DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.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NOT FOR PUBLICATION WITHOUT THE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.

K.W.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF G.W.,

A Minor.

__________________________________

July 15, 2016

Submitted June 6, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-457-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief).

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

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

PER CURIAM

In this Title 9 matter, defendant K.W., the biological mother of G.W. (Gary),1 born in December 2013, appeals from the May 21, 2014 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). Defendant also appeals from the February 26, 2015 order, which terminated this litigation. For the following reasons, we affirm.

I.

We derive the following facts from the record. Respondent Division of Child Protection and Permanency (Division) first became involved with defendant in September 2009, when Child Welfare Services reported that defendant, who was then incarcerated, was a heroin user who had been taking methadone since her arrest, had given birth to A.W. (Andrea), and defendant and the child were withdrawing from methadone. Defendant's father, R.W. (Roger), with whom defendant lived, was eventually granted custody of Andrea, and he and defendant signed a safety protection plan. The Division closed the case on March 1, 2011, after finding there were no current safety or risk factors.

The Division next became involved with defendant in May 2013. According to the Division's May 30, 2013 investigation summary, a hospital social worker reported her concern for Andrea because defendant tested positive for opiates while at the hospital receiving treatment for an infection. Defendant told the social worker that she used heroin, had used two bags a day for the past two weeks, and was eleven weeks pregnant. Defendant also admitted to a Division caseworker that she was pregnant, used heroin, last used it on May 28, 2013, and had struggled with substance abuse. Defendant agreed to undergo a substance abuse evaluation.

According to the Division's December 26, 2013 investigation summary, a hospital social worker reported that defendant had given birth to Gary, defendant and Gary tested positive for methadone, cocaine and benzodiazepines, and Gary was showing signs of withdrawal. The social worker also reported that defendant claimed she had a prescription for Klonopin, a type of benzodiazepine, and was receiving methadone, but the hospital could not confirm any of this. Defendant denied using cocaine and explained that she must have inhaled it while driving with someone who was smoking it. She admitted that her substance abuse began at age seventeen, she was addicted to heroin for the last five years, and she had engaged in substance abuse treatment, but left after about a month. She also claimed to be suffering from depression and anxiety.

The December 26, 2013 investigation summary also revealed that defendant, then age thirty-four, denied using cocaine, but admitted she used "dope for not even six months[,]" used drugs on and off since age seventeen, was on methadone since June 2013, and was prescribed Klonopin for anxiety and depression; however, she could not provide a prescription for that medication. Defendant also said that Roger had custody of Andrea since that child's birth, Andrea was born positive for methadone and had withdrawal symptoms, and G.J. (George) was Gary's biological father. Defendant signed a case plan stating she would complete a substance abuse evaluation and comply with its recommendations.

According to Gary's birth records, he was placed in the Neonatal Intensive Care Unit where he was treated with morphine for his withdrawal symptoms. He had no nasal flaring and exhibited no retraction, which was most likely secondary to withdrawal. He also exhibited abnormal muscle tone and suffered coarse tremors as well as both central and peripheral hypertonicity and irritability. On January 10, 2014, Gary was transferred to the Pediatric Unit where he was weaned from the morphine, but continued on Phenobarbital. On January 21, 2014, Gary was discharged from the hospital with a prescription for Phenobarbital to continue treating his withdrawal symptoms. Gary was placed in foster care upon discharge and later placed with George and his paternal grandmother, N.G. (Nora).

On January 15, 2014, defendant underwent a substance abuse evaluation and was diagnosed with cocaine abuse. She admitted using marijuana, crack cocaine and heroin and that she last used heroin in May 2013 and last used crack cocaine in December 2013. She also admitted she had a criminal history that included two convictions for shoplifting, a violation of probation, convictions for possession of drugs, aggravated assault and eluding, three convictions for contempt of court, and four convictions for driving while intoxicated. It was recommended that defendant undergo intensive outpatient treatment.

On January 27, 2014, the Division contacted defendant's doctor about her Klonopin use. The doctor confirmed he had prescribed sixty tablets of Klonopin on January 29, 2013, and gave defendant a prescription for that medication and Percocet on January 24, 2014. The doctor said he was unaware of defendant's methadone treatment and would not have prescribed Percocet had he known this.

The Division substantiated allegations of defendant's abuse or neglect of Gary based on her admitted heroin use while pregnant with the child; Gary's positive test for cocaine, methadone and benzodiazepines at birth; and Gary's suffering from withdrawal symptoms and remaining in the hospital for thirty days after his birth for treatment for his withdrawal symptoms. On January 27, 2014, the court granted the Division custody, care, and supervision of Gary, and granted defendant and George weekly supervised visits. The court also ordered defendant to submit to a psychological evaluation and comply with its recommendations.

On January 28, 2014, the court ordered Gary's placement with Roger. On February 14, 2014, the court granted Roger legal and physical custody of Gary and granted defendant weekly visits to be supervised by Roger or other Division-approved supervisors. The court ordered defendant to undergo a psychological evaluation and comply with its recommendations, attend substance abuse treatment, and submit to random drug and alcohol screens.

On February 19, 2014, defendant underwent a psychological evaluation with Julie Davelman, Ph.D. Dr. Davelman noted that during the evaluation, defendant, "nodded off many times while completing the testing portion of the evaluation." Defendant reported using marijuana daily between the ages of sixteen and eighteen; sniffing cocaine "occasionally" between the ages of eighteen and twenty-one; and that her drug of choice was heroin, which she began using at age twenty-one and until May 2013. Defendant also reported she was using two bags of heroin a day, used eight bags per day at the height of her use in her late twenties, and smoked crack cocaine occasionally starting at age twenty-five.

Dr. Davelman diagnosed defendant with Polysubstance Dependence Disorder, Major Depressive Disorder and Panic Disorder Without Agoraphobia. The doctor recommended identifying the reason for defendant's dozing off during the evaluation and that defendant complete parenting classes and undergo a psychiatric evaluation to assess her current medication and what medication, if any, suited her current symptoms.

On March 20, 2014, the Division received a referral that defendant and a friend were seen smoking crack cocaine in Roger's vehicle with Gary in the back seat. Although the allegation was not substantiated, defendant agreed to submit to random urine screens. Defendant's March 26, 2014 urine screen tested positive for Alprazolam, benzodiazepines, cocaine, methadone and Phencyclidine (PCP).

On April 8, 2014, Roger advised the Division that he could no longer care for Gary due to a medical condition that required treatment. On April 23, 2014, the court granted George legal and physical custody of Gary and ordered Nora to supervise defendant's visits with the child. Prior thereto, defendant had relapsed and tested positive for Alprazolam, benzodiazepines, cocaine, methadone and PCP.

At an April 23, 2014 hearing, the Division indicated it would be seeking an abuse and neglect finding as to defendant only, and would admit Gary's birth records and the Division's May 30, 2013 and December 26, 2013 investigation summaries into evidence at the fact-finding hearing. Gary's birth records were properly certified and defendant consented to their admission.2 Defendant did not object to the December 26, 2013 investigation summary, but objected to the May 30, 2013 investigation summary, arguing that it predated Gary's birth and was irrelevant and prejudicial. Judge Francine I. Axelrad overruled the objection and admitted all of the documents. Thereafter, on May 9 and 12, 2014, defendant tested positive for methadone and benzodiazepines.

At the fact-finding hearing on May 21, 2014, the Division relied solely on the above-mentioned documents. Defendant did not object to this procedure and presented no evidence. Judge Axelrad acknowledged that simple drug use alone was insufficient to find abuse or neglect, but found as follows

the [c]ourt must look at whether there [was] a nexus and whether there [was] harm or a chance of substantial harm to the health, safety and welfare of the child. The [c]ourt looks at whether specifically the parent's drug use has presented a substantial danger to the child, therefore, constituting abuse and neglect under Title 9.

