January 14, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
V.P. AND E.M., DEFENDANTS,AND T.K., DEFENDANT-APPELLANT.
IN THE MATTER OF K.K. AND A.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-62-09. Yvonne Smith Segars, Public Defender, attorney for appellant T.K. (Robert H. McGuigan, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 -- Decided Before Judges Parrillo and Yannotti.
Defendant T.K. appeals from an order entered by the Family Part which found that plaintiff Division of Youth and Family Services (the Division) had proven by a preponderance of the evidence that he abused or neglected his minor child, K.K. For the reasons that follow, we affirm.
T.K. is the father of K.K., who was born to V.P. on August 1, 2008. At that time, V.P. also had custody of another child, A.M., whose father is E.M. Two days after K.K. was born, the hospital reported to the Division that V.P. had tested positive for marijuana at the time of the child's birth. The hospital also reported that V.P. had not obtained prenatal care while pregnant with K.K. The Division assigned a caseworker to investigate the report.
The caseworker interviewed V.P. and T.K. They both denied that they smoked marijuana, although V.P. said that she had been present in a room while others had done so. She agreed to undergo another drug test. T.K. acknowledged that previously he had been convicted of a weapons offense. V.P. and T.K. told the caseworker that they were living in a motel in West Atlantic City. The caseworker went to the motel and found that everything was in order.
On August 4, 2008, V.P. brought K.K. home from the hospital. The caseworker visited the motel where V.P. and K.K. were living. T.K. admitted that, in addition to the weapons offense, he had been arrested and charged with certain drug offenses, which were pending as of that date.
V.P. said that she and K.K. would remain with T.K. until a local agency found housing for her and the child. V.P. also indicated that A.M. had been staying with her paternal grandparents through the end of her pregnancy, and would remain with them until she found appropriate housing. According to the caseworker, the motel room appeared to be neat and clean, and there were adequate supplies for the baby.
On August 5, 2008, the caseworker visited A.M. at the home of her parental grandparents. The child appeared to be healthy and appropriately groomed. The next day, the hospital informed the caseworker that V.P.'s and K.K.'s drug tests had been negative. The hospital also told the caseworker that V.P. never tested positive and it had mistakenly referred the matter to the Division. In addition, the caseworker learned that V.P. had actually gone for one prenatal visit during her pregnancy with K.K. The Division advised V.P. and T.K. that the case would be closed.
Thereafter, the Division was informed that, in addition to the aforementioned weapons conviction and drug charges, T.K.'s criminal record included charges for unlawful possession of a weapon and disorderly conduct. In addition, the Division was told that V.P. had a criminal record that included charges of forgery and robbery.
On October 1, 2008, the Division reopened the file after it learned that the children had not been brought for medical check-ups with their respective doctors. The Division also learned that T.K. had tested positive for cocaine on September 5, 2008, and would be tested again. T.K.'s probation officer informed the Division that T.K. would be charged with a violation of probation if he again tested positive.
On October 2, 2008, the caseworker and two departmental security officers visited V.P.'s and T.K.'s motel room. The caseworker testified that, when she entered the room, it smelled of marijuana. T.K. and A.M. were in the room. The caseworker asked T.K. if there were any other adults present. T.K. replied that only he and V.P. were at home. He said that V.P. was taking a shower and K.K. was with her in the bathroom.
The caseworker testified that, immediately thereafter, two unknown adults emerged from the bathroom with K.K. The caseworker asked T.K. why the room smelled of marijuana. T.K. said that a neighbor next door may have been smoking marijuana, but the caseworker testified that she had not seen anyone outside the room smoking marijuana when she arrived at the motel. The caseworker additionally testified that she was familiar with the smell of marijuana, from when she was in college.
The caseworker contacted her supervisor and was instructed to remove the children from the home. The children were placed in a foster home for medically fragile children. On October 6, 2008, the Division filed a complaint in the Family Part and, on that date, the court entered an order granting custody of K.K. and A.M. to the Division.
On October 26, 2009, the court conducted a fact-finding hearing, after which the court rendered a decision from the bench. The court determined that the Division had proven by a preponderance of the evidence that T.K. abused or neglected K.K.
The court found that the evidence established that the three individuals had been in the bathroom of the motel room "getting stoned with the child." The court stated that T.K. had placed the child in imminent danger of becoming impaired as a result of his failure to exercise a minimum degree of care for the child.
The court additionally found that T.K. failed to provide proper supervision for the child, thereby "allowing a substantial risk of imminent harm to be inflicted upon [K.K.] because of the use of . . . marijuana in a very confined space while they were holding this child." The court entered an order dated October 26, 2009, which stated that T.K. had abused or neglected K.K. in violation of N.J.S.A. 9:6-8.21 because the child had been present in a room that had a strong odor of marijuana.
Because V.P. had been excused from attending the fact-finding hearing on October 26, 2010, the trial court considered the matter again on March 16, 2010, after which it rendered an oral decision finding that V.P. had abused or neglected both K.K. and A.M. The court entered an order dated March 16, 2010, memorializing its findings. T.K.'s appeal followed.
T.K. argues that the court's finding of abuse or neglect should be set aside because the Division did not have grounds for re-opening its investigation after it was informed that the initial referral was based on hospital error. We disagree.
N.J.S.A. 30:4C-12 provides that a complaint may be filed with the Division, or other agency designated by the Commissioner of the Department of Human Services, if it appears that a parent, guardian or person having custody and control of a child "is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child[.]" The statute further requires the Division or designated agency to investigate any such complaint. Ibid.
Although the Division had closed its file in the matter after it was informed that V.P.'s and K.K.'s drug tests were negative and V.P. had at least one prenatal medical visit before K.K.'s birth, the Division subsequently received information indicating that K.K. and A.M. had not been taken for medical examinations. Moreover, the Division learned that T.K. had tested positive for cocaine, was scheduled for another drug test and might be charged with violation of probation if he tested positive again. We are satisfied that, in light of this information, the Division properly undertook a further investigation of the family.
Next, T.M. argues that the trial court's finding of abuse or neglect was based on incompetent evidence. Again, we disagree.
Here, the trial court found that, due to T.K.'s actions, K.K. was an "[a]bused or neglected child[,]" as that term is defined in N.J.S.A. 9:6-8.21(c)(4). The statute provides that a child is "[a]bused or neglected " if he or she is 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 . . .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; . . . . [Ibid.]
In this case, the trial court found that V.P. and two unknown adults were smoking marijuana in the presence of K.K., with T.K.'s consent. The court observed that T.K. was in the motel room at the time and did not "do anything about it." The court concluded that T.K. had placed his child in imminent risk of harm. The trial court's findings are binding on appeal because they are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
T.K. argues, however, that the court's findings are based on incompetent evidence, specifically the testimony of the caseworker regarding the odor of marijuana in motel room where T.K. and V.P. were residing with the children. T.K. contends that the caseworker was not qualified to testify that the odor she detected in the motel room was marijuana and the odor did not emanate from outside of the motel room. We find no merit in this contention.
We note that, at the fact-finding hearing, the caseworker testified that she confronted T.K. with the fact that the motel room where he and V.P. were residing with K.K. and A.M. smelled of marijuana. According to the caseworker, T.K. did not dispute that there was a smell of marijuana in the room. Rather, he stated that the odor was coming from outside the room. Therefore, while T.K. now argues that the caseworker was not qualified to testify that the odor in the room was the smell of marijuana, his own statements established that the odor in the room was, in fact, marijuana.
In any event, the trial court did not abuse its discretion by admitting the caseworker's testimony regarding the odor. N.J.R.E. 701 provides that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact issue."
Here, the caseworker did not testify as an expert witness. Furthermore, the caseworker stated that her opinions regarding the odor and its source were based on her own observations and her familiarity with the smell of marijuana. In addition, the caseworker's testimony was of the sort that assisted the court in determining a critical fact issue. Therefore, N.J.R.E. 701 permitted the admission of the caseworker's testimony that the odor in the motel room was marijuana and the odor had not emanated from outside the room.
We have considered the other arguments raised by T.K. in this appeal and find those arguments to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(1)(E).
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