 2012 order of the Family Part finding that she abused and neglected her daughter A.O. (Alexis)1 in violation of N.J.S.A. 9:6-8.21c. Because we agree that there is substantial credible evidence in the record to support the trial judge's finding of abuse and neglect, we affirm.

N.O. is the mother of four minor children, none of whom remains in her care. The Division of Child Protection and Permanency (the Division) first became involved with N.O. in January 2000 when it received a referral alleging that she had neglected her eldest child. Six months later, N.O. made an identified surrender of her parental rights to that child. Four years after that, N.O.'s twins were placed with their paternal grandparents in a kinship legal guardianship.

Alexis was born a few years after those events, in December 2009. The Division had been informed of her impending birth by a service provider who reported that N.O. was pregnant, under the influence of alcohol, and refused to go to the hospital for detox treatment. Alexis was born healthy but the hospital nonetheless notified the Division of her birth based on N.O.'s history of alcohol and cocaine abuse and N.O.'s report of alcohol use during her pregnancy.

At the time of Alexis's birth, N.O. was residing at the Straight & Narrow substance abuse treatment facility in Paterson and enrolled in its "Mommy and Me" program. Although N.O. denied any mental health problems, she had received a referral to a psychiatrist because of a low score on the postpartum depression inventory. Apparently from Ocean County, N.O. was at the program in Paterson after being referred by her probation officer. N.O. was on three years' probation following her assault of a former paramour. After learning that N.O. could return to Straight and Narrow's long-term care program with Alexis, the Division closed the case, deeming the allegation of neglect unfounded.

In July 2011, the Division received another report from one of N.O.'s service provider's expressing concerns for Alexis, then eighteen-months-old. The referral was from Project Home, a transitional housing program in Bayonne for mothers with substance abuse problems where N.O. was living with Alexis. The program reported that N.O. had an altercation with one of the other residents, packed up some possessions, and left on foot with Alexis in a baby carriage, despite being implored by staff to stay. The staff knew that N.O. was under the influence of alcohol because she had been required to submit to a sobriety test because of her "irrational and belligerent behavior" prior to leaving the building. N.O.'s blood alcohol content was .09, higher than the legal limit for operating an automobile. Although irate at being confronted by the staff about her drinking, N.O. admitted to doing so. Because the project's director was concerned that N.O. would be unable to care for Alexis in such an intoxicated and agitated state, she directed staff to call the police and the Division to try and locate her.

Investigators from the Division's Special Response Unit (SRU) responded and were at the facility when N.O. returned with Alexis about two-and-a-half hours later. Despite the positive sobriety test, Project Home agreed to allow N.O. to return and made arrangements for another resident to care for Alexis so as to avoid her removal. The SRU worker found N.O. coherent but smelling of alcohol.

When the caseworker arrived at the facility the following afternoon, she also detected an odor of alcohol on N.O.'s breath. N.O. claimed she had a "sip" of beer before lunch. Believing that N.O. had consumed more than a sip, the worker asked N.O. to provide a urine screen. When the two arrived at the Division office, the worker got a call from the resident caring for Alexis that she could not care for the child any longer. Concluding that N.O. could not care for Alexis and having no safety plan in place, the Division effected a Dodd removal and placed Alexis with N.O.'s mother-in-law, who has custody of two of N.O.'s other children. N.O. left the facility with her luggage at the same time. She was subsequently discharged from the program for non-compliance.

At the hearing on the order to show cause, the Family Part judge determined that the Division's emergency removal was appropriate because N.O. had placed Alexis in imminent risk of harm. The judge further found that it was unsafe to return Alexis to N.O.'s care, given N.O.'s history of substance abuse and recent relapse, and her inability to provide Alexis with stable housing because of her discharge from her residential program. The judge ordered N.O. to submit to a urine screen and a psychological evaluation.

On the return date several weeks later, N.O. did not appear and was reported as missing. Her counsel, however, was present. N.O. had failed to attend a scheduled psychological evaluation and had not sought to visit Alexis. The judge ordered N.O. to submit to a substance abuse evaluation and comply with treatment and again ordered a psychological evaluation.

At a subsequent compliance review, N.O. appeared by telephone, although her counsel was present in court. The Division worker testified that N.O. was living with a friend in a motel in Seaside Heights, a fact N.O. confirmed. She had undergone a substance abuse assessment but had failed to enter intensive outpatient treatment as recommended. N.O. had also failed to submit to a psychological evaluation. The Division advised that it was considering transferring the case to Ocean County but that a transfer was unlikely so long as N.O. lacked a permanent address. The judge again ordered N.O. to undergo a psychological evaluation and comply with substance abuse treatment.

Defendant appeared at the fact-finding hearing, but did not testify and did not present any witnesses. The Division workers and Project Home staff testified to the facts related above. After relating the events that precipitated Alexis's removal, the Project Home staff member opined that despite N.O.'s condition that night, she did not believe N.O. "would have [done] any harm to the baby." The judge disagreed. Although finding that N.O. loved and cared for her child, and had made great strides in working to overcome her substance abuse problem, the judge concluded that N.O. exhibited remarkably poor judgment and took a "terrific risk" by becoming intoxicated while she had the baby in her care. The judge found that by becoming intoxicated and leaving the building with Alexis, N.O. "placed [the] child at risk of serious physical harm" and was unable to safely care for her. Concluding that the Division had proved by a preponderance of the evidence that N.O. had abused and neglected Alexis by her conduct, the judge entered an order to that effect at the conclusion of the fact-finding hearing.

