DOCKET NO. A-1873-13T2
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher M. Psihoules, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-219-11. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher M. Psihoules, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
On February 7, 2012, a Family Part judge found defendant T.K. neglected her six-year-old daughter within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). On September 26, 2013, a permanency order was entered approving the Division of Child Protection and Permanency's (Division) plan for termination of parental rights. The Title 9 proceedings were dismissed and Title 30 litigation for the termination of parental rights was subsequently filed. The child currently resides with the paternal grandmother, who wishes to adopt her. T.K. appeals and we affirm.
The child's father A.S. has not appealed the entry of a neglect finding against him.
Hospital records corroborated that T.K.'s use of prescription pain-killers commenced February 2005 after a motor vehicle accident in which she injured her back. Those same records described T.K.'s pregnancy as having been complicated by her use of Percocet, morphine, and methadone. The child tested positive for opiates at birth and required treatment at a neonatal intensive care unit for drug withdrawal symptoms.
In the spring of 2010, the Division received a police report regarding a physical confrontation between T.K. and A.S. in a drugstore parking lot while the child was present. A second referral was logged in May 2010 when it was reported that T.K. appeared intoxicated when she dropped the child off for visitation with A.S.
On May 18, 2010, the Division obtained an order restraining T.K. from unsupervised contact with the child and requiring her to submit to substance abuse and psychological evaluations. Her drug screen revealed levels of opiates in her system consistent with her prescriptions.
T.K. was evaluated on July 20, 2010, by Donna LoBiondo, Ph.D. At the evaluation, T.K. reported taking three pain and anxiety medications: oxycodone, morphine, and lorazepam.
On February 13, 2011, T.K. was admitted to Hackensack University Medical Center for a possible drug overdose. At the hospital, her paramour reported to staff members that she had been abusing drugs for many years.
The Division filed a verified complaint and order to show cause for care and supervision on February 17, 2011. Although the parents shared joint legal custody, conditions were imposed mandating compliance with counseling sessions and recommended treatment. The child continued in her father's physical custody.
On May 19, 2011, during the course of a case management conference, the Division reported that T.K.'s May 10, 2011 urine screen tested positive for opiates and barbiturates. At the conference, the Law Guardian indicated that from January to November 2010, T.K. had obtained prescriptions for 2764 oxycodone pills. Several fact-finding hearings were subsequently scheduled and T.K. failed to appear for two. Ultimately, at the fact-finding hearing conducted January 11, 2012, the Division presented the testimony of LoBiondo and Michael Gentile, M.D., who had conducted a psychiatric evaluation of T.K. on April 19, 2011. T.K. was present and testified on her own behalf.
LoBiondo interviewed T.K. on three separate dates. Although she concluded that T.K. did not appear to suffer from "any gross psychopathology, such as psychosis, depression or anxiety[,]" she was concerned about T.K.'s prescription drug use. Subsequent to her review of T.K.'s full medical records, she concluded that T.K. had "a problem with oral narcotic pain medication." She based this conclusion on multiple letters from physicians who had dismissed T.K. from their practices as a result of her pain medication abuse, and a letter from T.K.'s insurance company regarding her potential misuse of medications. The medical records LoBiondo reviewed also included T.K.'s visits to various emergency rooms, in attempts to obtain pain medication, documented at two separate hospitals. This included T.K. seeking medication at the same emergency room two days in a row, only to be refused on both occasions. The records also revealed at least one hospitalization for pain medication overdose.
T.K. was involved in a motor vehicle accident, claiming that she had a seizure while driving as a result of her medication. LoBiondo stated:
[U]ntil [T.K.] receives and completes treatment and is able to show that she can function in the community without addictive process, and without the types of side effects from these medications that are maladaptive, it would not be safe [for] her to certainly have custody of the child, and it wouldn't be safe for her to have unsupervised time with the child.
LoBiondo further explained that T.K.'s addiction to prescription medication meant that she could not "prioritize" her child, and that the addiction would "interfere with her ability to be a competent and responsible mother."
LoBiondo also interviewed the child, who complained that T.K. struck her and yelled at her. The child also said that T.K. "took a lot of medications with water," "slept a lot" during visits, and could not be roused when the child would try to awaken her.
