RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0642-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.D.,
Defendant-Appellant,
and
S.R. and J.M.,
Defendants.
__________________________________
IN THE MATTER OF
A.D.-R and N.R., minors.
__________________________________
Submitted February 9, 2017 – Decided March 15, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FN-03-200-15.
Joseph P. Grimes, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; James R. Griffin, Jr., Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Todd Wilson,
Designated Counsel, on the brief).
PER CURIAM
In this Title 9 matter filed by plaintiff, the Division of
Child Protection and Permanency (the Division), defendant A.D.
appeals from an order, filed on June 17, 2015. Following a fact-
finding hearing, the judge concluded A.D.'s conduct rose to neglect
as defined by N.J.S.A. 9:6-8.21(c)(1), resulting in the death of
her four-month old infant. We affirm.
The facts are undisputed. A.D. gave birth to twins, who
arrived five weeks early. A.D. and other family members resided
in the twins' paternal grandmother's home. On January 22, 2015,
the twins were cared for by A.D. Sometime after 4:00 a.m., the
twins' father awoke to use the bathroom. On his way back to bed,
he checked the twins and observed A.D. asleep on the couch and one
infant laying face-down on A.D.'s chest. When he lifted the child
to place her in a crib, her body was unresponsive. He initiated
mouth-to-mouth resuscitation and emergency personnel were called.
The infant could not be revived.
Responding police officers recorded an odor of alcohol
emanating from A.D.'s breath. A.D. was taken to the hospital and
2 A-0642-15T3
a blood test was conducted, the results of which were not
introduced.
The Burlington County Medical Examiner, Ian Hood, M.D.,
testified as an expert on behalf of the Division, during the fact-
finding hearing. He stated the infant had been dead for a "few
hours" when she was discovered, which is why resuscitation efforts
"were hopeless." The infant's death did not result because she
was premature; she was determined to be "robust, well-nourished
and apparently well cared for[,]" with no abnormality, trauma, or
illness discovered. The cause of death was considered a sudden
unexplained death of a co-sleeping infant, which resulted from the
lack of findings of any other cause of death. Dr. Hood stated,
"the incidence of sudden unexplained death is anywhere from 10 to
20 times more common when an infant is co-sleeping with somebody
else," distinguishing those deaths "from regular SIDS where a baby
dies on its [sic] own . . . ." Although the studies vary on the
amount of increase, all studies show "a great increase" in the
incidence of sudden infant death in cases involving co-sleeping.
This occurs because people move in their sleep, making the likely
cause of death suffocation or compression. The manner of death
changes from "natural for [sudden infant death] to undetermined
because we cannot exclude some kind of accidental overlying or the
mother's arm going over the child's body while the child was on
3 A-0642-15T3
her chest." This problem becomes more common when the co-sleeping
parent is impaired. He understood neonatal units have begun
instructing parents not to co-sleep and to place the baby on his
or her back when sleeping.
Dr. Hood explained he could not state the infant suffocated,
but that cause of death could not be excluded because suffocation
"does not leave findings a pathologist can find at autopsy." One
sign is discoloration of the brain tissue, which turns "dusky plum
purple." This was found in his autopsy of the infant; however,
the same condition is observed "in anyone who's had resuscitation
attempted for nearly an hour," which happened in this case.
The Division's caseworker, who responded when called by
police, also testified. In discussing her investigation, she
recounted her interview with A.D. A.D. had stayed with the twins'
father's family for several days. The caseworker recalled A.D.
and her father argued earlier in the day, when he came to the
twins' father's residence because A.D. had not been home for
several days. The disagreement centered on A.D.'s drinking.
A.D. remembered consuming alcohol prior to her father's
visit, in the nature of two "airplane" sized bottles of liquor,
one of tequila and another of amaretto. She also was drinking
regularly during the days leading to this event.
4 A-0642-15T3
Following the argument, A.D. went to bed around 6 p.m. and
woke at 11 p.m. The twins' father retired around 12:30 a.m. and
asked A.D. to care for the twins because he needed sleep. A.D.
