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

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NOT FOR PUBLICATION WITHOUT THE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.N.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF J.N.,

Minor.

_______________________________________________

November 13, 2014

Submitted September 23, 2014 Decided

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-168-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.N. (Suzanne M. Carter, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals the decision of the Family Part that she abused or neglected her son, John1, by testing positive for cocaine while acting as his primary caretaker. As we conclude the record does not sustain a finding of abuse and neglect, in light of N.J.S.A. 9:6-8.21(c)(4)(b), we reverse.

On June 16, 2011, the Division of Youth and Family Services2 received a referral alleging defendant abused drugs and stole from friends and family to purchase the drugs. It was also alleged that John was neglected by defendant and put at risk by her criminal activities.3 As a result of the referral, the Division conducted an investigation. Defendant was interviewed by two Division caseworkers at her residence. Caseworkers noted that despite some questions about defendant's demeanor and conduct, she did not appear to be under the influence of drugs. Defendant denied drug use to the caseworkers and also denied she had engaged in any criminal activity. When contacted by the Division, local police refuted those statements. However, the police could not provide proof that defendant's criminal activity took place in the presence of John. At the conclusion of the interview, defendant agreed to submit to a urine screen. A few days later, defendant appeared for the scheduled test, and after initially refusing, submitted to a urine screen. The test was negative but determined to be "irregular." Defendant advised the caseworkers she would only submit to future drug screens if ordered by the court. Thereafter, the Division filed a complaint for investigation.

On the return date of the initial order to show cause, defendant did not appear. The court ordered that defendant submit to a substance abuse evaluation and a hair follicle drug test for the purpose of determining drug use within the past ninety days. In July 2011, after several requests, defendant submitted to a urine screen which was negative. Defendant failed to appear on numerous occasions for the scheduled hair follicle test. In early September 2011, defendant submitted to a hair follicle test. On September 26, 2011, defendant was discharged from the drug assessment program due to non-compliance.

A few days later, a Division caseworker conducted an unannounced visit to defendant's residence. The defendant and the child were not home. Defendant's uncle, with whom she resided, advised that he took care of John while defendant was out. The uncle reported he had no concerns nor any information whether defendant was using drugs.

Division caseworkers also spoke with John's teacher. The teacher reported that John's attendance record was excellent and that he exhibited no behavior issues. The teacher expressed no concerns of child abuse or neglect and advised that John appeared to be well groomed and dressed appropriately for the weather.

In October 2011, the Division made a scheduled visit to the home. During the visit, the caseworker noted the home was safe and clean. At this visit, defendant was advised she had been expelled from extended drug assessment for non-compliance and would need to be assessed again. Defendant told the caseworker she would refuse future services.

The hair follicle test was positive for "cocaine/metabolites" and Benzoylexgonine. The caseworker met with defendant to confront her with the result. Prior to being advised of the result, defendant denied use of drugs. After the caseworker told her the result, defendant admitted she used cocaine in April or May of 2011 and took Percocet, prescribed by a doctor, in May 2011. Predicated upon the result of the drug test, as well as defendant's admission, the Division substantiated the allegation of abuse and neglect. The Division determined there was "neglect, substantial risk or physical injury and an environment injurious to the health and welfare" of John. The Division conducted an emergency removal. John was placed in a Division-approved resource home. On the day of John's removal, he received a physical exam and was determined to be in good health. The Division developed a safety plan addressing defendant's future contact with John.

On the return date of the order to show cause, the Division was granted custody of John. Defendant did not attend the hearing. The court also ordered defendant to submit to a substance abuse evaluation.

In November 2011 defendant was evaluated for substance abuse. During the evaluation, defendant admitted to use of cocaine approximately ten times in a two-month period. Defendant also admitted to experimenting with non-prescribed Xanax in May and June of 2011, but denied any recent drug use. As part of the evaluation, defendant submitted to a drug test. The results were negative. Nonetheless, defendant was recommended for intensive outpatient treatment which defendant failed to attend, claiming that the treatment conflicted with her job.

A fact-finding hearing commenced in February 2012. The hearing was delayed due to the Division's failure to provide discovery. The hearing did not resume until August 2012. In the interim, defendant intermittently participated in the outpatient program. During this timeframe, defendant insisted she be given a hair follicle drug screen since the Division was not providing her with urine screens.

It was also at this time that John, while in placement homes with his maternal aunt and his paternal grandmother, exhibited behavior problems. John was noted as demonstrating aggressive behavior and inappropriate sexual behavior. Based upon these behavior problems, the Law Guardian recommended counseling.

At the August 2012 hearing, the caseworker testified that the Division substantiated the claim of abuse or neglect as defendant tested positive for cocaine and drugs and engaged in criminal activity in John's presence. The caseworker noted defendant had a history of substance abuse and was non-compliant with recommended treatment. The caseworker further testified that while she never observed defendant under the influence of drugs during the Division's involvement, defendant missed drug screens, refused to comply with the screens without a court order and failed to comply with outpatient treatment. After the Division rested, defendant's counsel objected to the admissibility of the positive hair follicle test. In response, the judge permitted the Division to call an expert witness at a continued hearing to explain the results of the hair follicle test and the chain of custody.

Prior to the resumption of the hearing, the court conducted a case management conference and a permanency hearing. At these hearings it was reported that defendant continued to test negative for drugs and had liberal, but supervised, visitation with John. In furtherance of the Division's plan of reunification, the court found the plan was in John's best interest.

On February 12, 2013, at the conclusion of the expert's testimony and after closing arguments, the court rendered an oral decision.

The judge found that

[defendant] admitted using cocaine sometime in April of 2011, and that the hair follicle test showed that she used within a three-month period of September 2, 2011, all while being the primary caretaker for her young son. During that period as I've indicated she was the primary caretaker for the minor child, who was approximately five years old at the time, and that she was caring for him while actively using cocaine.

The judge held that

[t]he evidence supports a finding that defendant repeatedly evaded the Division in their request to have her drug tested, so much so that Division was compelled to come into court and obtain an order to investigate. Defendant was court ordered to submit to a hair follicle test, and it took the Division three tries to get her in to submit to the hair follicle test. Once the results were obtained and it became evident to the Division that defendant was suffering from substance abuse and that J[ohn]'s only other potential caregiver, the uncle, also tested positive, the Division removed the child from defendant's care. . . . . She admitted that she used in April, 2011, but her evasiveness toward the Division and the drug result belie her explanation that she "used one time."

Noting that it is "obvious" that a primary caretaker's "active untreated drug abuse" exposes a young child "to a substantial risk of harm," the judge concluded that the Division had substantiated its burden of proof.

At the April 11, 2013 compliance review hearing, the case was dismissed. The trial court noted that defendant "ha[d] made tremendous progress . . . [and] the Division appears to have no concerns." After the dismissal, defendant filed an appeal.

On appeal, defendant contends the finding of abuse and neglect is not supported by sufficient credible evidence. The Law Guardian joins in defendant's appeal and contends the court's finding of abuse and neglect is not legally sustainable.

N.J.S.A. 9:6-8.21(c)(4), defines an abused or neglected child 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 (a) in supplying the child with adequate . . . shelter . . . or (b) in providing the child with proper supervision . . . by unreasonably . . . allowing to be inflicted harm, or substantial risk thereof[.]

"[T]he phrase 'minimum degree of care' refers to conduct" by a parent "that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999); see also, Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). Moreover, as the Court recognized in T.B., the purpose of Title Nine is to protect children "who have had serious injury inflicted upon them." Id. at 303 (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011)).

Whether a child will face danger in the future may be inferred from the parent's past conduct.

[The] focus on the parent's level of culpability in assessing a "minimum degree of care" language is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.

[T.B., supra, 207 N.J. at 307.]

In a Title Nine action, to establish that a child is abused or neglected, the Division must prove its charge "by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (citing N.J.S.A. 9:6-8.44). In entering an order finding abuse and neglect, the trial court "must articulate, with particularly, the facts upon which a determination of abuse and neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

Our review of the trial court's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413. Unless the court's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted).

In N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011), we held that a parent's use of drugs, by itself, will not necessarily support a finding of abuse and neglect. The statutory basis for a fact-finding hearing is not to assign moral blame to the parent, but to determine whether the child has been actually injured or placed emotionally or physically at risk in some significant way, such that the court's intervention is required

The purpose of a fact-finding hearing in an abuse or neglect proceeding is not to assign guilt to a defendant, but to determine whether a child is an abused or neglected child pursuant to N.J.S.A. 9:6-8.44. Under the statutory framework, "the safety of the child shall be of paramount concern." At the hearing, the State must prove by a preponderance of the evidence that there has been an act of abuse or neglect committed by the parent . . . . "If facts sufficient to sustain the complaint under [Title Nine] are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal." N.J.S.A. 9:6-8.50(c).

[Id. at 328 (citations omitted).]

In V.T., we held that a father attending supervised visitation while under the influence on two occasions did not constitute per se abuse or neglect. Id. at 332. The Division urges this case is distinguishable from V.T. because no "mitigation circumstances" like those in V.T. i.e., that the father in V.T. was only visiting and not the child's primary caretaker are present here. We disagree with the distinction as it misses the appropriate focus, which is not on the parenting role but on the risk of harm to the child based upon parenting conduct.

Although "[c]ourts need not wait to act until a child is actually" harmed, there was no evidence presented here of a correlation between defendant's drug use and risk of "imminent harm" to John. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). At the time of John's removal there was no basis for concern about his health and overall well-being. The Division's investigation determined John was healthy, happy, appropriately clothed and exhibiting no behavior problems. A post-removal physical examination revealed John to be in good health. By marked contrast, it was only post-removal from defendant, his parent and primary caretaker, that John exhibited behavior problems such that he required therapeutic intervention.

The Division's proofs did not establish that John was in defendant's presence when she used drugs. While defendant admitted she used drugs, she testified she never "used" around her son; testimony not refuted by the Division's investigation. In terms of the frequency of defendant's drug use, both her family and Division caseworkers noted she did not appear "high" in their presence. The Division's expert could not opine from the result of the hair follicle test, when, how often or how much cocaine defendant used.

In sum, the conclusion that defendant's drug use caused a risk of "substantial, imminent harm" to John does not find support in the record. Proof of that nexus is essential to a finding of abuse and neglect. In N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013), the Court held, "[T]he proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone."

Our role is to examine the judge's legal conclusion of abuse and neglect. In that role, we hold that the judge's findings do not support her conclusion that John was abused or neglected.

Defendant also argues she was denied due process by the judge's decision to dismiss the complaint. In light of our holding, we do not need to address this argument.

Reversed.

1 The name of the child is fictitious.

2 The complaint was filed by the Division of Youth and Family Services, which was renamed the Division of Child Protection and Permanency in June 2012. L. 2012, c. 16, eff. June 29, 2012. For ease of reference, we will refer to the agency as the Division throughout this opinion.

3 This was the third referral within two years made to the Division relative to "abuse and neglect" allegations. The prior referrals in 2009 and 2010 were each determined by the Division to be unfounded.