NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

S.W.,

Defendant-Appellant.

______________________________

IN THE MATTER OF J.G.,

Minor.

______________________________

July 21, 2015

Submitted December 8, 2014 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-187-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kristen N. Collar, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

In this Title 9 matter, defendant S.W., the biological mother of J.G. (John),1 born in January 2012, appeals from the December 13, 2012 Family Part order, which held that she abused or neglected the child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by using drugs while he was in her care. Defendant also appeals from the August 20, 2013 order, which dismissed this litigation. For the following reasons, we reverse.

We derive the following facts from the record. Defendant has a history of opiate abuse. When she learned she was pregnant with John, she entered a methadone program, where she received daily methadone treatments. The Division of Child Protection and Permanency (Division) first became involved with defendant in January 2012, after a hospital reported that she and John tested positive for methadone and the child was suffering from methadone withdrawal symptoms. The Division later confirmed that defendant was engaged in a bona fide methadone treatment program.

John was hospitalized for two months following his birth. Upon his discharge in March 2012, the Division did not remove him from defendant's care and custody; rather, the Division placed him with defendant, who was then living with her aunt. Defendant agreed to participate in services, including a substance abuse evaluation, and signed a case plan.

The Division referred defendant to Family Preservation Services (FPS). On April 12, 2012, a FPS worker reported to the Division that defendant's case would be closed for non-compliance, including failure to attend a substance abuse evaluation. The FPS worker expressed concern for John, as she was not sure "if [defendant] was abusing drugs again."

Defendant left her aunt's home and she and John began living with her friend, Jane. On April 12, 2012, a Division caseworker visited defendant and John at Jane's home. Jane was present and told the caseworker that she was helping defendant care for John. The caseworker saw that John was sleeping in a play pen, wearing clean clothes, and wearing gloves on his hands to prevent him from scratching himself.

Defendant told the caseworker that she was no longer attending the methadone program, but was attending an intensive outpatient treatment program. While speaking with defendant, the caseworker saw that she was sweating, her eyes were glazed, and she appeared to be under the influence. Defendant admitted that she used marijuana on April 4, 2012, but said that John was with her aunt at the time. Defendant submitted to a urine screen, which tested positive for marijuana and phencyclidine (PCP).

The caseworker advised defendant that John would be removed from her care pursuant to an emergency removal.2 Jane offered to care for the child; however, because she was due to go into work, the caseworker temporarily placed the child in a resource home. On April 13, 2012, the caseworker assessed Jane, found her to be an appropriate caretaker, and placed John with her. The Division barred defendant from Jane's home and provided supervised visitation elsewhere. On April 16, 2012, the Division filed a complaint and order to show cause for the custody, care and supervision of John based on defendant's drug use while he was in her care. Defendant consented to the removal of John from her care, and the Division consented to Jane supervising visitation between John and defendant.3

Defendant received notice that a fact-finding hearing was scheduled for 9:00 a.m. on December 13, 2012. The trial judge began the hearing at 9:37 a.m. in defendant's absence, despite defense counsel's request for more time. The hearing concluded at 9:51 a.m., before defendant arrived. The Division only presented a screening summary and an investigation summary, neither of which contained any information beyond April 13, 2012, the day the Division placed John with Jane. The caseworker did not testify on the Division's case-in-chief; she briefly testified on cross-examination by defense counsel and confirmed that Jane was helping defendant care for John. Neither the Law Guardian nor defendant presented any evidence.

In a terse oral opinion, the trial judge concluded that the Division proved by clear and convincing evidence that defendant abused or neglected John within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). The judge found that defendant's positive urine screen on April 12, 2012 made John's removal necessary in order to prevent significant physical and/or emotional harm; without the removal, John was at significant risk of harm; and the Division made reasonable efforts to avoid removal. The judge memorialized her ruling in a December 13, 2012 order. In an August 20, 2013 order, the litigation was terminated. This appeal followed.

On appeal, defendant raises the following contentions

I. THE TRIAL COURT VIOLATED THE MOTHER'S DUE PROCESS RIGHTS BY REFUSING A SLIGHT DELAY OF THE FACTFINDING HEARING TO ALLOW THE MOTHER TO ATTEND.

II. THE TRIAL COURT'S FINDING OF NEGLECT SHOULD BE REVERSED.

A. THE TRIAL COURT'S FINDING OF NEGLECT WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.

B. THE TRIAL JUDGE IMPROPERLY APPLIED THE "CLEAR AND CONVINCING" STANDARD WITH NO PRIOR NOTICE TO THE PARTIES.

III. THE TRIAL COURT'S FACTFINDING DECISION SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE FAILED TO RENDER PROPER FINDINGS OF FACT REGARDING REASONABLE EFFORTS.

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citations and internal quotation marks omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). The court may make rational inferences "grounded in a preponderance of probabilities according to common experience" derived from the credible evidence. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." L.L., supra, 201 N.J. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

"To prevail in a Title 9 proceeding, the Division must show by a preponderance of the competent and material evidence that the defendant abused or neglected the affected child." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014). "The Division need only show that it was more likely than not that the defendant abused or neglected the child." Ibid.

An "abused or neglected child" is defined, in pertinent part, as a child under the age of eighteen

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[.]

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

Our Supreme Court has held that "absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014). Rather, "a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) require[s] proof that [the mother] unreasonably inflicted harm on her newborn and did so, at least, by acting with gross negligence or recklessness." Id. at 168-69. Here, the judge did not base the finding of abuse or neglect on John's methadone withdrawal, which was the only actual harm this record suggests. Thus, the question is whether defendant's drug use in April 2012 placed John in imminent danger or at a substantial risk of harm.

When drug use forms the basis for an allegation of abuse or neglect and there is no evidence of actual harm, N.J.S.A. 9:6-8.21(c)(4)(b) requires proof that the drug use exposed the child to imminent danger or a substantial risk of harm. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013); N.J. Div. of Youth & Family Servs. v. M.C., 435 N.J. Super. 405, 417 (App. Div.), certif. granted, 220 N.J. 41 (2014). We need not address whether John was "in imminent danger," because we find insufficient evidence that defendant unreasonably allowed "a substantial risk" of harm to be inflicted on John. N.J.S.A. 9:6-8.21(c)(4)(b). We are guided by our decision in N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011).

In V.T., we held that a parent who "did not fully cooperate with recommended drug treatment and tested positive for cocaine and marijuana" did not "inherently create[] a substantial risk of harm to" the child in a supervised setting. Id. at 330. We recognized

that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired. However, Title 9 is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.

[Id. at 331.]

We noted that the Division failed to explain the level of drugs in the parent's system, and that "absent expert testimony the meaning of the reported levels is unclear." Ibid. We stressed that "[a]bsent expert evidence, the [Division] is unable to demonstrate whether or not [the parent] was impaired to the point of posing a risk to [the child] in a supervised setting." Ibid.

Although the case before us does not involve supervised visitation in the legal sense, it was undisputed that Jane was helping take care of John, and that Jane was an appropriate caretaker. Defendant stated, and there was no contrary evidence, that when she had taken the drugs John was with her aunt, whose capabilities as a caretaker have not been challenged. As a result, the evidence did not prove John was at a substantial risk of harm.

In addition, no actual harm to John was noted in the screening or investigations summaries. To the contrary, the child appeared healthy and well cared for when the caseworker saw him on April 12, 2012, and he was in the care of an appropriate caretaker, Jane, at the time when defendant tested positive for marijuana and PCP.

Further, although the screening and investigation summaries showed that defendant used the drugs sometime before the urine screen on April 12, this did not prove she used them while caring for John without the aid or supervision of a capable caretaker. The Division offered no expert or other evidence proving the impairment effect of marijuana or PCP and the length of time such impairment occurs after use, which could possibly link impairment to a time defendant was caring for John.

While we do not condone defendant's illicit drug use, we are constrained to conclude that the Division failed to present sufficient evidence to show a substantial risk of harm to John. V.T., supra, 423 N.J. Super. at 323, 330. Proof of defendant's past drug use alone cannot show a substantial risk of harm. See A.L., supra, 213 N.J. at 27-28. The absence of evidence of abuse or neglect requires us to vacate the December 13, 2012 order. Additionally, we direct the Division to remove defendant's name and all identifying information from the Central Registry. N.J.S.A. 9:6-8.11.

Having reached this conclusion, we need not address defendant's contentions in Points I, II.B. and III of her merits brief.

Reversed.

1 The names used in this opinion are fictitious.

2 Defendant does not challenge, and we do not review, the propriety of the emergency removal under N.J.S.A. 9:6-8.29(a).

3 The Division later removed John from Jane's care and placed him in a foster home. The record does not indicate the reason for the removal.