DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.G.

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NOT FOR PUBLICATION WITHOUT THE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.

S.G.,

Defendant-Appellant,

and

R.H. and M.W., (deceased)

Defendants.

IN THE MATTER OF

S.H. and S.G., minors.

___________________________________

December 2, 2016

Submitted November 16, 2016 Decided

Before Judges Fuentes and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-509-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Cary L. Winslow, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant S.G. (hereinafter "Sue"),1 the mother of two children, S.H. ("Sara") and S.G. ("Steve"), born in 2005 and 2012 respectively, appeals from a June 9, 2014 Family Part order finding that she abused or neglected her children by being under the influence of illicit drugs and/or alcohol while the children were in her care.2 On appeal, Sue argues that the judge lacked sufficient credible evidence to support his finding. The Division and the Law Guardian, who represents both children, urge us to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons articulated by Judge Stephen J. Bernstein in his cogent oral decision.

I.

We adduce the following facts from the testimony and the documents introduced into evidence at the June 9, 2014 fact-finding hearing. On March 31, 2014, Sue took the children to a local park. Sara told Division investigators that Sue temporarily left them with a friend and walked across the street. When Sue returned, she "looked like a zombie," and Sara could tell that she was hallucinating. Sara told Sue it was getting cold and they should return home. Sue repeatedly responded that they were home. Sara then took Sue's cell phone and used it to call her grandmother, P.B. ("Paula"). Sara told Paula that her mother was "doing that stuff again, and looking like a zombie." When Paula and her husband arrived at the park, Sue was in a comatose state. According to Paula, Sue refused or was unable to respond to questions.

Paula and her husband summoned an ambulance, which transported Sue to Newark Beth Israel Hospital for evaluation. Sue was later discharged and returned home at approximately 8:00 p.m. She then attempted to leave the home and take the children with her to a domestic violence shelter. Paula called the police because she did not believe Sue was fit to care for the children. The responding officers agreed that Sue was "still a little high." They then called for an ambulance, and Sue was transported back to the hospital. At 6:30 a.m. the next day, Sue returned to the home and again attempted to remove the children. Paula called the police, who upon their return observed Sue displaying "erratic" behavior and yelling at her family members.

Paula later indicated that Sue was using a drug containing embalming fluid to self-medicate for depression. Sue testified at the hearing and denied that she was impaired at the time. Rather, she claimed she had agreed to submit to an evaluation at the hospital because she is a "proactive mom" who wanted to prove that she "wasn't going through anything." Sara reported that she "did not feel safe in the care of her mother" following these incidents.

The family was brought to police headquarters, where they were interviewed by Division Investigator Reginald Charles. Paula offered to care for the children in the event they were removed from Sue's custody. Sue responded that she would rather have her children placed in foster care. She alleged that Paula suffered from a gambling addiction, and that Paula's husband suffered from drug addiction and alcoholism. Sue admitted having used PCP approximately three times per week since April 2012, but claimed she had stopped using the drug in December 2013. She acknowledged she used the drug to self-medicate for depression when Steve's father committed acts of domestic violence against her, but denied using the drug in the children's presence. She also informed Charles that on the previous day she left the children at the park to purchase vodka from a local liquor store, although she did not drink it.

When interviewed by Division workers, Sara repeated her account of the previous day's events, including her description of her mother acting "like a zombie." Sara told the workers that she had also observed her mother acting in this manner several months earlier. Sara reported that she disliked it when her mother acts "weird." When asked why her mother acts "weird," Sara responded that Sue "dips . . . cigarettes in the stuff . . . they use on dead people." Sara denied witnessing her mother do this, but stated that her grandmother had previously explained the process to her.

During the fact-finding hearing, Sue testified to a different version of events than she had previously recounted to the Division workers. She continued to deny being under the influence of drugs in the park, but now claimed that she had left the children there to go buy lottery tickets from a local corner store rather than liquor. She also denied having told the Division investigators that her mother and step-father abuse drugs, drink excessively, and/or struggle with gambling problems. Rather, Sue asserted that Paula has a "tendency" to play the lottery and that her stepfather drinks alcohol "occasionally."

Sue further testified that she had felt "stressed out" and "overwhelmed" because she had appeared in court earlier the same day to address the need for a domestic violence restraining order against Steve's father. She represented that she attempted to remove the children from her mother's home on April 1, 2014, because she wanted to take them to a domestic violence shelter. Sue admitted she had a substance abuse problem, which she had addressed by enrolling in two outpatient treatment programs.

Judge Bernstein found by a preponderance of the evidence that Sue was

under the influence of drugs and/or alcohol while she was at [the] park and in a caretaking role for her two young children. [Sue] needed to be transported by ambulance to the hospital based on her state of mind and conduct. Later, [Sue] attempted to leave her parents' home with her children, while it appeared that she was still impaired. [Sue's] actions on March 31 along with her ongoing substance abuse issues exposed and continued to expose her children to substantial risk of harm.

The judge found the Division's witnesses to be consistent and believable, while Sue's testimony seemed "totally made up in court." The judge found it telling that Sue's testimony failed to "match up with any of the things she told to the caseworkers or the events that took place." Judge Bernstein also found it problematic that Sue had no concrete plans as to where she would have taken the children had she succeeded in removing them from Paula's home.

II.

We first review the law regarding fact-finding hearings. The purpose of such a hearing is not to assign guilt to a parent, but to determine by a preponderance of the evidence whether the children at issue are "abused or neglected" as defined in Title Nine. N.J.S.A. 9:6-8.44, 46(b); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). "[T]he Family Part possesses special expertise in the field of domestic relations and thus appellate courts should accord deference to Family Part factfinding[s]." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)) (internal quotation marks and alterations omitted).

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters 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 because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding."

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citations omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). The court may make rational inferences "grounded in a preponderance of probabilities according to common experience" derived from the credible evidence. N.J. Div. of Youth and Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (quoting In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006)). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." L.L., supra, 201 N.J. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

"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 Protection & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014). "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).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 172-73 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 300 (quoting G.S., supra, 157 N.J. at 178). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Unquestionably, caring for young children while under the influence of illegal drugs or alcohol that cause the parent to lose judgment constitutes neglect of those children. Compare B.O., supra, 438 N.J. Super. at 375 (finding neglect where the parents took drugs and the mother then rolled over on her baby at night, causing brain damage); with V.T., supra, 423 N.J. Super. at 331-32 (stating that a parent's ingestion of cocaine and marijuana prior to two supervised visits did not pose a risk to an eleven-year-old child when the parent behaved appropriately at the visits).

On appeal, Sue argues that there was insufficient evidence to support the trial court's finding of abuse and neglect. She maintains she was not impaired while the children were in her care at the park, and that her conduct did not expose them to a substantial risk of harm. On this record, we cannot agree. The evidence demonstrated by a preponderance that Sue was severely impaired while acting as sole caretaker of the children in a public place. The level of her impairment was obvious even to young Sara, who described her mother's appearance as "like a zombie." Sara's description coincided with that of Paula, who found Sue unresponsive and in need of medical attention when she arrived at the park following Sara's call for help. Sue was completely unaware of her surroundings, and mistakenly believed she was at her home, when in reality she was outdoors in a public park on a cold March evening. It is undisputed that the incident left Sara "a little bit scared and shaken up" and expressing concern for her safety. In short, substantial credible evidence was presented by the Division that Sue's actions were grossly negligent and placed the children in imminent danger, thus fully supporting Judge Bernstein's finding of neglect.

Affirmed.

1 Pursuant to Rule 1:38-3(d)(12), the parties have been given fictitious names in order to protect and preserve their confidentiality.

2 The order was rendered ripe for appeal as of right after the court entered a May 11, 2015 order terminating the litigation when plaintiff Division of Child Protection and Permanency ("the Division") filed a complaint seeking to terminate Sue's parental rights.