Opinion
DOCKET NO. A-4524-13T1
05-19-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.B., Defendant-Appellant. IN THE MATTER OF N.B., minor.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; George Loeser, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.B. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-510-13. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; George Loeser, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.B. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant N.B. appeals from a Family Part order terminating litigation in this Title 9 and Title 30 action. During the litigation, the court conducted a fact-finding hearing and determined that N.B. had abused or neglected a newborn child by using illegal drugs during her pregnancy, causing the child to suffer withdrawal symptoms. The State presented no witnesses at the fact-finding hearing. Rather, the State relied upon three sets of records admitted into evidence by consent: the New Jersey Division of Child Protection and Permanency's redacted investigation summary; the newborn's hospital records; and defendant's hospital records.
On this appeal, defendant argues "the hospital records alone do not show by a preponderance of the evidence that the newborn suffered any actual harm or risk of harm due to the purported illegal drug use[,]" and that the State was required to present expert testimony to explain the significance "of the alleged presence of an illegal drug in the mother and the newborn[.]" We disagree and therefore affirm.
In February 2013, the New Jersey Division of Child Protection and Permanency (Division) filed a verified complaint alleging, among other things, that defendant had abused or neglected her three pre-teenaged children by testing positive for phencyclidine (PCP) after being in an automobile accident. Pregnant and expecting her fourth child in April, defendant denied smoking PCP but admitted smoking marijuana. Following a hearing on the Division's order to show cause and a subsequent management conference, the court conducted a fact-finding hearing in June 2013. The court found "evidence of substance abuse, and the admission [by defendant] of marijuana use, and the positive screen for PCP." The court determined, however, the Division had not proved defendant had abused or neglected her three children because it had not been demonstrated that she was under the influence of drugs while caring for them. Nonetheless, the court deemed "Title 30 jurisdiction was appropriately exercised, because in using drugs [defendant] failed to ensure the health and safety of the children . . . ."
The day before the fact-finding hearing, the Division amended its complaint to add defendant's fourth child, born the previous month. The amended complaint incorporated the factual allegations of the original complaint. As had the original complaint, the amended complaint sought to have the children placed under the protection, care and supervision of the Division.
Following additional compliance review hearings and a case management conference, the court conducted a fact-finding hearing as to the newborn. As previously stated, the Division presented no testimony but introduced by consent three sets of exhibits: its redacted investigation file, the newborn's hospital records, and defendant's hospital records.
The exhibits were admitted into evidence by consent, without objection to embedded hearsay and medical opinions that might otherwise have been inadmissible. See N.J.R.E. 803; James v. Ruiz, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 18-22); Konop v. Rosen, 425 N.J. Super. 391, 405-07 (App. Div. 2012); Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172-74 (2012); Nowacki v. Community Medical Center, 279 N.J. Super. 276, 282-83 (App. Div.) certif. denied, 141 N.J. 95 (1995). Consequently, the court was entitled to consider the records in their entirety. The information contained in the medical records amply supported the trial court's factual findings, Cesare v. Cesare, 154 N.J. 394, 411 (1998), as well as the court's legal conclusion that defendant had abused or neglected her child by her prenatal use of drugs that caused the newborn to suffer withdrawal at birth.
In a Title 9 case, the court must decide at the fact-finding hearing the crucial issue of "whether the child is an abused or neglected child . . . ." N.J.S.A. 9:6-8.44. 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)). Title 9 defines an "abused or neglected child" 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 or guardian, as herein defined, to exercise a minimum degree of care . . . 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)(b).]
When a mother has abused illicit drugs during pregnancy, causing her child to be born addicted to drugs and suffer withdrawal symptoms, she has abused or neglected her child. See In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (holding that "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of her mother's substance abuse during pregnancy has been harmed by her mother and that harm endangers the child's health and development"); cf. N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 23 (2013) ("Proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to [the] issue [of imminent danger or substantial risk of harm to a child].").
The Supreme Court recognized in A.L. that "proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Id. at 22 (citing K.H.O., supra, 161 N.J. at 349). "That information may come from any number of competent sources including medical and hospital records, health care providers, caregivers, or qualified experts." Id. at 23.
Here, following birth, defendant's newborn child remained in the hospital for fifty-five days. The admitting impressions included "Narcotic Withdrawal Syndrome (Confirmed)" and the diagnoses at discharge included "Confirmed Narcotic Withdrawal Syndrome." The hospital records also confirmed that the newborn's urine drug screen tested positive for PCP one day after birth. Indeed, during argument at the fact-finding hearing, defendant conceded "the records do reflect that the child did go through withdrawal[.]" Thus, the Division established through a competent source — the hospital records — that defendant's newborn had suffered actual harm, namely, withdrawal symptoms at birth.
The remaining question then, is whether the newborn suffered withdrawal symptoms as a result of defendant's substance abuse during pregnancy. In the section of the newborn's hospital records concerning the "History of Present Illness[,]" it was noted as to the mother: "Known drug use during pregnancy. Positive urine drug screen for PCP." Additionally, defendant's hospital records for her admission when she delivered the newborn included a urine screen that was positive for PCP. And as the trial court noted in rendering its decision, "the only substance that the [child is] positive for is PCP." From the collective evidence contained in the hospital records, the trial court concluded that the Division had proved defendant abused or neglected her child by a preponderance of the evidence. We find no error in the trial court's evaluation of the evidence before it.
Defendant argues that the Division could not show by the hospital records alone that the newborn suffered harm after defendant gave birth. Defendant also argues that "the hospital records alone reveal little about the future harm allegedly posed to the newborn[,]" and that "the hospital records reflect varying interpretations of the newborn's health[.]" Those arguments miss the mark. The hospital records established beyond dispute that the newborn had suffered actual harm, namely, withdrawal from addiction. Having proved actual harm, it was unnecessary for the Division to prove future harm or anything else about the newborn's health.
Defendant also argues that expert testimony was required "to explain the significance of the purported presence of PCP in both the mother and the newborn as it pertains to the imminent danger posed to the newborn." Once again, defendant overlooks the Division's proofs that the newborn suffered actual harm. In view of those proofs, there was no need for the Division to additionally prove imminent future harm.
Defendant's remaining arguments as to the Title 9 adjudication are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). The proceedings that took place following the Title 9 adjudication are not at issue.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION