NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.S.

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NOT FOR PUBLICATION WITHOUT THE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.

S.S.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF J.S., J.G.

and J.S.,

Minors.

_____________________________

November 3, 2014

Submitted October 21, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0614-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.S., J.G. and J.S. (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

Defendant S.S. appeals from a Title 9 fact finding order dated November 9, 2012, determining that she abused or neglected her three children, Jane, Judy, and Jill,1 by using drugs while caring for them, and by having the children in her care unsupervised in violation of a court order. We affirm.

I

The charges arise from two incidents, one on May 23, 2012, and the other on August 2, 2012. The following evidence was introduced at the November 9, 2012 fact finding hearing.2 On May 23, 2012, S.S. was brought to the hospital with psychotic symptoms requiring that she be hospitalized and placed in restraints. She admitted to a case worker for the Division of Child Placement and Permanency (Division) that she had used phencyclidine (PCP) the day before. She refused to answer a direct question from the worker as to whether her three children were in her care during that time frame.

The Division removed defendant's children from her care as a result of the May 23 incident. The court entered an order on May 25, 2012, prohibiting her from having unsupervised contact with the children and entered a similar order on June 18, 2012. Between May 23 and the date of the next incident, S.S. tested positive for drug use multiple times.

On August 2, 2012, the Division received a report from defendant's drug treatment program that S.S. had appeared at the program with her children despite being under court order to have only supervised visitation. Jill's father, E.N., testified that on August 2, 2012, defendant drove to his house to drop off Jill. The father testified that he observed S.S. arrive "in her truck" and he saw that Jill and Jane, the youngest of defendant's children, were in the vehicle. No one else was in the truck. According to the father, he observed that defendant's eyes were "red," she was slurring her speech, and she appeared to be "high." He also stated that she appeared to be "[r]eal emotional." When he asked defendant if she was high, she denied it and said she was taking prescription medication. However, according to the father, he had seen defendant with red eyes and slurred speech before, and he knew that was not her normal appearance.

The father testified that on several previous occasions, defendant had dropped Jill off at his house with no one supervising her. On those visits as well, defendant appeared to be "high." He testified that at the time, he did not know defendant was prohibited from unsupervised contact with the children.

The Division also presented testimony from V.G., Judy's paternal grandmother. Judy had been placed in her custody on July 30, 2012. The grandmother testified that on August 2, 2012 in the early evening, defendant arrived at her house with Jane and Jill in her truck. She observed another woman in the truck, whom defendant stated was a cousin. The grandmother asked defendant why she had the children with her; defendant responded that they "had girl's day out," and that she was on her way to pick up her mother. About an hour and a half later, defendant returned to the grandmother's house to see Judy, who had not been home earlier. Defendant told the grandmother that she had just dropped off Jill at her father's house. Again, the cousin, who appeared to be about twenty years old, was in the truck.

The Division introduced hospital records showing that defendant tested positive for PCP on May 23, 2012, and documenting that defendant admitted "using PCP the previous day." The Division also introduced the court orders dated May 25, 2012 and June 18, 2012, both of which required that defendant's visits with the children be supervised by a specific named individual, not the twenty-year-old "cousin." The Division also introduced records from defendant's drug treatment program documenting that she tested positive for PCP on July 5, 2012, positive for marijuana and barbiturates on July 18, and positive for PCP and alcohol on July 23. The program records also documented that defendant brought her children to the program, unsupervised, on August 2, 2012.

In an oral opinion placed on the record on November 9, 2012, Judge Edward J. McBride found that defendant used PCP the day before she was brought to the hospital on May 23, 2012. He inferred from her refusal to answer questions about her children's whereabouts that "had she answered honestly it would have been that the children were in her care." Based on E.N.'s testimony that "the maternal grandmother worked," the judge inferred that defendant cared for the children in her absence. He found that defendant used PCP, a "dangerous drug," while the children were in her care.

