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

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NOT FOR PUBLICATION WITHOUT THE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.D.,

Defendant-Appellant.

IN THE MATTER OF C.S., a minor.

September 22, 2014

Submitted September 9, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0456-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Dana Citron, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James R. Griffin, Jr., Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Designated Counsel, on the brief).

PER CURIAM

Defendant J.D. (Jane)1 appeals from the June 22, 2012 Family Part order finding she abused or neglected her daughter, C.S. (Carol). Because we conclude the record lacks substantial credible evidence that Jane recklessly created a substantial risk to the health and safety of her child, we reverse.

I.

The record reveals the following facts. On February 18, 2012, the Division of Child Protection and Permanency (Division) received a referral from the Gloucester Township Police Department reporting an incident at a home in Blackwood, involving a child with blood-stained clothing. According to the police report of the incident, there was a trail of blood to three separate residences. The police knocked on the door of the house where the blood trail ended, the residence where Jane lived with her mother. There was no response, but the police were able to enter the house through a partially open window and found "the living room to be a mess, [with] shattered glass, blood, and a broken flower pot with dirt all over the living room floor. The kitchen had multiple cabinets open, drawers on the ground and [knives] on the table."

The officers announced their presence and R.S. (Rex)2, Carol, Jane, and her brother emerged from the bedrooms. Rex carried Carol, who wore a blood-stained shirt. There was debris and trash all over the house. Police found an empty glassine bag, a home-made pipe, and a bloody $50 bill outside the house.

The police "confirmed the blood on [Carol's] clothing was from [Jane] touching [Carol] while [Jane] was bleeding. There were no signs of injury to [Carol]." The police reported Jane initially said "she heard someone in the house and that she tried to open the window to scream for help, causing [the window] to break and dropping the flower pot." Later, she "tried to tell officers that someone tried to enter the house and she threw the pot at the window and then went outside for help." When police started to question Jane about her inconsistent story, Rex jumped up and started yelling at Jane to "stop lying and tell them the truth[.]"

Rex later told a case worker he had gone to Atlantic City the previous night and returned about 6:00 a.m. and went to Jane's home, where "it looked like a murder scene with blood all over." Jane and her brother told Rex there was an intruder in the house. Rex walked through the house with a baseball bat and found no one. When asked if he thought Jane and her brother were under the influence, he replied "yes because there was no one in the . . . house."

Rex described Jane and her brother as recovering addicts. He said Jane had completed a drug treatment program for heroin addiction four months prior to the incident, and her brother had just completed a program in Florida for cocaine and heroin addiction. Rex himself had completed a drug treatment program for heroin and cocaine eight months before, and admitted to a recent relapse "[two] weeks ago with heroin and zanax."

A Division worker interviewed Jane's brother who stated he thought someone was trying to get into the basement at around 1 a.m. that morning. He told his sister to call the police. Police arrived and found nothing wrong, so they left. At 4:00 a.m., he again heard someone trying to get into the basement, so he woke up Jane, and she then "flipped out," causing the damage to the house.

When interviewed by a caseworker at about 1:00 p.m. on the date of the incident, Jane recounted that she and Carol had been sleeping in the bedroom while her brother and three friends were drinking in the house. She stated her brother woke her up twice because he thought someone was breaking into the home. She stated her brother was drunk and making her nervous. The second time he woke her up, she attempted to call the police from the house line. When the call would not go through, she became scared the line was cut. She then tried to open a window to yell to her neighbors for help, knocked over a plant, and put her hand through the window, cutting her hand.

The caseworker wrote that Jane admitted if she were to take a drug test she would test positive for suboxine (her prescribed medication), as well as cocaine and marijuana. Jane stated she last smoked marijuana about four weeks prior, and last used cocaine the previous week. Significantly, neither the police report nor the Division's report provide any indication Jane appeared under the influence of drugs or alcohol. The police took Jane and Rex into custody for outstanding warrants, and not for any reason related to the incident under review.

