Opinion
DOCKET NO. A-1569-12T3
06-16-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. R.D., Defendant-Appellant. IN THE MATTER OF L.D., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Serock, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.D. (Olivia Delfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-77-08.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Serock, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.D. (Olivia Delfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Father R.D. (Ron) appeals from the finding that he abused or neglected his son L.D. (Leo) by failing to intervene in N.M. (Nancy)'s use of drugs while pregnant and failing to treat his own drug use after Leo was born in October 2011. The Law Guardian urges us to affirm the finding. Ron lived with Nancy for a significant period of time and was aware of her drug use prior to Leo's birth. The combination of his pre-birth and post-birth behavior convinces us to affirm the decision of Judge Frances A. McGrogan, based substantially on her thorough, well-reasoned written opinion of March 29, 2012.
We use fictitious names to protect the identity of the child.
The March 29, 2012 fact-finding order was made final when the judge terminated the protective services litigation by order of October 26, 2012, after a complaint for termination of parental rights was filed.
Two caseworkers involved with the family testified at the fact-finding. Their testimony and the documents entered into evidence reveal the following facts. The Division of Youth and Family Services (Division or DYFS) received a referral on August 24, 2011, claiming that Nancy was "currently pregnant . . . due next month." The referral claimed that Nancy and Ron were active drug users. The report stated that both parents were using methadone, cocaine, heroin and "pills." The report also noted a "disturbing" Facebook post by Ron that stated "DYFS try and find us we are in Kearny somewhere, try and take this baby from us, you will never find us."
Christ Hospital in Jersey City then notified the Division that Leo was born positive for methadone and benzodiazepines and diagnosed with neonatal withdrawal syndrome. Nancy reported to the caseworkers that she lived with Ron at his mother's house in Kearny. Ron was not present at the time of this interview because he "just left to go and pick his mother up." Leo was treated with morphine to address his withdrawal symptoms.
A caseworker returned to the hospital the next day and met with Ron, who acknowledged that he and Nancy lived with his mother and admitted knowing of Nancy's drug use during pregnancy. He said he was present with Nancy when her three older children were removed due to Nancy's drug use. He told the caseworkers that he planned to marry Nancy, raise Leo together, and regain custody of her other children. He reported being arrested once before for possession of drug paraphernalia, but claimed he had not used drugs in two years. Ron agreed to undergo substance abuse and psychological evaluations. The following day, the Division called Ron to schedule a urine screen. He refused, claiming he was working. He again refused on November 7.
Ron is not the father of any of these older children.
After three weeks of treatment, including a morphine drip to ease his withdrawal, Leo was placed directly from the hospital into foster care, still suffering from agitation. The Division filed a complaint and order to show cause against Ron and Nancy. Ron did not attend the order to show cause hearing. Judge McGrogan ordered both parents to submit to hair follicle tests, substance abuse evaluations, random urine screens, and an immediate urine screen.
"[H]air analysis . . . reveals drug use over a period of months while hair is growing and absorbing drug traces through the blood stream." United States v. Medina, 749 F. Supp. 59, 60 (E.D.N.Y. 1990).
Ron raises the following issues on appeal:
POINT I: THE TRIAL COURT IMPERMISSIBLY EXPANDED THE LEGAL DEFINITION OF CHILD ABUSE AND NEGLECT AS SET FORTH IN N.J.S.A. 9:6-8.21(c)(4)(b) AND G.S.
A. TITLE 9 DOES NOT APPLY TO A FETUS (NOT RAISED BELOW)
B. UNDER TITLE 9, THERE IS NO DUTY OF A FATHER-TO-BE TO INTERVENE IN A MOTHER'S PREGNANCY (NOT RAISED BELOW)
C. UNDER TITLE 9, FAILURE TO COOPERATE DOES NOT CONSTITUTE ABUSE OR NEGLECT (RAISED BELOW)
POINT II: THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF ABUSE AND NEGLECT (RAISED BELOW)
I
We should not disturb the factual findings and legal conclusions of the trial judge unless "'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974 )). Child welfare cases "are encased in a double layer of deference, including the substantial deference owed to a trial court's findings of fact and to Family Part judges' expertise in [family] matters." N.J. Div. of Youth & Family Servs. v. J.G., ___ N.J. ___, ___ (2014) (slip op. at 19) (internal quotation marks omitted).
Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), an "[a]bused or neglected child" includes any
(4) . . . 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 . . . to exercise a minimum degree of care . . .
(b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]
A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). Thus, it is "grossly or wantonly negligent" behavior that falls below the "minimum degree of care." Id. at 178. Child abuse can be committed "even though the resulting injury is not intended." Id. at 175.
An assessment of whether a parent's behavior failed to satisfy the minimum degree of care standard "must focus on the harm to the child and 'whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger.'" N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 167-68 (App. Div. 2009) (quoting G.S., supra, 157 N.J. at 182). The "totality of the circumstances" are to be considered when "determining a case of abuse or neglect." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). Like any other Title Nine case, the Division was required to prove abuse or neglect by a preponderance of evidence. Id. at 328.
II
Prior to the fact-finding hearing, Nancy stipulated to using methadone throughout her pregnancy and having inadequate prenatal care and monitoring by a physician. Given Leo's positive drug tests at birth and the painful withdrawal Leo endured, the mother's admissions were sufficient for a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c). See N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) ("proof that a child is suffering from withdrawal symptoms at birth could establish actual harm"); see also In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (concluding in termination of parental-rights context 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").
Judge McGrogan found that Ron admitted he had a prior drug-related arrest and had used cocaine and marijuana in the past. "The Division's concern that his drug use would pose a substantial risk of harm to his newborn was reasonable." She found that Ron
evaded DYFS before and after the baby's birth. The caseworker tried to find him "morning, noon and night" before the birth of the child, to no avail. After the child's birth, he agreed to comply with services but failed to attend four scheduledThe judge summed up her findings:
substance abuse evaluations. His claim that he worked twelve hours per day is not credible, given his presence in the hospital during daytime hours and his representation that his shift ended at 5:00 p.m. When questioned about his current drug use, he pled "the 5th." When told the Division would request hair follicle testing, he asked how far back the test could measure, clearly expressing concern the test would reveal drug use.
On the day of trial, he appeared under the influence, submitted an unsupervised urine sample without a temperature reading and then once again evaded discovery by failing to submit a court-ordered supervised urine screen.
The [c]ourt does not find credible the father's claim that he is substance-free. On the contrary, his drug arrest and admitted past drug abuse, behavior in court on the day of trial, submission of a tampered urine screen and failure to submit to a court-ordered supervised screen show by a preponderance of the evidence that he continues to abuse illicit substances and is unwilling to eliminate the substantial risk of harm his substance abuse poses to [Leo].Judge McGrogan also found that
the mother was not the sole cause of the harm to the child. [Ron] lived with her, knew of her drug history, knew her older children had been removed from her custody by DYFS, knew or should have known she sought no prenatal care. He did nothing to ensure his child was born drug-free and thus shares the responsibility and blame for the harm caused to [Leo].
Judge McGrogan noticed that Ron was "fidgety" and his demeanor "inappropriate at times." She found that he "laughed when the testimony was not funny" and "kept his head and eyes lowered most of the time."
We understand that the judge meant that the urine sample was room temperature rather than the appropriate body temperature, evidencing a "clean" sample brought to court to avoid a positive drug-test result.
--------
Under the totality of the circumstances, we affirm Judge McGrogan's finding because it is supported by adequate, substantial and credible evidence including her detailed observations of R.D.'s behavior during the proceedings. Although a father may not generally be held responsible for not preventing the mother's pre-birth substance abuse and her failure to seek prenatal treatment, here the fact that the parents lived together during the pregnancy when both abused drugs shows that Ron knew of and contributed to the harm Leo suffered as a result of his mother's prenatal drug use. Most significantly, "[a] parent has the obligation to protect a child from harms that can be inflicted by another parent." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (citing N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007)). Although generally a lack of cooperation with the Division may not in itself constitute abuse or neglect, Ron agreed to services, yet made no effort to comply with the Division's requests. He did not modify his drug use after Leo's birth and, in fact, tried to cover up his use of drugs. Through his failure to intervene pre-birth, he contributed to his son's suffering after birth. Through his failure to address his drug problem, he failed to fulfill his parental obligation to provide a safe home for Leo.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION