DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.H.

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                        NOT FOR PUBLICATION WITHOUT THE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-3446-15T4


NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.H.,

        Defendant-Appellant,

v.

N.K. and M.K.

     Defendants.
___________________________________

IN THE MATTER OF K.K.,

     Minor.
___________________________________

              Argued November 27, 2017 – Decided December 21, 2017

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FN-13-0234-13.

              Steven E. Miklosey, Designated Counsel,
              argued the cause for appellant (Joseph E.
         Krakora, Public Defender, attorney; Steven
         Edward Miklosey, on the briefs).

         Elizabeth H. Wallace, Deputy Attorney
         General, argued the cause for respondent
         (Christopher S. Porrino, Attorney General,
         attorney; Melissa Raksa, Assistant Attorney
         General, of counsel, Elizabeth H. Wallace,
         on the brief).

         Olivia Belfatto Crisp, Assistant Deputy
         Public Defender, argued the cause for minor
         (Joseph E. Krakora, Public Defender, Law
         Guardian, attorney; Olivia Belfatto Crisp,
         on the brief).

PER CURIAM

    Following a fact-finding hearing in this Title Nine action,

the Family Part court determined defendant K.H. abused or

neglected her granddaughter, K.K. (child or granddaughter),

because defendant was under the influence of prescription

medications while caring for the child.   Defendant appeals from

this determination, primarily arguing the court improperly

relied upon the opinions of an emergency room nurse and a

Division of Child Protection and Permanency (Division)

caseworker to conclude defendant was impaired when her

granddaughter was in her care.   We affirm.

                                 I

    The pertinent evidence is as follows.     As of January 2013,

defendant, defendant's husband (grandfather), the child's mother

(mother), and the child had been living in the same household
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for eight years.    During the evening of January 24, 2013, the

mother, a recovering heroin addict, filled a prescription for

Xanax, ingested approximately twelve pills, and passed out.      The

child, then ten years of age, discovered her mother on the floor

of the mother's bedroom and, when the child could not rouse her

mother, alerted defendant.    Defendant responded and succeeded in

getting the mother into bed, where the mother slept for the rest

of the night.    Defendant did not seek assistance from any

medical professional.

    The following morning, the mother went to a methadone

clinic she regularly attended for treatment.    A physician at the

clinic noticed the mother was staggering and appeared drowsy.

Suspecting the mother had overdosed on a substance, the

physician arranged to have the mother transported to the

hospital.    A clinic employee contacted defendant to report the

mother was in the hospital.

    Defendant, along with a friend, arrived at the hospital at

11:30 a.m.   The hospital staff noticed both appeared to be under

the influence.     Specifically, the staff noticed defendant kept

"nodding off."     At the hearing, an emergency room nurse, who was

trained in "substance abuse" and often encountered patients

under the influence of substances, testified she observed

defendant was "very lethargic," and her eyes were "very heavy"
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and closed "frequently" while the nurse spoke to her.     Defendant

also spoke very slowly and had a very dry mouth.

      The nurse mentioned the mother had informed her that

defendant was a drug addict.   The nurse did not specifically ask

defendant if she had taken any medications that day or test her

for substances because defendant was not a patient.    Because of

her demeanor, the nurse concluded defendant was under the

influence of a mood altering substance.

      According to the emergency room record, defendant advised

the staff she was tired from tending to the mother during the

night.   However, defendant did not clarify why she needed to be

awake if the mother merely slept and defendant clearly did not

regard the mother's condition sufficiently serious to warrant

medical attention.

      Defendant informed the staff she would care for the child

while the mother was in the hospital.1    Concerned about the

child's welfare under defendant's care, the staff contacted the

police and the Division.   A police officer responded to the

hospital, but informed the staff defendant could not be

detained.   The record does not reveal the basis for the police

officer's determination or if the officer actually assessed


1
    The mother was hospitalized for six days.

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defendant.   In addition, there is no indication defendant either

intended to or did drive from the hospital to her next

destination.2

      Division caseworker Jessica Ronan also testified.     She

commented she had been trained to recognize the "indicia" of

being under the influence of substances.      She met with the

mother in the hospital the day she was admitted.      The mother

informed the caseworker defendant was a drug addict and under

the influence of prescription medications daily, taking more

medication than the prescribed dose, and often was observed

"nodding out."

