NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.W.

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NOT FOR PUBLICATION WITHOUT THE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,1

Plaintiff-Respondent,

v.

L.W.,

Defendant-Appellant,

and

W.W.,

Defendant.

__________________________________

IN THE MATTER OF W.W.,

Minor.

__________________________________

April 29, 2015

Submitted February 3, 2015 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0181-12.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor W.W. (Caitlin A. McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant L.W. (Laura)2 appeals from the August 20, 2012 Family Part order finding that she abused and neglected her child. For the following reasons, we affirm.

We discern the following facts from the record. Laura is the mother of W.W. (Walker), who was born in May 2011. When the Division became involved, Laura did not have custody of her seven other children. All were being cared for by relatives except the seventh child, who was in foster care in Florida.

On October 7, 2011, the Division received a referral from neighbors alleging environmental neglect, alcohol abuse by Laura and her mother, and physical fighting in the mother's home while the children were present.3 The Division investigated and found that the reports were unsubstantiated. Based on its investigation, however, the Division decided to keep the case open to provide services to the family. Shortly thereafter, the Division received information from a county sheriff's office in Florida concerning Laura's extensive criminal history and lengthy history of involvement with Florida's Child Protection Services (CPS).

After receiving the Florida reports, the Division requested that Laura undergo a psychological evaluation. During the evaluation, Laura admitted to at least fifteen arrests for fighting, assault and domestic violence, two of which resulted in state prison terms. The psychologist, Dr. Robert Kanen, determined that Laura "has severe parenting deficits and cannot provide her child with a permanent, safe, and secure home" as she has "repeatedly failed to honor parental obligations" or to "plan ahead[.]" Dr. Kanen concluded "that any child under her care would be at risk of neglect and possible harm particularly when the child begins to make too many demands on [Laura]."

Based upon Dr. Kanen's recommendation, the Division referred Laura to parenting classes and a substance abuse treatment program. The substance abuse evaluator recommended an intensive out-patient program. Initially, Laura participated in the services, but within a few months, the Division began receiving complaints from the service providers that Laura had missed several sessions and was abusing alcohol again. As a result, a Division worker went to Laura's home and found beer in the refrigerator. Consequently, the Division required Laura to undergo an immediate drug test, which resulted in a positive finding for alcohol and cocaine. Upon receipt of the test results, the Division effectuated an emergency removal of Walker and filed a complaint in the Family Part for custody. At a hearing on May 15, 2012, the court awarded custody of Walker to the Division.

On August 20, 2012, the court held a fact-finding hearing. At the hearing, the Division presented the testimony of Anna Cebula, the family's caseworker. The Division also introduced into evidence Dr. Kanen's psychological evaluation of Laura, the April 2012 drug test results, the Division's screening and investigation summaries, and the reports from the Florida CPS. On defense counsel's request, the court agreed not to consider any of the reports concerning Laura as a minor or when she did not have custody of her children. Defense counsel did not object to the other documents being admitted into evidence.

At the conclusion of the hearing, the court found that the Division established by a preponderance of the evidence that Laura abused or neglected Walker. While the court referenced Laura's history with the Florida CPS, its decision primarily relied on Laura's history of substance abuse as well as the "breakdown in her compliance" with the drug treatment program and the services provided by the Division. The court specified in its order that this recent behavior "placed the child at substantial risk of harm." Subsequently, after finding that it could not safely return Walker to Laura, the court transferred physical and legal custody of Walker to his father. On August 19, 2013, the court terminated the litigation. This appeal followed.

On appeal, Laura argues that the Division failed to prove that Walker was in imminent danger of harm. Laura contends the Division's conduct demonstrated that it did not fully credit the results of Dr. Kanen's report as Walker was permitted to remain in her custody for three months after the psychological evaluation occurred. Further, Laura asserts that the Division's reliance on the Florida CPS reports was error as those reports were not competent, material or relevant evidence. Laura also argues that there was no evidence that she was under the influence of alcohol or cocaine while she cared for Walker. We are not persuaded.

We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)).

To determine whether a child is abused or neglected, a court must hold a fact-finding hearing. N.J.S.A. 9:6-8.44. An abused or neglected child is one who is less than eighteen years of age and

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 [or her] parent or guardian, as herein defined, 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[.]

[N.J.S.A. 9:6-8.21(c)(4).]

"[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Where there is no evidence of 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. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

A minimum degree of care, as required by N.J.S.A. 9:6-8.21(c)(4), is less than ordinary care; it is something more than ordinary negligence and refers to grossly or wantonly negligent conduct, but not necessarily intentional conduct. G.S., supra, 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Thus, "a guardian fails to exercise a minimum degree of care when 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." Id. at 181. The analysis does not focus on the intent of the parent or guardian, but rather the resulting injury, or resulting risk thereof, to the child. Id. at 176-77.

Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances in making its findings. Id. at 33-34 (citing M.C. III, supra, 201 N.J. at 345).

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to the factual findings of the family court because of its "expertise in family matters[.]" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & 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)). The trial court's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

Initially, we reject Laura's contention that the court should not have considered the reports from the Florida CPS. At the fact-finding hearing, defense counsel's only objection to these records concerned parts that referenced Laura as a minor or when she did not have custody of her children. The court agreed not to consider evidence about these subjects. Now Laura claims that although the reports "document a long history of problems within the family," the reports are not supported by any "testimony, court transcripts, or court orders" and should not have been admitted as competent evidence.

Although the court may rely on information the Division obtained from another child protection agency, see N.J. Div. of Youth & Family Servs. v J.T. 354 N.J. Super. 407, 413-14 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003), here no foundation was laid that these were business records and the records were not authenticated. However, by agreeing to their admission, defense counsel deprived the Division of the opportunity of laying the foundation or authenticating them and, thus, invited any error in the admission of these documents. M.C. III, supra, 201 N.J. at 341-42.

"'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" Id. at 340 (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996)). "'[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his [or her] chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he [or she] sought . . . claiming it to be error and prejudicial.'" Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 358 (2004)). To demonstrate reversible error when the error was invited, "the question is whether the 'particular error . . . cut mortally into the substantive rights of the defendant[.]'" State v. Corsaro, 107 N.J. 339, 345 (1987) (alteration in original) (internal quotation marks and citations omitted); see also State v. A.R., 213 N.J. 542, 562 (2013). If the doctrine of invited error "would 'cause a fundamental miscarriage of justice,' it will not be applied automatically." A.R., supra, 213 N.J. at 562 (quoting M.C. III, supra, 201 N.J. at 342).

We perceive no fundamental miscarriage of justice here in the admission of these records. Laura acknowledged to Dr. Kanen the prior removals of her children in Florida as well as involvement with CPS. More importantly, in its fact-finding decision, the court's reliance on the records was minimal. Although referencing the Florida CPS involvement, the court emphasized that the substantial risk of harm was created by Laura becoming noncompliant with services provided by the Division and resuming her alcohol use.

We also conclude that there was sufficient credible evidence in the record to support the trial court's finding of abuse and neglect. While it is true that there was no evidence that Laura was under the influence while caring for Walker, the case law is clear that courts do not need to wait until a child is actually harmed. S.S., supra, 372 N.J. Super. at 24 (quoting D.M.H., supra, 161 N.J. at 383). Rather, Laura's positive test for alcohol and cocaine and her decision to keep beer in her refrigerator, coupled with her extensive history of alcohol abuse and violent behavior, all put Walker at substantial risk of harm. See A.L., supra, 213 N.J. at 23; see also N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 146 (App. Div. 2014) (finding evidence of alcohol abuse where police found bottles of liquor in the mother's home). Further, in failing to comply with and attend the substance abuse program, Laura's conduct demonstrated that she was acting wantonly and negligently and could not care for Walker. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 435, 454 (2012) (affirming the trial court's termination of parental rights based on the parents failure to comply with services).

Affirmed.

1 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

2 We use pseudonyms for the parties and children to protect the family's privacy.

3 Laura's mother had custody of two of Laura's children, who have special needs. Laura did not live with her mother but stayed there occasionally.