DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.P.

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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NOT FOR PUBLICATION WITHOUT THE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.

F.P.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF A.O.B., a minor.

_____________________________________

December 14, 2015

 

Submitted September 24, 2015 Decided

Before Judges Fuentes and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-303-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant appeals an order memorializing a Family Part finding that she had abused and neglected her child, A.O.B., within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Family Part Judge Bernadette DeCastro issued the order under appeal based on her findings and conclusions of law following a fact-finding hearing in which it was established that defendant failed to pick up five-year-old A.O.B. after daycare because she had ingested an over-the counter sleep aid after taking cocaine. Judge DeCastro concluded that defendant neglected her child "by failing to pick [him up] from daycare after relapsing and self-medicating with illegal and over-the-counter substances thereby placing [A.O.B.] at risk of harm."

Defendant maintains that she had sleep difficulties and took an Advil PM, which resulted in her oversleeping and "arriv[ing] at her child's daycare late." She argues "there was no evidence before the court" to support the order and that the judge erred by failing to apply the "prevailing legal standards to the facts of this case." We disagree and affirm essentially for the reasons set forth by Judge DeCastro in her concise opinion from the bench.

The facts which follow are derived from the record. At the time of the incident giving rise to this action, defendant was forty-three years of age and her son A.O.B. was five years old. The biological father died before the child's birth.

Defendant first became known to the Division of Youth and Family Services, the predecessor to the Division of Child Protection and Permanency (the Division), in 1995, at which time her parental rights to her three children were terminated because of her continual drug abuse. In 2002, defendant's parental rights to her fourth child were terminated in an action brought by the Florida Division of Child Protective Services.1 The Division again became involved with defendant in November 2007 when it received a referral from a methadone clinic that defendant was seven months pregnant and had tested positive for heroin and cocaine in her seven most recent drug screens.

At the time of his birth in January 2008, A.O.B. tested positive for cocaine. The Division thereafter was granted custody, and later, guardianship of the child. The Division arranged for F.P.'s inpatient substance abuse treatment and returned the child to her custody on July 31, 2009, after she successfully completed the program.

In 2011, the Division facilitated the enrollment of A.O.B. in the Salvation Army Daycare Center (the Center). The Center is located in Jersey City, and for three years, A.O.B. attended the Center without incident.

The Division became reinvolved with F.P. and A.O.B. on February 22, 2013, when, at 7:10 p.m., the Division received a referral from the Center. The Center's director reported that it closed at 6:00 p.m., but no one came for A.O.B. The director called F.P. several times at home and work, but received no response. The director subsequently called the Division Hotline to advise that the Jersey City Police Department had been to F.P.'s home, but "they were not able to make contact with the family."

The Division responded to the daycare center at 8:30 p.m., and took custody of A.O.B. The Division determined that A.O.B. would have to be placed via Emergency Removal as no one came to pick him up and there was no emergency contact on file with the Center. At 9:30 p.m., A.O.B. underwent a pre-placement physical examination, wherein it was learned that he had no medical issues nor any signs of neglect. Shortly after 10:00 p.m. that evening, A.O.B., clearly upset, was placed at a local resource home.

The Jersey City police contacted the Division at 10:37 p.m. to advise that defendant was at the station. During a series of interviews thereafter, F.P. said she was having trouble sleeping and ingested Advil PM around 11:00 a.m. that morning. When she awoke, it was after 8:00 p.m. Initially, she said she went to the Center to look for A.O.B., and denied using any drugs. Later, F.P. admitted to using cocaine the day before A.O.B.'s removal.

Dr. Gerard Figurelli (Figurelli), a psychologist and a licensed clinical alcohol and drug counselor, reviewed defendant's case file, and explained that F.P. has "a documented history of compulsive drug dependence including abuse of heroin and cocaine." He testified that given this behavior, F.P. was at "a significant risk of relapse" when she decided to "self-medicate" her sleep problems with Advil PM. During the fact-finding hearing, he explained the effects of cocaine on the body

Q: Dr. Figurelli, in your 38 years [of] experience, have you ever seen a person who suffered from substance-abuse issues or someone strike that. Someone who used cocaine and that was their drug of choice. Have you ever seen them use another medication or drug to come down from the high of the cocaine?

A: Absolutely. The typical pattern of use, and this is of course one of the problems with self-medicating use, for example, of sleep aids. Because the the effect of cocaine is to the direct effect is to lead to extended periods of wakefulness and activity, and the after-effect is restlessness, agitation, sleeplessness, a very common pattern of abuse is to use cocaine and then to self-medicate the restlessness and the sleeplessness either with some other psychotropic medication or an over-the-counter medication like a sleeping aid.

