Opinion
DOCKET NO. A-4395-13T4
09-24-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.L., Defendant-Appellant. IN THE MATTER OF J.W.-T., T.T., JR., N.T., and L.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Sandra Bober, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-444-13. Joseph E. Krakora, Public Defender, attorney for appellant (Sandra Bober, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.L. appeals from an October 30, 2013 Family Part order concluding she acted to abuse or neglect her children. On appeal, S.L. challenges the sufficiency of evidence relied upon by the trial judge to support his conclusion. Defendant maintains plaintiff the Division of Child Protection and Permanency (the Division) failed to prove she harmed her children, acted or failed to act in a way which presented a substantial risk of harm, or exposed them to imminent danger. The Law Guardian supports defendant's arguments seeking to set aside as legally unsupported the order of abuse or neglect.
We conclude the Division's proofs lack substantial credible evidence demonstrating defendant's conduct recklessly created a substantial risk to the child's mental health or physical safety. See N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8-9 (2013). Accordingly, we reverse the finding of abuse and neglect, and remand for entry of an order to remove defendant's name from the child abuse registry.
These facts are found in the hearing record. Defendant, who was thirty-five weeks pregnant with her fourth child, tested positive for cocaine during an initial and a subsequent prenatal medical visit. The Division was contacted on May 8, 2013, and commenced an investigation.
The caseworker visited defendant's residence. Although the apartment was in disarray, the three children, who at the time were all under age five, appeared well-fed, healthy, clean, and had adequate sleeping arrangements.
When asked, defendant candidly admitted she used cocaine on four dates while pregnant. She explained the first time was on a trip with other adults, when one told her she drinks Red Bull and uses cocaine to stay awake. When defendant tried cocaine, she was unaware she was pregnant. Later, despite her pregnancy, she again used cocaine when experiencing difficulty staying awake while working and insisted she could not lose her job prior to commencement of maternity leave. During these episodes of illicit drug use, the children were in their father's or a babysitter's care.
At the Division's request, defendant accepted and agreed to a Safety Protection Plan (SPP), requiring the children's father, T.T., to supervise defendant's interactions with the children. T.T. also agreed to abide by the terms of the SPP, acknowledging he must protect, monitor, and supervise defendant when she is with the children. It was later agreed defendant would leave the home and the children would remain in the residence, cared for by T.T.
The Division's caseworker continued the investigation and found an active domestic violence final restraining order (FRO) was issued on October 13, 2012, enjoining T.T. from all contact with defendant. When questioned about the FRO, defendant stated she thought the FRO had been dismissed. T.T. also believed the FRO had been dismissed.
The Division further learned and informed defendant her urine test results reflected the sample was tampered. The low creatinine level of the diluted sample suggested an attempt to flush out her system to avoid a positive result.
As a result of these facts, the Division insisted defendant could not care for the children and her contact must be supervised. Defendant requested T.T. care for the children.
It was argued defendant's poor relationship with her mother influenced her choice for T.T. to provide the children's care, but the record lacks testimonial support for this assertion.
On May 14, 2013, defendant notified her Division caseworker she had dismissed the FRO. Two days later, the Division learned a physical altercation occurred between defendant and T.T. Defendant sustained black eyes, T.T. was arrested, and the oldest, who was five years old, suffered a one-inch scratch on his face.
The Division executed an emergency Dodd removal, placing the children with their maternal grandmother. A Title 9 complaint was filed on May 21, 2013, and the court granted the Division temporary custody, care and supervision of the three children.
"'A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
Defendant and T.T.'s fourth child was born following the initiation of this action. A separate order was entered that added the child to the litigation and granted the Division custody, care and supervision.
A fact-finding hearing was conducted on October 30, 2013. The Division presented the testimony of its caseworker and documentary evidence to support its allegations defendant abused or neglected the four children. Specifically, defendant's admitted drug use and the May 10, 2013 tampered urine sample were discussed. The Division also noted defendant delayed prenatal care, first seeking medical attention in her seventh month of pregnancy. As to the oldest child, in addition to the injury he suffered during the domestic violence incident prompting emergency removal of all the children, the Division learned he missed twenty-one days of school and on fifteen other days, was late.
On cross-examination, the caseworker agreed defendant tested negative for drugs in all subsequent tests. Further, the baby tested negative for all substances at birth, no adverse effects were recorded, medical examination showed the baby was healthy, and defendant was permitted to breastfeed the child while in the hospital.
Defendant testified on her own behalf. She explained the circumstances surrounding the altercation with T.T. when she and the child were injured. She explained the older child unexpectedly jumped on T.T.'s back, which angered him. When T.T. grabbed the child's face, defendant intervened. T.T. struck her. The next morning she took the children to their babysitter and called the Division to report what occurred.
Admitting hitting her "[was] wrong," defendant asserted she and T.T. were under a lot of stress, which explained his reaction. She insisted she had no fear of T.T. and did not need the protection of an FRO.
She also presented the oldest child's final kindergarten report card reflecting satisfactory progress and promotion to first grade. The document records fifteen absences in the first three quarters of the school year; however, the final quarter is blank. Defendant testified the listed absences were necessary because the child was often sick with asthma or ringworm. Further, she was not responsible when the child was tardy, as she dropped the child to pre-school or T.T.'s home because her work day begins prior to the school day.
Documentary evidence reflected that defendant completed drug treatment and passed drug tests conducted on May 22 and 29, June 20 and 27, July 2, 11, and 18, and September 12, 2013. She fulfilled the Division's request to participate in therapy and sixteen hours of parenting skills classes. She attended visitations and cooperated with any services extended for the children's benefit.
Defendant also tested negative on a drug test taken on December 20, 2013.
At the conclusion of the fact-finding hearing, the trial judge rendered findings and conclusions. He rejected defendant's testimony, labeling it a series of "excuse[s]." The judge also rejected defendant's identified use of cocaine as not believable, and found she had "a long-term problem relationship" with T.T. Critical of defendant's decision-making, the judge concluded defendant placed the children at risk, stating:
[A]ll of her decisions in this case were bad or worse. Just bad decisions. Placed her children at risk. Bad person to be watching them. A bad situation to drop
the restraining order. A bad situation to be taking drugs, particularly, when you have small children.
I mean you were caring for a two and three year[-]old at the time. . . . Two small children already, besides being pregnant and not knowing that that can do to your fetus, taking drugs? [sic] I . . . think all these issues and the school issues are compounded on top of that.
After entering an order, a dispositional hearing was held. The judge ordered reunification and the children were returned to defendant's care and custody.
On appeal, joined by the Law Guardian, defendant urges the findings of abuse or neglect cannot be sustained because no evidence shows she was under the influence while caring for the children and no harm was shown to the infant resulting from her limited pre-natal drug use. Further, there is no evidence of gross negligence or reckless disregard for the children's safety. Admittedly, defendant was present when T.T. scratched the oldest child while angry, and stated she attempted to intercede to assure the child's protection.
Our standard of review is narrow. We defer to the Family Part's factual findings "'when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "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) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's interpretation of the law and the application of such legal conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"New Jersey's child-welfare laws balance a parent's right to raise a child against 'the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting A.L., supra, 213 N.J. at 17-18). Title 9 is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.8). See also N.J.S.A. 9:6-8.21 to -8.73 (governing protection of abused and neglected children). "To that end, Title [9] provides for the civil prosecution of a parent or guardian who abuses or neglects a child." Y.N., supra, 220 N.J. at 178 (citing N.J.S.A. 9:6-8.33).
An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4)(b):
"Abused or neglected child" means a child less than 18 years of age . . . 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 . . . or by any [] acts of a [] serious nature requiring the aid of the court . . . .
"Accordingly, Title 9 initially looks for actual impairment to the child. However, when there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." Dep't of Children & Families v. E.D.-O., ___ N.J. ___, ___ (2015) (slip op. at 16). "'[A] finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm.'" Ibid. (quoting A.L., supra, 213 N.J. at 23).
"[S]trict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J. at 179. Consequently, whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82).
At a factfinding hearing, N.J.S.A. 9:6-8.44, the Division must prove abuse or neglect by a preponderance of the evidence, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). See also P.W.R., supra, 205 N.J. at 32 (holding the State bears the burden to present proofs to establish abuse or neglect, as defined in the statute); N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (explaining the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child), certif. denied, 182 N.J. 426 (2005).
Applying this statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. See N.J. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011) (describing the "continuum between actions that are grossly negligent and those that are merely negligent").
We recognize that "the elements of proof are synergistically related." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (citation and internal quotation marks omitted). In this regard, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. Id. at 330 (citation and internal quotation marks omitted). A court need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2010), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010).
Here, the judge found defendant neglected all of the children, relying on her decision to drop the FRO, allowing the children to be in the presence of their father, who likely had anger management issues, and by using cocaine. We disagree the Division's evidence satisfies the standards imposed by Title 9.
There is no evidence the three youngest children were harmed by any actions or omissions of defendant. The infant, two and three year-old were healthy, received medical care, had food, clothes, toys, and appropriate beds. Nothing shows any harm or imminent risk of harm.
The Division's reliance on defendant's prior cocaine use fails to sustain the statutory burden. See V.T., supra, 42 3 N.J. Super. at 331-32 (reversing a finding of abuse and neglect based on positive drug screens, verifying prior drug use, because the Division failed to establish he posed a risk to the child during supervised visits). The absence of actual harm obligates the Division to establish defendant's conduct placed the children in imminent danger of being impaired physically, mentally, or emotionally. A.L., 213 N.J. at 8, 23, 30; see also N.J.S.A. 9:6-8.21(c).
Contrary to the Division's interpretation and the judge's suggestion, no evidence was introduced to show defendant's illicit drug abuse exceeded beyond the four instances she related. She was not assessed as being drug dependent and all urine screens following the initial altered May 10, 2013 sample were negative. No evidence shows the children were in her care when she used cocaine or she was impaired when providing for their needs. The assumptions of deeper underlying problems or more serious drug dependence are completely unfounded.
Further, no harm was visited upon the newborn. "[N]ot every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the statute." Id. at 23. New Jersey has not joined those states whose laws treat prenatal drug use as per se child abuse. Id. at 23 n.3; see also N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014).
Accordingly, the protection of the abuse and neglect statute "is limited to the condition of a child after birth." A.L., supra, 213 N.J. at 22. Therefore, "the primary question under Title 9 is whether [the child], as a newborn, 'ha[d] been impaired' or was in 'imminent danger of becoming impaired' as a result of his mother's failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a 'substantial risk' of harm to be inflicted." Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).
Actual harm under the statute can be established by offering proof that a child suffered drug withdrawal symptoms at birth or by "showing evidence of respiratory distress, cardiovascular or central nervous system complications, low gestational age at birth, low birth weight, poor feeding patterns, weight loss through an extended hospital stay, lethargy, convulsions, or tremors." Id. at 22-23.
Defendant was not drug addicted. Despite the judge's rejection of her testimony, there was nothing to contradict her admission she used cocaine four times when the children were in the care of others. This evidence did not demonstrate the children were actually harmed or in imminent danger of harm because of defendant's anticipated drug abuse. Id. at 25 (holding the Division must "demonstrat[e] some form of . . . threatened harm to a child").
In this matter, no such evidence existed. The baby showed no ill effects at birth and, in fact, defendant was cleared to breast-feed the child.
We do not suggest a caretaker's illicit drug use should be ignored by the Division, absent proof of actual harm to the children. Nor does our opinion imply caretakers of young children may abuse drugs or alcohol with impunity when outside the presence of the children. Our holding merely underscores the Division's burden of proof when faced with such conduct by a parent or guardian. Proof of defendant's drug use while the children were in the care of another, which does not implicate harm to them, will not establish grossly or wantonly negligent conduct performed knowing injury was likely to occur or performed with reckless disregard for the substantial likelihood of harm to befall the child. Id. at 28.
The court also found the children were in imminent danger of abuse and the oldest child was actually abused because defendant dismissed the FRO and placed the child in a violent situation involving her and T.T. We reject the proofs presented as substantiating physical abuse or neglect by defendant.
