RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1084-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.S.,
Defendant-Appellant,
and
A.J. and F.R.,
Defendants.
_________________________________
IN THE MATTER OF F.R., A.S.,
Ks.J. and Ka.J.,
Minors.
_________________________________
Argued April 26, 2017 – Decided June 6, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-399-14.
Thomas W. MacLeod, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. MacLeod, on the
briefs).
Michael Antenucci, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Mr. Antenucci, on the brief).
Margo E.K. Hirsch, Designated Counsel, argued
the cause for minors (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Ms.
Hirsch, on the brief).
PER CURIAM
Defendant T.S. appeals from a May 15, 2014 Family Part order
finding of abuse and neglect after the Division of Child Protection
and Permanency (Division) conducted an investigation into
defendant's marijuana abuse and its impact on her children.
Defendant argues the Division failed to establish that her drug
use created a substantial risk of harm. We disagree and affirm.
We discern the following facts from the record. Defendant
is the mother of T.S. (Tessa) (born 1998), F.R., Jr. (Frank) (born
2000), A.S. (Amelia) (born 2001), and twins Ks.J. (Kyle) and Ka.J.
(Kayla) (born 2010).1 Tessa was reported to have been placed in
the legal and physical custody of her paternal grandmother as an
infant via a family arrangement.
1
We use pseudonyms to protect the identity of the parties
involved.
2 A-1084-15T1
Defendant had eleven prior referrals with the Division dating
back to 2003, prior to the referral presently before us. These
previous referrals include allegations of substance abuse,
physical abuse, inadequate supervision, lack of stable housing,
and domestic violence.2
Defendant's current Division case opened on May 8, 2013, when
she was involved with an investigation regarding a friend, T.O.
(Trudy), and her six-year-old daughter, Z.S. (Zoe). Trudy asked
defendant to watch Zoe for the afternoon. However, later that
evening, Trudy reported to the Division that Zoe had gone missing.
During the investigation, defendant admitted to keeping Zoe out
for a "prolonged period of time" before giving the child back to
her uncle. Zoe was later found by police on a porch at Trudy's
home, asleep under a bag.
On May 17, 2013, defendant was asked about allegations of
substance abuse reported by Trudy when she contacted the Division.
Defendant admitted to daily marijuana use and occasional alcohol
consumption. As a result of the admission, the Division referred
defendant for substance abuse evaluations. Defendant completed
the evaluations and was scheduled to begin substance abuse
2
The record is not clear regarding the outcome of the prior
referrals except for investigation summaries which state some of
the previous allegations were "unsubstantiated."
3 A-1084-15T1
treatment on July 9, 2013, at the University of Medicine and
Dentistry of New Jersey's (UMDNJ) Behavioral Health Care Center.
A.J. (Andrew), defendant's boyfriend at the time and father of
Kyle and Kayla, completed a substance abuse evaluation on June 4,
2013, at the Essex County Substance Abuse Initiative (SAI). During
the evaluation, Andrew reported his concern that defendant
suffered from mental illness. SAI reported this allegation to the
Division.
On June 6, 2013, the Division spoke with defendant and Andrew
to address the allegation reported by SAI. Defendant denied
suffering from mental illness. Notwithstanding defendant's
denial, the Division scheduled her for a psychological evaluation
to rule out any mental health issues.
During the course of the investigation, the Division also
received school reports for Amelia and Frank. Amelia was reported
to have a severe learning disability, which caused her to function
below her grade level. Additionally, Amelia had a poor attendance
record during the 2012-13 school year, missing twenty-six days
overall. When Amelia was in school, she was described as being
unprepared, appearing unkempt and having a foul odor, lacking
social skills, becoming frustrated easily, and being physically
violent. The school also reported that defendant was not
responsive to its concerns for Amelia, although was aware of the
4 A-1084-15T1
educational issues. Similarly, Frank's school reported that he
suffered from a learning disability, had issues with aggression,
and that his responses to situations were "often unwarranted."
At the conclusion of the Division's investigation, defendant
was "established" for creating a substantial risk of harm to the
children based on her admitted "frequent drug use." The case
remained open with the Division to ensure the concerns raised were
monitored, including defendant's compliance with substance abuse
treatment and to ensure that Amelia and Frank's educational issues
were resolved.
Defendant disclosed to the Division that, as of August 7,
2013, she had not commenced substance abuse treatment.
Subsequently, the Division made numerous visits to defendant's
home giving her treatment program information. Despite these
efforts by the Division, as of December 17, 2013, defendant still
had not started treatment.
The Division determined that care and supervision litigation
against defendant was necessary because she was non-compliant with
recommended substance abuse treatment. On January 16, 2014, the
Division filed a Verified Complaint for Care and Supervision of
the minors Frank, Amelia, Kayla and Kyle, naming defendant and
5 A-1084-15T1
Andrew as defendants.3 At the hearing before a Family Part judge,
the Division presented its concerns over defendant's history of
substance abuse and non-compliance with treatment. The Division
also noted concerns as to the family's frequent relocation within
different school districts, and its negative impact on the minors'
behavior and school attendance.
The judge signed the order to show cause (OTSC), finding the
Division's care over the minors was necessary to "avoid an ongoing
risk" to their lives, safety, and health based on the sufficient
concerns presented by the Division.
On February 19, 2014, the return date for the hearing on the
OTSC, the Division reported that defendant had not started her
substance abuse treatment and failed to obtain a doctor's note
clearing her for participation in a program. The judge ordered
defendant to obtain the doctor's note and to comply with in-home
services, including a parent aide.
At the May 15, 2014 fact-finding hearing, the Division offered
the testimony of its investigator, Michael Hunter. Hunter
testified about the Division's involvement with defendant,
including the prior referrals and the current investigation
3
After the Division filed the Verified Complaint for Care and
Supervision, Andrew never appeared.
6 A-1084-15T1
prompted by the referral of Trudy regarding Zoe. Hunter also
testified about the educational issues involving Amelia and Frank.
The Division further presented the testimony of Hasan
Sanders, the case manager, who continued working with the family
after the Division's initial investigation. Sanders testified
that during his time with the family, defendant was non-compliant
with substance abuse treatment. Specifically, defendant never
followed up with the UMDNJ program, nor did she follow up with
Sanders' list of recommended treatment programs. Each program
required defendant to obtain a doctor's note clearing her for
participation. Notwithstanding, defendant never made efforts to
secure a doctor's approval.
At the conclusion of the testimony, the Division argued that
it met its evidential burden that defendant neglected the minors
by placing them at risk of harm, as defined by N.J.S.A. 9:6-
8.21(c). The Division specifically pointed to the marijuana abuse
and treatment non-compliance in combination with the educational
neglect of Amelia and Frank as supportive of a finding of abuse
and neglect.
In an oral decision, the judge determined that the Division
had established by a preponderance of the evidence that defendant
neglected the children, as proscribed by N.J.S.A. 9:6-8.21(c).
The judge found that defendant had a long history with the
7 A-1084-15T1
Division, including a prior substantiation involving substance
abuse, and that she was given ample time to remediate the
Division's substance abuse concerns. The judge further found that
defendant never complied with any recommended substance abuse
program, and that she continued to test positive for marijuana.
The judge held that defendant's drug use "had a detrimental
effect on [the] children, and it did cause harm." The judge
further held that the educational issues of Amelia and Frank
stemmed from defendant's failure to monitor school attendance and
her failure to address behavioral issues. The judge noted that
the totality of the circumstances supported a finding that there
was a risk of harm to the children based on defendant's potential
relapse due to her continued substance abuse. An order finding
abuse and neglect was entered.
Defendant raises the following point on appeal:
POINT I
THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT
SHOULD BE REVERSED BECAUSE IT WAS NOT
SUPPORTED BY A PREPONDERANCE OF THE COMPETENT
EVIDENCE IN THE RECORD BELOW.
A. The Record Does Not Contain
Sufficient Competent Evidence That
[Defendant's] Conduct Actually
Harmed Her Children or Created a
Substantial Risk of Harm, or That
[Defendant] Otherwise Failed to
Exercise a Minimum Degree of Care.
8 A-1084-15T1
B. Although the Trial Court
Improperly Failed to Specify Which
Element(s) of N.J.S.A. 9:6-
8.21(c)(4) Supported Its Legal
Finding of Abuse or Neglect, the
Record Evidence Does Not Satisfy
Either Potentially Relevant
Subsection of This Statute.
Our standard of review is well-settled. We are bound by the
trial court's factual findings if supported by sufficient credible
evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 578 (App. Div. 2010). We accord particular deference
to the Family Court's fact-finding because of the court's "special
expertise" in family matters, Cesare v. Cesare, 154 N.J. 394, 412-
13 (1998), its "feel of the case," and its opportunity to assess
credibility based on witnesses' demeanor. N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008). However, we will
not hesitate to set aside a ruling that is "so wide of the mark
that a mistake must have been made." N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 38 (2011) (quoting N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). On the
other hand, we accord no deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
9 A-1084-15T1
Whether a parent has failed to exercise a minimum degree of
care "is fact-sensitive and must be resolved on a case-by-case
basis." Dep't of Children & Families v. E.D.-O., 223 N.J. 166,
192 (2015). Courts undertaking this analysis "must avoid resort
to categorical conclusions." Id. at 180 (citing Dep't of Children
& Families v. T.B., 207 N.J. 294, 309 (2011)). The court should
base its determination on the totality of the circumstances. N.J.
Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329
(App. Div. 2011). "[T]he 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." Id. at 329-30 (internal quotation marks and
citation omitted).
Defendant argues that the evidence presented by the Division
was insufficient to establish that she abused or neglected her
children. Specifically, defendant contends that the trial court
did not make any specific findings with respect to what conduct
placed her children in imminent danger of becoming physically,
mentally, or emotionally impaired, or, alternatively, there was
no evidence that the children's educational issues actually caused
harm.