      The caseworker met with defendant in her home early that

evening.   Defendant appeared to be under the influence of a

substance; specifically, she had droopy eyelids, glassy eyes,

and moved and spoke slowly.      Defendant told the caseworker she

took four pills that day, specifically, two OxyContin pills, and

one Oxycodone and one Soma3 pill.      When the caseworker asked to

see defendant's prescription bottles, defendant initially

resisted but did turn them over to the caseworker.

2
   The police also advised the hospital staff defendant's friend
could not be detained. We note the friend drove from the
hospital, got into a car accident, was returned to the emergency
room for treatment, and was charged with driving under the
influence.
3
    Soma is a muscle relaxant.
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    In addition to producing bottles containing the three

aforementioned medications, defendant also provided a bottle

containing Xanax.    The caseworker noted the date each

prescription was filled and the number of pills defendant was to

consume daily, and determined over one hundred pills were

missing.    The unaccounted medication consisted of thirty-five

Soma, seventy-seven Oxycodone, twenty-three OxyContin, and three

Xanax pills.

    Defendant claimed the mother stole the missing medication.

The mother denied such claim and, while hospitalized, tested

positive for only benzodiazepine, reflecting the Xanax she

ingested.    The mother's drug screen did not reveal the presence

of any narcotics, indicating the mother had not ingested either

Oxycodone or OxyContin.    However, the mother did have three Soma

pills in her possession when admitted into the emergency room.

    While in defendant's home, the caseworker also discovered

the grandfather was confined to a hospital bed, where he was

recovering from back surgery.   None of his pain medication was

missing.    He did not appear to be under the influence of any

substance. There is no evidence he was capable of caring for or

did care for the child.

    Just before the fact-finding hearing, the mother stipulated

she abused and neglected the child by placing her at risk of
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harm when the mother ingested Xanax the night before her

hospitalization.   The hearing against defendant proceeded;

defendant did not testify or seek to admit any other evidence.

    At the conclusion of the hearing, the court noted the

caseworker and emergency room nurse were credible, and found

defendant abused and neglected the child because she was under

the influence of her medication after the mother was

hospitalized and defendant assumed care of the child.

                                II

    On appeal, defendant principally contends the court erred

by according weight to the nurse and caseworker's opinion that

defendant was under the influence the day the mother was

admitted into the hospital.   Defendant argues neither had the

expertise to render such opinion.    We disagree.

    The scope of our review of a trial court's factual findings

is limited.   N.J. Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261, 278-79 (2007).   Our task is to determine "whether the

findings made could reasonably have been reached on substantial

credible evidence present in the record when considering the

proofs as a whole."   N.J. Div. of Youth & Family Servs. v. A.G.,


344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms

Resort, Inc. v. Investors Ins. Co. of Am., 
65 N.J. 474, 484

(1974)).   Special deference is afforded to a Family Part court's
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fact-finding because of such court's expertise in family

matters.   N.J. Div. of Youth & Family Servs. v. M.C. III, 
201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 
154 N.J. 394,

413 (1998)).

    The purpose of Title Nine, 
N.J.S.A. 9:6-8.21 to -8.73, is

to protect children from circumstances that threaten their

welfare.   G.S. v. Dep't of Human Servs., Div. of Youth & Family

Servs., 
157 N.J. 161, 176 (1999).    The burden is on the Division

to prove abuse or neglect by a preponderance of the "competent,

material and relevant evidence[.]"     
N.J.S.A. 9:6-8.46(b); N.J.

Dep't of Children & Families v. A.L., 
213 N.J. 1, 18 (2013).

    Where there is no evidence of actual harm to the child, "a

finding of abuse and neglect can be based on proof of imminent

danger and substantial risk of harm."     A.L., 
213 N.J. at 23

(citing N.J.S.A. 9:6-8.21(c)(4)(b)).    A "minimum degree of

care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), "refers to

conduct that is grossly or wantonly negligent, but not

necessarily intentional."   Dep't of Children & Families, Div. of

Youth & Family Servs. v. T.B., 
207 N.J. 294, 299-300 (2011)

(citation omitted).

    "Conduct is considered willful or wanton if done with the

knowledge that injury is likely to, or probably will, result."

G.S., 
157 N.J. at 178.   The essence of gross or wanton
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negligence is that it "implies that a person has acted with

reckless disregard for the safety of others."   Id. at 179

(citing Fielder v. Stonack, 
141 N.J. 101, 123 (1995)).     Gross

negligence requires "an indifference to the consequences," Banks

v. Korman Assocs., 
218 N.J. Super. 370, 373 (App. Div. 1987)

(citation omitted), but a parent's actual intent to cause harm

is not necessary.   G.S., 
157 N.J. at 179.

    Although the Division must demonstrate "the probability of

present or future harm" to the child, "the court 'need not wait

to act until a child is actually irreparably impaired by

parental inattention or neglect.'"   N.J. Div. of Youth & Family

Servs. v. S.S., 
372 N.J. Super. 13, 24 (App. Div. 2004) (quoting

In re Guardianship of D.M.H., 
161 N.J. 365, 383 (1999)).     While

an abuse and neglect finding is not necessarily indicated every

time a parent or guardian ingests an illicit substance or abuses

prescription medication, we have noted that "a parent should not

exercise visitation, even supervised visitation, while

impaired."   N.J. Div. of Youth & Family Servs. v. V.T., 
423 N.J.

Super. 320, 331 (App. Div. 2011).

    Here, on the question of defendant's alleged use of

substances, we are guided by State v. Bealor, 
187 N.J. 574

(2006).   Although that matter concerned whether the defendant

violated 
N.J.S.A. 39:4-50(a) by operating a vehicle under the
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influence of a drug beyond a reasonable doubt, the case is

instructive here.

    First, the Court noted the definition of "under the

influence" means "a substantial deterioration or diminution of

the mental faculties or physical capabilities of a person

whether it be due to intoxicating liquor, narcotic,

hallucinogenic or habit producing drugs."   Id. at 589 (citing

State v. Tamburro, 
68 N.J. 414, 421 (1975)).    A motorist is

deemed to be under the influence of a substance if it altered

his coordination and mental faculties to the point where it was

unsafe for him to drive.   State v. DiCarlo, 
67 N.J. 321, 328

(1975).

    Second, the Court made it clear establishing a party is

under the influence may be accomplished through a lay person's

observations of such party, together with proof the party

ingested a substance.   Bealor, 
187 N.J. at 577.   If such proofs

are present, expert testimony is unnecessary.   Id. at 591.

Thus, "determining whether [a] defendant was under the influence

of [a drug is] not 'beyond the ken of the average [finder of

fact.]'"   Id. at 591 (quoting DeHanes v. Rothman, 
158 N.J. 90,

100 (1999)).   Further, the cause of intoxication "is largely

irrelevant," id. at 588-89; the specific substance or the


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quantum of the substance ingested need not be identified, id. at

589 (quoting Tamburro, 
68 N.J. at 421).

    Observations that support a person is under the influence

of a substance can include the person's demeanor, appearance,

and speech.   Id. at 587-89; see also State v. Oliveri, 
336 N.J.

Super. 244, 251-52 (App. Div. 2001) (finding that defendant's

eyes were watery and his speech slow and slurred sufficient to

sustain a DWI conviction).

     Guided by these principles and our review of the record,

we discern no error in the Family Part court's determination to

warrant appellate intervention.   Here, the nurse testified

defendant was "very lethargic," and her eyes were "very heavy,"

and closed "frequently" while the nurse spoke to her.     In

addition, defendant also spoke very slowly and had a very dry

mouth.   The caseworker testified defendant had droopy eyelids,

glassy eyes, and moved and spoke slowly.   The witnesses'

observations were the same or similar to those found in State v.

Oliveri, 
336 N.J. Super. 244 (App. Div. 2001), in which we

affirmed a finding the defendant was under the influence of

alcohol.   In addition, defendant admitted she had taken two

OxyContin pills, one Oxycodone and one Soma pill.

    Accordingly, the requisite proofs existed to establish

defendant was under the influence of the substances she
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ingested.   The description of defendant's conduct clearly showed

she was too impaired to care for the child.    Defendant also

argues there was insufficient proof she was the one who ingested

the pills missing from her prescription bottle, but we regard

this argument as irrelevant, for the reasons previously

outlined.

    The quantum of medication defendant ingested is immaterial;

the point is the amount of medication she took, as shown by the

conduct she exhibited, negatively impacted her ability to

function and properly care for the child.     Even if defendant did

not intend to put the child at substantial risk of harm,

nevertheless she did so.   While perhaps a ten year old may not

be as vulnerable to a guardian's impairment as an infant or

toddler, the observed degree of the grandmother's impairment

would put a child of such tender years at risk.

    We have considered defendant's remaining arguments and

conclude they are without sufficient merit to warrant discussion

in a written opinion.   R. 2:11-3(e)(1)(E).

    Affirmed.




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