Defendant acknowledged T.T. hit her in the past. She separated from him because of his threats and also sought an FRO to be sure no further abuse occurred. There was no description of the prior incident or a copy of the domestic violence complaint in the record. Therefore, we know nothing of the nature of the past abuse resulting in the FRO.
"An analysis of a parent's conduct must account for the surrounding circumstances." E.D.-O., supra, slip op. at 18 (citing G.S., supra, 157 N.J. at 181-82). While we agree defendant should not expose the children to volatility and physical abuse, we conclude the Division's use of hindsight to second guess defendant's decision to dismiss the FRO and allow T.T. to assume the role of children's caretaker was flawed.
Defendant's dismissal of the FRO alone does not validate abuse or neglect of the children. The prior domestic violence incident occurred almost a year earlier. Since that time, defendant's relationship with T.T. had changed and the restraints were relaxed to allow certain contact. Defendant admitted she was not in a romantic relationship with T.T. However, as parents, they had been getting along and were jointly providing care for the children. There was no proof T.T. had previously harmed any child or posed a significant risk he would do so. See N.J. Div. of Youth & Family Servs v. D.F., 377 N.J. Super. 59, 70 (App. Div. 2005). T.T. regularly engaged in visitation and, at times, took the older child to school. Defendant was not afraid of T.T. and did not believe the FRO remained necessary for her protection.
All relationships are complex. Decision-making on issues regarding the care of the children or allocating financial responsibilities are intertwined with emotions. Despite prior domestic violence, there remains a hope and belief that things have changed for the better. See A.B. v. L.M., 289 N.J. Super. 125, 131 (App. Div. 1996) ("The sad fact is that apparent reconciliation between people with a long history of domestic violence seldom marks the end of their difficulties.").
Although T.T. previously struck defendant, the more current family dynamics did not suggest defendant should have known T.T. would resort to violence or scratch the child. Based on the thin evidence presented here, we reject the revictimization of the victim by charging her with neglect of the children because she chose to dismiss the FRO. D.F., supra, 377 N.J. Super. at 70-71.
Finally, the Division's proof, directed to show the oldest child suffered educational neglect because he missed fifteen or more days of kindergarten, was deficient for a finding of educational neglect. The caseworker's hearsay testimony repeating what she was told by an unidentified school representative is not evidential. The only competent evidence in the record is the child's report card, produced by defendant. The document includes grades for the first and second half of the year and a final grade. Academically, the child received satisfactory grades except for writing readiness, where it was noted more time was needed to develop skills. Some listed social skills were noted as needing more time to develop, but the child participated in mandated areas and no unsatisfactory grades were awarded. Finally, the report card states the child will next attend first grade. No teacher comments demonstrated the child's absences impeded learning or development, as inferred by the Division.
In our view, the trial judge overlooked evidence clearly showing defendant was a loving, caring, attentive mother, who works full-time while attending to the needs of and serving as the principal provider for these four very young children. She had no prior history with the Division, no criminal history, held the same steady job for several years, regularly attended to the medical care of the children, and otherwise maintained a household with adequate space, food, clothing, and facilities. While we agree the Division properly intervened after identifying defendant's cocaine use while pregnant, we conclude the totality of the evidence gathered falls short of meeting the statutory test as interpreted by the New Jersey Supreme Court in A.L. Defendant was not shown to have failed "to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship," or to have unreasonably allowed harm or the substantial risk thereof to be inflicted. See N.J.S.A. 9:6-8.21(c)(4)(b). The order of neglect against defendant is vacated. Her name shall be immediately removed from the child abuse registry.
"N.J.S.A. 9:6-8.11 creates a child abuse registry that serves as 'the repository of all information regarding child abuse or neglect that is accessible to the public pursuant to State and federal law.'" E.D.-O., supra, ___ N.J. ___, slip op. at 11 n.2 (quoting N.J.S.A. 9:6-8.11).
Reversed and remanded for entry of an order removing defendant's name from the child abuse registry. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION