Opinion
DOCKET NO. A-2239-13T3
02-25-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.G., Defendant-Appellant, and M.M.G., Defendant. IN THE MATTER OF C.G., Jr., and P.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria Kryzsiak, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, C.G., Jr., and P.G. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-376-12. Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria Kryzsiak, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, C.G., Jr., and P.G. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant C.G. appeals from an April 19, 2013 fact-finding order that he neglected his two-year old daughter and three-year old son in violation of N.J.S.A. 9:6-8.21c. Because we agree with the Division of Child Protection and Permanency and the Law Guardian that there is substantial credible evidence in the record to support the trial judge's finding of neglect, we affirm.
The facts presented at the fact-finding hearing can be briefly summarized. The Division got involved with this family on a Monday in February 2012 following a domestic violence incident between defendant and his wife M.M.G. She testified that defendant had been out very late the night before drinking, and she had thus made arrangements for her sister to take the children that day while she was at work. Defendant had spent the prior week in the county jail for driving with a suspended license, had only been released on Friday and had been drinking over the weekend. The two argued over M.M.G.'s sister taking the kids. After M.M.G. went into the bathroom to shower and get ready for work, defendant struck her with the shower head. Although the children were in another room and did not witness the incident, M.M.G. admitted that they were upset and crying. The police responded, M.M.G. got a temporary restraining order against defendant, and he was involuntarily committed to Bergen Regional Medical Center after he made statements to the police indicating he might harm himself.
The Division called M.M.G. in its case as an adverse witness. On cross-examination, she testified that she had arranged for her sister to care for the children, not because she did not trust him with the kids because he had been drinking, but rather because she did not want their routine disrupted.
That incident was not the first episode of domestic violence between the two. M.M.G. acknowledged prior arguments, physical in nature, that had occurred over defendant's drinking. She testified that defendant got "hammered" two weekends a month prior to the February incident that had precipitated the Division's involvement. She also acknowledged that despite the Division's concerns over defendant's substance abuse issues, defendant did not get treatment until the Division filed this action and asked that his contact with the children be supervised.
The Division caseworker testified to her initial interview of defendant and the Division's subsequent investigation into the matter. According to the caseworker, defendant explained he had been employed as a truck driver when he was hurt in an accident and prescribed Percocet and Oxycontin. He became dependent on the drugs and required Suboxone to wean himself off. He was still taking the Suboxone at the time he was involuntarily committed. Defendant told the worker he had been arrested for driving his motorcycle under the influence of alcohol in September 2011 and subsequently lost his trucking job for driving with a suspended license. Defendant acknowledged being previously arrested for assaulting his father but denied striking his wife. He claimed that she hit her head on the shower nozzle in the midst of a verbal argument. Defendant agreed to undergo a substance abuse evaluation.
The worker testified that defendant did undergo the evaluation but did not cooperate with the extended assessment or intensive outpatient treatment recommended as a result thereof. She detailed the number of random screens defendant declined and his refusal to participate in the treatment recommended for him. The worker testified that notwithstanding the children appeared happy and well-cared for, the Division was concerned about defendant's abuse of alcohol and the family's minimization of the problem. The worker explained that the stressors reported by the family, the Division's involvement, defendant's DUI and subsequent loss of his license and then his job, all stemmed from his abuse of alcohol.
The worker claimed the Division determined to substantiate defendant for abuse and neglect based on its finding that defendant was still consuming alcohol while taking Suboxone, the very young age of the children, defendant having engaged in domestic violence while the children were nearby and his unwillingness to engage in the intensive outpatient treatment recommended for him despite the Division's efforts to engage him in treatment over several months.
The Division also presented the testimony of the substance abuse assessment counselor from Preferred Children's Services who conducted defendant's substance abuse evaluation. She testified that defendant's urine screen conducted in connection with the evaluation was positive for Benzodiazepine, which defendant attributed to drugs prescribed during his involuntary commitment. She testified that her review of defendant's treatment records revealed nothing that would result in the positive screen.
The counselor testified defendant admitted consuming a couple of beers twice a week, as well as past use of marijuana and cocaine. She confirmed defendant missed several random urine screens and tested positive for alcohol on an occasion in which he knew he would be screened. Although the counselor was not allowed to testify as to her recommended diagnosis over defendant's objection, she explained he was ultimately referred for substance abuse treatment.
The counselor testified that the most significant factors in her assessment of defendant were his unexplained positive screen for Benzodiazepine; that he admitted drinking while taking Suboxone, which she explained was very dangerous and could be life threatening; that he tested positive for alcohol in an early evening screen, suggesting that he had been drinking earlier in the day; his prior DUI; and her review of the medical center's records of defendant's involuntary commitment, which indicated he had been diagnosed with opiate dependence (in remission) and alcohol dependence and required treatment for symptoms of alcohol withdrawal during his stay.
The Bergen Regional Medical Center's discharge summary was admitted over defendant's objection. We address this issue infra.
