NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. H.R.

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NOT FOR PUBLICATION WITHOUT THE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 binding only 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-3236-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

H.R.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF S.R., a minor.

__________________________________

October 21, 2016

 

Submitted September 15, 2016 - Decided

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0765-13.

Joseph E. Krakora, Public Defender, attorney forappellant (FabiolaRuiz-Doolan, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant, thirty-eight-year-old H.R., appeals from the Family Part's October 8, 2013 order finding he abused or neglected S.R., his infant child, when he breached a child safety agreement and released the infant to the sole care of her mother A.F., who was drug addicted. The infant was not harmed. Defendant requests we vacate the order as unsupported, conceding perhaps his conduct was negligent, but maintaining the act did not rise to the level of gross negligence as required by the applicable statute. He also requests his name be removed from the Child Abuse Registry. In the alternative, defendant argues the judge erred when basing factual findings on the caseworker's uncertified report of the incident. Although he agreed to the trial procedure, H.R. now suggests an evidentiary hearing was necessary prior to granting relief to plaintiff, the Division of Child Protection and Permanency (the Division). For the reasons stated in our opinion, following our review of the arguments, which are considered in light of the record and applicable law, we affirm.

The facts are not disputed and taken from the record as presented during the fact-finding hearing.1

The Division became involved with the family when S.R. was born. The hospital determined A.F. tested positive for opiates, cocaine and methadone. A.F. admitted drug use before she sought care at the hospital. S.R.'s meconium tested positive for opiates and cocaine and the infant, when delivered, was treated for neonatal abstinence syndrome and narcotics withdrawal in the neonatal intensive care unit. The infant remained hospitalized for more than two months and a discharge hold was imposed, pending the Division's actions.

The Division assisted A.F. in 2010, when she was found unconscious, following her second drug overdose within a three-month period. At that time, the Division substantiated abuse or neglect and that child was placed in the care of the maternal grandparents.2 A.F. completed drug treatment and rehabilitation and the case was closed.

Regarding S.R., the Division again substantiated then thirty-three-year-old A.F., concluding she abused S.R. The Division filed a Title 9 complaint seeking custody, care and supervision of the infant. The Family Part judge considered the Division's emergent application and awarded the Division care and supervision; however, the judge granted legal and physical custody to the biological father, H.R. Further, A.F. was ordered to attend drug treatment and scheduled a prospective date for her to resume unsupervised visitation, conditioned on her substance abuse rehabilitation. Importantly, the January 11, 2013 order contained a requirement mandating any contact between S.R. and A.F. shall be supervised by H.R., his aunt, or another court approved supervisor. That matter was then closed.

The Division filed a new Title 9 complaint the next month. The Division was called when H.R. contacted police after he saw A.F., who had taken S.R., walking along the streets under the influence. Police located the infant, who was unharmed, with another in Collingswood. The Division learned A.F. was arrested for unlawful possession of a handgun and possession of drug paraphernalia. S.R. was returned to H.R.'s custody and the Division was granted care and supervision. H.R. again was ordered to supervise A.F.'s contact with S.R.

On the return date of the order to show cause, the Division orally sought to amend the complaint to seek custody of S.R. The request was based on information urging S.R. was at risk because A.F. was alone with the child out in the community. Following a hearing held on July 25, 2013, the judge confirmed S.R. may remain in the legal and physical custody of H.R., but reiterated: "All contact between [A.F. and] the child to be supervised by H.R. or . . . another approved supervisor." A.F. was ordered to attend a substance abuse evaluation scheduled for July 31, 2013. The case was listed for additional review the following day.

On July 26, 2013, the Division's caseworker, Luiz Rodriguez, went to H.R.'s home in the early afternoon, to inform him the hearing was adjourned. Rodriguez unsuccessfully attempted to call H.R. and went to the home unannounced. She found H.R. sitting on the outside steps, and noted he appeared nervous. Rodriguez learned A.F. and S.R. were not in the home and H.R. stated A.F. took the infant to the store. H.R. called A.F. and told her to return home. H.R. called A.F. a second time and handed the phone to Rodriguez, who greeted her and asked whether she was with S.R. Rodriguez reported A.F. began yelling, stating she was taking the infant to the doctor. A.F. then stated her mother was following her and the infant, in her car. Approximately twenty minutes after Rodriguez arrived, A.F. returned with S.R. A.F. insisted she went to Cooper Pediatrics because the infant had a chest cold; the doctor's office was later contacted and confirmed S.R. was neither treated nor had an appointment. Rodriguez, accompanied by a human services police unit, removed S.R. and placed the infant in a resource home.

A fact-finding hearing was held on October 8, 2013. During an earlier pre-trial conference, counsel admitted, without objection, various documents, including: the Division's investigative summaries dated May 16, 2013 and July 26, 2013, A.F.'s drug evaluation and treatment records, and a September 17, 2013 summary report prepared by the Division. These documents constituted the evidence at trial as no additional evidence or testimony was presented.

Following summations, the judge entered findings and concluded A.F. had abused or neglected S.R. Regarding H.R., the judge found he knew A.F.'s drug abuse imposed a need to supervise her contact with the infant child and H.R. agreed to act as a supervisor when the child was placed in his custody. The judge mentioned two orders were entered in this matter, containing this supervision requirement. Finally, the judge found, although H.R. knew he was ordered to supervise A.F.'s contact with the infant, he released S.R. to A.F. when she was unsupervised and when she had not completed treatment for her addiction. The judge concluded this conduct was grossly negligent and exposed the child to a substantial risk of harm, making her an abused or neglected child, under Title 9. The judge ordered post-fact-finding dispositional services. When the litigation was terminated, H.R. filed this appeal.3

The standards governing our limited review are well defined.

We defer to the Family Part's findings of fact based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). . . . "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." G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge'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 Manalapan, 140 N.J. 366, 378 (1995).

[N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152-53 (App. Div. 2014).]

Title 9 is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.8). The statutory provisions, N.J.S.A. 9:6-8.21 to -8.73, define the Division's authority to address and prevent abused and neglected children. An "abused or neglected child" means

[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).]

Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "analyzed in light of the dangers and risks associated with the situation." N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82). This statutory standard requires "something more than ordinary negligence . . . to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety" of another. Id. at 179. See also Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 179 (2015) ("[A] person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.") (quoting G.S., supra, 157 N.J. at 178). "However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine." S.I., supra, 437 N.J. Super. at 153.

A court considering whether a parent or guardian's conduct meets the statutory standard must analyze all facts, N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011), and decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 69 (App. Div. 2014).

[Id. at 154.]

The fact-finding hearing is a critical element of the abuse and neglect process. N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474-75 (App. Div.), certif. denied, 203 N.J. 439 (2010). During the fact-finding hearing, the State bears the burden and must present proofs to establish abuse or neglect as defined in the statute. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011); N.J.S.A. 9:6-8.46(b). Specifically, the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child by a parent or guardian's acts or omissions. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005). "[T]he elements of proof are synergistically related." V.T., supra, 423 N.J. Super. at 329 (citation omitted). In this regard, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. Id. at 330 (citation omitted).

In evaluating the evidence, a judge need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Further, "non-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." S.S., supra, 372 N.J. Super. at 24 (citing G.S., supra, 157 N.J. at 175-82). However, when "there is no evidence of actual harm, . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm before a parent or guardian can be found to have abused or neglected a child." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013) (citing N.J.S.A. 9:6-8.21(c)).

On appeal, H.R. argues the evidence is lacking in detail regarding how A.F. took S.R., thus the Division's proofs are insufficient to support the finding of abuse or neglect, particularly when the infant was returned unharmed. Alternatively, he suggests if the evidence is found sufficient to support H.R. allowed A.F. to take the child without supervision, then such an act does not rise to the required level of gross negligence. Because A.F. was not under the influence at the time she cared for S.R. while unsupervised, the likelihood the child faced imminent danger was removed. We are not persuaded. Understanding "[t]he safety of children is [our] paramount concern," N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), we examine the Division's evidence submitted in support of its Title 9 action to determine whether the judge's finding that H.R.'s release of S.R. to A.F. constituted a failure to exercise a minimum degree of care, which recklessly created "a substantial risk" of harm, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b).

Substantial evidence of A.F.'s drug addiction to opiates was presented. Since 2010, the Division offered services to A.F., who attended substance abuse evaluations and some treatment programs. The evidence records A.F.'s repeated relapses and resumption of illicit drug use, including: (1) overdoses in 2010, occurring within weeks of each other, despite her responsibilities to care for S.R.'s three-month old sibling; and (2) A.F. regularly used drugs while pregnant with S.R., who was born drug exposed requiring treatment for withdrawal symptoms.

