NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.A.

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NOT FOR PUBLICATION WITHOUT THE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

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

J.A.,

Defendant-Appellant,

and

E.G.,

Defendant.

IN THE MATTER OF

J.G.,

a Minor.

April 30, 2014

Submitted January 14, 2014 Decided

 
Before Judges Alvarez, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-171-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.G. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

On March 12, 2012, following a five-day fact-finding hearing extended over eight months, a Family Part judge determined that defendant J.A. had engaged in conduct that made her daughter, J.G., born November 2010, an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21(c)(4). We affirm.

By way of background, J.A. became involved with E.G.,2 the father of the child, in approximately January 2010, while the two lived in New York City. J.A. has disclosed a history of domestic violence with E.G., including an incident during which she, while wielding a baseball bat, confronted E.G. at his workplace. J.A., who was thirty-five years old when these events occurred, has been diagnosed with borderline personality disorder and post-traumatic stress disorder.

In March 2010, when J.A. discovered she was pregnant, she relocated to a New Jersey shelter for expectant mothers, and mothers and infants. Shelter staff assisted her in obtaining mental health treatment at nearby Bergen Regional Medical Center (BRMC). They drove her to appointments, to obtain medication, and to purchase medication.

In October 2010, approximately a month before her daughter's birth, J.A. engaged in a heated argument with other shelter residents, after a grocery store shopping trip, about the placement of food items on shelves. When Jessica Root, a staff member who testified at the fact-finding hearing, attempted to intervene, J.A. turned on her, screaming for about twenty minutes, as Root described it, "just flipping out." J.A. had previously behaved in that fashion towards shelter residents. Root said J.A. was loving toward her child, but also very anxious and unstable in her mood. Root knew J.A. was being treated at BRMC for her mental health issues.

Root also testified that although J.A. was very attentive to the baby immediately after her birth, within a couple of weeks, her attitude changed. She recalled, for example, one occasion when, without warning, J.A. left the baby in the shelter living room with other residents, and disappeared for a couple of hours, never checking back on the infant.

The incident that brought the child to the attention of plaintiff New Jersey Division of Youth and Family Services (the Division) occurred on December 10, 2010 when residents were required to attend a mandatory church-sponsored event nearby. Root explained that several, including J.A., were reluctant about participating. J.A. went with the others, but soon returned to the shelter, again leaving her baby. She began dialing Root and another staff person on their cell phones, demanding that they bring the baby back to the shelter, which they did. J.A. eventually became so agitated that the Washington Township Police Department was called. By the time the officers arrived, J.A. had calmed down, and they left without taking any further action.

Sometime later, at approximately 10:00 or 11:00 p.m., J.A. began to yell, without any apparent cause, at the shelter administrator. The police were called a second time. After they arrived, Root checked J.A.'s medication and found a discrepancy. She could not recall the details, only that there was a difference between the quantity of pills in the containers and the amount that should have remained based on J.A.'s medication records. As Root and another shelter employee testified, J.A. was well aware that she could not "self-medicate" with one of her prescriptions, although J.A. claimed she could as to another. J.A. became so distraught that she eventually decided to leave the shelter, insisting that no one was going to take her baby away, even though that had not been suggested.

As Corporal Saverio Fasciano testified, J.A. told him that she had taken two of her pills instead of one. His recollection at trial, contrary to Root's testimony, was that both of J.A.'s pill bottles were empty.

Shelter staff encouraged J.A. to stay with her infant until at least December 13, a day later, when she had her regular appointment with her treating psychiatrist at BRMC. They also told her that even if she left, they would be happy to care for the baby until she was able to locate someone with whom she could stay. J.A. rejected both offers.

Fasciano, concerned that J.A. wanted to leave with her three-week-old infant in the middle of the night in December with nowhere to go, contacted a mental health screening agency. The agency immediately responded, and after interviewing J.A., suggested that she be taken to a hospital or other facility for commitment. By this time, J.A. was lying on her bed crying and hysterical. She was given the option of being taken to a facility where her baby could remain with her. J.A. refused and selected BRMC, even though she was told it does not take children. J.A. chose instead that the Division be called to take the child.

The Division worker who responded also testified at trial. She said J.A. told her that she had discontinued treatment at BRMC because of "complications" during pregnancy, although that was not accurate, as she was still an outpatient there. The worker could not recall details, but remembered that one of J.A.'s pill bottles was empty while another had an unspecified number of pills remaining. Because J.A. was taken to BRMC, a Dodd removal3 was effectuated, followed by the filing of a Title 9 complaint. The baby was placed with a resource family.

J.A.'s supervised visits were soon followed by an order permitting unsupervised visits at the Division's discretion. It appears from the record that when this appeal was taken, J.A. had assumed custody of the child, and had returned with her to live with E.G. in New York City.

J.A. was evaluated on behalf of the Division by Dr. Michael P. Gentile, a psychiatrist. He described her troubled childhood and history of psychiatric hospitalizations, as she reported it to him, including a hospitalization in 2009 for attempted suicide. She had been hospitalized again, in May 2010, due to depression and anxiety. J.A. experienced the first symptoms of mental health problems at the age of fourteen.

In Gentile's opinion, J.A. was fully cognizant of her mental health issues, was capable of sound judgment, and had full insight into her diagnoses. He described her as an intelligent, articulate woman.

Gentile agreed with earlier diagnoses of J.A.'s conditions, and strongly concurred that to maintain emotional stability she required both daily medication and regular therapeutic treatment. Like others suffering from her disorders, he considered J.A. to be at risk for fast decompensation, "requiring emergency room visits and hospitalizations when she is nonadherent with treatment."

Dr. Marek Belz, J.A.'s treating psychiatrist at BRMC, testified that J.A.'s prescription should have provided her with enough doses to last through December 12. He generally relied upon his patients' self-report to confirm that they were taking their medication as prescribed. Belz acknowledged that at times patients hoard medications and self-medicate even though they know the practice is harmful. When he saw J.A. on the thirteenth, the day after the incident in the shelter, he considered her mood to be stable.

In his decision, the trial judge relied solely on J.A.'s failure to adhere to her medication regimen as the basis for his legal determination that her conduct made her child abused and neglected within the meaning of the statute. We agree with the conclusion that J.A. neglected her infant, but we do so based on the totality of the circumstances, and we do not think the testimony was definitive as to whether J.A.'s pill bottles were empty when the incident occurred.

On appeal, J.A. raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT J.A. ABUSED OR NEGLECTED J.G. BY A PREPONDERANCE OF THE EVIDENCE.

A. THE COURT BELOW BASED ITS FINDING OF ABUSE AND NEGLECT ON J.A.'S ALLEGED UNTREATED MENTAL HEALTH ISSUES AND HER FAILURE TO TAKE HER PRESCRIPTION MEDICATION. THE EVIDENCE BEFORE THE COURT SIMPLY DOES NOT SUPPORT SUCH A CONCLUSION.

B. CONTRARY TO THE COURT'S FINDING[,] THE EVIDENCE INDICATED THAT J.A. TOOK THE MEDICATION PRESCRIBED FOR HER.

C. THE DIVISION DID NOT PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT J.A. PLACED J.G. AT SUBSTANTIAL RISK OF HARM.

Title 9 is aimed at the protection of children from serious harm, whether emotional or physical, as well as the threat of harm. N.J.S.A. 9:6-8.8; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). 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 or guardian . . . 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

Title 9 cases are fact sensitive particularly in circumstances such as here where no actual harm was inflicted on the child, but where the Division is asserting that the parent's conduct only created a risk of harm. Ultimately, the question is whether the parent failed to exercise "a minimum degree of care[,]" such that the child was exposed to "a substantial risk." T.B., supra, 207 N.J. at 303.

In reaching its decision, the trial court "'must articulate, with particularity, the facts upon which a determination of abuse and neglect is made'" and "'clearly identify all documentary exhibits relied upon in reaching [its] decision.'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002)). The Division's burden of proof is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b). Under the relevant statutory framework, "the safety of the child shall be of paramount concern." N.J.S.A. 9:6-8.28(a), -8.31(a), -8.32, -8.49.

When determining whether or not a child has been abused or neglected, the trial court must base its findings on the totality of the circumstances, since "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011) (internal quotation marks and citation omitted). Fact-finding hearings are critical in establishing whether a child has been abused or neglected, and the determination must be based on "competent reliable evidence." J.Y., supra, 352 N.J. Super. at 264-65.