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In response to questions regarding the cost of treatment, the counselor testified that she was advised by M.M.G. the family was without health insurance. The worker testified she told M.M.G the family could apply for charity care and obtain the Division's assistance in applying for Medicaid. The counselor testified that she later learned from Bergen Regional Medical Center defendant had declined to enter a treatment program there because he determined it too much of a time commitment and was seeking other options.
After hearing the testimony, Judge Foti determined by a preponderance of the evidence that defendant's untreated substance abuse while acting as a joint caregiver for his children placed them at imminent risk of harm in violation of N.J.S.A. 9:6-8.21c(4)(b). Specifically, the judge found:
[T]hat [C.G.] has failed to exercise a minimum degree of care with respect to the care of his children. He knew of his diagnosis, substances abuse issues. He knew he required treatment and failed to take steps to enroll in substance abuse treatment.
I want to emphasize that it is not [C.G.'s] non-compliance with any particular court order or Division direct[ive]. This Court technically has no authority to order services until it makes a finding on the allegations. Rather, it is [C.G.'s] failure to get the appropriate treatment in light of his substance abuse evaluation and recommendation rendered by Preferred Children's Services.
In making this decision the Court takes into account the totality of the circumstances. The patterns exhibited by [C.G.] including but not limited to the parents' history of domestic violence, [C.G.'s] erratic behavior in the past in 2011 and during the 2012 incident, the subsequent hospitalization, the past DWI, the incidents of drinking which led up to the February 20th domestic violence incident, the lack of attention and follow
through with both the evaluation and enrollment into the treatment program, the tender ages of the children and the availability of Charity Care as testified to by Preferred Children's Services.
There is no question that the children are well cared for, but during the time leading up to the February 20th, 2012 [incident] and the time following the incident, it is clear to this Court that [C.G.] was in need of treatment and was not capable of safely caring for his children. [M.M.G.] recognized as much when she lined her sister up as a caregiver during those times when she would not be available.
The drinking, the domestic violence and the erratic behavior, including statements by [C.G.] that he wanted to hurt himself, and [C.G.'s] failure to take these problems serious enough to dedicate himself into going into Bergen Regional and enrolling in a substance abuse treatment program under a Charity Care program lead this Court to the inescapable conclusion that [C.G.] failed to exercise a minimum degree of care. His reckless disregard of the recommendations of enrolling himself into a program as recommended by Preferred Children's Services placed his children at risk of harm.
As the Law Guardian has correctly pointed out, this Court need not wait until actual harm befalls these children. And it is because of [M.G.G.'s] vigilance in caring for her children, in lining up her sister as an alternate caregiver, that these children remain safe and well cared for at all times.
I, therefore, find that the Division has met its burden by a preponderance of the evidence that there is a factual basis from which to conclude that [C.G.'s] failure to enroll in [a] substance abuse program and the fact that he suffered from untreated
substance abuse problems while a caretaker for his children, placed [them] at substantial risk of harm making them abused and neglected children as defined under N.J.S.A. 9:6-8.21(c)(4)(b).
On appeal, defendant contends the Division did not prove its case in accordance with the evidentiary requirements of N.J.S.A. 9:6-8.21(c), and the trial court erred in admitting the Bergen Regional Medical Center's Psychiatric Discharge Summary Report through the testimony of the substance abuse assessment counselor in violation of N.J.A.C. 13:34c-3.1(d).
Specifically, defendant contends that the discharge summary contains the "complex diagnosis" of alcohol dependency and thus was improperly admitted as a business record under N.J.R.E. 803(c)(6), 801(d) and R. 5:12-4(d) through the testimony of the counselor who testified at trial. Defendant argues that the regulation governing licensed and certified drug counselors, N.J.A.C. 13:34C-3.1c & d, while allowing a certified drug counselor, such as the counselor who testified here, to practice under the supervision of a licensed clinical alcohol and drug counselor, prohibits her from making diagnoses. The judge allowed the counselor to testify to the evaluation she conducted, but would not allow her to testify to the diagnosis she recommended to her licensed supervisor.
Although we grant substantial deference to the trial judge's discretionary evidentiary rulings, N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012), we have determined that we need not reach this issue. Defendant is not arguing that we must ignore the counselor's testimony in deciding the appeal. He complains only of the trial court's admission of the Medical Center's discharge summary. Because there is ample, substantial and credible evidence in the record to support the trial court's finding of abuse and neglect without consideration of that document, we need not resolve the evidentiary question presented on this appeal. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012) ("So long as the record contains substantial and credible evidence to support the family court's decision, we may not second-guess its judgment.")
Having reviewed the record in light of defendant's contentions, we are satisfied that the court did not err in finding on the facts presented that defendant neglected his two-year old daughter and three-year old son in violation of N.J.S.A. 9:6-8.21c, by failing to engage in substance abuse treatment. See N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.) (noting our obligation to uphold the factual findings undergirding the trial court's decision if supported by adequate, substantial and credible evidence on the record), certif. denied, 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Accordingly, we affirm substantially for the reasons expressed by Judge Foti in her thorough and thoughtful opinion from the bench on April 19, 2013.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION