September 10, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FN-04-61-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges Lintner and Cuff.
On July 20, 2006, the Division of Youth and Family Services (DYFS) filed a verified complaint for custody of T.B., a seven-year-old boy who had been in the care of his maternal grandmother, defendant A.H., since birth. T.B.'s mother, K.W., a drug user, had already lost custody of two other children due to neglect. Defendant, who is unemployed, has not seen K.W. since April 2006.
Defendant and T.B. resided with defendant's female friend and former paramour, V.V., along with V.V.'s thirteen-year-old granddaughter, A.V. A.V.'s mother, W.V., also a known drug user, stayed at V.V.'s home from time to time, but was eventually arrested and incarcerated on June 30, 2006.
Referrals to DYFS regarding the care of T.B. and A.V. began in July 2004. Many of the referrals claimed that adults in the home were abusing drugs and alcohol. When a DYFS worker asked defendant about her alleged drug abuse in December 2004, defendant explained that she was hit by a car in December 2003 and had been prescribed Percocet and OxyContin. She admitted to using crack cocaine in the past, but had not used illegal drugs in five years. According to DYFS records, allegations of neglect were substantiated against V.V. in May and June 2006. On May 12, 2006, DYFS found that A.V.'s risk of neglect was "substantial" because V.V. allowed her to be "in the care of her mother despite [W.V.'s] extensive substance abuse problems."
V.V. stated that she allowed W.V. to care for A.V. "due to the fact that there isn't a Court order to refrain her from doing such." In June 2006, V.V. had a stroke and was hospitalized. Once again, DYFS substantiated neglect because A.V. was left in the care of W.V. despite W.V.'s drug use, including a recent overdose on heroin.
For the most part, DYFS's records demonstrate that T.B. was "healthy and well taken care of." DYFS workers continually noticed that the home showed no safety concerns and described defendant as cooperative, "alert, and able to answer all questions." Additionally, T.B. repeatedly told DYFS workers that he never saw defendant or V.V. use drugs and liked living with his grandmother. DYFS records do indicate that while W.V. was at the house, defendant appeared to be afraid of her.
On June 30, 2006, V.V. received a letter from her landlord, stating, "although you have been a good tenant and always paid your rent on time your present situation has caused you to be behind." The landlord asked V.V. to pay her outstanding rent within two weeks or be evicted. Defendant told a DYFS worker that V.V. was expecting to receive Social Security and that "they [were] going to use that to catch up with the rent."
On July 18, 2006, DYFS arrived at the house to remove A.V. and T.B. According to DYFS records, a neighbor informed a DYFS worker that defendant asked to borrow twenty dollars for cigarettes and after the neighbor loaned her the money, defendant returned, "asking for more money [because] she said she couldn't find it." When the neighbor looked inside the house to find the money, she claimed she found a crack pipe on the floor. The neighbor also told DYFS workers that defendant did not spend money on sneakers or clothes for T.B., but instead on cigarettes.
A.V. told DYFS workers that defendant and V.V. are often "passed out" and that V.V. "is never home and is always at her boyfriend[']s house and when she is home she sleeps most of the day." According to A.V., she and defendant had an argument because A.V. did not want to live in the house anymore. She claimed that defendant "chased her down the street and tried to choke her." DYFS workers found T.B. with one of defendant's male friends at his landscaping business. According to DYFS, T.B. "was filthy dirty with no shoes and no shirt."
Dr. Meryl E. Udell, a psychologist, performed psychological evaluations of defendant, V.V., T.B. and A.V. Defendant told Udell that "she is currently prescribed Morphine, 60 mg, twice a day, Percocet, 10 mg, as needed, Amytriptyline, 100 mg, at night, Ambien, 1 mg, nightly, and Ativan CR, 2.2. mg, nightly by her pain management doctor." Defendant also stated that her primary care physician "prescribed [her] Oxy[C]ontin, 80 mg, in the AM and 20 mg in the PM, which was discontinued when she began treatment with her pain management specialist." She also reported that she is allergic to Methadone.
Udell found significant A.V.'s claims "that [defendant] was not taking care of [T.B.] well." She noted that
[A.V.] reports that [T.B.] was not bathed well and sometimes had to ask neighbors for food. Information from [DYFS] is that [T.B.] had no rules or limits set on him and that he was seen running around the neighborhood at night after dark without supervision. [A.V.] also reports that [defendant] used to smoke crack cocaine, but that [defendant] told her she'd stopped. She reports some violence in the home and witnessed [defendant] chase [V.V.] with a pair of scissors. She reports on one occasion [defendant] tried to choke her.
