NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. V.M.

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                                NOT FOR PUBLICATION WITHOUT THE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-2059-17T1



NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

         Plaintiff-Respondent,

v.

V.M.,

         Defendant-Appellant,

and

F.G.,

     Defendant.
_________________________________

IN THE MATTER OF J.G.M., a Minor.
_________________________________

                   Submitted September 20, 2018 – Decided October 19, 2018

                   Before Judges Accurso and Vernoia.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0165-16.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Carol M. Willner, Designated Counsel, on
              the brief).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jason W. Rockwell, Assistant Attorney
              General, of counsel; Amanda D. Barba, Deputy
              Attorney General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Todd S. Wilson, Designated
              Counsel, on the brief).

PER CURIAM

        Defendant V.M. appeals from an April 15, 2016 fact-finding order that

she and F.G.1 neglected their sixteen-month-old son, Jamie. 2 See N.J.S.A. 9:6-

8.21(c).     Because we agree with the Division of Child Protection and

Permanency, as well as the Law Guardian, that there is substantial credible

evidence in the record to support the trial judge's finding of neglect, we affirm.

        The Division brought this action contending V.M. and F.G. neglected their

son by failing to provide him with adequate shelter and dealing drugs from their



1
    F.G. has not appealed from the order.
2
    This is a fictitious name we use to guard the child's privacy.
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home, thereby failing to exercise a minimum degree of care. The complaint was

precipitated by the Hudson County narcotics task force executing a search

warrant for the home F.G. shared with V.M. and Jamie. Besides finding drug

paraphernalia, a digital scale, small quantities of narcotics and $300 cash, the

officers found cockroaches crawling everywhere in the apartment, including in

the dirty sheets on the bed where Jamie was sleeping. After police arrested F.G.

and V.M., the Division executed an emergency removal of Jamie.

      On the return date of the Division's order to show cause, Judge Santiago

inquired as to whether this was defendants' first dealings with the Division.

Upon being advised it was, the judge addressed both young parents directly,

saying:

                   [L]isten carefully. And I just want to make sure
            you understand, the Division is doing their job. It is my
            job to make sure they do it well. But the fact that the
            child has been removed and they brought the case to
            this court with the allegations that were made they did
            exactly what they needed to do. So instead of being
            upset at the removal of the child, we need to pay careful
            attention to the services that are being offered, so that
            we can change the situation so that this court is put in a
            position of being able to return this child to you, but to
            a safe environment.

                   I don't take kindly, assuming the allegations are
            true, to that kind of activity going on in any home where
            there's a child, assuming they're true. What I am
            saying, though, anyone who tests positive for drugs

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            from here on in is not going to have a fair viewing by
            me, fair in terms of thinking it's safe. And I'm just
            saying that because there's an opportunity here to make
            it better.
                   So today is a good day because everyone is on
            notice that this child, this one year old child, needs to
            be protected. And you're the only ones that can offer
            that protection. And it is your responsibility to get us
            out of your lives. Okay?

      At the fact-finding hearing several months later, the Division presented

the testimony of two of the officers who searched defendants' home. They

described the condition of the apartment as "deplorable." They claimed it reeked

from dirty dishes and mounds of unwashed laundry, and that roaches flew at

them when they opened cabinets and drawers in the course of executing the

warrant. The officers testified there were roaches everywhere, including in the

refrigerator where the baby's food was sealed in plastic bags and in the dirty

clothes in Jamie's baby bag. They estimated there were a dozen cockroaches

where Jamie lay on an unmade bed on dirty sheets. In the police report admitted

into evidence, the officers opined that V.M., who was alone in the apartment

when the police executed the search warrant, tossed from an open window the

drugs they found outside while they waited for her to open the door. The judge

sustained V.M.'s objection to that testimony as speculative at the hearing.

Defendants did not testify in their own behalf and called no witnesses.


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        After weighing the evidence and the arguments of counsel, Judge Santiago

entered an order finding V.M. and F.G. had neglected their infant son. In a clear

and comprehensive written decision, she summarized the critical testimony,

identified the pertinent law and explained its application to the facts as she found

them.     Judge Santiago did not find the Division's evidence sufficient "to

establish that the home was used as a base for drug operations," although

acknowledging "there is competent reliable evidence that there is drug activity

within the home" which "certainly poses a risk of harm to the child." The judge

found that F.G.'s "participation in drug transactions" evidenced by three

controlled buys, and V.M.'s "use of marijuana is a direct risk of harm to the child

and constitutes a failure to exercise a minimum degree of care."

        The judge also found defendants neglected Jamie "by failing to take steps

to ameliorate the infestation of roaches in their home." She explained that

              [w]hile a roach infestation can easily occur in any
              highly populated area, the conditions testified to such
              as odor from dirty dishes, roaches inside the
              refrigerator, roach feces all over the ceiling and walls
              and around the table as well, all point to conditions that
              have existed for a period of time. Of even greater
              concern is the potential harm to the child. [Jamie] was
              found lying on the bed surrounded by at least a dozen
              roaches, there were roaches found in his baby bag on
              his clothing and on his baby's food in the refrigerator
              and in the cabinets. This child is incapable of
              protecting himself from the harm of crawling roaches

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            that surrounded him while lying on the bed. The child
            had no crib and was found resting on dirty sheets. Such
            conditions cannot be associated with poverty but rather
            to neglect and lack of attention.

      On appeal, V.M. contends for the first time that the judge should have

recused herself "because of the prejudicial nature of [her] comments at the show

cause hearing" and that her opinion "relies upon judicial assumptions and filling

in of missing information unsupported by adequate, substantial and credible

evidence." We find her first argument frivolous and the second utterly without

merit. See R. 2:11-3(e)(1)(E).

      A review of the comments V.M. complains of, which we quoted above,

reveals, not bias, but only admirable concern for V.M. and her young family. At

the time those comments were made, V.M. and F.G. had been arrested and

charged with a host of narcotics offenses, Jamie had been removed from their

care and placed with a non-relative resource parent and V.M. had already tested

positive for marijuana. She did not have a job and lacked any stable housing.

Judge Santiago provided both sound advice regarding V.M.'s need to put aside

her anger at the Division for taking her child and to focus instead on taking

advantage of the services it would offer to correct the conditions leading to

Jamie's removal and a warning that the judge would view continued drug use as

a danger to such a young child, which would make reunification very difficult.

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      Having scoured the record, we find not the slightest hint of bias in any of

the court's comments or rulings. The judge patiently heard the testimony and

was scrupulously careful to protect defendants' rights, ruling several times in

favor of defendants and against the State on evidentiary questions at the fact-

finding hearing. Judge Santiago's findings, particularly those related to the

filthy, roach-infested apartment in which F.G. and V.M. forced the baby to live,

were meticulous and well supported by the evidence in the record. They readily

support her conclusion that V.M. and F.G. failed to exercise a minimum degree

of care for Jamie by failing to provide him with adequate shelter.

      Accordingly, we affirm substantially for the reasons expressed by Judge

Santiago in her thorough and thoughtful written opinion of April 15, 2016.

      Affirmed.




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