Judge DeCastro delivered her opinion from the bench in which she concluded that the Division met its burden of proof. She also found Figurelli to be "very credible" and opined, in part

[B]ased on the testimony and evidence submitted, I find that [F.P.] has a long history of cocaine abuse. The day before she the day before the child was removed, February 21st, 2013, she admitted that she had used cocaine, which would constitute a relapse.

. . . .

Here we have a pattern of behavior, which Dr. Figurelli testified was important to that relapse and how a continued taking of an over-the-counter medication could contribute to the relapse.

. . . .

[F.P.] knowingly took the over-the-counter medication late in the morning of a day when she needed to pick up her son before 6 p.m. She failed to take proper precautions such as setting an alarm or setting up an alternative for her son.

. . . .

I find that the use of cocaine followed by the need to take the over-the-counter sleep medication placed [A.O.B.] at a significant risk of harm. So I do find that the Division has met its burden of proof, and I find that Dr. Figurelli was very credible in his explanation as to the sequence of having the effect of the drug and needing to come down from that by needing to having the inability to sleep, and she had a long history. So I do find that this was not a mistake or a one-time deal. So I do find that the Division met its burden of proof that there is a substantial risk of harm.

Based on these findings, Judge DeCastro entered the order memorializing her conclusion that defendant neglected A.O.B. within the meaning of the statute. The litigation was terminated on May 6, 2014, after the Division had filed its complaint for termination of F.P.'s parental rights to A.O.B. and this appeal followed.

The purpose of a fact-finding hearing is not to assign guilt to a parent, but to determine by a preponderance of the evidence whether the children at issue are "abused or neglected" as defined in Title Nine. N.J.S.A. 9:6-8.44, 8.46(b); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). "[T]he Family Part possess[es] special expertise in the field of domestic relations and thus appellate courts should accord deference to Family Part factfinding[s]." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (alteration in original) (internal quotation marks omitted) (quoting Cesare v. Cesare, 154 N.J. 394, 412 13 (1998)).

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 "[b]ecause 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) (second alteration in original) (citations 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 and Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (citations omitted). 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). Applying these standards, we discern no reason to disturb the trial court's ruling.

"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) (citations omitted). "The Division need only show that it was more likely than not that the defendant abused or neglected the child." Ibid. (citations omitted).

An "abused or neglected child" is defined, in pertinent part, as follows

[A] child less than 18 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 . . . 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)(b).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 172 73 (1999). Rather, the failure to exercise a minimum degree of care "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 300 (quoting G.S., supra, 157 N.J. at 177 78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result," and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences[.]" Id. at 179.

A determination of whether a parent's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181 82. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).

Defendant contends that the Division failed to prove she abused or neglected A.O.B. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). She argues that because there was no evidence linking her drug use to neglect or a threat of imminent harm, her conduct did not constitute a failure to exercise a minimum degree of care. Relying on V.T. and N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013), defendant posits that her admitted drug use did not establish that she was under the influence of drugs while caring for A.O.B. and that her actions on February 22, 2013, constituted the first and only time she failed to pick up the child from daycare in a timely fashion, and therefore do not qualify as abuse or neglect.

In A.L., an expectant mother used drugs during her pregnancy, but there was no evidence of actual harm when the child was born. A.L., supra, 213 N.J. at 26 27. The record also lacked evidence that the mother continued using drugs while caring for the child. Id. at 27 28. The Court reversed a finding of abuse or neglect, holding that the mother's past drug use alone did not prove actual harm or imminent danger. Id. at 29 30.

In V.T., the defendant did not have custody of his eleven-year-old daughter. V.T., supra, 423 N.J. Super. at 323. He had ingested cocaine and marijuana prior to two supervised visits with the child and tested positive for those substances on each occasion. Id. at 323, 330 31. We disagreed that such behavior inherently created a substantial risk of harm to the child, and held that the "use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect." Id. at 331.

In contrast to A.L. and V.T., defendant was the sole caretaker of the child and admitted to taking cocaine, and thereafter attempting to ameliorate its effects by self-medicating with a sleeping aid. This sequence of events was just the most recent example of a pattern of behavior defendant had exhibited in the past, and clearly subjected A.O.B. to a substantial risk of harm. The fact that the child was in the care of a responsible daycare facility at the time does not warrant a contrary result. The next time this pattern emerges, A.O.B. may not be so lucky.

Concededly, these cases, which require the Family Part to divine whether the actions of a parent, which might in other circumstances seem understandable or uniquely aberrant, subject the child to a continuing and substantial risk of harm, are difficult. However, whereas here, the Family Part has reasonably based its conclusions on substantial credible evidence in the record, we will not second-guess the trial court's conclusions nor will we substitute our judgment for that of a tribunal whose special expertise mandates, quite naturally, our deference.

Affirmed.


1 This litigation does not involve defendant's other children. Nonetheless, we briefly note some history to demonstrate the Division's familiarity with defendant and the history of defendant's struggle with drug addiction.


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