That in this instance the [c]ourt is satisfied that the record [in]disputably substantiates a finding that [defendant's] drug use during her pregnancy with [Gary] caused harm to him; that there was a clear nexus; that he had prenatal complications as a result of her substance abuse; that he had cocaine, methadone, benzo[diazepines], amphetamines in his system causing his withdrawal, resulting in him being admitted to the hospital for a significant period of time and that the medical records substantiated that he tested positive for drugs at birth; that he suffered withdrawal and he experienced certain health complications as a result, and the [c]ourt, therefore, enters a finding of abuse and neglect under Title 9 against [defendant].

In a May 21, 2014 order, the judge found by a preponderance of the evidence that defendant abused or neglected Gary within the meaning of N.J.S.A. 9:6-8.21(c) by using drugs during her pregnancy, which resulted in the child testing positive for drugs at birth and suffering withdrawal symptoms.

In a May 21, 2014 dispositional order, Judge Axelrad continued the Division's care and supervision of Gary, granted George and Nora joint legal custody, and granted George physical custody. The judge ordered defendant to attend in-patient substance abuse treatment, undergo random drug and alcohol screens, and follow the recommendations of the psychiatric evaluation. The judge also ordered that defendant's visits with Gary be supervised by Roger or other Division-approved supervisors.

Thereafter, defendant's involvement with the Division was marked by her continued drug use, non-compliance with recommended substance abuse treatment, and sporadic visits with Gary. On February 26, 2015, defendant tested positive for cocaine, morphine, opiates and benzodiazepines. Judge Axelrad entered an order that day terminating the litigation. This appeal followed.

On appeal, defendant contends that the evidence did not establish she abused or neglected Gary. Relying on N.J. Div. of Youth & Family Servs. v. Y.N., 220 N.J. 165, 179 (2014) and N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013), defendant argues that neither her admission of pre-natal drug use nor evidence that Gary was exposed to illegal substances was sufficient to establish abuse and neglect. Defendant also argues that even if Gary suffered from withdrawal symptoms, there was no evidence he suffered any harm as a result and, even if he suffered harm, there was no evidence of the nature of the harm. Defendant also contends that Judge Alexrad erred by admitting the May 30, 2013 investigation summary. Defendant reiterates that because the document pre-dated Gary's birth, it was irrelevant and prejudicial.

Our Supreme Court has set forth the standard that governs our review of Title 9 cases 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.

[M.C. III, supra, 201 N.J. at 342-43 (second alteration in original) (citations omitted).]

"Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We examine "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. "We will not overturn a family court's fact-findings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). We owe no deference to the trial court's legal conclusions, which we review de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We first address the admission of the May 30, 2013 investigation summary. "In matters involving the alleged abuse and neglect of children, the New Jersey Rules of Evidence are supplemented by statute and court rule." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). N.J.S.A. 9:6-8.46(a)(3) permits the admission of documents made in the regular course of business, and Rule 5:12-4(d) provides that "[t]he Division . . . shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." N.J.R.E. 803(c)(6) provides as follows

A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

Further, admissions within the Division's reports are admissible pursuant to N.J.R.E. 803(b).

Here, the May 30, 2013 investigation summary was admissible pursuant to N.J.S.A. 9:6-8.46(a), Rule 5:12-4(d), and N.J.R.E. 803(c)(6). Defendant's admissions that she was pregnant and used drugs during her pregnancy were admissible pursuant to N.J.R.E. 803(b) and (c)(6).

The document was also relevant because it related to Gary testing positive for drugs at birth and his suffering withdrawal symptoms and need for treatment. See A.L., supra, 213 N.J. at 22 (holding that "[t]he behavior of an expectant mother during pregnancy can still be relevant if it relates to a child's suffering or the risk of harm to a child after birth"). Accordingly, we discern no error in the admission of the investigation summary.

