NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.P.

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NOT FOR PUBLICATION WITHOUT THE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.P.,1

Defendant-Appellant,

and

G.L.,

Defendant.

___________________________

IN THE MATTER OF S.L.,

a minor.

________________________________________________________________

November 2, 2016

Submitted May 3, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-375-13.

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

Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ellen Buckwalter, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant S.P. (Susan) appeals from an order that found her daughter, S.L. (Sarah) was an abused and neglected child as defined in N.J.S.A. 9:6-8.21. She argues the record was insufficient to support such a finding and that the trial judge erred by evaluating the facts as they existed at the time of the reported behavior as opposed to determining whether Sarah remained at risk of harm at the time of the fact-finding hearing.2 For the reasons that follow, we affirm.

I.

This matter came to the attention of the Division of Child Protection and Permanency (the Division) on Monday, June 10, 2013. The Division received a referral from Gloria Wyka, LCSW, of the Adolescent and Family Treatment Program in Bergen County's Department of Human Services, who had been Sarah's therapist since July 2011. Wyka stated she had received emails from Sarah over the weekend regarding a fight Sarah had with her mother. Susan had packed all of Sarah's things and announced she would be dropping Sarah off at the Division of Family Guidance (Family Guidance) on Monday. That morning, Sarah called Wyka from the Elmwood Park Police Department and said her mother had been driving while high and crashed into the curb, causing a tire to blow out. Susan continued to drive with the tire missing. Nervous and scared, Sarah called the police from the car. The police told Sarah that if her mother was not impaired, she would be released to her mother and it appeared that result was likely. Wyka reported Sarah was petrified to have to return home with her mother but also had said if the Division was ever called, "her mother would kick her ass." Wyka stated Susan has a history of marijuana and cocaine abuse.

The Division interviewed Wyka, Susan and Sarah at Family Guidance.

Wyka stated the family used to reside in Florida and was known to child protection services there after Sarah was sexually abused by Susan's former paramour. She did not view the family as stable because Sarah had three different placements in three years. Wyka had discussed the option of moving to an independent living situation with Sarah. Susan opposed this option because she would lose benefits.

Wyka also provided information regarding Susan's history of substance abuse and threats to Sarah. She reported one exchange she witnessed in her reception area, in which Sarah confronted her mother, saying "you were trying to overdose." Susan responded, "No, I was not, but I will take care of that later." In the intake office, Susan said, "I do not want her home with me because I will kill her, I don't want to kill her and I don't want to go to jail for killing her, so I want her out of the house." Susan told Wyka that Sarah was mad because she "smokes weed and coke" and further admitted in front of her staff that she does smoke "her weed and coke."

Both Susan and Sarah reported they had a fight over a hairbrush that weekend, which led to Susan kicking Sarah out of the house. However, because it was the weekend, Susan resolved to wait until Monday morning to drop Sarah off at Family Guidance. It was on the way to Family Guidance that Sarah called the police after her mother's accident.

Sarah told the Division workers that she was afraid of her mother because she is verbally abusive. She observed her mother smoking marijuana at home on a daily basis, drinking two or three times per week, and has heard rumors that Susan was using cocaine. Sarah recounted that Susan had been threatening to kill herself and hurt Sarah since she was nine years old. Sarah expressed her desire to enroll in an independent living program.

During her interview with the Division, Susan was "cursing throughout . . . and would go through various emotional states" and "appeared to be slurring her words and appeared to have a difficult time with her thought process." When asked about making threats to harm herself, Susan stated that "if she does not have her daughter, there is no point in living and she would turn into a 'crack head whore.'" She also stated that if anything were to happen to Sarah "she'll kill herself." However, Susan did state that she was not suicidal and was not going to hurt Sarah. Susan admitted she and her daughter have an abusive relationship and expressed a desire to "get the help her and her daughter need."

Susan also admitted to smoking marijuana, but claimed that it was legal because it was prescribed for her medical condition. She could not, however, present any evidence of a prescription. Susan explained she had been prescribed Xanax, but that at the time of the interview, she had no prescription. Susan admitted she does not take the medication as prescribed, but "only as she feels necessary." She then reported that although she was prescribed to take two Xanax pills in the morning and two in the evening, she took four pills the night before the accident and denied taking any Xanax pills that morning. Susan denied cocaine use or alcohol abuse. However, she also stated she was taking another medication and expressed concern that it might "have traces of cocaine."

Initially, Susan refused to provide a urine screen. Susan was informed that because of her threatening language, her refusal to undergo a urine screen, and Sarah's reluctance to go home with her, the Division was going to remove Sarah from Susan's custody temporarily. Susan then stated that "she would harm herself if she was not able to have visitation with [Sarah]." Susan eventually agreed to take the urine test.

