DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.W.

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                        NOT FOR PUBLICATION WITHOUT THE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-5586-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

E.W.,

        Defendant-Appellant,

and

R.A.,

        Defendant.

___________________________________

IN THE MATTER OF B.W.,

        a Minor.

___________________________________

              Submitted October 3, 2017 – Decided October 30, 2017

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0174-16.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (Richard Sparaco, Designated
            Counsel, on the briefs).

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

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

PER CURIAM

       Defendant E.W. appeals from a March 15, 2016 order entered

by the Family Part following a fact-finding hearing concluding she

committed abuse or neglect of her daughter B.W. (Barbara).1         We

affirm.

       E.W. has a long history of using PCP.   She is the biological

mother of six children, five of whom tested positive for PCP at

birth.     Barbara was born September 15, 2015, with PCP in her

system.    As a result, on September 22, 2015, the Division of Child

Protection and Permanency (Division) filed a Verified Complaint

for care, custody, and supervision of Barbara.

       By way of background, when the Division filed its complaint,

none of E.W.'s children were in her care.        In 2008, the trial

court granted kinship legal guardianship of two children to a



1
    We use a pseudonym to protect the child's privacy.

                                  2                          A-5586-15T4
relative caretaker.       In 2012, E.W.'s parental rights to two other

children were terminated, and in 2015, her parental rights to a

third child were terminated.        At the time of the March 15, 2016

fact-finding hearing in this matter, the Division had custody of

Barbara as well.

     The only witness to testify at the hearing was Division

caseworker    Elizabeth    Rosa,   who   explained   the   Division's   long

history of providing drug treatment services to E.W.          Between 2009

and 2015, the Division        provided E.W. with 150 referrals for

substance abuse assessments.       E.W. attended about fifteen of these

assessments and tested positive for PCP with every random drug

screen.      E.W. was admitted to three substance abuse programs

between 2009 and 2015, and was discharged from all of them for

aggression and non-compliance.           E.W. also failed to comply with

the Division's referrals to receive mental health treatment.

     Rosa testified that between 2009 and 2015, E.W. was offered

supervised visitation with her children.              She explained E.W.

displayed aggression and irritability during visits.              Division

records demonstrated she was inattentive to the children and

attended visitation under the influence.

     According to Rosa's testimony, on September 16, 2015, the

Division received its referral in this matter from Jersey City

Medical Center, citing concerns for Barbara and noting E.W. had

                                     3                             A-5586-15T4
tested positive for PCP at the time of Barbara's birth. A Division

caseworker responded to the hospital and interviewed E.W. who

claimed "I don't smoke PCP, but I was around people that do."

     Rosa explained that even though Barbara did not experience

withdrawal symptoms, the hospital's records indicate her urine

tested positive for PCP between September 15 and 18, 2015.       The

Division substantiated E.W. for abuse and neglect because of

Barbara's positive drug test, E.W.'s ongoing PCP use, and failure

to complete substance abuse treatment.

     On September 18, 2015, the Division executed an emergency

removal of Barbara.   After Barbara's birth, E.W.'s non-compliance

with substance abuse treatment and visitation continued, and she

continued to test positive for PCP.

     On March 15, 2016, the trial court held a fact-finding hearing

and found E.W. failed to remediate her "significant substance

abuse issues" prior to her daughter's birth, causing her to test

positive for PCP at birth, and placing her at substantial risk of

harm.   The court explained although it was not neglect for Barbara

to test positive for PCP, "other facts . . . in addition to her

having been born positive for PCP, are very relevant and . . .

because of the extreme nature and extent of the facts testified

to, do constitute a substantial risk of serious harm to [Barbara]."



                                 4                          A-5586-15T4
    Finding   the   Division   had       met   its   burden   of   showing    a

substantial risk of harm by a preponderance of the evidence, the

trial court held:

         This is a situation where the totality of the
         circumstances is clear to this Court that
         little [Barbara], who's now only six years
         [sic] old, but was born positive for PCP,
         although the child didn't suffer withdrawal,
         having five older siblings removed from
         [mother]'s care and terminated by the Court
         after trials because of largely [E.W.]'s
         terrible disease of substance abuse and her
         refusal to even take the first step, which is
         to acknowledge that she has the disease and
         it has to be treated, her inability to care
         for any of her children and her consistent
         refusal to substantially cooperate with
         services offered by the Division, make it
         clear that [Barbara], from the time of birth,
         was certainly at substantial risk of serious
         harm.

         [E.W.] was not capable of providing a minimum
         degree of care to [Barbara]. I don't think
         any parent in their right mind would permit
         [E.W.] to watch a baby for two minutes in the
         shape she's in, actively suffering from this
         disease and having been unable to care for any
         of her children, as shown by clear and
         convincing evidence.

         Now, we see nothing's changed. . . . I think
         that it's certainly been proven by the
         Division by a preponderance of the evidence
         that [Barbara] was and still is at imminent
         risk of substantial harm were she placed in
         [E.W.]'s care.




                                     5                                A-5586-15T4
     The trial court entered an order memorializing the abuse and

neglect finding and continuing the Division's custody of Barbara.