Gentile's testimony accorded with that of LoBiondo. He assessed T.K. as suffering from opioid and benzodiazepine dependence, as well as "from a narcissistic personality disorder which adversely affected her ability to improve herself." Gentile also reviewed discharge letters from several treating physicians with regard to T.K.'s abuse of prescription medication. He was particularly concerned about unsupervised contact between the child and her mother until such time as she completed adequate detoxification and rehabilitation programs. In his view, T.K. posed a danger not only to her child but also to herself as she "was totally consumed [and] self-absorbed with procuring [and] obtaining analgesic medications  at any cost,  at the risk of her child."
Crucial to his opinion that T.K. posed a threat to her child was Gentile's explanation regarding the side effects of the drugs to which T.K. is addicted. They include cognitive impairment, drowsiness, and extreme sedation. Even at recommended dosages, the medications could impair the user, causing effects similar to those seen in alcohol intoxication. In his view, T.K. is at a high risk of accidental overdose and death due to the potentially lethal interactions between the opioids and benzodiazepines she consumes. Opioid analgesics suppress respiration, while benzodiazepines prevent the user from waking.
When T.K. testified, she explained that although she had been treating for pain management since 2005, she was unable to follow through with certain plans because of financial hardship. She claimed she was currently being treated by three physicians who were aware of the others and the medications each was prescribing. T.K. denied suffering from side effects of any of the medications, claiming that the only one that made her feel drowsy was a muscle relaxant that she used once and no longer takes. On cross-examination, T.K. acknowledged she recently filled two prescriptions for that drug, although she said that she had filled the prescriptions only to demonstrate that she was compliant with doctors' orders but that she had not actually taken them. T.K. admitted that the child was in her care when she had a seizure after she unilaterally discontinued the use of one of her medications.
When Judge Margaret Foti rendered her oral decision, she found the expert testimony to be credible, compelling, and consistent. She noted that the proofs depicted "a tragic portrayal of a mother who loves her child, but suffers from an addiction to prescription pain medication." She concluded that the addiction placed the child at risk of harm:
The record is clear that this mother has been taking  prescription pain medication for many years. She has registered for and been asked to leave several pain management programs for noncompliance and has engaged over the years in drug[-]seeking behavior in the form of going to several different doctors and at least three pharmacies to fill prescriptions. She has . . . been taken to or voluntarily gone to ERs on an emergent basis when she suffered the health effects of substance abuse. On those occasions she also sought pain medication. This drug[-] seeking behavior and the addiction itself places her child at risk of harm.
Although the judge acknowledged her main focus was the child's welfare, she was also concerned about T.K.'s health and ordered her to attend a substance abuse program funded by the Division.
Nonetheless, Judge Foti found by a preponderance of the evidence that T.K. neglected her child by virtue of her "drug[-]seeking behavior and addiction to prescription drugs." She continued the child's physical custody with the father.
The Division monitored the family over the next few months. At a July 18, 2012 compliance review hearing, T.K. testified that she had recently undergone several procedures to alleviate back pain, but had not enrolled in any substance abuse programs. Although T.K. had supervised visitation rights, she had not seen her daughter in the past month.
T.K. did not appear at the September 11, 2012 compliance review. She was not enrolled in a substance abuse program and had no desire to undergo treatment. At that juncture, T.K. had still not seen her daughter. Supervised visitation and phone contact were suspended, and therapeutic visitation between T.K. and her child was ordered in its place.
At the next compliance hearing on December 6, the Division presented proof demonstrating that T.K. had not seen her child since July 2012, had not had phone contact with her, refused to sign medical releases, refused in-patient drug treatment, and would not even allow the Division to complete a home assessment. The trial court scheduled a permanency hearing and ordered T.K. to sign medical release forms. The judge attempted to encourage T.K. to participate in drug treatment and visits with her child.
On March 28, 2013, the Division filed an amended verified complaint for care and supervision with restraints. That day, A.S. consented to placing the child in the custody of the paternal grandmother, with whom she continues to reside. At that juncture, the Division was given legal and physical custody.
On September 26, 2013, at the permanency hearing, the judge made the following observations:
[A]lthough technically the Division did not take legal and physical custody of the child
until March 28, 2013, the child has effectively been in the physical custody of the paternal grandparents since August of 2012 and the Law Guardian has been urging this [c]ourt every single time we've come to court over the last several months to conduct a permanency plan so that this child can have some predictability and stability in her life and so although technically under the statute and the AOC guidelines I would not be required to have a permanency plan, based upon the facts presented by this case that this child has not been living with her father nor under his care and custody, his daily care and custody since August of 2012, I have determined that I will hold a permanency hearing today.
Judge Foti approved the Division's plan for termination of parental rights and adoption by the paternal grandparents.
On November 7, 2013, the Division filed a complaint and order to show cause to terminate T.K. and A.S.'s parental rights under N.J.S.A. 30:4C-15. That same day, the trial court entered an order terminating the Title 9 litigation. This appeal followed.
T.K. raises as points of error for our consideration the following:
I. THE TRIAL COURT ERRED IN FINDING THAT T.K. COMMITTED ABUSE AND NEGLECT AGAINST [THE CHILD] BECAUSE OF T.K.'S ALLEGED PRESCRIPTION DRUG ABUSE WHERE THERE WAS NO EVIDENCE PRESENTED THAT [THE CHILD] WAS HARMED OR IN IMMINENT DANGER OF HARM AS A RESULT OF THAT ALLEGED SUBSTANCE ABUSE.
II. THE TRIAL COURT ERRED IN APPROVING A PERMANENT PLAN OF TERMINATION OF T.K. AND A.S.'S PARENTAL RIGHTS ONLY SIX MONTHS AFTER [THE CHILD] WAS REMOVED FROM A.S.'S HOME AND WHERE APPROVAL OF SUCH A PLAN WAS UNWARRANTED.
T.K.'s first point of error is that no findings of abuse or neglect should be entered against her because the Division did not demonstrate that the child was harmed or in imminent danger of harm as a result of her drug addiction.
When reviewing the findings made in an abuse or neglect case, this court accords deference to the trial judge's findings of fact and credibility determinations "unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261, 279 (2007) (internal quotation marks omitted). Significant deference is afforded to the trial court's fact-finding and credibility determinations "because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal citations omitted). "Only when the trial court's conclusions are so clearly mistaken or wide of the mark should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted).
Title 9 sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The purpose of Title 9 is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when the child's
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 . . . 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 other acts of similarly serious nature requiring the aid of the court[.]
[N. J.S.A. 9:6-8.21(c)(4)(b).]
The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).
Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 299-300 (internal quotation marks and citation omitted).
Conduct is considered willful or wanton if it is "done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Gross negligence requires "an indifference to the consequences," but a parent's actual intent to cause harm is not necessary. Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted); G.S., supra, 157 N.J. at 179.
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the Division must demonstrate "the probability of present or future harm" to the child, "the court need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (internal citation omitted), certif. denied, 182 N.J. 426 (2005).
Furthermore, our courts have recognized that "a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." A.L., supra, 213 N.J. at 23. However, "a parent should not exercise visitation, even supervised visitation, while impaired." V.T., supra, 423 N.J. Super. at 331. Moreover, use of drugs while caring for an infant puts the child at greater risk of harm "to the slightest parental misstep." Ibid.
In support of her argument that the trial court erred in finding that her child was harmed or in danger of imminent harm because of her "alleged prescription drug abuse," T.K. draws our attention to V.T. In that case, a father tested positive for cocaine and marijuana at two Division-supervised visits. Id. at 325. Despite the positive tests, however, the father behaved appropriately at the visits. Ibid. Moreover, he had been making efforts to comply with Division services by attending parenting classes, family violence therapy, and anger management classes. Id. at 326-27.
Additionally, no expert testimony was presented in V.T. which would have established any potential harm to the child stemming from the positive test results. Id. at 327. Similarly, no expert testimony was presented to refute his claim that he had used drugs two days prior to his visits and was not high when he saw his child. Id. at 326-27.
This is an entirely different situation. Unlike the father in V.T., T.K. has chronically used excessive amounts of prescription medications while in her child's presence for years. Her abuse of prescription medication was so great that she was terminated as a patient from various medical practices and had at least one, if not two, episodes of seizures induced by her drug use, one of which caused her to have an automobile accident. As Gentile observed, the accident no doubt related to her drug abuse, whether it was an actual seizure or simply as a result of drowsiness and an inability to focus because of the medication.
In this case, the expert testimony established that T.K. had an extensive drug addiction problem which she declined to address. She refused to engage in any treatment. Both experts testified that the quantity of drugs she consumed would make her drowsy, sedated, and incoherent in a fashion similar to the effect of intoxication from excessive amounts of alcohol. This impaired condition posed a threat of imminent danger to the child. In fact, when T.K. was hospitalized for a drug overdose, the child was in her care and accompanied her to the hospital. In the opinion of the experts, T.K.'s drug abuse is so uncontrolled that it poses a danger of imminent harm not only to her child, but also to her health and welfare.
This is not a situation in which a parent suffers from a disability requiring treatment with powerful pain medication that may incidentally cause some of the side effects outlined by the experts. This is a parent who regularly abuses pain-killers to the extent where her own life is at jeopardy and who is unwilling or unable to engage in treatment. The addiction is more compelling to T.K. than is her own child, whom she stopped visiting and contacting during the pendency of the abuse and neglect proceedings.
We therefore agree with Judge Foti's conclusion that T.K. neglected her child within the meaning of the statute. This conclusion is driven not by T.K.'s prescription medication use, but by T.K.'s chronic, unremitting, and very dangerous drug abuse. The record amply supports the Family Part judge's fact-finding. The Division clearly met its burden to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).
T.K. also contends that the trial court erred, and in the process violated her right to due process, by approving a permanency plan while the child had only been removed from her father's home for six months. The court was not required to hold a permanency hearing for another six months, which T.K. argues, would have allowed her more time to improve her situation, making the filing of a guardianship complaint unnecessary.
It is worth reiterating that T.K. took no steps to improve her situation. If anything, her situation worsened as she lost touch with her daughter while the abuse and neglect litigation was ongoing. In any event, the issue is moot.
In a Title 9 action, after a child is placed in the custody of a suitable person, the court must conduct a permanency hearing within twelve months, or thirty days in the event reasonable efforts at reunification are not required. N.J.S.A. 9:6-8.54(b)(2)-(3); see N.J.S.A. 9:6-8.24(e). At that time, the court determines whether efforts should continue towards reunification or whether an alternative plan must be pursued. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009). Permanency hearings also occur in Title 30 litigation. N.J.S.A. 30:4C-11.3, -11.4, -61(b)(6).
In litigation under either title, the court reviews the Division's goals and timelines and determines "the appropriateness of the reasonable efforts to achieve the permanency plan." N.J.S.A. 30:4C-61.2(d). Thus permanency hearings are merely interim reviews of an ongoing permanency plan.
In this case, the court reasonably decided that efforts towards reunification should not continue. The child was in a relative's preadoptive home, and neither parent made any effort to engage in substance abuse treatment or otherwise engage in services. T.K. did not even maintain contact with her child.
"An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (internal quotation marks and citation omitted). If, however, "a party still suffers from the adverse consequences  caused by a proceeding, an appeal from an order in that proceeding is not moot." Id. at 262 (quoting G.M., supra, 398 N.J. Super. at 51).
Here, the trial court's permanency order was merely an interim review, and had no continuing adverse consequences for T.K. It did not remove the child from T.K.'s care, modify T.K.'s privileges, or alter the Division's responsibilities. Instead, the permanency order approved the Division's plan to file a Title 30 action and continued the child's placement with her paternal grandmother while the Division filed the new guardianship complaint. Because T.K. does not suffer continuing adverse consequences from either of these determinations, the permanency order is moot.
The approval of the Division's plan to file the Title 30 complaint, found in the permanency order, was not a prerequisite to the Division filing such an action. Our courts have previously recognized that the Division may file an action under Title 30 without prevailing in, trying to conclusion, or even bringing a Title 9 action. See, e.g., A.P., supra, 408 N.J. Super. at 258-61; N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994). Therefore, because the Division could have filed the guardianship complaint without the court's approval of the permanency plan, the outcome of the permanency hearing has no effect on the pending Title 30 litigation.
Additionally, the permanency order's continuation of the child's custody with her paternal grandmother pending the Title 30 action has no continuing operative effect. A.P., supra, 408 N.J. Super. at 263. The dismissal of the Title 9 action resulted in the "annulment of the interlocutory orders entered in that action," so the permanency order "can have no practical effect on the existing Title 30 action against [a parent], which renders this appeal moot." Id. at 263-64 (internal quotation marks and citations omitted).
Lastly, the Title 30 action in this matter is currently pending before the trial court. A Title 30 guardianship proceeding provides ample due process and procedural protections for a parent, including a more demanding burden of proof. Id. at 264. The issue of whether termination of parental rights is in the child's best interests will be fully litigated in the Title 30 action. Thus the guardianship proceeding is the appropriate forum for T.K. to raise challenges to the Division's decision to seek termination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION