NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.K.,

Defendant-Appellant,

and

D.J., J.M., and J.E.,

Defendants.

_________________________________________

IN THE MATTER OF

K.J., A.M., and R.E., minors.

_________________________________________

October 17, 2016

Argued September 20, 2016 Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-351-13.

T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, of counsel and on the brief).

Ellen L. Buckwalter, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Buckwalter, on the brief).

Todd S. Wilson, Designated Counsel, argued the cause for minors K.J., A.M., and R.E. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).

PER CURIAM

Defendant J.K. appeals from the May 1, 2014 order entered after a fact-finding hearing, which determined that she abused or neglected two of her minor children. Defendant also appeals from the November 13, 2014 order terminating this Title 9 litigation. Defendant argues that the Division of Child Protection and Permanency (Division) failed to present sufficient evidence to support either finding, that the children's law guardian failed to advocate the wishes of the children, and the judge exhibited bias and hostility toward defendant. The law guardian, who supported the finding of abuse or neglect at the fact-finding hearing, now urges that we reverse that finding. Because the Division failed to prove that defendant abused or neglected either child by a preponderance of the evidence, we reverse.

I.

Defendant is the mother of the three children named in this litigation, K.J. (Karen), A.M. (Amy), and R.E. (Robby).1 The children have three different fathers, D.J., J.M., and J.E., respectively. The Division's involvement with defendant's family dates back to 2002. Although several allegations of abuse or neglect were investigated by the Division, none were substantiated. After a 2011 referral, the Division arranged for defendant to submit to a substance abuse evaluation. She tested positive for prescribed medication, but negative for illicit substances. Defendant was referred for outpatient treatment, but did not participate.

Class Trip to Liberty Science Center

On April 17, 2013, the Division received a referral from Robby's elementary school. Robby, who was then seven years old, suffers from asthma and required access to an inhaler if he suffered an attack. Defendant accompanied Robby's first grade class on a trip to Liberty Science Center (LSC) in case Robby needed the inhaler.

Catherine Tronza, Robby's first grade teacher, testified at the fact-finding hearing that there were three first grade classes on the trip totaling sixty students, with a teacher and four or five parent chaperones for each class. Ms. Tronza described defendant's role on the trip as a chaperone and noted that she carried Robby's inhaler in case he needed it. Each parent chaperone was assigned four or five children but, after arriving at LSC, Ms. Tronza asked defendant to take sole responsibility for Robby. Defendant complained that she did not want Robby to be by himself, so Ms. Tronza agreed to link defendant with another parent and the four children he was watching.

When the group went to the cafeteria for lunch, Robby approached Ms. Tronza and said he had to use the restroom. When Ms. Tronza told Robby to ask his mother to take him, the child responded that she was not there. Ms. Tronza asked where defendant was and Robby said she probably went for a cigarette. Ms. Tronza then took the child to the restroom. When she returned, Ms. Tronza still did not see defendant and began to walk downstairs to have her paged.

As she was descending the stairway, Ms. Tronza spotted defendant and observed that she "looked pale [and] was swaying back and forth trying to grasp for her balance." Defendant told Ms. Tronza she was not feeling well and had gone outside for some fresh air. One of the LSC security guards observed defendant and called an ambulance. Defendant was taken to Jersey City Medical Center. She was released later that day and picked up by her mother, M.G. (Mary).

Ms. Tronza arranged for another teacher to watch Robby and informed the teacher of Robby's condition. In defendant's absence, Robby continued the tour of LSC and watched a movie with his class without incident. Ms. Tronza accompanied Robby on the trip back to school where Robby's sister picked him up. Ms. Tronza explained that she reported the incident to the Division because she felt that defendant's absence placed Robby in danger.

The Division's Investigation

A Division caseworker, Yajira Morales, was assigned to investigate and responded to the home of defendant's parents where defendant was living with the children. Robby told Morales that his mother was having a good time on the class trip until she felt nauseous and had to go to the hospital. Robby did not see his mother take any medication during the trip and thought the nausea may have been caused by her cigarette smoking. Robby remarked that when his mother returned, she was saying things that "did not make sense."

Karen told the caseworker that her mother is depressed and became addicted to pain medication following a car accident eight or nine years ago. Two years earlier, Karen's grandmother, Mary, confronted defendant about the problem and she stopped, but Karen believed her mother was again abusing her medication.

Amy told the caseworker that her mother did not use drugs or drink alcohol and her grandmother monitored and stored defendant's medication because defendant "has a tendency of losing her pills." Amy also thought that her mother took more pills than necessary.

Defendant's mother, Mary, confirmed that defendant sustained a serious back injury in a car accident and had pain medication prescribed that Mary stores and dispenses as prescribed in the morning and evening. Mary keeps defendant's medication "under lock and key," because defendant has a "tendency of not taking her medications as prescribed." Mary denied that defendant was abusing her medication because she controlled the distribution of defendant's pills. She told Morales that she gives defendant all her daytime medications in the morning before she leaves for work.

Mary told Morales it had been a long time since defendant had an adverse reaction to her medication, but that it sometimes prevented her from sleeping at night, and made her especially tired during the day. On the day of the class trip, Mary suggested that defendant's medication had "an extreme effect" on defendant because she had not slept the night before.

Morales told Mary the Division would implement a safety protection plan, which would require Mary to supervise defendant's contact with the children. Mary agreed, and said she would inform the Division of who would be supervising defendant's contact with the children when she was unavailable on the weekends.

Morales interviewed Mary's husband, L.G. (Larry).2 Larry told Morales defendant was on "heavy medications" which Mary kept locked in their bedroom. He did not believe defendant was abusing her medication because Mary dispenses her pills. Larry echoed Mary's observation that when defendant does not sleep at night, the medication caused her to be drowsy the following day, to slur her words, and to appear to be under the influence of a substance. Larry said that defendant's most recent display of these symptoms occurred one month prior to the class trip.

Defendant spoke with Morales and denied using illicit drugs, but admitted to occasionally drinking alcohol, though not to the point of intoxication. She also acknowledged that she suffered from anxiety, depression, and bipolar disorder. She listed her prescription medications as Fluoxetine, Omeprazole, Loratadine, Naproxen, Oxycodone, Hydrocodone, Imitrex, Solpadeine, Cyclobenzaprine, and Xanax and reported that she took some of the medications in the morning and some in the evening. She had been taking them for six or seven years.

Defendant confirmed that her mother has been monitoring her medications for the past year, and acknowledged that she "may have a physical dependency . . . because she has been on them for an extended amount of time." She became emotional during the interview, and said that she would prefer not having to take the medication, but it is not an option because of her injuries. Defendant confirmed that she had not slept the night before the class trip and her mother gave her an Oxycodone and a Naproxen; she did not take a third prescribed drug, Flexeril, because it made her groggy.

During the class trip, defendant left Robby at lunch time to get him a soda. She then took another Oxycodone. She denied having slurred speech, or being under the influence of any substance, but admitted she might have bumped into a garbage can. She told Morales that the reaction she experienced was not common. After concluding the interview, Morales explained the safety protection plan to defendant and that she could not have unsupervised contact with the children.

Fact-Finding Hearing

At the fact-finding hearing, the Division introduced, without objection, an incident report from the LSC security guard, Vanessa Estela Ramos, indicating that defendant was observed "appearing disoriented . . . [and] could not sit upright without almost falling out of her seat." When paramedics arrived at LSC they administered Naloxone and defendant was later diagnosed at Jersey City Medical Center with opiate overdose.

Defendant's primary care physician, Dr. Rutigliano, was interviewed by Morales, but did not testify at the hearing. Dr. Rutigliano told the caseworker that he has treated defendant since 2006 for numerous conditions including chronic muscular skeletal pains, a herniated disc, migraine headaches, a skin condition, allergies, asthma, chronic dental hygiene issues, depression, and anxiety. Dr. Rutigliano confirmed that he prescribed all of the medications defendant was taking, and expressed no concerns about prescription abuse because defendant does not seek refills sooner than they are due. He acknowledged defendant is on a high dosage, which causes grogginess at times, but would not affect her ability to function. Dr. Rutigliano also treats defendant's children and reported that they are seen on a regular basis, up to date on all their medical needs, and expressed no concerns of abuse or neglect.

The Division arranged for psychological evaluations for all three children by Dr. Jemour A. Maddux. Dr. Maddux testified at the fact-finding hearing and expressed concerns about defendant's ability to "set limits and provide consistent supervision," but found nothing to indicate that Robby suffered from "abusive or neglectful action on the part of his caregivers." Although noting that Amy was a "youngster in a great deal of distress," Dr. Maddux reached the same conclusion about her.

Dr. Maddux found that the strain Karen felt on her relationship with her mother was considerable compared to the level of strain reported by most people her age and concluded that even the factors "outside the parent-child relationship" that contribute to Karen's depression are in part due to defendant's mothering. Although finding that she had a good prognosis, Dr. Maddux concluded that Karen was a clinically neglected child.

Defendant called Dr. Rachel Jewelewicz-Nelson who conducted a psychological evaluation of Karen. Dr. Jewelewicz-Nelson testified that Karen was doing well both in and out of school, was feeling "very positive" about her life, and no longer viewed defendant's use of prescription medication as a problem.

Dr. Jewelewicz-Nelson concluded that Karen was a "normal, average, adequately-functioning adolescent . . . who is very understanding of her mother's illness and cuts her some slack because of it; that she feels loved, wanted, cared for, nurtured; that she is comfortable in her family and with her friends; and that she's generally just doing fine."

At the conclusion of the fact-finding hearing, the judge first acknowledged that there was no proof that defendant was taking anything other than prescription medication. The judge found that defendant's role on the LSC trip was to act as a chaperone and administer Robby's asthma inhaler if needed. By leaving Robby without alerting school authorities, defendant placed him at substantial risk of harm.

Regarding the expert testimony, the judge found Dr. Maddux to be more credible than Dr. Jewelewicz-Nelson, because Dr. Jewelewicz-Nelson "[minimized] the impact of [defendant's] protracted prescription drug use on the children." In reaching her decision, the judge weighed several "mitigating factors" including: defendant suffers from mental illness and pain, she had prescriptions for all of the medications she consumed, she lives with her mother who dispenses her medication, and there were other adults present at LSC when she left Robby.

In spite of these mitigating factors, the judge concluded that, under the totality of the circumstances, defendant abused and neglected Karen "by virtue of her use of prescription medications over a prolonged period of time."

On appeal, defendant raises the following points

a violation of N.J.S.A.9:6-8.21c(4)(b) is not established by a single lapse in a mother's ability to supervise her seven year old son due to her use of prescription medication on a class trip where ample back-up existed to address any safety concern, or by a psychologist's conclusion that a daughter's relationship with her mother once was "strained" by the mother's prescription medication use, particularly where the mother established an extended family support system for her children.

i.

under N.J.S.A.9:6-8.21c(4)(b) medication use as prescribed by a doctor is reasonable conduct that cannot establish parental fault required to sustain neglect or abuse findings, regardless of harm or substantial risk to a child.

ii.

reckless conduct violating the minimum degree of care required of a parent by N.J.S.A.9:6-8.21c(4)(b) was not established when a mother fell ill from medication while on a school trip with a son who has asthma where a prior trip went fine and back-up support existed, or by the effects of her medication use years earlier as recalled by a teenager before her mother was assisted by an extended family.

iii.

imminent danger of a child becoming impaired under N.J.S.A.9:6-8.21c(4)(b) is not established by a mother falling ill from medication on a school trip with a son who has asthma, nor by a psychologist's snapshot of a teenage girl showing effects years earlier from her mom's medication use.

iv.

a substantial risk of harm under N.J.S.A.9:6-8.21c(4)(b) is not established when a mother could not care for a seven year old with asthma on a school trip or by the effects of what a dcpp psychologist called a daughter's past "strained relationship" with her mother.

v.

fundamental fairness in this title 9 case was undermined where a law guardian misinformed children as to the focus of title 9, failed to advocate their wishes, interests, position or objectives, and instead assisted the state to gain a result one child did not want, wrongly stigmatized both as neglected or abused, and demeaned their mother as reckless because she was ill.

vi.

judicial bias under r.1:12-1(g) requiring reversal was evidenT in a court's hostility to a course of prescribed medication that led it to characterize a mother as an "addict" in a "perpetually-impaired state" absent competent fact and medical testimony, and by improperly referring to a "family history" of "unfounded" allegations.

II.

The scope of our review of a trial court's fact-finding is limited, and we will defer to the court's findings "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, we will not accord deference if the trial court's findings are so wide of the mark that the judge was clearly mistaken. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). A trial court's legal conclusions are not entitled to deference. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).

N.J.S.A. 9:6-8.21(c)(4) provides that an "abused or neglected child" includes

[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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof. . . .

A parent or 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." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A finding of abuse or neglect must be proven by a preponderance of the competent, material and relevant evidence produced at the fact-finding hearing. N.J.S.A. 9:6-8.46(b). A trial court determines whether a child is abused or neglected by considering the totality of the circumstances because the "elements of proof are synergistically related." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (citations omitted).

Leaving Robby Alone at LSC

The trial judge noted that defendant was aware of her responsibility to chaperone Robby for the specific purpose of assisting him should he have an asthma attack or other asthma-related emergency. Despite her awareness of this responsibility, she "left her son" alone without his inhaler, took an Oxycodone, and was later found "impaired." The judge concluded that

[b]y virtue of her condition on that day, her understanding of the importance of monitoring her son who had a serious ailment, the fact that she had the inhaler, the fact that she did not alert school authorities that she was leaving him even though she was the one charged with his supervision, she placed her son at substantial risk of harm. . . .

At the outset, we note that the evidence clearly established that the drugs consumed by defendant on April 17, 2013 were prescribed by her physician, Dr. Rutigliano. Although there was some evidence that defendant had not always taken her medications strictly as prescribed, she and her mother, Mary, took reasonable precautions to address that problem by having Mary control and dispense all of her medications.

The judge concluded without much discussion that defendant's behavior was unreasonable because it resulted in risk of harm to Robby. Importantly, Robby's teacher testified that approximately fifteen minutes elapsed between the time she learned that defendant was not in the lunch room and the time she was located. This is consistent with defendant's statement to the caseworker that she left the lunchroom to get a soda for Robby. Her absence was brief and her return to the cafeteria where she left Robby was interrupted by the adverse reaction to the Oxycodone she took. There was no evidence presented that the Oxycodone was not taken in accordance with her doctor's instructions. In fact, defendant did not take her dosage of Flexeril that day because she felt it would make her groggy for the trip.

Defendant, Mary, and Larry all suggested that the adverse reaction might be due to lack of sleep the night before, a reaction defendant had suffered one month earlier. No evidence was presented to contradict this assertion and the judge did not mention that possibility, let alone consider it.

At most, the Division proved that defendant suffered an adverse reaction to a dosage of prescribed medication. While there is a possibility defendant ingested more than her prescribed amount, there is simply no proof of that. The Jersey City Medical Center records indicated that defendant told the treating physician that she took her medication "as directed" and did not intend to overdose. There is no evidence to establish that defendant exceeded the prescribed dosage.

Even assuming defendant intentionally consumed more than the prescribed amount of her medication, there was no evidence of harm to Robby. As there was no evidence of actual harm, the focus must be on whether there was a threat of harm. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (citing N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013)). To sustain a finding of abuse or neglect, there must be proof that a parent failed to exercise a minimum degree of care and there was an "imminent danger or a substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)). In G.S., supra, the Court defined the phrase "minimum degree of care" as "conduct that is grossly or wantonly negligent, but not necessarily intentional." 157 N.J. at 178. Willful or wanton conduct is "done with the knowledge that injury is likely to, or probably will, result." Ibid.

Applying this standard, we are satisfied the Division failed to prove defendant's conduct was grossly negligent or that she acted with reckless disregard for Robby's safety. Defendant left Robby for a brief period of time during which she was overcome by an apparent adverse reaction to prescribed medication. During her absence, Robby remained in LSC in the presence of several teachers and parent chaperones. While it may have been poor judgment for defendant to leave her son without asking another parent to watch him, that failure does not support a finding of abuse or neglect.

Exposure of Karen to Emotional Harm

Relying primarily on the testimony of Dr. Maddux, the judge found that defendant's "impaired state, as described by [Karen], clearly affected [her] ability to parent and subjected [Karen] to risk of emotional harm." The judge concluded that "[b]y virtue of the mother's inability to parent [Karen] due to her drug dependence, she exposed [Karen] to emotional harm making [Karen] abused and neglected as defined by N.J.S.A. 9:6-8.21(c)(4)(b)."

