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New Jersey Division of Child Protection and Permanency v. L.J.

Superior Court of New Jersey, Appellate Division

May 23, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY (formerly DIVISION OF YOUTH AND FAMILY SERVICES), Plaintiff-Respondent,
v.
L.J., Defendant-Appellant, and J.R., Defendant. IN THE MATTER OF S.E.A.J., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 10, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-453-11.

Mary Potter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Potter, on the brief).

Joyce Calefati Booth, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Calefati Booth, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minor S.E.A.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

Before Judges Sapp-Peterson, Haas and Happas.

PER CURIAM

Defendant, L.J., appeals from the Family Part order, entered following a fact-finding hearing, determining that she abused or neglected her son, S.E.A.J. On appeal, L.J. urges that the fact-finding order must be reversed because the record lacked substantial credible evidence that S.E.A.J. had been abused or neglected. We disagree and affirm.

At the fact-finding hearing, the Division of Child Protection and Permanency (Division) presented testimony from two witnesses who had been involved in the investigation and efforts to implement a safety plan with L.J., Sasha Marroquin and Julia Borass. L.J. did not testify nor present any witnesses on her behalf at this hearing. The evidence revealed that on April 4, 2011, the Division received a referral that L.J. and her paramour at that time, C.C., were smoking marijuana in the presence of S.E.A.J., who was sixteen months old. During the course of the Division's investigation, L.J. admitted to drug use and tested positive for phencyclidine (PCP) and marijuana. L.G. voluntarily entered into a safety plan, which called for a homemaker to be placed in her home. However, the homemakers were unable to gain access to L.J.'s home. As a result, a second safety plan was initiated under which L.J. agreed to participate in outpatient drug treatment.

On May 16, 2011, L.J. once again tested positive for marijuana and PCP. The Division proposed homemakers, but L.J. would not agree. One week later, L.J. tested positive for PCP and marijuana. At this time, however, she disclosed to the Division that she was being treated for bipolar disorder and was being prescribed psychotropic medication. She also refused to execute the necessary release forms in order that the Division could confirm her attendance at an outpatient drug treatment facility.

During a home visit on June 8, 2011, the Division learned that L.J. was involved with a new person. L.J. only knew his first name, "Jun Jun", that he was on probation, and that he had a daughter who was in foster care. She advised the caseworker that he was at her home "five times a week." She agreed to bring Jun Jun to the Division office. Although L.J. appeared at the office, Jun Jun was not with her, and L.J. complained to the worker that two of her relationships had gone "down the drain" because of the Division.

At the conclusion of the fact-finding hearing, the trial judge placed her findings on the record, concluding, by the preponderance of the evidence, that L.J. placed S.E.A.J. at a substantial risk of harm by the choices she had made, specifically, being involved with an individual whose last name she did not know, but who she knew had a criminal record, had been incarcerated, had violated his probation, has a child who is in foster care, and whom she permitted to be in her home on a daily basis while barely knowing him. Additionally, the judge also found the substantial risk of harm to which L.J. subjected S.E.A.J. was evidenced by her admitted ongoing use of illicit drugs while at the same time being prescribed psychotropic medications. The present appeal followed.

The right to raise one's children is a fundamental liberty interest constitutionally protected by the Due Process Clause of the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982). However, the right to raise one's biological children is tempered by the State's parens patriae responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Our review of a trial judge's factual finding of abuse or neglect is limited. We defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.Super. 77, 89 (App. Div. 2008) (quoting Cesarev. Cesare, 154 N.J. 394, 411-12 (1998)). We accord this deference because the trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v.M.M., 189 ...


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