We next address whether the evidence established that defendant abused or neglected Gary. "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.

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen years

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).]

In order to prevail in a Title 9 proceeding alleging abuse or neglect due to substance abuse during pregnancy, the Division "must prove present or future harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 22. "[T]he primary question under Title 9 is whether . . . a newborn, had been impaired or was in imminent danger of becoming impaired as a result of his mother's failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a substantial risk of harm to be inflicted." Ibid. (alterations omitted). The Court held that

evidence of actual impairment to the child will satisfy the statute, but in a case where there is no such proof, the critical focus is on evidence of imminent danger or substantial risk of harm. The statute does not cover a past risk of harm during pregnancy, which did not materialize.

[Ibid. (emphasis added).]

"[N]ot every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the statute." Id. at 23; see also N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014). Indeed, if there is no evidence of actual harm to the newborn, a mother cannot be found to have committed an act of abuse or neglect merely because she ingested drugs while pregnant; the statute "addresses harm to a child, not a fetus." A.L., supra, 213 N.J. at 8. However, "proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Id. at 22; see also In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (noting that "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of the mother's substance abuse during pregnancy has been harmed by the mother and that harm endangers the child's health and development").

The evidence here is quite different than in A.L. In A.L., there was no evidence of actual harm to the newborn who, despite testing positive for cocaine at birth, was otherwise born healthy and discharged from the hospital after only two days. Id. at 8. However, our Supreme Court made clear that "[i]f an expectant mother's drug use causes actual harm to the physical, mental, or emotional condition of a newborn child, a finding of abuse or neglect is appropriate." Ibid. The Court noted that

[t]he Division can show that a newborn has been impaired in a number of ways. . . . [T]he Division can prove actual harm by showing evidence of respiratory distress, cardiovascular or central nervous system complications, low gestational age at birth, low birth weight, poor feeding patterns, weight loss through an extended hospital stay, lethargy, convulsions, or tremors.

[Id. at 22-23.]

In this case, defendant's drug use during pregnancy actually harmed Gary. The child tested positive for methadone, cocaine and benzodiazepines and was not born healthy. Rather, he suffered from withdrawal and other symptoms requiring him to remain hospitalized for nearly one month and continue treatment after his discharge.

The evidence here is also quite different than in Y.N. There, the mother was taking Percocet for a physical injury. Y.N., supra, 220 N.J. at 168. After learning she was pregnant, she entered a methadone program on the advice of her doctor. Id. at 169-70. At birth, her child suffered methadone withdrawal symptoms and remained hospitalized for seven weeks. Id. at 168. The Court held that "N.J.S.A. 9:6-8.21(c)(4)(b) does not require a finding of abuse or neglect when an addicted woman, who learns that she is pregnant, seeks timely professional treatment for her addiction that will improve the outcome of her unborn child." Id. at 185. The Court ruled 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." Id. at 185-86.

In this case, defendant was not following the advice of a medical professional when she used illicit drugs during her pregnancy. Instead, after discovering she was pregnant, defendant ingested cocaine and opiates and also ingested benzodiazepines without a valid prescription. Gary was born in December 2013, and defendant's last prescription for sixty tablets of Klonopin was in January 2013. We are satisfied there was more than sufficient credible evidence to support Judge Axelrad's findings, and discern no reason to intervene. Defendant clearly abused or neglected Gary within the meaning of N.J.S.A. 9:6-8.21(c) by ingesting illicit drugs during her pregnancy.

Affirmed.

1 To maintain confidentiality, we use pseudonyms or initials for those mentioned in this appeal.

2 Because defendant consented to the admission of Gary's birth records, we decline to address her arguments based on those records. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341-42 (2010) (holding that a litigant who consents to the admission of evidence is barred by the doctrine of invited error from arguing error on appeal).