E.W. now challenges the order.

     We begin with our standard of review.                 "[B]ecause 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, 343 (2010) (quoting Cesare v. Cesare, 
154 N.J. 394, 413

(1998)).     "Moreover,    appellate        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.'"             M.C. III, supra, 
201 N.J. at
 342-43 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 
196 N.J. 88, 104 (2008)).

     "Although we defer to the trial court's findings of fact,

especially when credibility determinations are involved, we do not

defer on questions of law."        N.J. Div. of Youth & Family Servs.

v. V.T., 
423 N.J. Super. 320, 330 (App. Div. 2011) (citing N.J.

Div. of Youth & Family Servs. v. R.L., 
388 N.J. Super. 81, 88-89

(App. Div. 2006)).     However, "[f]indings by the trial judge are

considered   binding      on   appeal       when     supported        by   adequate,

substantial and credible evidence."            Pascale v. Pascale, 113 N.J.

                                        6                                       A-5586-15T4
20, 33 (1988) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,


65 N.J. 474, 484 (1974)).                 "[W]e do not disturb the factual

findings and legal conclusions of the trial judge unless we are

convinced     that    they     are       so       manifestly    unsupported      by     or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice[.]"                        Rova Farms,

supra, 
65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen,


78 N.J. Super. 154, 155 (App. Div.), certif. denied, 
40 N.J. 221

(1963)).

     Citing N.J. Div. of Child Prot. & Perm. v. A.L., 
213 N.J. 1,

22 (2013), E.W. argues that "[t]he statute does not cover a past

risk of harm during pregnancy, which did not materialize.                             The

Division bears the burden of proof at a fact-finding hearing and

must prove present or future harm to a child by a preponderance

of the evidence."           She asserts we have rejected a categorical

approach equating substance abuse with child abuse or neglect.

See V.T., supra, 
423 N.J. Super at 331.

     Moreover,       E.W.    argues      the       Division    failed   to     establish

imminent risk to Barbara because her conduct did not fall below

the minimum degree of care required in G.S. v. Dep't of Human

Servs., 
157 N.J. 161, 178 (1999), whereby "[t]he phrase 'minimum

degree   of   care'    denotes       .   .    .    something    more    than   ordinary

negligence" and "refers to conduct that is grossly or wantonly

                                              7                                  A-5586-15T4
negligent, but not necessarily intentional."   She contends because

Barbara did not suffer withdrawal symptoms though she tested

positive for PCP at birth, and because she was "never given the

opportunity to care for [Barbara]," the court erred in finding the

Division met its burden.

     E.W. also argues the Division failed to establish that she

acted with gross negligence or recklessness to succeed in           a

prosecution under N.J.S.A. 9:6-8.21(c)(4)(b).     Citing N.J. Div.

of Child Prot. & Perm. v. Y.N., 
220 N.J. 165 (2014), rev'd, 
222 N.J. 308 (2015), E.W. asserts the Division did not prove she failed

to exercise a minimum degree of care "in light of the dangers and

risks associated with the situation."    Y.N., supra, 
220 N.J. at
 181, 184 (quoting G.S., supra, 
157 N.J. at 181-82).   E.W. contends

because Barbara was removed from her care immediately after the

child tested positive for PCP at birth, she was never given the

opportunity to care for daughter, and therefore the Division could

not assess the harm to Barbara "to protect [her] from a wide range

of conduct that clearly qualifies as neglect."    G.S., supra, 
157 N.J. at 181.

     E.W. further argues because the trial court found Barbara did

not suffer from E.W.'s use of PCP, and "relied primarily on

[E.W.]'s past history in determining future harm," the Division

could not sustain its burden of proving abuse or neglect by a

                                8                           A-5586-15T4
preponderance of the evidence.            We address these arguments in

turn.

      The purpose of a fact-finding hearing is "to determine whether

the child is [] abused or neglected."             
N.J.S.A. 9:6-8.44.           An

"[a]bused or neglected child" includes a minor child:

             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 . . .
             (b) 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).]

      "Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect."                 In re

Guardianship of DMH, 
161 N.J. 365, 383 (1999) (citing N.J. Div.

of Youth & Family Servs. v. A.W., 
103 N.J. 591, 616 (1986)).

Though a past risk of harm is not proscribed by the statute, "a

guardian fails to exercise a minimum degree of care when he or she

is   aware   of   the   dangers   inherent   in   a   situation   and     fails

adequately to supervise the child or recklessly creates a risk of

serious injury to that child."        G.S., supra, 
157 N.J. at 181.




                                      9                                 A-5586-15T4
      "Whether the parent has exercised the requisite degree of

care is to be analyzed in light of the dangers and risks associated

with the particular situation at issue."           N.J. Dep't of Youth &

Family Servs. v. J.L., 
410 N.J. Super. 159, 168 (2009) (citing

G.S., supra, 
157 N.J. at 181-82).          "The inquiry must focus on the

harm to the child and 'whether that harm could have been prevented

had the guardian performed some act to remedy the situation or

remove the danger.'"        Ibid. (quoting G.S., supra, 
157 N.J. at
 182).   "[T]he fact-sensitive nature of abuse and neglect cases

turns on particularized evidence."           A.L., supra, 
213 N.J. at 28

(citation omitted).

