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New Jersey Div. of Child Prot. & Permanency v. B.O.

Superior Court of New Jersey, Appellate Division

December 19, 2014

B.O. and T.E., Defendants-Appellants. IN THE MATTER OF T.E.E., a minor

Submitted November 18, 2014.

Approved for Publication December 19, 2014.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-198-12.

Joseph E. Krakora, Public Defender, attorney for appellant B.O. ( Andaiye Al-Uqdah, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant T.E. ( Carol A. Weil, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent ( Melissa H. Raksa, Assistant Attorney General, of counsel; Timothy P. Malone, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.E.E. ( Lisa M. Black, Designated Counsel, on the brief).

Before Judges REISNER, KOBLITZ and HIGBEE. The opinion of the court was delivered by KOBLITZ, J.A.D.


[438 N.J.Super. 375] KOBLITZ, J.A.D.

In this consolidated matter, both parents appeal from a February 14, 2013 order finding they abused or neglected their seven-week-old infant, T.E.E. (Timmy[1]), within

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the meaning of N.J.S.A. 9:6-8.21(c), by causing him to suffer brain injury through partial suffocation when they both took oxycodone and the mother, B.O. (Betty), slept with Timmy in the same bed.[2] The parents argue that the eyewitness presented by the Division was so incredible and the doctor so poorly informed that the Division did not prove the parents' failure to exercise a minimum degree of care by a preponderance of the evidence. The Law Guardian joins the Division in urging us to affirm. After carefully reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendants did not testify, nor present any other evidence at the fact-finding hearing, nor did they attend every day of the four-day hearing. The Division presented the following facts. The Division received its first referral regarding defendants on the day after Timmy was born. The reporter alleged that in June and November 2011, during her pregnancy, Betty tested positive for marijuana. Betty told the Division she did not intentionally smoke marijuana after realizing she was pregnant, but may have [438 N.J.Super. 376] tested positive because she was in a car where others were smoking it. She also said she had been diagnosed with bipolar disorder but was not receiving treatment. Both parents tested negative after Timmy was born, although T.E. (Ted) did not appear for a drug test at the end of January.

In January, on a routine home check, defendants informed the Division caseworker that they had taken Timmy to the hospital because he had a fever. The child's pediatrician expressed no concerns about Timmy's care. A week later, however, on February 10, 2012, the caseworker called Betty and discovered that defendants were waiting at the pediatric intensive care unit. Betty said that morning she found Timmy, then about seven weeks old, not breathing. Betty related that she had placed Timmy in his bassinet for a nap in the morning. When she checked on him later he had blue lips, a blanket covering his face, and was not breathing.

Two Division caseworkers met the parents at the hospital where both parents provided a similar account of what happened. Neither parent mentioned the presence of any other adult. On February 21, however, a downstairs resident of the two-family house where defendants lived contacted the Division to say that Jay, who had been staying with defendants, told her that he saw Betty " get up off the baby" on the morning of Timmy's injury. She said defendants were drug-involved and were always " messed up and nodding out." Betty acknowledged having a houseguest named Jay, but said he was not there when Timmy was hurt. Both parents admitted using marijuana recently due to the stress from Timmy's injury. Betty tested positive for marijuana and Ted tested positive for marijuana, oxycodone and oxymorphone.

Two days later Jay told the police that he met the parents through Betty's downstairs relative, and had been living with the parents for four weeks as of February 10. According to the transcribed statement given to the police, Jay told them that on the evening of February 9, defendants purchased " oxycodone, weed, [X]anax and cocaine[.]" While he did not see them use any [438 N.J.Super. 377] drugs that evening or notice any drugs in the house, Jay said he had overheard defendants ordering drugs on the phone. Jay asserted that he could also " tell they were on something" because they were " addicts." Jay told the police

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that the parents began to argue because Ted kept " nodding out" and was not helping Betty care for Timmy. Betty took the baby into her bedroom, and Ted slept in the living room.

Jay stated to the police that at around 1:15 p.m. on February 10,

I knocked on the bedroom door three times and then [Betty] finally woke up and said who is it? I said it's Jay and she said come in. I watched [Betty] roll off the baby. My eyes were focused on the baby. I saw his head was a dark bluish color and his lips were purple. I screamed at her to get off him, and to look at what she did and she picked him up by his diaper screaming and she ran into the living room . . . and she put him on the couch and woke [Ted] up. [Ted] started to give him compressions on his chest and blowing into his mouth. I didn't want to be up there anymore so I went downstairs and I told everybody downstairs and somebody downstairs called 911 and then all the cops came and the ambulance came and went upstairs and gave him oxygen and then they took him to the hospital.

Dr. Steven Kairys, a child abuse specialist with thirty years of experience, who saw Timmy at the hospital every day, opined that this explanation of the deprivation of oxygen was " much more consistent as a plausible cause" for ...

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