A-0 OF CHILD PROTECTION AND PERMANENCY v. K.S IN THE MATTER OF L.B Jr., a Minor October 24, 2014

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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NOT FOR PUBLICATION WITHOUT THE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.

K.S.,

Defendant-Appellant.

-

IN THE MATTER OF L.B., Jr., a Minor.

October 24, 2014

 

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-188-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.B. Jr., (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant K.S. appeals from a November 15, 2012 Family Part order determining that she abused or neglected her son L.B., Jr., within the meaning of Title 9. N.J.S.A. 9:6-8.21c(4)(b).1 Having reviewed the record, we conclude that the judge's fact finding decision was supported by sufficient credible evidence and is consistent with applicable law. Therefore, we affirm.

I.

This case arose out of a referral to the Division of Child Protection and Permanency (Division) by a counselor at a mental health and drug-treatment clinic. On April 7, 2011, the counselor reported that K.S. admitted to ingesting more than her prescribed amount of pain medication, that she used marijuana, and had difficulty getting out of bed and performing tasks such as cooking and cleaning.

Following this referral, the Division conducted a home inspection at the apartment where K.S. lived with her fiancé, L.B., and their three-year-old son L.B., Jr. (Junior). Although the house appeared to be "clean and neat[,]" the caseworkers observed that K.S. was "irritable[,]" her "words were slurred and she appeared to be drowsy." When a caseworker inspected K.S.'s prescription medication, she noticed missing pills. K.S. contended that the pharmacy failed to provide her with all of the medication. During this visit, the parents verbally agreed with the Division that K.S. would not be left unsupervised with the child.

On August 25, 2011, the Division filed a complaint under Title 30 seeking an order placing Junior in its care and supervision. N.J.S.A. 30:4C-12. This followed K.S. and L.B. missing four scheduled appointments for substance abuse assessments. A January 12, 2012 court order indicated an on-going problem with getting K.S. to submit to a substance abuse assessment.

On March 15, 2012, K.S. left her apartment with the child without informing the Division. This followed the arrest of L.B. based on allegations of domestic abuse, which K.S. eventually admitted were false. Later that day, L.B. left a voicemail with the Division's case supervisor, reporting that K.S. left with Junior and that he did not know their whereabouts. The Division initiated a search for K.S. and Junior, eventually locating them at the home of a relative on March 16, 2012. At that time, Division workers initiated a Dodd emergency removal2 to obtain custody of Junior. The Division then filed an amended complaint to convert the case to a Title 9 abuse and neglect proceeding.

A fact finding hearing was held on November 14, 2012, where the court heard testimony from the initial case supervisor and two case workers, as well as K.S. In an oral opinion placed on the record at the end of the hearing, the judge did not credit K.S.'s testimony, stating that she was not a "particularly believable witness[,]" and that the Division presented "the only credible version" of events. He found that K.S.'s actions reflected how her addiction to drugs brought her conduct below the standard of care, specifically noting her false allegations of domestic abuse and removal of the child without notifying the Division. The judge found that K.S. "knew there was a risk[,]" and that she never tried to call the Division.

The judge issued an order memorializing his fact finding decision that K.S. abused or neglected Junior, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). The court found, by a preponderance of the evidence, that K.S.

refused to comply with the necessary treatment to address her addiction to prescription medication and marijuana. [She] was aware that she was not allowed to be alone unsupervised with [the child] and after making false allegations of domestic violence against [L.B.], she left home with [the child] and failed to notify the Division of her and her child's whereabouts.

II.

On appeal, we are bound to accept the trial court'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). Although we review legal conclusions by the trial judge de novo, we owe a particular deference to family court judges because of their special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 416 (1998); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Therefore, we only disturb a family court's decision if it is "'so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In light of these standards, we find no basis to disturb the trial judge's findings of fact, and those findings support his legal conclusion.

Title 9 defines "abuse and neglect" as including a parent who fails to "exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted by harm, or substantial risk thereof[.]" N.J.S.A. 9:6-8.21c(4)(b). A parent may fail to exercise the minimum degree of care if he or she "is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). If there is no 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. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). The Division must prove its allegations by a preponderance of the evidence at a fact finding hearing. N.J.S.A. 9:6-8.46(b)(1).

We agree with the trial court judge that K.S. leaving her apartment without notifying the Division and consequently being unsupervised with the child constituted abuse or neglect because it exposed the child to a substantial risk of harm. Despite the absence of a written agreement establishing K.S.'s obligation to be supervised while with Junior, her testimony at the fact finding hearing verified there was an oral agreement and that she knew she should not be alone with the child. The testimony further clearly established that she recognized she had a responsibility to notify the Division of her whereabouts.

On this appeal, K.S. relies on New Jersey Division of Youth and Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), and New Jersey Division of Youth and Family Services v. S.N.W., 428 N.J. Super. 247 (App. Div. 2012), to argue that her conduct did not constitute abuse or neglect. We cannot agree. V.T. involved a father who ingested illegal drugs two days prior to his supervised visit with his child. V.T., supra, 423 N.J. Super. at 330-31. However, there was no evidence of actual harm to the child, nor any evidence that the father posed a risk of harm during his visitation. Id. at 331. In S.N.W., a mother appeared inebriated while caring for her children, but we remanded the case because the record lacked sufficient evidence to determine if the mother's culpability in taking Xanax exceeded mere negligence. S.N.W., supra, 428 N.J. Super. at 258.

By contrast, here K.S. shared custody of Junior while she abused her pain medication and used marijuana. The record clearly provides evidence that her drug use, at times, affected her ability to care for her son. By her own admission, she was unable to get out of bed, cook, and clean, and would often sleep all day. Junior was allowed to remain with K.S. and L.B. only after they agreed that Junior would not be left with K.S. unsupervised. K.S. also repeatedly failed to comply with court-ordered substance abuse services and treatment. It is not controlling that Junior was unharmed after K.S. left with Junior without notifying the Division. Junior was four years old when this incident occurred and there is substantial evidence that K.S.'s abuse of pain medication and marijuana rendered her unfit to supervise her son. When K.S. left with Junior without notifying the Division, she violated her agreement with the Division, and placed her son in imminent danger.

Affirmed.

1 The order became appealable as of right after the court entered a final order terminating litigation on June 17, 2013.

2 "A 'Dodd removal' refers to the emergency removal of a child from the home 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 and internal quotation marks omitted).