After their interviews at Family Guidance, Sarah and Susan were transported to the Division's local office. On the way there, Susan began having "an inappropriate conversation" with Sarah about her past experience with being raped.3 Susan was described by a Division caseworker as "having scattered thoughts and jumping back and forth between subjects." Sarah remained quiet and was observed wiping tears away. A Division worker asked Susan to stop, but she continued making upsetting and inappropriate comments to Sarah.

Susan was assessed by the police, who decided to involuntarily admit her to Bergen Regional Medical Center (BRMC). When Susan asked a Division worker if she could say goodbye to her daughter she was informed that Sarah already left. Susan responded by saying "the worker was 'fucked up and that if you think that I was threatening before you should see how threatening I could be now.'"

On June 13, 2013, the Division met with Susan for a pre-placement conference at BRMC after being informed by the staff that she was able to participate. Susan admitted she took four Xanax on the Sunday night before the accident and four Xanax on the morning of the car accident. She denied having any recollection of the events of June 10, 2013, only remembering that she ended up at BRMC.

The Division concluded the allegations against Susan for neglect of Sarah were substantiated. The Division filed a verified complaint against Susan seeking custody of Sarah. At the hearing, the Division presented the testimony from Wyka and the caseworkers involved in the investigation. In addition, the Division's screening and investigation summaries and a letter from Wyka were received in evidence. Susan did not testify or present any witnesses or documentary evidence.

The trial judge found the Division met its burden by a preponderance of the evidence that Susan "abused or neglected" Sarah when Susan "subjected [Sarah] to risk of harm by virtue of her erratic driving, her erratic demeanor, her threats that she would kill the child and herself" because "these actions and behaviors subjected [Sarah] to physical and emotional risk of harm." The court found that Susan "was driving impaired" after "taking four Xanax pills the night before and four Xanax pills the morning of the event" and her "threatening and alarming language that day amounts to gross negligence."

II.

Title Nine defines "abused or neglected child," in relevant part, as

[A] child less than 18 years of age whose parent or guardian, as herein defined, . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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, 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 . . . .

[N.J.S.A. 9:6-8.21.]

Where there is no evidence that the child suffered actual harm, "the focus shifts to whether there is a threat of harm." Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015). In such cases, "the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." Ibid. (citation omitted). See also N.J. Dept. of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013) ("[A] finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm.")

"Abuse and neglect cases 'are fact-sensitive.'" E.D.-O., supra, 223 N.J. at 180 (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011)). We give considerable deference to the family court's factual determinations because it has "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand . . . [and] a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Susan argues that a finding of abuse "requires an evaluation of the present danger at the time of the fact-finding hearing." She contends that, because the court did not consider any progress she may have made to eliminate the dangerous behavior that caused the Division's involvement, the court's determination that Susan placed Sarah at a risk of imminent harm, and, therefore, abused or neglected her, was in error and requires reversal.

In support of this argument, Susan relies upon New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super. 405 (2014), a case in which certification was granted by the Supreme Court at the time the brief was filed, 220 N.J. 41 (2014).4 This decision no longer provides support for Susan's argument because the Court, on its own motion, remanded M.C. for reconsideration in light of its decision in E.D.-O, supra. In E.D.-O., the Court rejected the notion that proving "abuse and neglect" as defined in N.J.S.A. 9:6-8.21(c)(4)(b) "requires a finding that the parent's conduct presents an imminent risk of harm to the child at the time of fact-finding rather than at the time of the event that triggered the Division's intervention." E.D.-O., supra, 223 N.J. at 170. The Court noted that in enacting Title Nine, "the Legislature sought to squash the notion of a 'free pass' if the child did not suffer actual harm." Id. at 187. Thus, the family court's focus must be on "a parent's conduct at the time of the incident to determine if a parent created an imminent risk of harm to a child." Id. at 189.

Applying that standard here, the trial judge's finding of abuse and neglect was amply supported by evidence that included Sarah's statements to the Division and Wyka regarding Susan's conduct and threats and Sarah's resulting emotional distress, Susan's admission that she took four Xanax pills the night before and an additional four Xanax pills the morning of the car accident, and the observations of Wyka and the Division caseworkers regarding Susan's erratic conduct and threatening behavior. We find no reason to disturb the trial court's decision that Susan's conduct constituted abuse and neglect of Sarah under N.J.S.A. 9:6-8.21(c)(4)(b).

Affirmed.

1 We use initials and pseudonyms to maintain the confidentiality of those involved.

2 We note that Sarah (d.o.b. 12/5/96) was sixteen years old at the time of the referral and is no longer a minor.

3 Susan advised the Division that, in addition to the sexual assault by her former paramour, Sarah was molested on two other occasions by different people.

4 The Law Guardian agreed with defendant that the finding should be reversed in light of M.C.