May 31, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.H., DEFENDANT-APPELLANT, AND D.L. AND W.H., DEFENDANTS.
IN THE MATTER OF B.H., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0315-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012
Before Judges Messano and Guadagno.
Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part judge entered an order that defendant S.H. had "abused or neglected [her] child in that . . . [her] continued substance abuse placed her child [B.H.] at risk for harm resulting in the loss of housing [and B.H.] having to relocate thereby neglecting her child." The judge also entered a concurrent order terminating the litigation, and defendant now appeals.
Defendant raises the following points for our consideration:
POINT I -- THE "ABUSE OR NEGLECT" FINDING AGAINST S.H. WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE BECAUSE THE TRIAL COURT MADE AN IMPROPER INFERENCE THAT B.H. WAS IN IMMINENT DANGER OF HARM UNDER N.J.S.A. 9:6-8.21(c)(4)
POINT II -- BECAUSE THE TRIAL COURT'S "ABUSE AND NEGLECT" FINDING AGAINST S.H. IS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, HER NAME SHOULD BE EXPUNGED FROM THE CENTRAL REGISTRY OF CHILD ABUSERS We have considered these arguments in light of the record and applicable legal standards. We affirm.
B.H. was born on October 8, 2004 when defendant was not quite twenty-nine years old. Defendant also has a son, E.Y., born in 2000, who is not the subject of this proceeding and is currently living with W.H., defendant's mother, in North Carolina.*fn1
We discern the following facts from the exhibits admitted into evidence at the fact-finding hearing, and the testimony of David Barrito and Betty Matos, the Division's caseworkers.
Defendant contacted the DYFS hotline on September 2, 2009 stating that she was having "mental health issues." Police officers responded and transported defendant to the hospital where she was tested for the presence of illegal substances. The tests were positive for PCP, cocaine and marijuana. Defendant admitted her use of those drugs, and DYFS offered her drug treatment and homemaker services.
Barrito testified that DYFS received seven referrals thereafter and substantiated one of those referrals.*fn2 On May 2, 2010, a supervisor from Elite Healthcare advised DYFS that one of its homemakers reported defendant went into her bedroom that evening and "came out smelling like marijuana." DYFS caseworkers went to defendant's home to investigate.
Defendant was at the home with her two children. The homemaker present was interviewed and denied making the referral. She also denied observing drug use in the home and assumed that the prior housekeeper on duty made the allegation. The workers interviewed B.H. and her brother, and both acknowledged that when they were "bad," defendant "takes the belt" to them. E.J. claimed defendant "whip[ped] him with the belt [three] times on his butt." Defendant, who had been attending out-patient drug counseling based on prior referrals, admitted testing positive for PCP in April, but "had not used since then." She was awaiting entrance into an in-patient drug abuse program. Defendant admitted having a beer and a shot of "E&J" earlier in the day.
Subsequent investigation revealed that the Division's Substance Abuse Initiative Coordinator (SAI) indicated defendant had tested positive for cocaine, marijuana and PCP on March 23, 2010; April 6, 2010; April 10, 2010; April 13, 2010; and May 4, 2010. However, on the evening of May 2, the caseworkers did not smell marijuana or alcohol in the apartment, observed that the children seemed generally well cared for, and there was adequate food in the home.
DYFS substantiated an allegation of neglect and recommended that defendant enroll in an inpatient drug abuse program. On May 10, 2010, the court issued an order granting joint legal custody of B.H. to S.H., D.L. and W.H. under docket FD-09-2781-10. The children were relocated to North Carolina with W.H. Defendant was admitted into an inpatient treatment program, Turning Point, which she completed in June 2010, and she was thereafter referred to out-patient substance abuse treatment.
Records provided by SAI on August 4, 2010 indicated that defendant had missed two intake appointments in July and August and tested positive for PCP. The September 2010 report from SAI indicated that defendant attended only 50% of her scheduled treatment dates at Integrity House, and tested positive for cocaine, THC, PCP and methadone throughout the month of August.
Defendant arranged to have B.H. return to New Jersey in August 2010. On September 13, 2010, defendant advised her caseworker that she was "going to lose her Section 8" assistance because she owed the Housing Authority monies at the time. DYFS offered her partial rent assistance. The September SAI report indicated that defendant was sporadically attending outpatient treatment and was referred to Christ Hospital for "mental health treatment."
The October 2010 progress report from SAI indicated that defendant tested positive four times in August and September for cocaine, marijuana, PCP, THC and methadone. She failed to keep her October 4 appointment with SAI.
In December 2010, Matos was assigned to defendant's case. Defendant was "on and off attending" outpatient drug counseling at Integrity House but was still testing positive for PCP, methadone and marijuana. In February 2011, defendant came to the DYFS office and advised she had been locked out of her apartment. She acknowledged having "some kind of payment plan that she had not followed through with." Defendant also sought assistance in paying her utility bill. B.H. was staying with D.L. at his sister's home while defendant intended to reside with a friend.
On February 10, 2011, DYFS filed a verified complaint for custody, care and supervision of B.H. The judge issued an order to show cause temporarily granting the Division care and supervision of B.H. but declining to grant its application for custody. The order directed DYFS to consult with family members to determine whether B.H. would be placed with D.L. in his sister's home, or in the alternative, with W.H. in North Carolina.
On March 17, the judge issued an order providing that W.H. would be the physical custodian of B.H., and that B.H. would relocate to North Carolina within ten days due to the failure of D.L. to maintain his own separate and stable housing and "while [both] parents address[ed] their drug problems." Defendant and D.L. were prohibited from returning B.H. to New Jersey without a court order. Defendant filed an emergent application for reconsideration that was heard and denied on March 22, 2011.
At the fact-finding hearing held on July 19, 2011, in addition to the evidence referenced above, Barrito acknowledged on cross-examination that B.H. regularly attended school, was well fed and showed no signs of physical abuse. Matos acknowledged on cross-examination that defendant was only locked out of her apartment for "like two days or so." Matos also stated that B.H. appeared to be in good health, was receiving satisfactory grades in school and showed no signs of physical abuse.
The judge found the testimony of the DYFS workers to be credible and cited defendant's repeated positive drug tests.
She further noted that "in the midst of the substance abuse [defendant] was locked out of her apartment, was in danger of losing her Section 8" and sought assistance from DYFS for utility and rental payments. The judge noted these were all "vestiges of this substance abuse." Noting that she was "impressed throughout the proceedings with the love that [defendant] ha[d] for [her] child," the judge found that B.H. "appeared to be very well cared for." Nevertheless, the judge reached the "inescapable conclusion that although [defendant] . . . loves her child, she's struggling with substance abuse and that struggle has placed her child at risk of harm." She entered the finding of abuse and neglect.
The judge issued a separate disposition order terminating the litigation and ordering that B.H. remain in the joint legal custody of S.H., D.L. and W.H. pursuant to the open FD docket, concluding it was in the child's best interest to remain in the physical custody of W.H.*fn3
It is well recognized that appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a ["]feel of the case["] that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). And, when the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (citations omitted). "The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" Ibid. (quoting N.J.S.A. 9:6-8.8). "The legislative history of Title 9, precedent and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." M.C. III, supra, 201 N.J. at 344 (quoting G.S. v. Dept. of Human Servs., 157 N.J. 161, 176 (1999)). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.
At the fact-finding hearing, the Division was required to prove by a preponderance of the evidence that B.H. was an abused or neglected child within the statutory definition contained in N.J.S.A. 9:6-8.21(c). A.R., supra, 419 N.J. Super. at 543. The Court has held that a parent fails to exercise a minimum degree of care where a parent knows of the dangers inherent to a particular situation. G.S., supra, 157 N.J. at 181. "Whether a parent . . . has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." Ibid. "Whether a child is 'abused or neglected' is quite frequently 'fact sensitive.'" A.R., supra, 419 N.J. Super. at 544 (quoting P.W.R., supra, 205 N.J. at 33). It is the "risk of harm, not just past injury or acts, [that is] relevant to determining whether a child is an abused or neglected child." I.H.C., supra, 415 N.J. Super. at 575.
Defendant asserts that the Division failed to prove abuse and neglect by a preponderance of the evidence and that the judge improperly inferred that defendant's "substance abuse established the requisite harm under N.J.S.A. 9:6-8.21(1)(c)(4)(b)." Defendant further asserts that she neither caused actual harm to B.H., nor created an imminent risk of such harm, citing, in part, the judge's lack of finding that her conduct impaired B.H.'s physical, mental or emotional condition. DYFS and the Law Guardian counter these contentions by arguing that the judge did not base her findings and conclusions solely upon defendant's chronic drug addiction, but rather upon her conduct as it posed a risk of harm to B.H.
The Court recently held that "where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger." Dep't of Children & Families v. T.B., 207 N.J. 294, 307 (2011). Here, the evidence revealed that defendant's chronic drug abuse continued while she was receiving services from DYFS of which, at best, she sporadically availed herself. B.H. was shuttled back from North Carolina while defendant's substance abuse continued unabated.
After the child's return in August 2010, defendant continued to abuse a variety of illegal substances, to participate in counseling programs intermittently, and acknowledged her continued relapses. Her inability to manage her housing assistance was well documented, and it resulted in B.H. having to live, temporarily, with her father's sister. We conclude such conduct placed the child in great risk of imminent harm as contemplated by the statute.
This case is vastly different from the circumstances present in our recent decision in N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011). There, we reversed a "finding that [the defendant] neglected [his] eleven-year-old [daughter] by testing positive for cocaine and marijuana at two visits supervised by" DYFS. Id. at 323. Although we noted the defendant's failure to cooperate with drug treatment recommendations and his positive drug tests during supervised visits, we "disagree[d] that such behavior inherently created a substantial risk of harm to" the child. Id. at 330.
However, unlike the present case, the defendant in V.T. did not have physical custody of the child, id. at 323, and the trial judge's finding of neglect was limited to the conclusion that the defendant exposed the child to imminent harm during supervised visitation. Id. at 327. To the extent defendant relies upon our holding in V.T., she fails to appreciate that the totality of the circumstances in this case clearly demonstrated B.H. was exposed to a risk of imminent harm by the "vestiges" of defendant's chronic substance abuse, her sporadic attendance at counseling services provided by DYFS, and her inability to manage her financial affairs to provide B.H. with stable housing.
Because we conclude the finding of neglect was appropriate under the circumstances presented, defendant's second point is moot.