This matter was the second Title 9 action filed by the Division to secure the safety of S.R. In the initial action, a January 11, 2013 order required H.R. to supervise A.F.'s contact with the infant. A second order entered on January 31, 2013, continued that restriction. H.R. was present when each order was entered.

However, safety concerns posed by A.F.'s addiction remained. Although she entered treatment, she relapsed. On May 16, 2013, H.R. notified the Division with concerns for S.R.'s safety. He saw A.F. on the street and described her as being under the influence. A.F. left the infant with a stranger and, fortunately, when police located the baby she was safe. Certainly, H.R. recognized the harm that could befall the infant if left alone with A.F. This very fact was highlighted and emphasized in the safety plan prepared by the caseworker and signed by H.R., as well as supervisory provisions contained in the June 27, 2013 order. H.R. was aware of his responsibility to provide supervision and assure S.R. was not alone with A.F. to keep the baby safe. During the July 25, 2013 court hearing, which H.R. attended, the Division orally moved to amend its complaint to seek custody of S.R. because it believed supervision was not practiced. The infant was a mere eight months old and totally dependent upon adults for care. The mandatory supervision provision was again imposed. See N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 383 (App. Div. 2014) ("A neglectful parent is a serious danger to an infant."). Nevertheless, the very next day, the caseworker found H.R. waiting nervously outside, and his aunt was inside the home. However, the infant and A.F. were not present.

Although H.R. did not admit he released the child to A.F., the circumstances show he allowed A.F. to take S.R. without supervision. First, H.R. offered an explanation to the caseworker, stating A.F. "went out" and "was picking up a few things with [S.R.]" He contacted A.F. immediately by calling her cell phone, and directed she return home with the baby. A.F. responded and ultimately complied. This direct and circumstantial evidence sufficiently shows H.R. disregarded the protective provision mandating A.F. be supervised and released the child to her. Fortunately, S.R. again escaped injury. However, the myriad possible tragic outcomes are easily identifiable.

We briefly address H.R.'s objection to the procedure employed for the fact-finding hearing. This court has commented on the procedures repeatedly employed by this vicinage's practice, relying on counsel's consent to forego testimonial evidence in favor of a "trial on the papers." See N.J. Div. of Child Prot. & Permanency v. J.D., Jr., ___ N.J. Super. ___, 383 (App. Div. 2016) (slip op. at 14-17). We concluded the process, which was fully accepted by the defendant in J.D., Jr., did not require reversal as it did not constitute plain error. Id. at 16. "We nonetheless, t[ook] the occasion to caution trial judges about the dangers inherent in adjudicating contested trials 'on the papers," and the corresponding need to make specific factual findings of abuse and neglect." Id. at 21.

L

ike J.D., Jr., this case followed a similar process, agreed to by the parties. Despite the terse findings of the trial judge on a thin record, "we are able to glean sufficient undisputed facts that adequately support" the conclusion reached. Following our review of the totality of the evidence, "analyzed in light of the dangers and risks associated with the situation[,]" R.R., supra, 436 N.J. Super. at 58, we conclude the Division's proofs demonstrate by a preponderance of the evidence, H.R. recklessly released the infant to A.F., who had not yet attended a substance abuse evaluation, let alone treatment. H.R.'s failure to obey the court order ignored his legal obligation to perform the cautionary act of supervising the drug addicted A.F.'s contact with the child exposed the child to a substantial risk of harm and was grossly negligent. See A.L., supra, 213 N.J. at 23 ("In the absence of actual harm, a finding of abuse or neglect can be based on proof of imminent danger and a substantial risk of harm.").

Affirmed.

1 As discussed below, the record consists solely of pleadings and documents previously identified and admitted by counsel during a case management conference.

2 "A 'substantiated' finding is one where "the available information, as evaluated by the child protective services investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3, because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian." N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 150 n.5 (App. Div. 2014).

3 Subsequent events included A.F.'s disappearance and H.R.'s arrest and detainer in the Essex County Jail in Newark, pending deportation to his native Guatemala by the United States Immigration and Customs Enforcement. When she resurfaced, A.F. was again given the opportunity to enter a residential drug treatment program accompanied by the child. However, the Division again intervened when it learned A.F. intended to leave the program with S.R. These events prompted the Division to close this litigation and pursue guardianship under Title 30.