On June 8, 2012, the court conducted a fact-finding hearing. The Division presented one witness, Raymond Jobson, one of the caseworkers who responded to Jane's home to investigate the report. He testified:

[T]he Division made a determination that based on the . . . the admission of the recent relapse and . . . the situation of the home[,] that . . . we were going to remove . . . by [Dodd]3 and we placed [the child] with a family member that day.

[The parents] were both arrested at the time . . . for outstanding warrants.

Regarding Carol, Jobson stated "she was fine . . . when she went with us, she was okay, she was talkative and everything like that." When questioned, Carol did not say anything about the earlier incident. The Division also relied upon the police report of the incident, and its own referral response report, which were both admitted without objection.

Jane also testified at the hearing. She essentially repeated what she had told the police and the caseworker following the incident, except she disputed the report of blood on Carol's clothing, as well as the claim that she stated she would have tested positive for drugs. Regarding a drug test, she remarked, "I wished they would have given me one . . . . Because I would have passed it." She further stated she passed a drug test "a few days after the incident,"4 as well as every test thereafter. When asked if she was intoxicated or high on the night of February 18, she responded, "No, I was in bed with my daughter."

The judge did not credit Jane's testimony, noting there were inconsistencies in her account of the incident and that her testimony was inconsistent with the statements she had given police on the morning of the incident. The judge further credited the statement that Rex made to police, alleging defendant was probably under the influence of drugs at the time that the damage in the home occurred. The judge also noted defendant's admission to the caseworker that, if tested, she would test positive for suboxine, marijuana, and cocaine.

The judge entered an order finding Jane had abused or neglected Carol. On January 29, 2013, the court terminated litigation, granting full legal and physical custody of Carol to Jane, without restrictions. This appeal followed.

On appeal, Jane argues the record lacks sufficient evidence to support the trial court's finding of abuse or neglect. The Law Guardian supports reversal of the court's finding.

II.

We first outline our standard of review:

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21, (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495, 815 A.2d 1013 (App. Div.), certif. denied, 177 N.J. 224 (2003).

N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010).

Actions initiated by the Division charging abuse or neglect of children are governed by N.J.S.A. 9:6-8.21 to -8.73. 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). "The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made" and clearly identify all documentary exhibits relied upon in reaching the decision. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

A child 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 a similarly serious nature requiring the aid of the court[.]

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

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." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). As used in the statute, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

The issue here is whether Jane's admission she would test positive for drugs, the damage found in Jane's home, and Rex's belief Jane was under the influence, constitutes a failure to exercise a minimum degree of care by recklessly creating "harm, or [the] substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4)(b). Whether a particular event should be classified as merely negligent, as opposed to gross or wanton negligence, can be difficult to determine. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011).

The Division bore the burden of proving that Jane's use of drugs was reckless or unreasonable, N.J.S.A. 9:6-8.46(b), but no competent evidence was presented that Carol was ever placed in danger. Although the Division need not wait for harm to occur, A.L., supra, 213 N.J. at 23, the record does not contain competent evidence that Jane acted with gross or wanton negligence, knowing that injury was likely, and recklessly disregarding the possibility. See G.S., supra, 157 N.J. at 178.

Jane relies on the Supreme Court's decision in A.L., and our decision in N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), to argue that her drug use alone is insufficient proof of actual or imminent harm. In A.L., the Court stated:

Proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to that issue. But not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the statute.

[A.L., supra, 213 N.J. at 23.]

Instead, the Court required evidence of "the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child." Id. at 27.

In V.T., a father was substantiated for abuse or neglect of his nine-year-old child based on his refusal to attend substance abuse treatment and two positive drug tests for cocaine and marijuana during supervised parenting time. V.T., supra, 423 N.J. Super. at 325-27. During trial, the Division presented no evidence of actual harm, and no expert evidence that the father posed a risk of harm during the parenting time. Id. at 331. Furthermore, the Division acknowledged that the child behaved appropriately during the visits and demonstrated no indicia of impairment. Ibid. We reversed, recognizing "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time." Ibid. We further emphasized "that not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." Id. at 332.