Addressing the violation of court orders, the judge found that those orders specifically required that visitation be supervised by the children's maternal grandmother, and defendant violated those orders. He also found that in addition to violating a court-ordered safety plan, defendant tested positive for illegal drugs on three dates in July 2012, and refused to take a drug screen on August 2, 2012. He further found that defendant violated the safety plan multiple times by having the children in her care, unsupervised, during that time frame. He found that her conduct created a substantial risk of harm to the children. He noted that "Title 9 does not require that the children in fact be harmed."

II

On this appeal, our review of the trial judge's decision is limited. We are bound to accept Judge McBride's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). While we review a trial judge's legal conclusions de novo, we owe particular deference to the judge's expertise in family-related issues. Id. at 448; Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). Having reviewed the record in light of those standards, we find no basis to disturb Judge McBride's factual findings or his legal conclusions.

On this appeal, defendant argues that the judge's decision is not supported by substantial credible evidence of abuse or neglect because there was no proof of actual or imminent harm to the children. She also contends that the court erred in admitting evidence of the three positive drug tests, because at the time she failed the drug tests the children were in their grandmother's custody. We cannot agree with those arguments.

The record supports the conclusion that, at all relevant times, defendant was abusing illegal drugs while she was caring for her children. Judge McBride drew a reasonable inference that while defendant was caring for her children, she was also using PCP, leading to her hospitalization on May 23, 2012. While the Division did not present testimony concerning that incident, the hospital records and the Division's reports were admitted in evidence as business records. N.J.R.E. 803 (c) (6). Defendant's own statements, recorded in those records, were legally admissible under N.J.R.E. 803(b)(1). Defendant did not testify at the hearing or present any contrary evidence.

Despite attending a drug treatment program after her hospitalization, defendant repeatedly tested positive for substances including PCP, alcohol, marijuana and barbiturates. At the same time, she was violating a court-ordered safety plan by driving her children around without the adult supervision required by the court orders. Moreover, on several such occasions, witnesses familiar with defendant observed that she appeared to be high on drugs, with red eyes and slurred speech. We agree with Judge McBride that the positive drug tests from July 2012 were highly relevant, because they showed the extent to which defendant was endangering her children when she violated the safety plan. Her conduct showed gross disregard for the children's safety and created a substantial risk of harm. See N.J.S.A. 9:6-8.21(c)(4); G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 177-78 (1999).

Defendant's reliance on New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), and New Jersey Division of Youth & Family Services v. A.L., 213 N.J. 1 (2013), is misplaced. In V.T., a father tested positive for cocaine and marijuana while at two supervised visits with his child. He testified without contradiction that he had not used the drugs on the days of the visits. There was no evidence that his child knew he was using drugs, that he showed any effects of being under the influence at the time, or that he put his child at risk. In that limited context, we held that the Division failed to prove that the child was abused or neglected. Id. at 330-31. Based on Judge McBride's well-supported factual findings, this case is in no way comparable to V.T.

Likewise, in A.L. the Division failed to produce evidence that a woman's use of cocaine during her pregnancy put her child at substantial risk of harm, where the agency produced no expert testimony and there was no evidence of any actual harm to the baby. A.L., supra, 213 N.J. at 9. Like V.T., the A.L. case is not on point here. Expert testimony is not required to establish that driving children around while high on drugs puts them at substantial risk of harm. Nor is expert testimony required to prove that taking PCP while caring for one's children puts them at risk.

Unlike V.T., who did not take drugs when he visited his child and showed no effects of using drugs while he was with her, defendant was admitted to the hospital with hallucinations and other bizarre symptoms, on a day when it can fairly be inferred that she had her children in her care. On other occasions she showed signs of being high when she was driving the children in her truck. Defendant's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We use pseudonyms for the children. For clarity, we note that each child has a different father.

2 The court held a pre-hearing conference on November 2, 2012, at which several documents were admitted in evidence, either by stipulation or as a result of the judge's rulings. At the pre-trial conference, and at the later fact finding hearing, the judge adhered strictly to the hearsay rule, admitting only legally competent evidence.