NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.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NOT FOR PUBLICATION WITHOUT THE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.

D.C.,

Defendant-Appellant,

and

R.S. and O.L.,

Defendants-Respondents.

_____________________________________

IN THE MATTER OF B.S. AND S.L.,

Minors.

_____________________________________

September 4, 2014

 

Submitted May 27, 2014 Decided

 

Before Judges Kennedy and Sumners.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-72-12.

 

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

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent R.S. (Robyn A. Veasey, Deputy Public Defender, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent O.L. (Robert H. McGuigan, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors B.S. and S.L. (Caitlin A. McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant, D.C. (Deborah)1, appeals from a January 29, 2013 judgment of the Family Part finding that she abused or neglected her children, which resulted in termination of her parental rights. We affirm based upon our review of the record and applicable law.

I.

The record reveals the following facts. Deborah is the biological mother of B.S. ("Brooke") born in 2006, and S.L. ("Sara") born in 2011. R.S. ("Robert") is the father of Brooke and O.L. ("Oliver") is the father of Sara.

Deborah's history with the New Jersey Division of Child Protection and Permanency (Division)2 dates back to March 18, 2006, when the Division received a referral from a caller alleging child neglect and substance abuse by Deborah because she tested positive for marijuana when she gave birth to Brooke. No drugs were found in Brooke's system. Although the allegations of abuse and neglect were not substantiated, the Division provided services to the family.

On August 14, 2009, after Deborah moved to Connecticut, she was the subject of an investigative referral requesting information due to an open case with Connecticut Child Protective Services (CCPS) as a result of testing positive for marijuana. CCPS substantiated evidence of physical neglect due to a domestic violence incident that occurred in the presence of Brooke. Prior to this investigation, Deborah had two referrals with CCPS for neglect, one of which was substantiated.

The Division's next involvement with Deborah was after she returned to New Jersey and a referral was received on May 9, 2011 from Saint Joseph's Regional Medical Center (St. Joseph's) in Paterson, New Jersey following Sara's birth when Deborah refused to take a toxicology test for her and Sara. The referral also indicated that Deborah had limited prenatal care. Given her past history with the Division, a Division caseworker, Denise Thomas, met with Deborah at the hospital that day. Deborah explained that she refused to submit to testing because the Division previously intervened when she tested positive for marijuana when she gave birth to Brooke. Deborah claimed that the last time she used substances was two and half years ago.

As a follow-up to the referral, Deborah went to a Division office on May 13, 2011 to complete a urine screen. Upon learning that an aide would monitor the test, she refused to comply.

On August 2, 2011, the Division filed an order to show cause and verified complaint for investigation. On August 17, the return date for the order to show cause, the Division informed the Family Part judge of Deborah's failure to comply with drug screening and requested an order to compel her daughters' fathers to comply with the investigation.3

Further concern was raised when Deborah failed to appear for scheduled substance abuse assessments on September 1, 12, 16, and 19, 2011. Thus, on September 19, 2011, the judge ordered the Division to file a new complaint for care and supervision based on Deborah's failure to submit to a drug screening and failure to cooperate with the Division's investigation.

In addition, the Division completed a collateral investigation concerning Brooke's school attendance. It was discovered that from September 15 to October 25, 2011, Brooke was absent from the Early Learning Center nine times out of twenty school days without explanation and routinely late on the other days.

On October 18, 2011, the Division filed a verified complaint for care and supervision. Deborah tested positive for marijuana for a court ordered urine test on October 20, 2011.

On November 17, 2011, the return hearing date on the order to show cause, the Division expressed concerns regarding Deborah's ability to serve as the sole caretaker for Brooke and Sara. Robert was present at this hearing, but Deborah was not, and no explanation was given regarding her failure to appear.

On November 30, 2011, during a scheduled compliance review proceeding, which Deborah attended, the Division filed an amended complaint to seek custody. Both of the girls' fathers were present at this hearing. Robert offered to take both girls in order to keep them together. Oliver objected as he wanted custody of his daughter, Sara. Ultimately, the judge entered an order granting custody to the Division, declaring that the Court had "no confidence that [the children are] safe with [Deborah]." Several days later, Brooke and Sara were placed with their maternal grandmother until evaluations of both biological fathers were completed.

On December 12, 2011, the Division provided reports to the court that Deborah tested positive for marijuana on December 6, 2011. After her court appearance, Deborah checked herself into St. Joseph's for in-patient substance abuse rehabilitation. She was subsequently discharged and referred to the hospital's outpatient mental health clinic.

On January 16, 2012, a counselor from Options substance abuse program advised the Division that Deborah was continuously late and was progressing slowly in her rehabilitation.

At the request of the Division, Dr. Ernesto L. Perdomo, Ph.D., conducted psychological evaluations of both Deborah and Oliver. Dr. Perdomo opined that Oliver appeared to be more psychologically intact in comparison to Deborah. In his report, he stated that Oliver had a "very good grasp of reality and his ability to organize his life and work." Dr. Perdomo found that Deborah had "a cannabis dependency and lacked housing." Dr. Perdomo recommended that Deborah remain enrolled in the following service programs: (1) substance abuse evaluation; (2) psychological evaluation; and (3) a referral for domestic violence counseling. Dr. Perdomo's opinion was that Deborah would benefit greatly if she completed the programs.

On March 12, 2012, the Family Part judge held a fact-finding hearing, where he heard the testimony of the Division's caseworkers, Denise Thomas and Victor Matos, and considered the Division's investigation report dated September 21, 2011. Ms. Thomas testified that Deborah told her at St. Joseph's following Sara's birth that due to Deborah's positive drug test when Brooke was born, "the Division would have to take her to court if they needed a urine screen from her." Mr. Matos testified that Deborah had not attended her psychological evaluation, domestic violence counseling, or substance abuse evaluations at the time the Division was granted custody of the children in November 2011.

On March 30, 2012, the Family Part judge issued an oral opinion and accompanying fact-finding order that the Division established by a preponderance of the evidence that Deborah "abused or neglected" Brooke and Sara pursuant to N.J.S.A. 9:6-8.21(c). He determined that Deborah failed to provide adequate supervision and guardianship to her daughters due to her active substance abuse while they were in her sole care and refused offered services of substance abuse assessments.

In August 2012, Deborah began an impatient drug treatment program and showed progress. However, on November 8, 2012, Deborah was arrested and charged with Driving Under the Influence ("DUI"). On November 16, 2012, Deborah tested positive for alcohol and PCP.

At the permanency hearing on November 27, 2012, the Family Part judge declared that Deborah had a continuing substance abuse problem that "places [her] children in danger and affects their health and welfare." He approved the Division's plan placing legal and physical custody of the girls with their respective biological fathers, as Deborah failed to address her substance abuse issues. The judge also ordered Deborah to attend an in-patient drug treatment program.

Thereafter, the law guardian requested that the case be dismissed in a month. Deborah's attorney objected, maintaining that the case cannot be dismissed without a dispositional G.M.4 hearing, because custody was taken from his client. The Division disagreed, asserting that since a finding was made that Deborah was unfit to parent, she therefore did not stand in the position as a non-offending parent, who is required to be granted a G.M. hearing. The Division further argued that the court already ruled that it was unsafe for the children to remain in the custody of their mother. The judge concurred with the Division's reasoning and did not grant defense counsel's request to conduct a G.M. hearing.

On January 29, 2013, the Family Part judge entered an order terminating litigation, in light of the fact that custody of Brooke and Sara was transferred to their respective fathers and the Division had no concerns with their ability to parent. It was further ordered that Deborah have supervised visitation, and complete a drug treatment program, with proof of completion before she could apply through the Division for unsupervised visitation.

This appeal followed in which Deborah raises the following issues:

POINT ONE: THE DIVISION FAILED TO PROVE THAT THE CHILDREN WERE ABUSED OR NEGLECTED UNDER N.J.S.A. 9:6-8.21.

 

A. THE [FAMILY PART JUDGE] ERRED IN FAILING TO RULE THAT TITLE NINE DOES NOT APPLY TO A FETUS AND THEREFORE INTRUSION INTO THE FAMILY WAS IMPROPER.

 

B. THE [FAMILY PART JUDGE] ERRED IN FINDING THAT THE DIVISION MET ITS' BURDEN IN PROVING EDUCATIONAL NEGLECT BY A PREPONDERANCE OF THE EVIDENCE.

 

POINT TWO: [FAMILY PART JUDGE'S] PROCEDURAL ERRORS DEPRIVED THE DEFENDANT OF HER CONSTITUTIONAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, DUE PROCESS AND A FAIR TRIAL.

 

A. THE [FAMILY PART JUDGE] ERRED IN FAILING TO STRICTLY ADHERE TO THE FUNDAMENTAL CONSTITUTIONAL RIGHT OF A PARENT TO RAISE THEIR CHILD.

 

B. THE [FAMILY PART JUDGE] ERRED IN FAILING TO HOLD A G.M. HEARING AS IT VIOLATED HER CONSTITUTIONAL DUE PROCESS RIGHTS.

 

II.

We first address Deborah's contention that the Division failed to prove that she abused her daughters pursuant to N.J.S.A.9:6-8.21(c)(4)(b). Our analysis begins with a review of the applicable legal principles.

The scope of our review affords deference to the Family Part judge. First, deference is accorded to the Family Part judge's fact finding. J.D. v. M.A.D., 429 N.J. Super.34, 42 (App. Div. 2012) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Second, there is special deference given to the Family Part's particularized jurisdiction in family matters based on its expertise in the field of domestic relations. SeeN.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 216 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J.365, 382 (1999)); see alsoN.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 293 (2007) (noting that the trial court has the best "feel of the case").

Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part 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)). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). The Family Part judge's legal conclusions and application of those conclusions to the facts are subject to plenary review. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.366, 378 (1995).

The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A.9:6-8.21 to 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010)). Title Nine's purpose is to protect children from circumstances 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)). A child less than 18 years of age is abused or neglected when the child's

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, . . . or by any other acts of similarly serious nature requiring the aid of the court[.]

 

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

 

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 & Families 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.

On March 30, 2012, the Family Part judge determined that the Division satisfied a showing of abuse or neglect by a preponderance of the evidence based upon its investigation and the testimony presented by stating:

The Court finds that she [failed to provide urine sample on May 13 at DCPP] based upon continuing substance abuse which would have resulted in positive test results. There is no other logical explanation for failing to provide the urine screens if she was, as she said, abstinent from drugs for a period of two and a half years, and she continually failed to provide one.

. . . .

 

[DCPP] also determined that although [Deborah] had enrolled [Brooke] in a kindergarten program, the child had been absent nine times and tardy once already between September 15 and October 25. This was a four year old. This was not a child of 14 or 15 who was refusing a parent s reasonable efforts to get the child to school. This was not an older child who a parent took to school and who went out the back door, and the parent was being charged with failure to have the child in school. This was a four year old who could only rely on the custodial parent to get her to school. And with no evidence to the contrary put forth by [Deborah], the Court finds that [Deborah s] proven marijuana use during this period made her unable or willing to adequately see to the child s educational needs.

. . . .

The Court finds that all of the above place [Brooke], and [Sara], as well, except for the educational component with regard to [Sara], at imminent risk of harm due to [Deborah s] failure to be able to provide her children with adequate supervision and guardianship due to her active substance abuse while refusing offered services of substance abuse assessments and treatment while the children were in her sole care, this for a period from May 9, 2011 to November 30, 2011, when the Court ordered their removal, a period of over six and a half months. [DCPP] has met the burden of proof that these children were abused or neglected under the statute.

 

These findings are consistent with the evidence presented in the record and we discern no error in the Family Part judge's finding of abuse or neglect in accordance with N.J.S.A.9:6-8.21(c).

This matter is unlike the circumstances in A.L., supra, 213 N.J. at 13, where the judge ruled there was not sufficient evidence based upon the two occasions the mother used drugs to establish that she was an addict and posed a substantial risk to her child. Here, the evidence is overwhelming as to Deborah's active pattern of drug abuse. We agree with the Family Part judge that Deborah's behavior was a barrier to her reunification with her children as she chose her own well-being over her children by consuming alcohol, marijuana, and PCP on a number of occasions. Therefore, we conclude the Family Part judge's determination that Deborah abused or neglected her children should be upheld.

