NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.D and A.A IN THE MATTER OF K.A., a Minor

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                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1302-17T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

E.D.,

        Defendant-Appellant,

and

A.A.,

     Defendant.
__________________________________

IN THE MATTER OF K.A., a Minor.
__________________________________

                Submitted September 24, 2018 – Decided October 25, 2018

                Before Judges Fasciale and Rose.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Essex County, Docket
                No. FN-07-0448-16.
              Joseph E. Krakora, Public Defender, attorney for
              appellant (Beth Anne Hahn, Designated Counsel, on the
              briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jason W. Rockwell, Assistant Attorney
              General, of counsel; Carlos J. Martinez, Deputy
              Attorney General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (David B. Valentin, Assistant
              Deputy Public Defender, on the brief).

PER CURIAM

        Defendant E.D.1 appeals from an October 12, 2016 order2 of the Family

Part finding she abused or neglected her son while caring for him when she was

impaired by prescription medication. We reverse, concluding the trial court's

factual findings are not supported by the record.

                                         I.

        We derive the salient facts from the limited record developed at the brief

fact-finding hearing. Defendant is the biological mother of K.A., born in June

2003. At the time of the incident, the household was comprised of: K.A.;



1
    We use initials to protect the privacy of the parties. See R. 1:38-3(d)(12).
2
  The order became appealable as of right after the trial court entered a final
order on October 4, 2017, terminating the protective services litigation.


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defendant; her two adult sons, C.D., then twenty-nine years old, who suffered

from bipolar disorder, and J.P., then eighteen years old, who was undergoing

treatment for Hodgkin's lymphoma; and L.M., defendant's adult physically

disabled nephew. Neither L.A., defendant's twenty-five-year-old daughter, nor

A.A., K.A.'s biological father, resided with the family. However, A.A. was

"consistently present" and, for example, assisted K.A. with his homework.

W.C., a home health aide provided services to the family three times per week,

and another home health aide assisted L.M. with his needs.

      Following an initial referral in September 2015 that was deemed

unfounded, the Division of Child Protection and Permanency (Division) offered

the family services to address defendant's mental health concerns. On March

15, 2016, the Division received a referral from the Essex County Substance

Abuse Initiative (SAI), a public assistance agency, reporting that defendant

tested positive for cocaine.

      The next day, Keith Massey, a Division investigator, interviewed

defendant in her home. Defendant disputed SAI's allegations, claiming her use

of prescription medication could have caused a false positive test result.

Defendant claimed she used prescription medication to treat her depression,




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                                      3
stemming from her dire financial circumstances, J.P.'s lymphoma diagnosis, and

her responsibility for her disabled nephew.

      Accompanied by Division permanency worker, Ebony Connor, Massey

returned to the home the next day, and interviewed K.A., J.P., C.D., and W.C.

By all accounts, defendant's ability to care for K.A. was not a concern; no one

reported having observed defendant use cocaine or any other illegal drugs; and

K.A. appeared healthy and well-cared for. At most, W.C. indicated defendant's

prescription medication "for depression, anxiety disorder, [and] arthritis . . . at

times . . . makes her sluggish and at times, unresponsive, [but] not to the level

where she has no mental control, or is unable to care for her household."

      During the following month, Connor had several contacts with defendant

and collateral sources. Two days before the incident that formed the basis for

this appeal, defendant claimed she did not know why her drug tests were positive

for amphetamines, but admitted that she had "borrowed a few Percocet from her

mother."

      Connor and another caseworker scheduled a home visit with defendant on

April 28, 2016. Massey did not accompany the workers, but he was the sole

witness to testify at the fact-finding hearing. His investigation summary which,

in part, was "cut and pasted" from Connor's notes, was admitted in evidence. A


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                                         4
chronology of the events that transpired on April 28 is crucial to our analysis.

We glean the times of day from Massey's investigation summary.

      At approximately 1:00 p.m., Connor and a coworker arrived at defendant's

home for a scheduled visit. Although Connor knocked on the door for several

minutes and telephoned defendant, she did not respond. Connor then contacted

C.D., who returned home at 1:20 p.m. and escorted the Division workers into

the home. When the workers entered, defendant "walked down the stairs."

Defendant admitted she failed to attend an appointment at her substance abuse

program, but claimed she did not have a ride and needed to attend to L.M.'s

needs. Defendant told the workers she had rescheduled the missed appointment

for April 30.

      At 1:47 p.m., Connor contacted the counseling center and was advised that

defendant had not rescheduled her appointment. Sometime between 1:47 p.m.

and 2:02 p.m., Connor "observed that [defendant] had slurred speech, her eyes

were glossy [sic] and she was unable to stand unassisted." In response to

Connor's inquiry, defendant denied that she had taken any medication.

      At 2:02 p.m., Connor attempted to contact A.A., but he did not answer his

telephone. The "[w]orkers returned to the home and spoke with [defendan t]

privately in her bedroom."     Defendant admitted that she had ingested a


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combination of prescription and non-prescription medication and vitamins, i.e.,

naproxen, Tylenol, bupropion XL, pseudoephedrine HCL, ferrous sulfate,

omeprazole, sertraline, amoxicillin, and vitamins D and B-12.3 During that

conversation, defendant "was unable to sit on her bed. She was stumbling and

unable to sit up unassisted." Connor addressed that behavior with defendant,

who responded, "oh really." When asked to identify family resources "in the

event the Division had to remove [K.A.] from her care due to her current state[,]"

defendant identified L.A., but could not provide her address or phone number,

then "'flopped' on the bed." Defendant was able to contact A.A. who told the

workers he would come to the home "in about [forty-five] minutes." J.P. came

into defendant's bedroom "[a]t that time."

      At 2:30 p.m., Connor spoke with C.D. who advised that he was diagnosed

with bipolar disorder. C.D. also stated that he was prescribed Risperdal to treat

his condition but that "nobody can make [him]" take the medicine, which makes

him "aggressive."

      When A.A. arrived at 3:00 p.m., he escorted the workers inside the home

where they detected "a strong gas odor."        A.A. shut off the stove, then


3
  The medication and vitamins, along with their prescribed dosages, were listed
in Massey's investigation summary, but the Division did not present any
evidence as to their intended use or contraindications when ingested together.
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determined defendant was upstairs sleeping. The record does not reveal who

turned on the stove or whether J.P and C.D. were still present in the home at that

time.

        At 3:50 p.m., K.A. arrived home from school.            When the workers

reentered the home with A.A. and K.A., defendant "was sitting in the living

room and stated to the workers[,] 'I don't see the big deal of all this . . . if there

was a fire or emergency, I know how to do CPS[,]'" demonstrating on her

stomach and confirming she meant "CPR." Defendant's physical appearance at

that time is not noted in the record. The workers removed K.A. from the home

and placed him with A.A.

        At the fact-finding hearing on October 11, 2016, as noted above, Massey's

investigation summary was admitted in evidence, but the court granted

defendant's application to disregard hearsay statements pertaining to defendant's

drug test results and K.A.'s performance at school. The Division also moved in

evidence a screening summary, but only for purposes of demonstrating that a

referral was made to the Division on March 15, 2016. Defense counsel did not

object to any other evidence proffered by the Division, including Massey's

testimony in general. Defendant did not testify, and no witnesses testified on

her behalf. The law guardian did not present any evidence.


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      Massey's testimony generally was consistent with his investigation

summary. He explained that, as an investigator, it was his regular practice to

include contacts and observations made by permanency workers in his report.

Because he was not present at defendant's home on April 28, 2016, he conceded

he had no first-hand knowledge of the events that transpired.

      Nonetheless, in an oral decision rendered on the record at the conclusion

of summations on October 11, 2016, the court determined Massey was credible

because "[h]e was quite clear about what he knew independently and what he

was told by other Division workers" and he did not "testify as to what he did not

know." In addition to Massey's testimony, the court considered the exhibits in

evidence and found the Division proved by a preponderance of the evidence,

that defendant "created a substantial risk of harm to . . . [K.A.], through her

continued use of drugs while she was responsible for [K.A.] in her care, and her

failure to address her substance abuse issues even though she had been working

with the Division."

      To support its conclusion, the court cited defendant's admission two days

prior to the incident that she had taken drugs that were not prescribed to her; and

Connor's observations of defendant on the day of the incident, including

defendant's "glossy" eyes, slurred speech, and inability to walk without


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assistance. The court also noted that the Division had been working with

defendant to address her substance abuse issues, but she did not comply with

counseling and admitted to ingesting "numerous drugs."

      Although K.A. was not present when the gas leak occurred, the court

found there was "sufficient reason to believe that [defendant] was in absolutely

no condition to deal with this problem no matter how it occurred." The court

was not persuaded that "there were other people living and working in the ho me

. . . the two older children, . . . an aide for the nephew, . . . [and] an aide to assist

[defendant]." Rather, the court determined "it was [defendant's] responsibility

to care for [K.A.]." While the court recognized that, at twelve years old, K.A.

"was not an infant, . . . he was still a child . . . who could not care for himself."

Further, although defendant did not believe that "her drug screens were

positive," the court found "her behavior . . . on April 28th[] sorely contradict[ed]

that statement." This appeal followed.

      On appeal, defendant contends there was insufficient evidence to support

the trial court's finding she abused or neglected K.A. Citing Department of

Children & Families, Division of Child Protection & Permanency v. E.D.-O.,

 223 N.J. 166, 181 (2015), defendant claims the record does not support the

court's determination that defendant exposed K.A. to an "imminent danger or


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                                           9
substantial risk of harm." For the first time on appeal, defendant claims the

court should not have admitted Massey's investigation summary in evidence,

and expert testimony was necessary to explain how defendant's medication

affected her ability to supervise K.A. The Division and law guardian urge us to

affirm the court's order.

                                       II.

      Ordinarily, we defer to the Family Court's factual findings, as long as they

are supported by substantial credible evidence in the record. N.J. Div. of Youth

& Family Servs. v. L.L.,  201 N.J. 210, 226 (2010); N.J. Div. of Youth & Family

Servs. v. M.M.,  189 N.J. 261, 279 (2007). However, we will not hesitate to set

aside a ruling that is "so wide of the mark that a mistake must have been made."

M.M.,  189 N.J. at 279. "Where the issue to be decided is an 'alleged error in the

trial judge’s evaluation of the underlying facts and the implications to be drawn

therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family

Servs. v. G.L.,  191 N.J. 596, 605 (2007) (citation omitted). We also accord no

deference to the trial court's legal conclusions, which we review de novo. State

v. Smith,  212 N.J. 365, 387 (2012); see also Manalapan Realty, LP v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (1995).




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                                       10
        The Division "must prove that the child is 'abused or neglected' by a

preponderance of the evidence, and only through the admission of 'competent,

material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R.,

 205 N.J. 17, 32 (2011) (quoting  N.J.S.A. 9:6-8.46(b)). In pertinent part, an

"abused or neglected child" is defined as:

             a 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 . . . 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 . . . .

             [N.J.S.A. 9:6-8.21(c)(4)(b).]

        Courts need not wait for harm to occur, but the Division must present

proof of "imminent danger or a substantial risk of harm to a child . . . ." E.D.-

O.,  223 N.J. at 178 (quoting N.J. Dep't of Children & Families v. A.L.,  213 N.J.
 1, 23 (2013)). Also, "[t]o find abuse or neglect, the parent must 'fail [] . . . to

exercise a minimum degree of care.'" Id. at 179 (alteration in original) (quoting

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

"conduct that is grossly or wantonly negligent, but not necessarily intentional. "

Ibid.    Wanton negligence is conduct that is engaged in with the parent's

knowledge that injury is likely to result. Ibid. Mere negligence does not trigger


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the statute. Dep't of Children & Families, Div. of Youth & Family Servs. v.

T.B.,  207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs. Div. of Youth

& Family Servs.,  157 N.J. 161, 172-73 (1999). Our "[Supreme] Court has

emphasized that whether a parent's conduct is negligent or grossly negligent

requires an evaluation of the totality of the circumstances." E.D.-O.,  223 N.J.

at 170-71.

      Moreover, whether a parent has failed to exercise a minimum degree of

care "is fact-sensitive and must be resolved on a case-by-case basis." Id. at 192.

The Court has warned, however, that in undertaking this analysis, trial and

appellate courts "must avoid resort to categorical conclusions." Id. at 180 (citing

T.B.,  207 N.J. at 309). For example, in E.D.-O., the Court rejected a "categorical

rule" that leaving a child in a motor vehicle for any length of time automatically

constitutes abuse or neglect. Id. at 192-93.