N.J.S.A. 9:6-8.21(c)(4) declares a child to be abused or
neglected if the child's
10 A-1084-15T1
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 . . . to exercise a minimum
degree of care (a) in supplying the child with
adequate . . . education . . . (b) in providing
the child with proper supervision or
guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, including the infliction of
excessive corporal punishment; or by any other
acts of a similarly serious nature requiring
the aid of the court. . . .
The Division "must prove that the child is 'abused or
neglected' by a preponderance of the evidence, and only through
the admission of 'competent, material and relevant evidence.'"
P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)). The
statute requires a court to consider harm or risk of harm to the
child, as opposed to the intent of the abuser, because "[t]he main
goal of Title 9 is to protect children 'from acts or conditions
which threaten their welfare.'" G.S. v. Dep't of Human Servs.,
157 N.J. 161, 176 (1999) (quoting State v. Demarest, 252 N.J.
Super. 323, 330 (App. Div. 1991)). Further, the phrase "minimum
degree of care," as used in N.J.S.A. 9:6-8.21(c)(4)(b), means
conduct that is not "grossly or wantonly negligent." G.S., supra,
157 N.J. at 178. Therefore, to show a failure to exercise a
minimum degree of care, negligence is not sufficient, but
intentional behavior is not essential. Id. at 178-79.
11 A-1084-15T1
We have recognized that a parent's use of drugs while caring
for a child puts the child at risk at "the slightest parental
misstep." See V.T., supra, 423 N.J. Super. at 331. In V.T., this
court held proof of a parent's drug use by itself was not enough
to sustain a finding of abuse or neglect where a father used drugs
prior to his visits with an eleven-year-old child. Ibid. We held
that the father's use of cocaine and marijuana and failure to
complete drug treatment did not "inherently create[] a substantial
risk of harm" to the child. Id. at 330. "[A] failure to
successfully defeat drug addiction does not automatically equate
to child abuse or neglect." Id. at 331. In reversing the finding
of abuse or neglect, this court noted there was no expert proof
showing how the father's drug use posed a risk of harm to the
child. Ibid.
We reached a similar conclusion in New Jersey Division of
Child Protection & Permanency v. R.W., 438 N.J. Super. 462, 468-
70 (App. Div. 2014), where we reversed a finding of abuse or
neglect that was based solely on the mother's use of marijuana on
one occasion while the child was in her care. We noted the absence
of detailed proof regarding the "circumstances of her ingestion,"
whether "the baby was solely in her mother's care when she was
intoxicated," and "the magnitude, duration, or impact" of the
intoxication. Id. at 470. "Instead of filling in missing
12 A-1084-15T1
information, an understandable response by judges who regularly
witness the evils inflicted on children by their parents' drug
use, judges must engage in a fact-sensitive analysis turning on
'particularized evidence.'" Ibid. (quoting N.J. Dep't of Children
& Families v. A.L., 213 N.J. 1, 28 (2013)).
Proof of imminent danger or significant risk is not enough.
"The Division must establish that, at a minimum, a parent acted
with gross negligence or recklessness to succeed in a prosecution
under N.J.S.A. 9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 181 (2014). "Whether a parent
exercised a minimum degree of care must be analyzed in light of
the dangers and risks associated with the situation." Id. at 184
(internal quotation marks and citation omitted).
In this context, our Supreme Court has held that significant
school absences would eventually result in permanent harm to a
child's education as a result of "parental inattention or neglect."
In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). In New
Jersey, parents are required to ensure their children either
regularly attend the public schools of the district in which they
reside or receive instruction equivalent in the public schools.
N.J.S.A. 18A:38-25. Attendance is compulsory. Joye v. Hunterdon
Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 641 (2003). A
parent who fails to comply with the attendance requirements "shall
13 A-1084-15T1
be deemed to be a disorderly person[.]" N.J.S.A. 18A:38-31. "The
reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a)
concerns parental encouragement to truancy of a school age child,
or other interference with normal educative processes." Doe v.
Downey, 74 N.J. 196, 199 (1977) (quoting Doe v. G.D., 146 N.J.
Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196 (1977)).
Unlike the parental drug use scenarios presented in R.W. and
V.T., defendant continually abused drugs and resisted attempts by
the Division to assist her through assistance programs.
Defendant's drug abuse was causally related to her children's
numerous absences, their unpreparedness, and their poor physical
appearance.
During the 2012-13 school year, Amelia was absent twenty-six
days. When Amelia was in school, she was described as being
unprepared, appearing unkempt and having a foul odor, lacking
social skills, becoming frustrated easily, and being physically
violent. Similarly, the school expressed concerns about Frank
relating to his learning disabilities and his demonstrated
aggressive behavior. Defendant was not responsive to the school's
reported concerns on either score.
In light of our standard of review, and applying these
principles, we conclude the Division produced sufficient competent
14 A-1084-15T1
evidence to demonstrate by a preponderance of the evidence that
defendant's conduct created a risk of harm to her children.
Affirmed.
15 A-1084-15T1