Karen told Dr. Maddux that she suffered from depression, and was taking Prozac at the time of the evaluation. Dr. Maddux's finding that Karen was "clinically neglected" was based primarily on the child's self-reporting that she had a strained relationship in the past with her mother. Without elaboration or explanation, Dr. Maddux concluded that the strain Karen suffered was considerable, compared to the level of strain reported by most people Karen's age.

Although Karen associated the onset of her depression with her mother, she did not believe her ongoing depressed mood was related to her mother. Rather, Karen told Dr. Maddux that she blamed her mood on her "intellectual functioning and the way she looks." Nevertheless, Dr. Maddux concluded that even the factors "outside of the parent-child relationship . . . such as [Karen's] dissatisfaction with her intelligence and appearance are in part due to her mother's parenting."

Dr. Jewelewicz-Nelson noted that Karen was doing well academically, was involved in various school activities, and was volunteering outside of school. When confronted with Dr. Maddux's conclusion that she was disturbed by defendant's drug dependence, Karen told Dr. Jewelewicz-Nelson that it had been an issue in the past, but it was not a current problem for her. Karen also said that Dr. Maddux had asked her "leading questions" and pressured her to answer him in a particular way such that she felt he misunderstood her position. Karen said she had not enjoyed a close relationship with her mother in the past, but "they have actually become closer in recent months and that they had a good relationship."

Dr. Jewelewicz-Nelson performed three psychological tests. The Piers-Harris Self-Concept Scale assessed Karen's functioning and overall well-being. Her scores were at or above the average range with no indication of any areas of weakness. The Children's Depression Index (CDI) was administered because Dr. Maddux had indicated that Karen had suffered depression in the past. Karen's CDI showed no evidence of depression. Finally, the Multidimensional Anxiety Scale for Children (MASC) focuses on anxiety and Karen's test gave no indication that she suffered anxiety. Dr. Jewelewicz-Nelson concluded that there was no indication that Karen suffered any psychological or emotional harm as the result of defendant's level of functioning. Dr. Maddux performed no tests on Karen.

The judge rejected Dr. Jewelewicz-Nelson's conclusion simply because she found Dr. Maddux more credible and because Dr. Jewelewicz-Nelson minimized the impact of defendant's protracted drug use upon the children. The judge conceded that the harm Dr. Maddux found occurred when Karen was in fifth and sixth grades,3 and that both experts agreed that Karen was functioning well when they evaluated her.

We first note that any harm Dr. Maddux perceived Karen to have suffered was no longer evident at the time of his evaluation. More significantly, the judge's conclusion that defendant's medications impaired her parenting ability, failed to consider that defendant's drug dependence did not result from consumption of illicit drugs, but from medication prescribed by her primary care physician who had been treating her since 2006. In Division of Child Protection and Permanency v. Y.N., the Court drew a sharp distinction between the two, rejecting our conclusion that "[w]here there is evidence of actual impairment, it is immaterial whether the drugs taken were from a legal or illicit source." 220 N.J. 165, 184 (2014) (quoting N.J. Div. of Youth & Family Servs. v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013)).4

In determining whether defendant exercised a minimum degree of care in parenting Karen, we must balance any harm caused to the child by defendant's impairment with appropriate consideration that her drug use was prescribed by her physician. As the Division has produced no evidence that defendant consumed illicit drugs or even exceeded the recommended dosage of her prescription medications, we cannot conclude that her usage was unreasonable or her conduct reckless. Against the backdrop of the Division's highly questionable proof of past harm to Karen, the evidence does not support the judge's finding of abuse or neglect.

As we are reversing the finding of abuse or neglect as to both children, we need not address defendant's arguments that the law guardian misinformed the children, or that the judge was biased. We were informed at oral argument that defendant's name was not placed on the Child Abuse Registry.

Reversed.

1 We employ initials and pseudonyms for ease of reference and to protect the identities of the minors.

2 Larry is not defendant's biological father.

3 Karen was born in 1998 and at the time of Dr. Maddux's evaluation was almost fifteen.

4 The Family Part judge did not have the benefit of the Court's decision in Y.N., which was decided in December 2014.