       While we continue to recognize the societal concern that parents should

not care for children while under the influence of drugs, we have avoided a

categorical approach in cases involving the mixture of drugs and parenting. In

New Jersey Division of Youth & Family Services v. V.T.,  423 N.J. Super. 320,

332 (App. Div. 2011), we recognized "not all instances of drug ingestion by a

parent will serve to substantiate a finding of abuse or neglect." Indeed, "Title 9


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                                       12
is not intended to extend to all parents who imbibe illegal substances at any time.

The Division would be quickly overwhelmed if law enforcement was required

to report every individual under the influence who had children." Id. at 331.

      In V.T., proof of a parent's drug use by itself was not enough to sustain a

finding of abuse or neglect, where a father used drugs prior to his visits with an

eleven-year-old child. Ibid. We held that a father's use of cocaine and marijuana

and failure to complete drug treatment did not "inherently create[] a substantial

risk of harm" to the child. Id. at 330. We noted there was no expert proof

showing how the father's drug use posed a risk of harm to the child. Id. at 331.

      Similarly, we reversed a finding of abuse and neglect based solely on a

mother's use of marijuana, on one occasion, while the child was in her care. N.J.

Div. of Child Prot. & Permanency v. R.W.,  438 N.J. Super. 462, 468-70 (App.

Div. 2014).      We noted the absence of detailed proof regarding the

"circumstances of her ingestion," whether "the baby was solely in her mother's

care when she was intoxicated," and "the magnitude, duration, or impact" of the

intoxication. Id. at 470.

      Further, in New Jersey Division of Child Protection & Permanency v. J.C.,

 440 N.J. Super. 568, 573 (App. Div. 2015), we reversed a finding of abuse or

neglect where the mother drank alcohol to excess then overslept the next


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morning, when her toddler was found in the apartment with a dirty diaper and

the door ajar. Under those circumstances we observed,

            To hold that a parent who, on a single occasion, has too
            much to drink and sleeps in late the next day while his
            or her child walks around in a dirty diaper commits
            child abuse would classify many otherwise responsible
            parents as child abusers. Simply put, there was no
            proof of harm to [the child], or that [the mother]'s
            conduct met the statutory standard of abuse or neglect.
            Even if we accepted the court's finding that [the
            mother] "failed to attend her court ordered substance
            abuse treatment on a consistent basis," that does not
            constitute abuse or neglect as a matter of law.

            [Id. at 579. (citation omitted).]

      Applying these principles, we are unpersuaded that defendant abused or

neglected K.A. under the circumstances presented in this case. Defendant's

behavior neither placed K.A. in "imminent danger" nor exposed him to a

"substantial risk of harm."

      Initially, although defendant admitted ingesting a number of prescription

drugs and vitamins at some point on April 28 when K.A. was not present, the

Division did not establish that the resulting effects of that combination of

substances impacted defendant's ability to supervise K.A. Indeed, it is unclear

from the record when defendant became adversely affected by the medicat ion,

and whether she was still impaired when K.A. returned home from school.


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                                       14
      Specifically, the investigation summary reveals that when Connor first

entered defendant's home at 1:20 p.m., defendant "walked down the stairs." The

report is silent as to whether defendant needed assistance walking at that time.

However, by 1:47 p.m., Connor noted defendant "was unable to stand

unassisted" and, by 2:02 p.m., she was "unable to sit up unassisted." The

investigation summary does not specify defendant's physical condition when

K.A. returned home at 3:50 p.m., other than to note she "was sitting in the living

room." It is, therefore, unclear whether, or to what extent, defendant was

impaired when K.A. arrived home.

      Even if K.A. were present when defendant was impaired, that would not

suffice for a finding of abuse under the totality of the circumstances presented

here. In particular, the Division did not present any evidence as to how K.A.'s

physical, mental or emotional condition might have been impacted by

defendant's impairment. See R.W.,  438 N.J. Super. at 470; see also A.L.,  213 N.J. at 29-30 (stating that a parent's drug use, standing alone, is not enough to

sustain a finding of abuse or neglect). For example, rather than present the

testimony of a school official who could have testified to K.A.'s academic

performance, that evidence was excluded from the investigation summary as

embedded hearsay. See N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J.


