NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.C.G and D.R.S

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                                NOT FOR PUBLICATION WITHOUT THE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-1368-20

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.C.G.,

          Defendant-Respondent,

and

D.R.S.,

     Defendant.
_________________________

IN THE MATTER OF
A.S., a minor.
_________________________

                   Argued February 10, 2022 – Decided March 22, 2022

                   Before Judges Alvarez and Mitterhoff.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Morris County,
            Docket No. FN-14-0062-20.

            Patricia Nichols, Assistant Deputy Public Defender,
            argued the cause for appellant (Joseph E. Krakora,
            Public Defender, attorney; Patricia Nichols, of counsel
            and on the briefs; Anne E. Gowen, Designated Counsel,
            on the briefs).

            Jessica A. Prentice, Deputy Attorney General, argued
            the cause for respondent (Andrew J. Bruck, Acting
            Attorney General, attorney; Donna Arons, Assistant
            Attorney General, of counsel; Jessica A. Prentice, on
            the brief).

            Noel C. Devlin, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Noel C. Devlin, of
            counsel; Samantha Kelly, admitted pursuant to Rule
            1:21-3(b), on the brief).

PER CURIAM

      In order to meet its burden pursuant to  N.J.S.A. 9:6-8.46(b), plaintiff New

Jersey Division of Child Protection and Permanency (Division) must, by a

preponderance of the credible evidence, establish that a child has been abused

or neglected. N.J. Div. of Child Prot. & Permanency v. J.R.-R.,  248 N.J. 353,




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369 (2021). Because we find the Division did not meet that standard as to

defendant D.C.G. (Sarah),1 we now reverse.

      The statute defines an abused or neglected child as one whose well-being

is "impaired or is in imminent danger of becoming impaired as the result of the

failure of his parent . . . to exercise a minimum of care . . . (b) in providing the

child with proper supervision[.]" N.J.S.A. 9:6-8.21(c)(4)(b). At approximately

1:00 a.m. on October 30, 2019, Sarah, mother of then one-year-old A.S.,

consumed illegal drugs while visiting the child's paternal grandparents. The

child's father, D.R.S. (Tom), had left the home for an unspecified amount of

time to go to a convenience store. The child, the child's paternal grandparents,

and Sarah were each sleeping in separate rooms.

      When Tom returned, he found Sarah unconscious. His father, hearing the

commotion, called 911. The officers described Sarah as "lying on her side in a

pool of her own vomit making a snoring sound."

      Sarah was transported to a nearby hospital after the officers'

administration of two doses of Narcan failed to rouse her. Tom reported to the

officers that Sarah had been using heroin and Xanax, and turned over three



1
  We use pseudonyms for defendants' names to protect the identity of the minor
child. See R. 1:38-3(d)(12).
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empty folds of suspected heroin that he claimed belonged to Sarah. At the time,

Tom was on probation for drug offenses. Later, Tom told a Division worker that

Sarah "was taking hits of a Xanax bar all day" and snorted heroin around

midnight.

      Three days later, Sarah allegedly acknowledged to hospital staff that she

had consumed Xanax bought on the street that was likely "laced with

something." She denied having taken any other drug.

      The hospital drug screen administered on Sarah's admission was negative.

A hair follicle test the following month was also negative. The Division worker

testified she had heard hair dye can interfere with follicle testing, but no expert

testimony was proffered. It is undisputed that Sarah had a drug addiction

problem she had previously treated unsuccessfully.

      In his June 16, 2020 decision, the trial judge found the caseworkers

credible. He also found that because the paternal grandparents were asleep in

the middle of the night, they were unable to "act[] in a parental role." The judge

concluded that Sarah's consumption of illegal drugs, which rendered her

unconscious, placed the child in imminent danger, thus making the child abused

and neglected within the meaning of the statute.




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      We address only Sarah's central issue on appeal—that the Division did not

meet the relevant standard of proof by a preponderance of the evidence. In light

of our decision on this point, the other appeal issues are moot. A brief discussion

of the relevant cases drives the outcome.

      An abuse or neglect finding may be premised upon "imminent danger[;]"

the parents' conduct need not cause actual harm. N.J. Div. of Child Prot. &

Permanency v. K.G.,  445 N.J. Super. 324, 341 (App. Div. 2016). Where no

actual harm is alleged, the court must focus on "the likelihood of future harm[.]"

N.J. Div. of Child Prot. & Permanency v. J.C.,  440 N.J. Super. 568, 577 (App.

Div. 2015). "Any allegation of child neglect in which the conduct of the parent

or caretaker does not cause actual harm is fact-sensitive and must be resolved

on a case-by-case basis."     K.G.,  445 N.J. Super. at 342 (quoting Dep't of

Children & Fam. v. E.D.-O.,  223 N.J. 166, 192 (2015)).

      In J.C., for example, a parent consumed alcohol while caring for her three-

year-old son. Id. at 570. She claimed that she stopped drinking before he was

dropped off by his father at her apartment, but the trial court disbelieved this

assertion. Id. at 573, 575. As a result of her alcohol consumption, the mother

slept through the morning the next day, leaving the child effectively

unsupervised. Id. at 570, 573. At around noon, DCPP workers arrived at her


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home for a previously scheduled appointment.          Id. at 573.    The workers,

observing that J.C.'s apartment door was ajar, called her name, but she did not

answer. Ibid. They let themselves in and saw the toddler wandering around

wearing a dirty diaper. Ibid. Shortly thereafter, J.C. emerged from her room;

her appearance was disheveled, and she smelled of alcohol. Ibid. When one of

the workers pointed out that her son's diaper was dirty, she ordered the child to

clean himself up. Ibid.

      On appellate review, the mother's conduct was not found to be grossly

negligent. Id. at 579-80. We reasoned that she could not have known that her

door was ajar because, as she explained to DCPP, a friend had visited earlier in

the day and failed to close it properly—which assertion was unrefuted. Id. at

579. Furthermore, "[e]ven if [the mother] had continued to drink, as the judge

surmised, and slept in late the next morning as a result, there is no proof that her

behavior created a substantial risk of harm to" her son. Ibid. To hold that such

conduct constituted child abuse would be to classify many "responsible parents"

as abusers, and that result was unacceptable. Ibid.

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

331-32 (App. Div. 2011), and N.J. Division of Child Protection & Permanency

v. R.W.,  438 N.J. Super. 462, 468 (App. Div. 2014), mere substance abuse while


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in the presence of a child did not suffice to establish abuse or neglect. In V.T.,

a father was under the influence of narcotics while engaging in supervised visits

with his daughter—which did not prove the child was exposed to any risk.  423 N.J. Super. at 331.

      In R.W., the trial judge found that the mother's use of marijuana while in

the community, while responsible for her baby, sufficed for an abuse and neglect

judgment.    The Division had relied exclusively on a screening summary

statement in which the mother admitted to the conduct.  438 N.J. Super. at 468.

As we reiterated in R.W., based on language in V.T., although it is of crucial

importance in society that children are not cared for by intoxicated parents, "not

all instances of drug ingestion by a parent will serve to substantiate a finding of

abuse or neglect." Id. at 470. "[I]nstead of filling in missing information, an

understandable response by judges who regularly witness the evils inflicted on

children by their parents' drug use, judges must engage in a fact -sensitive

analysis turning on 'particularized evidence.'" Ibid.

      The particularized evidence here establishes that Sarah's child was not

exposed to imminent risk from her mother's drug use. There were other adults

in the house, namely Tom's parents. The child was asleep, and the drug use




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happened during the night. The father left the apartment for some brief period

of time, intending to return.

      That the grandparents were in close proximity to both mother and child is

established by the fact the grandfather called 911 when Sarah's condition was

discovered. The record is devoid of evidence, for example, observations by the

police officers, that Tom would have been unable to care for the child upon his

return.

      The potential harms the Division proffered were no more than

speculation—such as that the grandparents might not have been able to care for

the child, or that Sarah might have been hallucinating. It is the Division, not

Sarah, who bears the burden of proof, and proof of "imminent danger" requires

more than demonstrated here. See N.J.S.A. 9:6-8.21(c)(4)(b).

      As a matter of law, which we review de novo, we find that the allegations

in this case did not establish that Sarah's conduct exposed her child to imminent

danger or a substantial risk of harm. K.G.,  445 N.J. Super. at 342;  N.J.S.A. 9:6-

8.21(c)(4)(b).

      Reversed.




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