A finding of abuse and neglect, obviously, has "significant consequences" on the parent. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 619 (App. Div. 2010). For example, the court can place the child with another suitable person for a substantial period of time. See N.J.S.A. 9:6-8.50(d), -8.51(a), -8.54(a). The Division may rely on prior Title 9 judgments in Title 30 actions for the termination of parental rights. N.J.S.A. 30:4C-15(a). Additionally, the Division enters "the name of the person found to have committed child abuse and any identifying information" into a Central Registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998); N.J.S.A. 9:6-8.11. Although confidential, the records may be disclosed on written request to courts, child welfare agencies, and employers who are required by law "to consider child abuse or neglect information when conducting a background check or employment-related screening." N.J.S.A. 9:6-8.10a(b)(1)-(23).

Turning our attention to the record, we observe first that the witnesses' testimony regarding the contents of J.A.'s pill bottles was equivocal. Corporal Fasciano testified the bottles were empty. The Division caseworker said that one bottle was empty, but another had pills in it, although she could not even recall the number of bottles she saw. Root only recalled discrepancies between the number of pills and J.A.'s records.

It is clear, however, from J.A.'s own statements, that she did not take her medication as prescribed. The judge did not err in his factual finding that she was non-compliant with her medication regimen. Even if the specific nature of the problem with the pills was not as he described it, his ultimate conclusion was correct. J.A. took her medication other than as prescribed, with the result that she decompensated over the course of the evening, losing her ability to safely care for her newborn.

The incident was not isolated. J.A. had previously engaged in tumultuous, angry behavior resulting in conflict with those around her. On this night, however, she left her child behind twice. The first time, she left her child behind during a social event, without asking anyone to care for the child, and merely returned to the shelter and demanded that staff bring the child to her. Later on, J.A. insisted on leaving the safety of the shelter, in the middle of the night, in December.

Every parent's "failure to perform a cautionary act is not abuse or neglect," and "[w]hen the failure to perform a cautionary act is merely negligent, it does not trigger" N.J.S.A. 9:6-8.21(c)(4)(b). T.B., supra, 207 N.J. at 306-07. The focus is

on the parent's level of culpability in assessing a "minimum degree of care" . . . . 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 . . . . where a parent is merely negligent there is no warrant to infer that the child will be at future risk.

[Id. at 307.]

The parent's minimum degree of care is determined on a "case-by-case basis." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999).

In T.B., the Court cited with approval as examples of the proper interpretation of the abuse or neglect statute, N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011), and N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009). See T.B., supra, 207 N.J. at 307-09. In A.R., the Appellate Division held that a father's placement of his ten-month-old son on a twin bed without rails, next to a radiator "amounted to gross negligence" because "'an ordinary reasonable person' would understand the perilous situation in which the child was placed." Supra, 419 N.J. Super. at 545-46 (quoting G.S., supra, 157 N.J. at 179).

In J.L., supra, we reached a different conclusion in the case of a mother of three- and five-year-old sons, who "permitted [them] to return home alone . . . . [while she] remained in the play area." Supra, 410 N.J. Super. at 161. The children had been trained to leave the door ajar, which was equipped with a child-proof cover, if they entered without her; on this occasion, the door closed behind them, thereby locking them in and prompting one of them to call 9-1-1. Id. at 161-62. The mother's conduct, "although arguably inattentive or even negligent," did not meet the statutory standard. Id. at 168.

In T.B., the mother of a four-year-old boy inadvertently left the child unattended at her parents' home when she went to meet a friend for dinner. Supra, 207 N.J. at 296-97. The mother and her son lived with the mother's parents, who often cared for the child. Id. at 296. The mother was familiar with her parents' routine, and believed that they were home when she left the child alone in the house because "[they were] always home . . . on Sunday nights" and the parents' car was in the driveway. Id. at 297. Although the Court characterized the mother's conduct as "clearly negligent," that did not equate to gross negligence. Id. at 310. The decision was reached in part because it was "not a situation in which [the mother] left her four-year-old son at home alone knowing there was no adult supervision." Id. at 309.

V.T. is also enlightening. In that case, an abuse and neglect finding was entered against a father for testing positive for cocaine and marijuana use during two supervised visits with his eleven-year-old daughter. V.T., supra, 423 N.J. Super. at 323. The father was undergoing treatment and "did not fully cooperate . . . ." Id. at 330. We reversed, finding that "a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." Id. at 331. In the absence of expert evidence, the Division did not demonstrate "whether or not [the father] was impaired to the point of posing a risk to [his daughter] in a supervised setting" because the extent of the "level of drugs" in his system was not proven. Ibid. R.S. had "behaved appropriately at both visits and demonstrated no indicia of impairment." Ibid. As we said, unlike "with an infant, [an eleven-year-old] was not vulnerable during these visits to the slightest parental misstep." Ibid.