Jane argues "the evidence was insufficient to support the court's finding of abuse and neglect," emphasizing there was "no evidence in the record that the child was actually harmed or faced a substantial risk of harm." We agree.

As in V.T., here the issue is whether there is sufficient evidence of abuse or neglect where a parent has admitted to recent drug use, but not while parenting a child. In V.T., the father admitted using cocaine and marijuana two days prior to both visits and "acknowledged that cocaine stays in one's system for three days and marijuana for thirty days, [but] he denied being impaired, as he indicated he 'had a high tolerance level' for drugs and the 'high' had passed when he went to the supervised visits." Id. at 326. We determined:

Absent expert evidence, the State is unable to demonstrate whether or not [the father] was impaired to the point of posing a risk to [the child] in a supervised setting. The level of drugs in his system is not explained and, as the trial judge acknowledged, absent expert testimony the meaning of the reported levels is unclear.

[The father] testified he ingested the drugs two days prior to each visit. There is no evidence to contradict this testimony. Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.

[Id. at 331.]

According to the caseworker, Jane admitted she used marijuana about four weeks before the incident and last used cocaine the previous week. As noted, none of the entries in the police report or the Division's referral response report indicate Jane appeared under the influence of drugs or alcohol on the date of the incident. We further note Jane passed the drug test administered at the time of her first court appearance in this matter, which was four days after the incident, as well as all subsequent drug tests.

Smoking marijuana and using cocaine when not caring for a child are certainly careless and negligent acts. However, proof of mere negligence does not satisfy the requirements of the statute. T.B., supra, 207 N.J. at 306-7. There must be willful, wanton, or reckless conduct. G.S., supra, 157 N.J. at 178-79. The Division presented no evidence to establish that injury to the child "is likely to, or probably will, result." Id. at 178.

The Division's proofs at the fact-finding hearing failed to meet the minimum degree of care standard. The only evidence in the record that Jane was under the influence came from Rex. Rex told the caseworker he believed Jane and her brother were both under the influence because they mistakenly believed someone was in the house. The record indicates, however, that the suspicion of a break in came from Jane's brother, not Jane, and that Jane was reacting to her brother. The fact Jane may have reacted in panic to her brother's false reports does not demonstrate she was under the influence.

Although the court found the house was in disarray and there was blood on Carol's shirt, it did not find a nexus between Jane's conduct and harm or risk of harm to Carol there was no proof to establish a causal relationship. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 23-24 (2004). The police accepted Jane's explanation that the blood on Carol's shirt occurred as a result of the cut on Jane's finger.

Moreover, there was no proof of harm or risk of harm to Carol. The police observed there "no signs of injury to the juvenile." There was no evidence that Carol was downstairs when the incident occurred, or that Carol witnessed the incident. There was similarly no evidence Carol was directly exposed to the broken glass or knives in the home.

While acknowledging the uncertainty as to what transpired during the incident, the trial court stated, "it is clear that something happened . . . . It also appears there was some sort of m l e in the home causing the home to appear the way that it did. Whatever happened that night was not a safe environment for a three-year-old." A finding of abuse or neglect cannot be based upon speculation or conjecture. We conclude the record lacks sufficient competent evidence to support a finding that Jane's conduct constituted gross or wanton negligence which caused harm or risk of harm to Carol.

We do not condone the use of illegal substances. Here, however, the court found Jane created an unsafe environment for Carol without the necessary evidential links. It is necessary to causally connect the parent's actions to show that the child was harmed or at risk of being harmed. Ibid.

We find insufficient evidence to support the finding of abuse or neglect, therefore we need not address Jane's remaining arguments. The finding of abuse and neglect is reversed. The Division will remove Jane's name from the Central Child Abuse Registry within thirty days of the date of this opinion.

Reversed.

1 We use pseudonyms for the parties to protect their privacy and for ease of reference.

2 Rex is Carol's father.

3 "A 'Dodd removal' refers to the emergency removal of a child without a court order, pursuant to the Dodd Act, . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11, (2011) (citations omitted).

4 At a hearing on February 22, 2012, the judge noted Jane's urine screen was "clean" while Rex's was "positive for morphine."