We next address Deborah's contention that the Family Part judge's abuse and neglect determination should be reversed because he found that the abuse and neglect statue protected an unborn Brooke, when Deborah had a positive substance abuse test at Brooke's birth, and inferred substance abuse when Deborah refused substance abuse testing when Sara was born. We disagree.

Weafford substantial deference to a trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998) (citations omitted). The abuse or neglect statutes expressly [35] require that the court assess risk to the children. N.J.S.A.9:6-8.21(c). N.J.R.E.401 defines "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." However, admitting testimony regarding Deborah's past substance abuse and of the positive test results from Connecticut and from when Brooke was born is appropriate as evidence of habit under N.J.R.E.406(b).5

Here, the Family Part judge relied upon Deborah's admissions of drug abuse, positive tests, and failure to comply with substance abuse rehabilitation services to find she was unable to provide sufficient supervision for her children resulting in a substantial risk of harm to the children. His ruling also found support in the Division's psychological evaluations which concluded Deborah posed a risk of harm to Brooke during her pregnancy with Brooke "by using a controlled dangerous substance intentionally knowing it could be harmful." In addition, the Family Part judge was satisfied that the Division met its burden by presenting an expert witness to inform the judge whether either of the parties, Deborah, Oliver, and Robert would be suitable as sole caretakers.

We conclude the Family Part judge properly considered the testimony regarding Deborah's substance abuse history under the watch of the Division and CCPS. Deborah sets forth no authority to support her argument that evidence regarding her prior substance abuse history should not have been admitted. She fails to indicate how this evidence is not relevant and probative to the allegations of abuse against her. As to the impact of Deborah's refusal to be tested when Sara was born, it was reasonable for the judge to conclude that Deborah had been abusing substances during Sara's pregnancy. Deborah obviously understood the risks involved in abusing dangerous substances while she was pregnant with Sara, due to her prior contact with the Division and CCPS regarding substance abuse when Brooke was born and prior to her pregnancy with Sara. In fact, she knew a positive test result could initiate a process that could lead to the Division's efforts to remove her daughters from her custody. Therefore, we agree that it was proper to consider the entirety of Deborah's documented substance abuse history to determine if the Division provided credible evidence of abuse and neglect.

Finally, we address Deborah's contention that her due process rights to be heard was violated when the trial judge elected to not conduct a plenary hearing prior to removal of her daughters. We are not persuaded by her argument.

Appellate review of the trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to the family court's fact-finding." Cesare, supra, 154 N.J. at 413. "Reversal is required only in those circumstances in which the trial court's findings were 'so wide of the mark that a mistake must have been made.'" T.S., supra, 417 N.J. Super. at 240.

Here, the trial judge properly concluded that the Division made reasonable and numerous efforts to assist Deborah, and considered alternatives before deciding to terminating her parental rights.Following the removal of Brooke and Sara, Deborah was referred to mandatory substance abuse evaluation. She was continuously screened for substance abuse after positive drug screenings, and repeatedly referred to substance abuse rehabilitation after failing to attend. Deborah was also referred to services for parenting skills and mental health treatment to assist her in a path toward reunification.

Despite the Division's efforts to reunify Deborah with her daughters, Deborah did not participate in the services available to her, failed to ensure that Brooke regularly attended pre-school, and more importantly, her substance abuse was unabated. Deborah had ample opportunities to be heard and protect her parental rights. The fathers of Brooke and Sara were given legal and physical custody because they were evaluated and found to be suitable parents. The decision to terminate Deborah's parental rights was supported by facts and law.

Affirmed.

1 We use fictitious names to protect the confidentially of the children and for ease of reference.

2 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 Oliver was present at this hearing, but Robert was not, as he credits Deborah with not giving the Division his address in order to receive notice of the proceeding.

4 N.J. Div. of Youth & Family Servs v. G.M., 198 N.J. 382 (2009).

5 N.J.R.E. 404(b) provides that evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of instances is offered to support a finding of such habit or routine practice.