In New Jersey Division of Youth & Family Services v. S.N.W., 428 N.J. Super. 247, 251 (App. Div. 2012), a mother was found to have abused and neglected her children because while caring for them, she was "intoxicated" and acting erratically. Id. at 251. Conflicting testimony was presented as to the period of time over which the defendant ingested an overdose of Xanax, or whether it was an overdose at all. Id. at 250-51. We therefore remanded for additional proceedings because the trial court failed to make any findings about the defendant's degree of culpability, i.e., whether the conduct "was grossly negligent or reckless." Id. at 257-58. We specifically noted that if she was found to have only ingested the prescribed amount of medication, and no other substances, her conduct could not constitute abuse or neglect because her behavior would then be unintentional her condition, as described by the Division worker, would be the product of innocent circumstances. Ibid.

In this case, by J.A.'s own statements, she did not take her medication in the manner prescribed. In other words, at some unknown point in time, she intentionally took more of the pills than she was supposed to, otherwise she would still have had two days' worth of medication left. This case is distinguishable from one in which a person negligently forgets to take medication, which causes a condition that poses a risk to a child. Here, J.A. purposely deviated from prescribed directions, which led her to take actions that posed unreasonable risks to her infant.

J.A. has been described as an intelligent person with insight into her mental health illness. As a result of her intentional conduct, her behavior became erratic, irrational, and confrontational.

J.A.'s lack of adherence to her medication regimen resulted in a totality of circumstances that together made her "grossly negligent or reckless" towards her three-week-old infant. After all, whilesuffering the effects of non-compliance, she initially simply disappeared from a social event, leaving her child behind. As the evening wore on, and her behavior deteriorated, her judgment regarding her three-week-old infant worsened. She decided to leave a place of safety in the middle of the night in December, with nowhere to go. Had shelter staff not intervened and dissuaded her, J.A.'s departure would have unreasonably subjected the infant to a risk of harm.

New Jersey Division of Youth & Family Services v. V.M., 408 N.J. Super. 222, 227, 250-51 (App. Div.) (Carchman, J., concurring),4 certif. denied, 201 N.J. 272 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3537, 177 L. Ed. 2d 1095 (2010), offers further guidance. In that case, the defendant displayed highly erratic behavior while hospitalized during delivery. Id. at 225. That mother suffered from more severe psychiatric conditions than does J.A., but she too was non-compliant with her medication, and as a result refused procedures that would have protected the baby's well-being during a difficult and lengthy birth process. While in the hospital, her conduct "was 'combative,' 'uncooperative,' 'erratic,' 'non-compliant,' 'irrational,' and 'inappropriate.'" Id. at 227. In V.M., although the child was at risk during birth due to her mother's decisions, because it was a hospital setting, that risk could have been speedily addressed.

In this case, while responsible for the care of a three-week-old infant, J.A. became combative, uncooperative, irrational, and inappropriate in the middle of the night in the middle of winter. And that happened because she intentionally did something with her medication other than follow doctor's orders. After a lifetime of dealing with her mental health problems, this intelligent person, who understood the nature of her illness, did more than just fail to perform a cautionary act. The totality of the circumstances that evening included J.A. leaving her child twice. From the descriptions by the Division's witnesses, she was no more in a proper state of mind to care for her child than the mother in V.M., and therefore posed a risk of harm to her newborn. That totality of the circumstances established less than a minimum degree of care. See T.B., supra, 207 N.J. at 307.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 E.G. is not a party to these proceedings.

3 The Dodd Act authorizes emergent removals of children without a court order under limited, specified circumstances. N.J.S.A. 9:6-8.21 to -8.82.

4 The per curiam majority opinion generally adopted the facts of the concurring opinion and "generally ascribe[d] to the law." V.M., supra, 408 N.J. Super. at 224. The majority agreed with the concurrence that V.M. committed an act of abuse and neglect. However, the majority did not agree that "V.M.'s refusal to consent to a cesarean section . . . can, as a matter of law, be considered an element of abuse and neglect." Ibid. The applicability of Title 9 to fetuses was later determined by the Supreme Court in New Jersey Division of Youth & Family Services v. A.L., 213 N.J. 1, 20-22, 31-34 (2013).