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New Jersey Division of Child Protection & Permanency v. J.C.

Superior Court of New Jersey, Appellate Division

June 8, 2015

J.C., Defendant-Appellant, and C.M., Defendant. IN THE MATTER OF T.M., a minor

Submitted: May 4, 2015.

Approved for Publication June 8, 2015.

Page 284

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-456-12.

Joseph E. Krakora, Public Defender, attorney for appellant ( Beth Anne Hahn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent ( Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief).

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

Before Judges SABATINO, SIMONELLI, and GUADAGNO. The opinion of the court was delivered by GUADAGNO, J.A.D.


Page 285

[440 N.J.Super. 570] GUADAGNO, J.A.D.

Following a Title Nine fact-finding hearing, a Family Part judge determined that defendant J.C. (Jenny)[1] abused or neglected her then three-year-old son, T.M. (Tom). The judge found that on July 19, 2012, Jenny drank alcohol and remained in her bedroom through the following morning with the bedroom door closed, while Tom was in the next room unsupervised, wearing a dirty diaper, with the apartment door ajar.

On appeal, Jenny claims that the Division of Child Protection and Permanency (Division) failed to prove that she neglected her child. The Division and the child's Law Guardian urge us to affirm the judge's finding. Because Tom was not injured and Jenny's conduct did not rise to the level of gross negligence or reckless disregard for Tom's safety, we reverse.


The Division first became involved with this family in August 2010, when it received a referral that Tom, who was then one year old, was living with Jenny and her mother, D.C. (Denise), in [440 N.J.Super. 571] unsanitary conditions. The allegations were substantiated and the Division began to provide services for the family. It is not disputed that Jenny attended all recommended evaluations including psychological evaluations with Drs. Briana Cox and Mark Singer, a psychiatric evaluation with Dr. Samiris Sostre, a substance abuse evaluation with Catholic Charities, and a neuropsychological evaluation with Dr. Jonathan Mack.

Jenny told Dr. Cox that she smoked marijuana before Tom was born and drank alcohol occasionally. Cox recommended that Jenny submit to a substance abuse evaluation and a urine screening. Dr. Sostre concluded that Jenny had no acute symptoms of mood disorder, anxiety disorder, or psychiatric disorder that would require treatment and no psychiatric care was indicated. Dr. Mack recommended individual counseling by a psychologist and parent training. Neither Cox, Sostre, nor Mack made any finding of alcohol abuse.

Jenny submitted to a substance abuse evaluation with Catholic Charities on April 5, 2011. On several occasions in the report, the following comment is repeated:

Client reports that she was 21 years of age when she first drank alcohol and will have an occasional social drink. Client reports one experimental use of marijuana when she was age 19, no more since that time.

Catholic Charities did not diagnose Jenny with a drug or alcohol disorder. Rather, it deferred diagnosis without further explanation.

In August 2011, Jenny submitted to a drug screen that was negative for drugs and positive for alcohol. After she again tested positive for alcohol in January 2012, the Division filed an order to show cause on March 8, 2012, seeking care and supervision of Tom pursuant to Title Thirty, N.J.S.A. 30:4C-12. The Family Part judge granted the application and told defendant that the Division wanted her to comply with the recommendations contained in Dr. Mack's report, specifically that she engage in counseling, cooperate

Page 286

with a home health aide, and receive parenting skills training. Defendant agreed.

[440 N.J.Super. 572] Defendant returned to court on April 2, 2012 for a hearing on the return of the order to show cause. The caseworker told the judge that defendant's parenting class would begin on the following day and counseling within a few weeks. Although there had been no diagnosis of any alcohol-related disorder by any of Jenny's evaluators, the deputy attorney general (DAG) advised the court of an " update" that the Division had arranged for Jenny to participate in an alcohol treatment program that was scheduled to begin on April 12, 2012. The DAG then requested that Jenny submit to a urine screen in the courthouse that day to screen for alcohol, even though the DAG was not sure the courthouse urine screens could detect alcohol. The judge asked Jenny if she would submit to the on-site urine screen. She replied that she would prefer to wait until her treatment began in ten days.

Jenny then asked why she was being required to participate in more services than were originally proposed at the March 8, 2012 hearing. Without questioning the basis of the DAG's recommendation, the judge told Jenny that the Division had alleged that she was " involved with using alcohol and [her] drinking . . . [was] of significant concern[] to them." The DAG then incorrectly represented to the court that Dr. Mack had recommended that Jenny participate in alcohol treatment.

Even though Jenny had not refused to participate in any of the services offered, the judge, perhaps relying on the misstatement by the DAG about Dr. Mack's recommendations, suggested that the Division " should be taking the child away from [Jenny] if she doesn't participate in all those services." The judge then characterized Jenny's questioning of the additional services as " wanting to fight back[.]" Although Jenny had agreed to participate in all recommended services, the judge characterized her wish to postpone the urine screen as being " reluctant to participate in services[.]" The judge then suggested ...

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