NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

L.R.,

Defendant-Appellant,

and,

L.R.,

Defendant.

________________________________

IN THE MATTER OF L.R.,

Minor.

________________________________

November 15, 2016

Submitted October 20, 2016 Decided

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-334-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).

ChristopherS. Porrino,Attorney General, attorney forrespondent (MelissaDutton- Schaffer,Assistant AttorneyGeneral, of counsel; Angela Juneau Bezer, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant, L.R. appeals from a February 25, 2014 Family Part order, finding she abused or neglected her child. We affirm.

On October 20, 2013, the Division of Child Protection and Permanency (Division) received a report L.R. was assaulted at the Cherry Hill Mall while her thirteen-year-old son was with her, and L.R. had to go to the hospital. The reporter expressed concern L.R. was "drugged up." The following day, the Division received a second referral after L.R. went to Voorhees Medical Day Care to pick up her sister's child. Day care workers refused to release the child and told the Division L.R. was "extremely confused," "out of it," and "disoriented."

On October 22, 1013, Division caseworkers continued their investigation. They went to interview L.R. at her home and check on her son.

L.R. told the workers she was struck by a man she did not know at the Cherry Hill Mall on October 20, 2013, and denied any current or past substance abuse problems. L.R. insisted the allegations she abused substances were lies, but refused to submit to a drug screen. L.R.'s son told the caseworker his mother took a free sample from a Chinese restaurant at the mall and a man hit his mother in the face.

The following day, the Division received another report from a person who stated he saw L.R. and she appeared to be under the influence of phencyclidine (PCP). L.R. refused to allow caseworkers into her home and denied being under the influence of PCP.

On October 24, 2013, L.R. went to the Division's Camden North Office. She was described as hostile and belligerent and refused to take a drug screen as she stated she "knows her rights." While at the Camden North Office, L.R. called her brother. A Division worker spoke to the brother and informed him of the allegations against L.R. and the concern the Division had for her child. The Division informed L.R.'s brother the child would be removed from L.R.'s care because of three reports concerning her substance abuse in seventy-two hours, and her continued refusal to cooperate and take a urine test. L.R.'s brother informed the Division the child could be placed with his biological father, and the Division thereafter contacted the father in order to make an assessment.

L.R. disclosed she had been using PCP every other day since 2010, and as recently as the day before the incident at the Cherry Hill Mall. L.R. explained she used PCP in the backyard when her son was in the house and explained she used "dippers," described as "dipping the cigarette" in "embalming fluid." L.R. agreed to submit to a drug screen, but left without completing the screen because it was "taking too long."

On October 28, 2013, L.R. called a caseworker to apologize for missing her drug screening and said she was "trying to clean out her system." That same day, the child's father informed the Division he was seeking a restraining order against L.R. He explained she had come to his workplace and caused a scene and had driven past his home on numerous occasions yelling things out the window. On that day, the Division filed a Verified Complaint and Order to Show Cause seeking care, custody, and supervision of the child, alleging L.R.'s ongoing substance abuse placed him at risk of harm.

On the return date of the Order to Show Cause, the Division withdrew its request for custody and the trial judge granted the Division's request for care and supervision. L.R. and the father retained joint legal custody, but the father was given physical custody of the child, based on a finding that removal from L.R.'s home was necessary because of "imminent danger for the child's life, safety or health due to allegations of longtime PCP use by [L.R.]." L.R. was ordered to have supervised visitations arranged through a third party. Both L.R. and the child's father were ordered to undergo substance abuse evaluations.

After the child was living with his father, he told a Division caseworker he was not comfortable visiting his mother for more than an hour, and he was upset because his mother called him and told him he should not live with his father. The child no longer wanted to speak on the phone with his mother. On one occasion, the supervised visit had to end after forty-five minutes due to concerns L.R. was under the influence. On November 20, 2013, the court entered an order continuing the father's physical custody and limited L.R.'s visits to one hour per week unless the child requested more time.

A fact-finding hearing was held on February 25, 2014. The Division only sought a finding against L.R., who appeared by telephone because she was attending an inpatient program. The court found abuse and neglect because of "long-standing constant abuse of controlled dangerous substance by [L.R.] for years . . . while she was the primary caretaker." The court found L.R.'s PCP use clearly put the child at imminent risk of harm.

On April 27, 2015, L.R. waived her right to a hearing regarding custody and agreed the child's father would be the parent of primary residence.1 Both parents agreed to share joint legal custody, and agreed L.R. would have liberal visitation rights. The litigation was terminated. This appeal followed.

L.R. asserts the trial judge lacked jurisdiction to award relief at the order to show cause hearing or to proceed to a fact-finding hearing, and did not make findings sufficient to support a determination of abuse or neglect under N.J.S.A. 9:6-8.21. We disagree.2

Appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super 551, 577 (App. Div. 2010). We "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." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

"Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). A parent's right is not absolute; it must be balanced against the "State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Under N.J.S.A. 9:6-8.21 to -.73 and N.J.S.A. 30:4C-11 to -.14, the Division has the authority to seek "the involuntary removal of a child from his or her place of residence." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 258 (App. Div. 2002). A child can be removed from his home prior to the Division obtaining a court order if it is found removal of the child "is necessary due to imminent danger to the child's life, safety or health." N.J.S.A. 9:6-8.29(a).

Here, the Division notified L.R. and the child's father of the child's removal, advised them to appear in court, and filed a verified complaint in court within two court days. See N.J.S.A. 9:6-8.30(a). Both parents were advised of their right to counsel. The Family Part judge, applying the statutory standards in Title Nine and Title Thirty, was satisfied with the sufficiency of the application. The judge made findings on the record supported by specific references to evidence presented. At the conclusion of the hearing, the judge approved the Division's emergency removal, N.J.S.A. 9:6-8.31(b), and issued a preliminary order of protection, allowing L.R. visitation during stated periods of time. N.J.S.A. 9:6-8.31(c). The judge placed the child with his father, instead of releasing the child back to L.R. from whose custody the child was removed. N.J.S.A. 9:6-8.31(d).

The trial judge found based upon the "allegations of longtime PCP use," under N.J.S.A. 30:4C-11.2, "removal was required due to imminent danger for the child's life, safety or health." There was sufficient evidence in the record for the trial judge to grant care and supervision to the Division, physical custody to the child's father, and supervised visitation for L.R.

L.R. asserts the trial judge failed to make any findings of fact, identify what portions of Title Nine were violated, or indicate what facts supported the trial judge's conclusion. We disagree.

"The fact-finding hearing is a critical element of the abuse and neglect process." J.Y., supra, 352 N.J. Super. at 264. A trial court judge must base its decision on "competent reliable evidence" in the record. Id. at 265. Here, the trial judge recited the evidence in the record including the testimony of witnesses, as well as an investigation report prepared by the Division. The trial judge found the testimony of the child's father to be credible and determined L.R. was the primary caretaker of the child on October 19, and 20, 2013, when L.R. last admitted to using PCP. The trial judge found credible the caseworker's testimony that L.R. admitted to her she had been using PCP for a number of years.3 Based upon a review of all evidence in the record, the trial judge found by a preponderance of the evidence the

child was in imminent risk of harm with the excessive use of controlled - use or abuse of controlled dangerous substances, in particular PCP, by this mother, by her own admission, at least on every other day basis when she is the primary caretaker of this child, and specifically on October 19th and 20th.

Additionally, the trial judge found, "defendant, [L.R.] abused or neglected the child based on the court's findings of fact and conclusions of law, pursuant to N.J.S.A. 9:6-8.21(c)." We discern no reason to disturb those findings. We infer from the judge's recitals because L.R. was under the influence while caring for her son resulted in the altercation at the Mall, her disorientation at the day care, and her belligerence when at the Division's office. The child was at risk because of her conduct while impairment.

L.R. asserts the trial court's findings must be reversed because expert witnesses should have been called to testify as to the effects and signs of impairments of PCP, as opposed to the caseworker. We disagree.

At a Title Nine fact-finding hearing only "competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Nowhere in the statute does a Title Nine fact-finding hearing require the testimony of expert witnesses. We held in N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 331-32 (App. Div. 2011), that expert testimony must be presented to interpret the effects of drug use on a parent's impairment and potential risk to the child. However, V.T. was a parent who used drugs two days before having supervised visitation with his child. V.T., supra, 423 N.J. Super. at 331. Under these circumstances, no abuse or neglect could be found because the drug abuse did not occur at the time the defendant-parent was caring for the child. Ibid. Absent expert evidence regarding the effects of prior drug use, there was no proof of substantial risk of harm to the child. Ibid. Here, L.R. was using and impaired from the use of PCP while responsible for the primary care of her child.

Affirmed.

1 The parties' custody agreement is reflected in an FD order.

2 L.R. also argues her due process rights were violated because the fact-finding hearing was conducted when she was not physically present, as she was in the "blackout" phase of her inpatient program, and the hearing did not afford her the opportunity to refute testimony by the Division or present testimony of her own. We disagree. We also reject L.R.'s argument stating her due process protections require "adequate notice and a fair opportunity to be heard." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003). What due process procedures will be required during a trial or hearing is left to the discretion of the trial judge. Id. at 468. In M.Y.J.P., we found participation by telephone or deposition, satisfied due process when the parent who was unable to be physically present "receives notice, is represented by counsel, and is given an opportunity to testify by telephone or deposition." Ibid.

3 L.R. argues the Division could not prove she was ever intoxicated while acting as primary caretaker as a drug screen was never conducted. L.R. refused to submit to a drug screen and stated she was "trying to clean out her system." Based upon L.R.'s admission to the Division caseworker and the positive drug screen conducted on February 10, 2014, the Division presented reliable evidence which established L.R. recklessly created a risk of substantial harm to the child by continuously using PCP while the primary caretaker.