      In making a finding of abuse or neglect, a court considers

"the totality of the circumstances, since '[i]n child abuse and

neglect cases the elements of proof are synergistically related.

Each proven act of neglect has some effect on the [child].                  One

act   may   be   "substantial"   or    the   sum   of   many   acts   may    be

"substantial."'"     V.T., supra, 
423 N.J. Super. at 329-30 (quoting

N.J. Div. of Youth & Family Servs. v. C.H., 
414 N.J. Super. 472,

481 (App. Div. 2010), certif. denied, 
207 N.J. 188 (2011)).

Pursuant    to   
N.J.S.A.   9:6-8.46(b),     "[u]nder   the    preponderance

standard, 'a litigant must establish that a desired inference is

more probable than not.'"      Liberty Mut. Ins. Co. v. Land, 186 N.J.



                                      10                              A-5586-15T4
163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence,

comment 5a on N.J.R.E. 101(b)(1) (2005)).

      In A.L., supra, 
213 N.J. at 127, a mother and her child both

tested positive for cocaine at the child's birth, based on the

mother's allegedly accidental ingestion of cocaine.     The Supreme

Court reversed a finding of abuse or neglect, holding "a report

noting the presence of cocaine metabolites in meconium, without

more, does not establish proof of imminent danger or substantial

risk of harm."   Id. at 27-28.     The Court expounded "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."    Id. at

22.

      Furthermore, whether the Division has met its burden of proof

for an abuse and neglect complaint when a child tests positive for

illicit substances at birth depends on the Division's proofs.    Id.

at 29.   These proofs must "reveal the severity or extent of the

mother's substance abuse or, most important in light of the

statute, the degree of future harm posed to the child."     Id. at

27.   "Proof that a child's mother frequently used . . . dangerous

substances during pregnancy would be relevant to [the] issue" of

abuse and neglect.   Id. at 23.



                                  11                        A-5586-15T4
      In V.T., supra, 
423 N.J. Super. at 324-25, a father tested

positive for cocaine and marijuana during supervised visits with

his ten-year-old son, but the father "behaved appropriately" at

the visits. We reversed a finding of neglect, holding the Division

was "unable to demonstrate whether or not [the father] was impaired

to the point of posing a risk to [his son] in a supervised setting."

Id. at 331.   We noted the father "behaved appropriately" during

visitation, and the son "unlike an infant" was "not vulnerable

during these visits to the slightest parental misstep."            Ibid.

      E.W.'s circumstances are different from the circumstances we

addressed in V.T.      E.W. has an extensive history of PCP use and

non-compliance with substance abuse services and mental health

treatment services.      E.W. tested positive for PCP in August 2015

before Barbara's birth, at the time of Barbara's birth, and after

Barbara was placed in the Division's custody.

      Also, unlike A.L., the record here suggests E.W.'s PCP use

was deliberate.      Her extensive history of non-compliance with the

Division   demonstrates     E.W.'s    unwillingness     to   address     her

substance abuse.     Indeed, E.W. attended approximately fifteen out

of 150 substance abuse assessments offered by the Division.              She

failed to complete substance abuse programs between 2009 and 2015.

She   continuously    tested   positive   for   PCP   when   the   Division

administered drug screens.      Five of her six children have tested

                                     12                             A-5586-15T4
positive for PCP at birth and were removed from her custody over

a period of seven years, yet E.W.'s drug use continued.

      Unlike the parent in V.T., E.W. was incapable of acting as a

custodian for her daughter.           She lacked stable housing and had

made no provisions for Barbara after her birth.                 Also, the father

in V.T. behaved appropriately during supervised visits.                        V.T.,

supra, 
432 N.J. Super. at 325.             In this case, however, E.W. was

aggressive, irritable, inattentive to her children, and attended

her visits under the influence, demonstrating a risk of harm to

Barbara.

      In V.T., we stated the age of the child was also a relevant

factor.    There, we noted the child was ten-years-old, whereas an

infant could be vulnerable "to the slightest parental misstep."

See id. at 331.      Here, Barbara is an infant and therefore would

be vulnerable, especially where the trial court noted E.W.'s

inability to care for her children, including Barbara, in her

current state of addiction. In fact, the trial court found Barbara

was   at   a   substantial    risk   of    future   harm   because      of    E.W.'s

"terrible disease of substance abuse and her refusal to . . . be

treated, her inability to care for any of her children and her

consistent     refusal   to    substantially        cooperate    with    services

offered by the Division," and her inability to maintain sobriety.



                                      13                                     A-5586-15T4
     The trial court's findings considered the totality of the

circumstances.   We are satisfied the adequate, substantial, and

credible evidence in the record supports the court's conclusion

E.W. placed Barbara at a substantial risk of harm constituting

abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

     Affirmed.




                               14                          A-5586-15T4