November 21, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, 
S.R., Defendant-Appellant, and R.S., IN THE MATTER OF R.S. and K.M., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-78-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors R.S. and K.M. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Espinosa, Koblitz and O'Connor.
S.R. (fictitiously Serena) appeals from a May 8, 2012 finding that she abused or neglected two of her three daughters: R.S. (fictitiously Rhonda), born in 2008, and K.M. (fictitiously Kim), born in 2011. Her oldest daughter was in the custody of a relative during this litigation and therefore not included in the fact-finding. Serena also appeals from the trial judge's decision to allow the Division to file for guardianship pursuant to Title 30, N.J.S.A. 30:4C-15, before the fact-finding was finalized. We reverse the abuse or neglect finding only.
The Division became involved with Serena in 2008 when St. Joseph's Hospital reported that she was abusing drugs while pregnant with Rhonda. She admitted to using marijuana and Phencyclidine (PCP). Serena was also homeless. Serena tested positive for PCP when Rhonda was born. The Division provided baby essentials for Rhonda, a home health aide and a referral for a substance abuse evaluation. Serena was living with her stepmother, who reported that Serena left the baby overnight. Serena admitted to this behavior and the home health aide also reported that Serena did not cooperate. She tested positive for marijuana and PCP on numerous occasions in 2009. Serena failed to enroll in a substance abuse program recommended by the Division. The Division filed a complaint alleging abuse or neglect and Serena stipulated that she placed her child at harm by using PCP. Although Rhonda had been removed, she was returned to Serena after three months while she was attending an outpatient rehabilitation program in Paterson.
Rhonda was removed again in June 2010 when Rhonda's father found Serena high on PCP and engaging in reckless behavior with Rhonda. Although pregnant again, Serena continued to test positive for PCP in September and October 2010. At a second fact-finding in October 2010, Serena again stipulated to putting Rhonda at risk by using PCP.
Serena complied with substance-abuse treatment and Rhonda was again returned to her. When her third daughter, Kim, was born, Serena was ordered to continue to comply with drug testing and out-patient treatment. The Division did not remove the new child, Kim, because Serena began testing negative for substances.
Serena said she was displaced by the August 2011 flooding in Paterson. She did not submit to the required drug testing and the Division could not locate her for more than a month. She dropped out of her GED course and failed to take Rhonda for required early intervention appointments. On October 5, Serena went to the Division offices where she tested negative for PCP as reflected in a laboratory report.
On October 25, 2011, during a compliance review hearing, Serena tested positive for PCP in an in-court urine test ("insta test") administered by court personnel. After drinking water without supervision, she was allowed to take a second "insta test, " which produced a negative result. The two girls were removed by the Division on an emergent basis two days later. On October 28, the Division filed an amended complaint adding Kim to the abuse or neglect litigation. This amended complaint was changed by court staff to reflect a new complaint with a new 2012 abuse or neglect docket number replacing the 2009 docket number. Also on this date, the court approved the emergency removal of the two children, who were then placed in the custody of the Division. After several adjournments occasioned in part by the defense, the fact-finding hearing originally scheduled for February 14, 2012 was held on April 13, 2012. At the hearing, Division caseworker Tobiann Wilson outlined Serena's nearly four-year history with the Division. Wilson noted that Serena had been displaced by the flood in August 2011 and submitted a negative urine sample during her October 5 visit to the Division offices. Wilson also testified regarding Serena's October 25 positive "insta test" and Serena's less-than-satisfactory compliance with court ordered substance abuse treatments. Serena did not appear.
Prior to the judge's oral decision on May 8, Serena sought to reopen the case to allow her testimony as well as the testimony of her paramour, who had been ruled out by a paternity test as the father of her youngest daughter. The judge did not reopen the hearing and found after a review of the evidence that Serena had abused or neglected her two children by the continued use of PCP while they were in her care and her refusal to fully comply with services over a lengthy period of time.
Serena raises the following issues on appeal:
POINT I: THE TRIAL JUDGE'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND GROSS NEGLIGENCE OR RECKLESS CONDUCT TO SUPPORT A CONCLUSION OF ABUSE AND NEGLECT AGAINST [SERENA].
A. THE TRIAL COURT ERRED IN FINDING THE INSTA TEST CREDIBLE EVIDENCE OF [SERENA'S] DRUG USE.
B. THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF FACTS AND OPINIONS WHICH REQUIRED EXPERT TESTIMONY.
C. EVEN IF THE TRIAL COURT WAS CORRECT IN DETERMINING THAT THE INSTA TEST WAS RELIABLE AND COMPETENT, THERE WAS NOT SUFFICIENT EVIDENCE TO FIND THAT THE CHILDREN WERE ABUSED OR NEGLECTED.
POINT II: THE COURT ABUSED ITS DISCRETION BY NOT ALLOWING [SERENA] TO RE-OPEN HER CASE FOR BRIEF TESTIMONY.
POINT III: THE TRIAL COURT ERRED IN ALLOWING DCPP TO FILE THE GUARDIANSHIP COMPLAINT BEFORE FACT FINDING, DISPOSITION OR A PERMANENCY HEARING HAD OCCURRED THEREBY DENYING DEFENDANT-APPELLANT HER RIGHT TO DUE PROCESS OF LAW.
POINT IV: THE TRIAL COURT ERRED IN PERMITTING DCPP TO INCLUDE [KIM] ON THE GUARDIANSHIP PETITION AS [KIM] HAD ONLY BEEN IN FOSTER CARE FOR THREE AND A HALF MONTHS.
POINT V: THE TRIAL COURT FAILED TO HAVE A DISPOSITIONAL AND PERMANENCY HEARING BEFORE DISMISSING THE FN LITIGATION WHICH DENIED [SERENA] DUE PROCESS OF LAW.
We must "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We may not "second-guess or substitute our judgment for that of the family court, " so long as "the record contains substantial and credible evidence to support" the family court's decision. Id. at 448-49.
A family court's fact-findings should be overturned only if they "are so 'wide of the mark' that our intervention is necessary to correct an injustice." Id. at 448 (internal citations omitted). We need not, however, defer to the family court's legal conclusions. N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J.Super. 538, 542-43 (App. Div. 2011) (internal citation omitted).
Abuse or neglect actions are governed by Title 9. N.J.S.A. 9:6-8.21 -.51. The purpose of Title 9 is "to ensure children's rights will be adequately protected by the appropriate courts and social service agencies." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (internal citation omitted). Proceedings under Title 9 are intended to address immediate needs of a child for safety and protection. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 109-10 (2011).
An abused or neglected child is defined as a child under 18 years of age
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, as herein defined, 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 any other acts of a similarly serious nature requiring the aid of the court. . . .
Our Supreme Court concluded that "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. N.J. Dep't of Human Servs., 157 N.J. 161, 178 (1999). The Court held that a parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. According to a wanton and willful negligence standard, a parent is "liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Id. at 179.
Title 9 further provides for a fact-finding hearing at which the Division must show by a preponderance of the "competent, material and relevant evidence" that the child is an abused or neglected child. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App. Div. 2002); N.J.S.A. 9:6-8.46. "The purpose of a fact-finding hearing in an abuse or neglect proceeding is not to assign guilt to a defendant, but to determine whether a child is an abused or neglected child pursuant to N.J.S.A. 9:6-8.44." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 328 (App. Div. 2011).
The court should "base its findings on the totality of the circumstances, since [i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J.Super. at 329-30 (internal citations and quotations omitted). Moreover, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
The judge reviewed the history of Serena's inability to successfully address her drug abuse as well as the "insta test" results, which the judge accepted as evidence of Serena's recent use of PCP, her "regular drug of choice." We agree with the judge's statement that his awareness from other cases that PCP may be washed from the system is not an appropriate fact for judicial notice. N.J.R.E. 201(b)(1), (2). We disagree, however, with his acceptance of the "insta test" result. The positive finding of the first "insta test" is not admissible as proof of Serena's use of PCP because of its lack of demonstrated scientific reliability as well as the contrary result that followed a short time later.
Unquestionably, to care for young children without supervision while under the influence exposes them to a high risk of harm. N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J.Super. 467, 481 (App. Div.), certif. denied, 203 N.J. 439 (2010). V.T. should not be read to the contrary. In V.T., a father behaved appropriately at two supervised visits with his eleven-year-old child although he tested positive for drugs. V.T., supra, N.J.Super. at 325. We determined that the positive drug tests under those circumstances were insufficient to demonstrate abuse or neglect. Id. at 331-32.
Serena's history with the Division during which she twice stipulated to abusing or neglecting Rhonda by caring for the child while under the influence of drugs arguably provided sufficient legal basis for the court's jurisdiction, precluding the need for a third fact-finding hearing. A single fact-finding is required to sustain the court's jurisdiction in a Title 9 case. N.J. Dep't of Children and Families v. I.S., 214 N.J. 8, 14-15 (2013), cert. denied, ___U.S. ___, ___ S.Ct. ___, ___L.Ed.2d ___, 82 U.S.L.W. 3257 (Nov. 5, 2013); N.J.S.A. 9:6- 50(c). The Division, however, did not appeal from the court's administrative dismissal of the first Title 9 complaint and assignment of a new docket number. A fresh complaint triggered the need for a new fact-finding. As the Division did not argue on appeal that the rejection of the amended complaint in favor of a new complaint or the judge's order directing a third fact-finding were improper, we do not address those issues. See State v. Henderson, ___ N.J.Super. ___, ___ (App. Div. 2013) (slip op. at 14) (noting that we will not consider arguments that have not been briefed or argued).
Serena relies on State v. Cullen, 428 N.J.Super. 107 (App. Div. 2012), to support her argument that the judge abused his discretion in denying her application to reopen the record for her testimony.
In Cullen, a criminal defendant sought to reopen the record to testify the morning after the defense rested, but before closing arguments. Id. at 111. We held that the trial court abused its discretion in its refusal to reopen the record because "the judge erroneously gave greater weight to expedience and the brief delay that would result than he gave to defendant's constitutional right to testify" in a criminal trial. Id. at 112. We found:
No hard and fast rule for the guidance of [the judge's] discretion can be laid down. Obviously at that late stage of the proceedings . . . [reopening the record] should not be taken lightly. It seems sufficient to say that when a citizen's life is at stake a trial in a court of justice is not a game and the judge is more than an umpire. And so, when the ends of justice will be served by a reopening, it ought to be done.
[Id. at 111-12 (citing State v. Wolf, 44 N.J. 176, 191 (1965))].
Further, relying on In re Guardianship of Dotson, 72 N.J. 112, 118 (1976), Serena argues that the fact-finding proceedings are "almost quasi-criminal in nature." Our Supreme Court in Dotson dealt with the issue of providing free transcripts to an indigent mother in a termination of parental rights case. The Court found that a guardianship proceeding is "almost quasi-criminal in nature, since it seeks to terminate for cause all parental ties between the children  and their natural parents." Ibid.
Serena did not appear in court when her fact-finding hearing began. She arrived late and apparently failed to notify anyone in the hearing or court personnel stationed outside the courtroom of her arrival. Her lawyer did not see Serena in the hallway until after the proceeding concluded. Serena had knowledge of how closed court hearings in child protective services proceedings were conducted based on her prior involvement. Also, the hearing did not involve the termination of parental rights as in Dotson. Neither was her request to testify made on the morning after the record was closed as in Cullen, but rather for the first time a month later, immediately before the judge gave his decision.
The Division offered no reason other than expediency not to allow Serena to testify belatedly. We agree with the judge that Serena's counsel should have made a request to reopen the hearing prior to the date of the decision. Given the seriousness of the issues, however, we view the decision not to allow Serena to testify on her own behalf to be a mistaken exercise of discretion.
Serena also argues that her due process rights were denied when the trial court allowed the Division to file a guardianship complaint before a fact-finding, disposition, or permanency hearing occurred. She also argues that Kim should not have been included in the guardianship petition because Kim had only been in foster care for three and a half months. Serena further contends that allowing the guardianship complaint to be filed is essentially approving the change of the permanency plan to termination of parental rights without a permanency hearing.
Although review of the ongoing Title 30 guardianship proceeding is interlocutory, Serena has not sought leave to appeal pursuant to Rule 2:5-6. Serena improperly requests relief as of right before a final judgment has been issued by the family court in the Title 30 litigation. See R. 2:2-3(a)(1). Absent a need to prevent irreparable injury, or as required by the interest of justice, appellate courts maintain a "general policy against piecemeal review of trial-level proceedings." Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008). None of the issues raised by Serena with regard to the ongoing guardianship litigation are of such a nature to require interlocutory review. We note that "termination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J.Super. 252, 259-60 (App. Div. 2009), certif. denied., 201 N.J. 153 (2010) (internal citation and quotation marks omitted).
We reverse only the third Title 9 fact-finding decision. We do so because the judge relied in part on the positive "insta test" and because he did not reopen the proceedings to allow Serena to testify. In A.P. we explained that there is "no longer any need for the continuance of the Title 9 action after the Title 30 action [is] filed." Id. at 261. Here, the Title 9 complaint has been dismissed and a Title 30 complaint filed. We do not anticipate that our decision will have any impact on the continuing Title 30 proceedings.