July 1, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
N.R.P., DEFENDANT-APPELLANT, AND D.S. AND S.B., SR., DEFENDANTS.
IN THE MATTER OF S.B., JR., AND B.S., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket Nos. FN-08-15-11 and FN-04-57-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2011 - Decided
Before Judges Fuentes, Ashrafi and Newman.
Defendant N.R.P. is the mother of B.S., a girl who is now five years old. Defendant appeals from the order of the Family Part finding that she abused and neglected B.S., principally because of her substance problem and dysfunctional lifestyle. We affirm.
I By way of background, defendant is married to B.S.'s father D.S. B.S. was born nearly five years after defendant married D.S. Defendant also has an older son, S.B. Jr., who resides with his father, S.B. Sr.
The incident that triggered the intervention of the Division of Youth and Family Services (DYFS or Division) occurred on July 1, 2009, when B.S. was three years old. On that date at 2:06 a.m., Gloucester City Police Sergeant Michael Morrell responded to a domestic violence call involving defendant and D.S. According to Morrell, D.S. appeared intoxicated and was "rambling on about how he had made comments on his radio show" that defendant did not like. Morrell found defendant on the side of the house; she was also intoxicated and incoherent. Morrell found B.S. in the house sleeping. There were no other adults in the home. Because the child appeared to be calm and unscathed by her parents' condition, Morrell decided to simply warn defendant and D.S. to remain inside their house and keep their voices low as not to bother their neighbors or wake their daughter.
Approximately thirteen minutes later, Morrell returned to defendant's home, again responding to calls of domestic violence. Defendant and D.S. were arguing loudly. Morrell again cautioned them to keep their voices down to avoid waking B.S. They did not heed the officer's admonition. In light of this, Morrell informed defendant and D.S. that he would be reporting the incident to DYFS, which he did upon returning to the police station.
Before anyone from the Division arrived, Morrell and two other officers again responded to defendant's residence based on complaints of domestic violence. D.S. met the officers outside and informed them that defendant was inside the house "going crazy." Patrolman L. Little went inside the house to investigate. He observed that defendant had a "small laceration on her lower lip" which she claimed was caused when D.S. pushed her while they were arguing. Despite defendant's unwillingness to file charges, give a written statement, or seek a temporary restraining order, the officers arrested D.S. based on defendant's visible injuries.*fn1 D.S. was subsequently released on his own recognizance.
Two Division Special Response Unit (SPRU) investigators arrived at defendant's residence at approximately 3:50 a.m. and found no one at home. They returned an hour later and questioned defendant about the incidents that prompted the police's involvement. Defendant told the investigators that after the police arrived for the first time, D.S. became angry and "slammed [her head] against the wall two times," causing the injury to her lip. However, defendant denied any prior incidents of domestic violence.
The police brought D.S. back to the residence while the SPRU investigators questioned defendant. D.S. denied any domestic violence, but acknowledged that he and his wife argue frequently. During this interview, defendant interrupted the investigators to argue with D.S. and alleged she had documents to prove he abused her in 2007. The couple continued to argue with each other while the SPRU investigators were present.
The investigators informed defendant and D.S. that one of the two had to leave the home that night (actually it was in the early morning hours). Defendant volunteered to leave, but the person she called to pick her up never arrived. Given defendant and D.S.'s demeanor during the time the Division was investigating this incident, the investigators decided to remove B.S. from the home to avoid compromising the child's safety.
When informed of this decision, defendant and D.S. became more agitated and told the SPRU investigators that they would not permit them to take their daughter. The investigators sought police assistance to effectuate a safe and orderly removal of the child. Once the police arrived the investigators attempted, without success, to reach family members who might be willing to take temporary custody of the child. As the SPRU investigators were taking the child to their car, defendant became even more agitated and belligerent. Defendant was arrested for her disorderly conduct.
The Division's continued investigation revealed that defendant and D.S. resided with another adult who was not present on July 1, 2009. According to this person, defendant and D.S. argued and frequently drank alcohol to the point of intoxication, but B.S. was usually in her room when this occurred. Defendant's older son, who was staying with his father at the time of this incident, told the investigators that defendant and D.S. argued and screamed at each other on numerous occasions, and when that happened he would take B.S. into her room to read to her.
On July 6, 2009, the Division filed a verified complaint seeking custody of B.S. and for care and supervision of her older brother. The court held a hearing that same day in which defendant submitted a urine screening which tested positive for marijuana. D.S. refused to be tested, but admitted that he had been smoking marijuana. Defendant again tested positive for marijuana on July 23, 2009, the return date of the order to show cause. The court continued the previous custodial arrangement for B.S. and ordered that her older brother remain with his father. The court also granted defendant and D.S. weekly supervised visitation with B.S. and directed that they attend substance abuse and domestic violence counseling.
D.S. tested positive for marijuana at a case management conference held on August 25, 2009. Defendant's test showed no traces of illicit substances or alcohol. The court continued its prior custody orders.
At the request of the Division, psychologist Frank Schwoeri evaluated defendant and D.S. on September 22, 2009. Although finding that the child would be at some risk of harm if she remained in the custody of her parents, Schwoeri recommended that B.S. be returned to defendant's and D.S.'s care under the Division's oversight and with "significant parent support services."
The matter came before Judge Octavia Melendez for a fact-finding hearing on November 2, 2009. The Division presented the testimony of Sergeant Morrell, who described the events of July 1, 2009. D.S. testified, admitting that he consumed alcohol that evening but denying he was intoxicated. Although he and defendant argued about household finances and comments he made on his radio show, he denied that any physical abuse occurred. He claimed that defendant accidentally bruised her lip when she opened the kitchen door. D.S. also admitted to smoking marijuana with five other individuals as late as June 15, 2009. Defendant opted not to testify.
Against this evidence, Judge Melendez found, by a preponderance of the evidence, that B.S. was an abused or neglected child as defined in N.J.S.A. 9:6-8.21. At a dispositional hearing held on November 5, 2009, the court continued the custodial arrangement already in place, and ordered both parents to submit to random urine monitoring, attend substance abuse counseling, and participate in psychotherapy.
At a compliance hearing held on December 17, 2009, Judge Melendez returned legal and physical custody of B.S. to defendant and D.S., on the condition that both parents continue to submit to urine screening, attend alcohol counseling, and participate in individual and family therapy.*fn2 The court retained jurisdiction for three additional compliance review hearings until August 23, 2010, when litigation in this matter ended.
Defendant argues on appeal that Judge Melendez's findings were not supported by the record. We disagree. The evidence established that this then-three-year-old child was in the home while both parents were intoxicated and unable to care for her. The domestic violence that occurred simultaneously and incidental to the parents' state of intoxication placed the child at a greater risk of harm, both emotionally and physically. A child need not exhibit physical signs of abuse or neglect to be deemed an abused or neglected child. Lack of proper parental supervision can render a child abused or neglected. N.J.S.A. 9:6-8.21c(4). Under these circumstances, defendant's conduct on July 1, 2009, failed to provide B.S. with the minimum degree of care expected of a parent. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).