NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.H.

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NOT FOR PUBLICATION WITHOUT THE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.

M.H.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF A.H.,

Minor.

_________________________________

October 24, 2014

Argued September 23, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-145-12.

Anastasia P. Winslow, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the brief).

Yudelka R. Felipe, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian Arnold, Deputy Attorney General, on the brief).

Lisa M. Black, Designated Counsel, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).

PER CURIAM

M.H. appeals a judgment entered on July 12, 2012, following a fact-finding hearing commenced by the Division of Child Protection and Permanency (Division) pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The judge determined that A.H., the biological daughter of M.H., was "abused or neglected" as defined by N.J.S.A. 9:6-8.21(c). On appeal, the Division contends that we should affirm, but M.H. and the child's law guardian agree that the record does not support a finding of abuse or neglect. The law guardian also suggests that this case would have been more appropriately considered under the jurisdiction of Title 30. We agree.

Our decision is informed by New Jersey Department of Children & Families v. A.L., 213 N.J. 1 (2013) and New Jersey Department of Children & Families, Division of Youth and Family Services v. I.S., 214 N.J. 8 (2013), two cases decided after this judgment was entered by the trial judge. Here, there was no evidence of actual harm, and the Division did not meet its obligation to present competent evidence that A.H. was presently in imminent danger of being impaired physically, mentally, or emotionally. A.L., supra, 213 N.J. at 23; see N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(a)(4), (b)(1)-(2).

M.H. has an extensive record with the Division dating back to 2006. At that time, she was referred to various Division services following allegations of substance abuse, a poor home environment, and child neglect1. By July of 2007, she became non-compliant with these services, failing to attend parenting classes, missing psychiatric appointments, and not participating in "Emergency Child Assistance Program" services. She was also having trouble with living arrangements. As a result of the above, the Division filed a complaint against M.H. on July 24, 2007, for which M.H. stipulated that she abused marijuana while caring for A.H.'s sister2, and failed to follow-up with psychiatric drug treatment. After an initial separation, litigation was terminated on February 17, 2007, and the family was reunited.

The present case was opened on April 8, 2011, when the Division received a referral that M.H. was homeless, had not been taking her psychotropic medication, and was non-compliant with psychiatric appointments. After investigation, the allegation of neglect was determined to be unfounded. According to the Division, M.H. was still providing A.H. with all of her basic needs.

On October 25, 2011, the Division received a second referral alleging that M.H. was not providing breakfast for A.H., or getting her to school on time for a free breakfast program. For the second time, however, the Division concluded that the referral was unfounded, and that A.H. was safe. An investigation of M.H.'s home revealed food in the refrigerator, working utilities, and that A.H. was well cared for.

On March 13, 2012, M.H. called the Division and self-reported that she had been drinking alcohol, smoking marijuana, and smoking K-23 spice. She told the Division that she had been doing so for the previous two weeks, and that she had not been taking her psychotropic medication. In response, the Division decided to meet with M.H. to discuss her present situation, and check on the well-being of A.H.

At the meeting between the Division and M.H., the dialogue suggested that M.H. fabricated the above as a cry for help because she was being abused by a boyfriend. As the Division's own witness testified, M.H. had been the victim of domestic violence in the presence of A.H., and "in . . . a round-about way, was asking for help." Specifically, "[M.H.] reported that [her boyfriend] choked her in the presence of A.H.[;]" and, as M.H. later testified, she made up the statements regarding drug use, alcohol use, and medication non-compliance because she was trying to ask for help for her and her daughter.

Corroborating M.H.'s contention that she was not truthful about her drug use, the drug screen taken on March 13, 2012, was negative. The screen taken five days earlier, March 8, 2012, was also negative. No evidence of actual drug use was presented surrounding the March 13, 2012 incident. Consistently, the Division's own witnesses supported M.H.'s testimony that she was asking for help for her and her daughter. As the Division explained, M.H. had been seen with bruises on her arm and was driven to the police station that night, where she obtained a restraining order against her abusive paramour.

In the meantime, Division workers went to check on A.H., who had been staying at either "a cousin or a family friend['s]" residence. She had clean clothes, as well as food and beverage. In fact, the family with whom she was staying provided a bed and paid for clothes for her. As the Division itself noted, "[s]he was being accommodated." Notwithstanding, A.H. was removed from the residence that night, March 13, 2012, and M.H. was served with a DODD Notice4. Based upon those facts, the Division proceeded with its charge of abuse and neglect.

On the above evidence, the judge concluded

the defendant, [M.H.], abused or neglected [A.H.] based on the court's findings of fact and conclusions of law pursuant to N.J.S.A. 9:6-8.21(C), as follows: [M.H.] used illegal substances including both marijuana and K2 (synthetic marijuana). [M.H.] was non-compliant with the Division in failing to take her psychotropic medication as prescribed. [M.H.] admitted to feeling overwhelmed with the care of her child to the point of needing to get high and her inability to keep food in her home. [M.H.] was repeatedly unable to get the child to school on time for both the start of school and for the free breakfast program.

In making those findings, the judge noted M.H. herself called the Division and admitted using marijuana, K-2, and alcohol, and admitted that she failed to be compliant with her psychotic medication for two weeks. Addressing the issue of the negative urine sample on the date A.H. was removed, it was noted that K-2 would not be detected unless specifically tested for, which it was not. The court further emphasized the unfounded October 25, 2011 referral, noting that it would be a "simple matter" to wake A.H. at the appropriate time so that she could eat during the school's free breakfast program.

In concluding, the trial judge noted that

In effect, [M.H.] had come full circle to the events [of the 2007 litigation] . . . All of this Court finds [M.H.] placed [A.H.] at imminent risk of harm or another angry outburst by [M.H.] as a result of the combination of her resuming substance and her failure to maintain compliance with recommended psychotropic medication.

Trial courts are generally in the best "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). Accord N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 413 (1998). In that light, a trial court's factual findings are entitled to deference "'because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand [and] it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 227 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

We therefore owe special deference to the fact-findings of the family court because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998); see also In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Accordingly, a reviewing court will not disturb a trial court's abuse and neglect findings as long as they are supported by adequate, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Nonetheless, a trial court's findings are not entitled to deference when there is not adequate, substantial and credible evidence to sustain them.

If the allegations included alleged "error in the trial judge's evaluation of underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth and 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) (internal quotations omitted)).

First, we review the law that governs findings of abuse and neglect. Relevant to the present appeal, Title 9 governs abuse and neglect actions. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). The underlying purpose of the legislation is to "provide for the protection of children under 18 years of age who have had serious injury inflicted upon them." N.J.S.A. 9:6-8.8(a).

Title 9 defines "abused or neglected child" as a child less than eighteen years of age

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 . . . (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. 9:6-8.21(c).]

In the absence of actual harm, a finding of abuse and neglect must be based on proof of imminent danger and substantial risk of harm. N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 416 (App. Div. 2014) (citing N.J. Dept. of Child. & Families v. A.L., 213 N.J. 1, 23). Yet, the Division only needs to show that it was more likely than not that the defendant abused or neglected the child. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010).

Although a court does not need to wait for a child to actually be irreparably impaired by a parent, "the Division must show imminentdanger or a substantial risk of harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 36 (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)). In A.L., where the mother's drug use caused her child to be born with cocaine in its stool, the Court held the proper focus was on the "risk of substantial, imminent harm to the child, not on the past use of drugs alone." Ibid. There, despite the child's positive drug screen, our Supreme Court held the Division did not offer any evidence of actual or imminent harm to the child, and thus could not sustain a finding of abuse and neglect. Id. at 47; see also P.W.R., supra, 205 N.J. at 39.

Explaining the requirements for abuse and neglect where the Division has not proven an actual impairment, the court in M.C. expounded that N.J.S.A. 9:6-8.21(c)(4) requires a child to be "in imminent danger of becoming impaired." 435 N.J. Super. at 420. Specifically, the statutory language requires present danger. In that respect, "prior parental conduct posing a risk of harm in the past that did not materialize is pertinent to the imminent danger only to the extent that it is probative of current danger." M.C., supra, 435 N.J. Super. at 418 (emphasis added).

Applying the law to the facts, there is no evidence that A.H. was actually harmed at the time of removal. Therefore, the Division needed to demonstrate substantial risk of imminent harm. It failed to do so. At the time of the removal, A.H. was safe and residing at a neighbor's house. As the Division itself noted, A.H. was being "accommodated." In light of the holdings in M.C. and A.L., we cannot conclude that placing one's child in a situation where she is being provided a bed and food and supplied with clean clothes places her in imminent danger rising to the level of abuse or neglect. Further, in considering the totality of the circumstances, we look favorably upon M.H.'s decision to obtain a restraining order and place A.H. in another home.

In addition to A.H. being safe, the record otherwise does not support an abuse or neglect finding. Contrary to the Division's allegations, there was no actual evidence of substance abuse, or evidence that M.H. had become non-compliant with her psychotropic medication. At the time of removal, it is undisputed that M.H. tested negative for all drugs. In that regard, we cannot assume that M.H. smoked K-2 in the absence of a positive drug screen. On the removal date, M.H. provided a urine sample, which was negative for all drugs tested. See G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (a fact-finder's conclusions must be "grounded in reason and logic" and not "mere guess or conjecture"). With respect to psychiatric compliance, the Division's own witnesses agreed that M.H. had been seeing her psychiatrist and taking her medication. Thus, although compliance had been an issue in the past, no evidence was introduced that M.H. had been non-compliant with her medication on the March 13, 2012 removal date.

In reversing the finding in the present case, we also note the trial court's mistaken exercise of discretion in utilizing the unfounded April 8 and October 25, 2011 Division referrals. In that regard, we consider P.W.R., supra, in which our Supreme Court reversed an abuse and neglect finding where the trial court based its findings on an unfounded referral. 205 N.J. at 23. In P.W.R., the Court held that since, "DYFS itself found [] allegations of physical abuse to be unfounded[,] [it] should have put the matter to rest." Id. at 36. Here, the trial court's emphasis on the October 25, 2011 unfounded referral regarding the free breakfast program was misplaced.

To the contrary, the record supported only a need for continuing supervision under Title 30. See I.S., supra, 214 N.J. at 8. Accordingly, the finding of abuse and neglect must be reversed and vacated.

1 A.H., the subject of the present litigation, was born September 5, 2006. This initial contact with the Division regarded A.H.'s sister, J.H., and issues surrounding M.H.'s pregnancy with A.H.

2 J.H. is not the subject of this appeal. As per the submissions of the parties, J.H. lived with her maternal great-grandmother during all relevant times.

3 Testimony revealed that K-2 spice is a synthetic cannabinoid with similar effects to smoking marijuana.

4 A DODD removal is the emergency removal of a child from the home without court order, pursuant to the Dodd Act. N.J. Div. of Youth & Family Servs. V. P.W.R. 205 N.J. 17, 26 n. 11 (2011) (citing N.J.S.A. 9:6-8.21 to -8.82).