Udell's evaluation indicates that the results of defendant's drug test were positive for cocaine and opiates and that her urine tested positive for dilution, however the results of such a drug test were not provided in the record. Consequently, she recommended that the children not be returned to the care of either V.V. or defendant.
A fact-finding hearing commenced on October 18, 2006, to determine whether defendant and V.V. abused or neglected their grandchildren.*fn1 Defendant and V.V. did not appear and a default was entered. At that time, DYFS moved several exhibits into evidence without objection, including Udell's reports. The matter was then reopened and the default set aside on October 23, 2006. Defendant denied the allegations that she failed to supervise T.B. During the hearing, defendant appeared to be "falling asleep and mumbling and was not very coherent in her testimony." She testified that she had taken one morphine tablet that morning. The court ordered drug tests for both V.V. and defendant. While V.V. tested positive for morphine, defendant claimed not to be able to produce a urine sample.
The judge concluded that DYFS had "proved by more than a preponderance and by clear and convincing evidence that in fact these children are abused and neglected children within the meaning of [N.J.S.A. 9:6-8.21]" because both defendant and V.V. "are using or abusing prescription medication to the point that neither one of them is in any condition to care for these children." The judge relied upon the various referrals to DYFS as well as the psychologist's evaluations and recommendations.
As a result, T.B.'s father, M.B., was granted legal custody of T.B. Defendant now raises the following issues on appeal:
THE CASE SHOULD BE REMANDED FOR A NEW FACT FINDING HEARING BECAUSE THE LOWER COURT FAILED TO ARTICULATE WITH PARTICULARITY THE FACTS UPON WHICH THE DETERMINATION OF ABUSE AND/OR NEGLECT WAS MADE.
THE LOWER COURT'S DECISION SHOULD BE REVERSED BECAUSE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A FINDING OF ABUSE AND/OR NEGLECT.
THE CASE SHOULD BE REMANDED FOR A NEW FACT FINDING HEARING BECAUSE THE LOWER COURT ERRED IN PROCEEDING WITH THE OCTOBER 23, 2006, HEARING GIVEN A.H.'S CONDITION AND INABILITY TO PARTICIPATE IN HER DEFENSE.
After a thorough review of the record and defendant's arguments, we are convinced that a remand is necessary to give DYFS the opportunity to present medical testimony establishing a causal connection between defendant's prescription drug use and how it likely affects her ability to care for T.B. Such testimony is necessary for DYFS to carry its burden of proving a causal connection necessary to establish abuse or neglect of T.B.
Abuse-or-neglect proceedings are brought pursuant to N.J.S.A. 9:6-8.21 to -8.73, collectively known as Title 9. An "[a]bused or neglected child" is defined, in pertinent part, as a child less than 18 years of age whose parent or guardian . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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; (5) or a child who has been willfully abandoned by his parent or guardian . . . (7) or a child . . . (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation. [N.J.S.A. 9:6-8.21c.]
The burden rests on DYFS to prove abuse or neglect by a preponderance of the evidence at a fact-finding hearing.
N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46; see also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555-57 (1994). "The fact-finding process . . . is a significant and necessary check on DYFS's actions" and "'only competent, material and relevant evidence may be admitted.'" N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 106 (Ch. Div. 2006) (quoting N.J.S.A. 9:6-8.46(b)).
N.J.S.A. 9:6-8.50 delineates the criteria for sustaining or dismissing a complaint of abuse or neglect:
a. If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings.
b. If the proof does not conform to the specific allegations of the complaint, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.
c. If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal.
d. If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to section 11 hereof is required to protect the child's interests pending a final order of disposition. The court shall state the grounds for its determination. In addition, a child found to be abused or neglected may be removed and remanded to a place designated by the court or be placed in the custody of a suitable person, pending a final order of disposition, if the court finds that there is a substantial probability that the final order of disposition will be an order of placement under the section 34 hereof.
e. If the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to the division, ordering that the division provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible. In the event of such referral, the court may suspend any dispositional hearing indefinitely. The division shall report the status of the case so referred to the court annually in writing, a copy to be served upon the parent or guardian and the law guardian. The division shall also report its intent to terminate services in a case so referred to the court in writing. (footnotes omitted).
The court is required to "articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002); see also R. 1:7-4(a).
The judge relied on several referrals, specifically those reported on December 13, 2004, April 19, 2005, May 26, 2005, June 20, 2006, and July 17, 2006, as well as Dr. Udell's conclusions, defendant's admission that she took morphine prior to court and her somewhat incoherent appearance in court. Although the judge relied upon the above referrals, he did not articulate, with particularity, any specific facts in the DYFS reports demonstrating abuse or neglect of T.B.
Indeed, a close look at the DYFS records reveals that most of the referrals were somewhat unsubstantiated. For instance, on December 13, 2004, a DYFS worker noted that defendant did not "appear to be under the influence," was "very cooperative," and that T.B. appeared "very well dressed." The April 19, 2005, DYFS records do not refer to T.B., but do state that A.V. "is not at risk of harm" and that "[h]er grandmother is capable of protecting her." In May 2005, a DYFS worker concluded that "[t]he conditions of the home were satisfactory. Working utilities, ample food, and beds for both children despite the smallness of the home and tight quarters." Any alleged neglect was considered "unfounded."
On June 18, 2006, a DYFS worker found that T.B. "appeared healthy and well taken care of," and DYFS records from June 20, 2006, note that there were "no noted concerns regarding [T.B.]." On July 17, 2006, a DYFS worker found a sixty-count bottle of light orange pills prescribed to defendant and filled over three months earlier on April 13, 2006. Despite defendant's instructions to take the pills "twice daily," there were still forty pills left in the bottle. The worker described defendant as "very alert, and able to answer all questions." Additionally, defendant was considered "able to supervise [T.B.]" who was "safe in [the] care of [his grandmother]."
Finally, the Safety Assessment conducted by DYFS on June 30, 2006, indicates that defendant did not leave T.B. "with a person unwilling to provide care"; was not "verbally hostile when talking to or about [T.B.]"; did not have "extremely unrealistic expectations for [T.B.]'s behavior"; did not "cause serious physical harm to [T.B] or . . . [make] a plausible threat to cause serious physical harm"; did not "refuse access to [T.B.]"; has not been "unable to provide care and supervision necessary to protect [T.B.] from potentially serious harm"; has not been "unable to meet [T.B.]'s immediate needs for food, clothing, shelter, and/or medical or mental health care"; and is not "violent or out of control." The Assessment also noted that T.B.'s "physical living conditions [were not] hazardous and immediately threatening"; that any "drug use or alcohol use [did not] seriously affect [defendant's] ability to supervise, protect, or care for [T.B.]"; and defendant's "emotional stability, developmental status, or cognitive deficiency [did not] seriously impair [her] ability to supervise, protect or care for [T.B.]" The only concern noted was that "[i]f the childrens['] parents are released from jail both [grandmothers] may not be able to protect the children from harm." However, there was no indication at the time of the hearing that W.V. was out of jail or that K.W. had made recent contact with T.B.
The record before us, along with the judge's findings, fails to particularize facts establishing how defendant's use of prescription drugs interferes with her ability to care for T.B. Likewise, there is a lack of medical evidence causally relating defendant's use of prescription drugs with an inability to care for T.B. Certainly, a medical expert could shed light upon the effects of the prescription medications used by defendant and whether they would inhibit her mental faculties so as to impact her ability to care for T.B. Such evidence is necessary to assist the trial court in determining whether DYFS satisfied its burden of proving abuse or neglect by a preponderance of the evidence. N.J.R.E. 702; see also Showalter v. Barilari, Inc., 312 N.J. Super. 494, 514-15 (App. Div. 1998) (noting it was improper for jury to determine plaintiff's ability to control his behavior based solely on blood alcohol data without expert testimony, and holding that jurors "should not have been permitted to 'speculate in an area where laypersons could not be expected to have sufficient knowledge or experience'" (citation omitted)); cf. State v. Franchetta, 394 N.J. Super. 200, 203-07 (App. Div. 2007) (State proved that defendant's ingestion of cocaine was proximate cause of his impaired behavior through medical expert's testimony regarding physiological responses to drugs).
Despite the lack of expert medical evidence, we share the judge's concern over defendant's demonstrated incoherence during her appearance before him, admitted use of morphine prior to court, and conceded use of other apparent mind-altering prescription drugs. Additionally, we are troubled by defendant's failure to successfully submit to a urine test. Surely, the judge's first-hand observations of defendant's lack of lucidity following the admitted use of morphine is evidential of the effects that such a drug has on defendant's cognitive abilities, despite defendant's contentions to the contrary.
Accordingly, we remand the matter to allow DYFS the opportunity to present medical evidence in order to determine whether defendant's use of the prescribed medication interferes with her cognitive ability to render proper care to T.B. Defendant should also submit to a urine test to determine whether she is taking any other drugs, not specifically admitted to. Because of our stated concerns and out of an abundance of caution, custody of T.B. shall remain with his biological father, M.B., pending further determination by the Family Part in accordance with this decision. We do not retain jurisdiction.