                                                                          A-1302-17T2
                                        15 Super. 478, 496-97 (App. Div. 2016) (recognizing that reports admitted pursuant

to Rule 5:12-4(d) are subject to other hearsay limitations, including those

imposed by N.J.R.E. 805 concerning embedded hearsay statements). Instead,

one month prior to the incident, no one in the household, including the Division's

home health aide, expressed any concerns about defendant's ability to care for

K.A.

       Moreover, there is no evidence in the record to support the court's

determination that K.A. "could not care for himself" in these circumstances.

K.A. was twelve years old and able to tell the workers when they first visited

the family that he felt safe with defendant. His main concern when he was

removed from the home was whether he could continue to play baseball if he

lived with A.A. The record is devoid of any indication that he either was

cognitively or physically impaired. Thus, it is more likely than not that, had

K.A. arrived home and found his mother incapacitated with neither his brothers

nor the home health aides present, K.A. would have been capable of calling his

father or the police for assistance. See N.J Div. of Youth & Family Servs. v.

J.L.,  410 N.J. Super 159, 162 (App. Div. 2009) (wherein a six-year-old child

had the wherewithal to contact the police when he and his younger brother were

locked out of their home).


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      We also reject the Division's argument that the facts of the present case

are distinguishable from those in J.C. because that "court had no evidence that

the mother was impaired as a result of alcohol consumption." Like defendan t's

admission to ingesting prescription medication and vitamins here, the defendant

in J.C. "admitted to drinking alcohol until 10:30 p.m. the night before and she

still had alcohol on her breath at 12[:00] p.m. . . . when the Division worker and

a therapist arrived for a scheduled appointment." J.C.,  440 N.J. Super. at 576.

Unlike here, however, when the Division arrived they found J.C.'s three-year-

old son alone.   Id. at 573. By contrast, K.A. was twelve years old and not

present when the Division arrived.

      Finally, even if we accepted the trial court's determination that defendant

refused to comply with services, "that does not constitute abuse or neglect as a

matter of law." Id. at 579. This is especially so where, as here, defendant's drug

test results were excluded from evidence. Other than listing the medication and

dosage of each medication in the investigation summary, the Division failed to

establish the medical or psychological condition for which each medication was

prescribed, or whether interactions could produce side-effects.

      Because we find the record does not support the trial court's findings, we

need not reach defendant's remaining arguments, raised for the first time on


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appeal, that the investigation summary was erroneously admitted in evidence

and expert testimony was necessary to explain how defendant's medication

affected her ability to supervise K.A. Briefly, however, we take this opportunity

to remind trial courts that, while the Division's records generally are admissible

pursuant to Rule 5:12-4(d), the admission of an investigation summary through

a witness, such as Massey, who does not have first-hand knowledge of the

incident at issue, is fraught with peril.      Cf. R.W.,  438 N.J. Super. at 468

("caution[ing] trial judges in contested cases who render fact-findings based

solely on documentary submissions . . . .").

      We also observe that the Division's reliance on Connor's observations of

defendant's condition, whether or not the worker testified, are inconclusive as to

defendant's impairment. While it is well-settled that lay witness testimony may

be sufficient evidence of alcohol intoxication, State v. Guerrido,  60 N.J. Super.
 505, 509-11 (App. Div. 1960), "expert testimony remains the preferred method

of proof of [drug-induced] intoxication[,]" pursuant to N.J.R.E. 702. State v.

Bealor,  187 N.J. 574, 592 (2006).

      In Bealor, the Court recognized law enforcement officers are required, as

part of their basic training, to receive specialized training "in detecting drug -

induced intoxication." Id. at 592-93. Absent from the investigation summary


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here, however, is any evidence that Connor was qualified as an expert in drug

intoxication, or had training in the recognition of drug intoxication or the side -

effects of mixing prescription medications. See id. at 592. Because Connor did

not testify, the extent of her training, if any, was not developed in the record.

      In sum, the Division failed to present sufficient, credible evidence that

K.A. was in imminent danger or at a significant risk of harm as a result of

defendant's failure to exercise a minimum degree of care. Our decision should

not be understood to condone defendant's misuse of prescription drugs, as

claimed by the Division. However, because the evidence was insufficient to

establish abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b), we are constrained

to reverse the trial court's decision and order the Division to remove the April

28, 2016 incident from defendant's existing entry in the Central Registry.

      Reversed.




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