At subsequent compliance hearings, N.O. appeared by telephone from Ocean County. She lived in a motel in Seaside Heights until she was evicted, thereafter avoiding homelessness only by staying with a friend at another motel. N.O remained non-compliant with substance abuse treatment.

Although initially rejecting the Division's permanency plan of termination of parental rights followed by adoption, the judge ultimately accepted it after Alexis's caregiver rejected kinship legal guardianship. The action was dismissed when the Division filed its complaint for guardianship.

N.O. subsequently made an identified surrender of her parental rights to her mother-in-law, Alexis's caregiver. A memorializing order was entered terminating the guardianship litigation. This appeal followed.

N.O. contends that the Family Part erred in finding abuse and neglect within the meaning of N.J.S.A. 9:6-8.21, because there was no evidence that she presented any risk of harm to Alexis. She also claims she was denied due process by the Division's failure to transfer the case to Ocean County which would have allowed her to better take advantage of services provided by the Division. We disagree with both contentions.

Our review of the trial court's factual findings in a Title 9 abuse and neglect proceeding is limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Title 9 defines an "abused or neglected child" as including

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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or through 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, 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. 9:6-8.21c(4).]

In G.S. v. Department of Human Services, 157 N.J. 161, 178 (1999), the Court explained that "a minimum degree of care," denoted

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.

Willful or wanton conduct includes those actions "done with the knowledge that injury is likely to, or probably will, result." Ibid. "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court likewise held that "[b]ecause risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful." Id. at 178.

Although the Court noted that the difference between negligence and willful and wanton conduct cannot be clearly delineated in all cases,

[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Thus, under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.

[Id. at 179 (internal citations omitted).]

Therefore, the court held that

a guardian 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.

[G.S., supra, 157 N.J. at 181.]

We reject N.O.'s contention that her conduct in becoming belligerent and intoxicated to the point she could not be reasoned with and leaving her residential care facility with eighteen-month-old Alexis in tow, did not pose a substantial risk of harm to the child. We have noted previously that "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011). But this case is very unlike V.T., which involved a parent who ingested marijuana and cocaine two days before a supervised visit with his eleven-year-old daughter. Id. at 331. There, we found that the Division could not prove that the parent was impaired to the point of posing a risk to his daughter in a supervised setting. Ibid.

Here, the Division presented clear proof of impairment, which N.O. did not dispute - her blood alcohol content of .09 percent. As the Legislature has deemed that one may not safely operate an automobile at that blood alcohol level, no expert was necessary to explain its effect on a person's perception, judgment and gross motor skills. Here, as well, program staff required N.O. to submit to a sobriety test because of her "belligerent and irrational behavior." By leaving the building, she put herself in the position of being the only caretaker of an infant "vulnerable . . . to the slightest parental misstep." Ibid. Given that she did so in such an agitated and intoxicated state, there was ample evidence in the record to support the judge's finding that she put Alexis at substantial risk of harm.

Subsequent to the entry of the order from which N.O. appeals, the Supreme Court issued New Jersey Department of Children and Families, Division of Youth & Family Services v. A.L., 213 N.J. 1 (2013), clarifying that in a case such as this where no actual harm has befallen the child, the Division must present "proof of imminent danger and substantial risk of harm" in order to satisfy the statute. Id. at 23. Informed by A.L., we explained in New Jersey Division of Child Protection & Permanency v. M.C., 435 N.J. Super. 405, 418 (App. Div. 2014), that in those cases where no actual harm has befallen the child, the court's focus must be on "the effect of the parental conduct." Accordingly "in determining whether a child 'is in imminent danger,' risk demonstrated by past conduct should be assessed in light of actions since taken to address prior dangerous parenting for example, parental action that has eliminated a previously existing danger of impairment before the risk materialized." Ibid.

Here, as the record amply demonstrates, N.O. had not eliminated, or indeed, even addressed by the time of the fact-finding hearing, the prior dangerous parenting that had resulted in Alexis's removal by the Division. Most notably, N.O. had failed to enter recommended intensive outpatient treatment for her substance abuse. In this regard, we reject N.O.'s contention that her due process rights were violated by the Division's failure to transfer the case to Ocean County which would have allowed her to better take advantage of services provided by the Division.2

First, N.O. never claimed in the trial court that her failure to avail herself of services was because the case was proceeding in Hudson County after she relocated to a motel in Seaside Heights. Further, the record makes clear that N.O, was offered services by the Division and the Ocean County Board of Social Services, including intensive outpatient substance abuse treatment, of which she failed to avail herself. Although there is no question that it would have been better to have the Division caseworker in closer proximity to N.O., we cannot find that the failure to transfer the case to Ocean County, which she did not request until after the fact-finding hearing, deprived her of due process on this record. To the extent that N.O.'s claim is based on the failure to transfer the case prior to approving the Division's permanency plan, it is mooted by her subsequent voluntary surrender of her parental rights. See N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011).

Because the facts evinced at the fact-finding hearing provide sufficient, credible evidence to support the judge's findings that N.O. abused or neglected Alexis by her conduct, we affirm.

Affirmed.

1 We refer to the child by a fictitious name in order to protect her privacy.

2 N.O.'s other argument, that her inability to appear in person at the hearings which followed the fact-finding hearing denied her due process, is without merit. See N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 463-71 (App. Div.) (holding that there was no due process violation when the defendant could not participate in person or telephonically because she was represented by counsel and permitted to testify by de bene esse deposition), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).