"remembers being somewhat aggressive with the baby and thinking
please stop but . . . didn't remember picking the baby up in the
middle of the night." She also remembered she began drinking
after the father went to sleep and drank more than she had the
prior nights. When she awoke the next morning, she saw a half-
empty bag from a box of white wine next to the couch. A.D.
admitted when the father cared for the children, she would "binge
drink to the point that she was having some issues remembering
what she was doing." A.D. further reported "she [wa]s a different
person when she drinks," acting "more aggressive." Finally, A.D.
admitted taking Klonopin1 pills prescribed for the twins' father,
but denied she did so on the night she was caring for the infants.
The infants' father was also interviewed and testified during
the hearing. He arrived home from school at 2:30 p.m. and
"everything seemed fine." He reported, after A.D.'s father left,
1
Klonopin (clonazepam) is a benzodiazepine, used to treat
certain seizure and panic disorders. The Food and Drug
Administration cautions "Klonopin can make you sleepy or dizzy and
can slow your thinking and motor skills[,]" and specifically
cautions against drinking alcohol while taking Klonopin. Food &
Drug Administration, Medication Guides, Ref. No. 4028890,
Klonopin® Tablets (clonazepam) (2016) at 20.
5 A-0642-15T3
she took a nap. A.D. awoke at 9 p.m., at which time she appeared
to be "clear, alert and oriented." Before he went to sleep, the
infants' father made bottles for the twins, who were awake and in
their respective carriers. He heard the twins, "giggling and
interacting with [A.D.]" as she watched television while lying on
the couch. When he awoke and found the baby unresponsive, he
shook A.D., whose eyes looked like she was "smashed." As he
administered CPR to the baby, he asked A.D. to call 9-1-1; instead
she texted 9-2-2.
The twins' father also reported that, during A.D.'s stay, he
found empty bottles of alcohol, including two empty bottles of
wine on one day and an empty six-pack of beer the next. He also
was concerned because he discovered three of his prescribed
Klonopin pills were missing. The twins' father stated A.D. was
drinking the nights prior to the incident, because he was
responsible to care for the twins. His trial testimony that A.D.
was not drinking the day of the baby's death differed from his
interview statements the day his child died.
Without objection, the Division introduced three reports, the
infant's autopsy report authored by Dr. Hood; the caseworker's
investigative summary, and the Division's screening summary. A.D.
did not testify.
6 A-0642-15T3
Following summations, the judge issued his findings and
conclusions in a bench opinion. He found Dr. Hood's testimony
"fair," very credible, articulate, and well prepared. The
Division's caseworker was also found credible, did not embellish
her testimony, and "tried to be as accurate as possible." Finally,
as to the infants' father, the judge noted his responses tended
to "get as much information as he can to the [c]ourt . . . in the
framework of the question but tended to go beyond the question.
And so for that his credibility [wa]s not as strong. . . ."
Evaluating the evidence, the judge found A.D.'s conduct rose
to gross negligence because she acted with knowledge her conduct
was likely to result in serious injury to the infant. A.D.'s
consumption of alcohol while charged with the care of the infant
and deciding to co-sleep with the baby on the couch resulted in
the infant's death. A.D. was aware of her binge drinking and its
effects: she had attended Alcohol Anonymous, related she becomes
aggressive when she drinks, and frequently blacks out.
Notwithstanding her agreement to be responsible to care for the
infants, she began drinking and placed one crying infant, face
down, atop her as she fell asleep on the couch.2
2
The judge concluded the Division's evidence was insufficient
to prove the infants' father engaged in conduct causing abuse or
neglect.
7 A-0642-15T3
Thereafter, the judge conducted a dispositional hearing,
ordering services extended to A.D. and the infants' father.
Ultimately, the case was concluded on September 1, 2015, and A.D.
filed this appeal.
Our standard of review on appeal is narrow.
"[F]indings by the trial judge are considered
binding on appeal when supported by adequate,
substantial and credible evidence." N.J. Div.
of Youth & Family Servs. v. Z.P.R., 351 N.J.
Super. 427, 433 (App. Div. 2002) (citing Rova
Farms Resort, Inc. v. Investors Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). Deference to
a trial court's supported factual findings is
warranted because the trial judge "has the
opportunity to make first-hand credibility
judgments about the witnesses who appear on
the stand [and] . . . has a 'feel of the case'
that can never be realized by a review of the
cold record." N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008).
[N.J. Div. of Youth & Family Servs. v. S.I.,
437 N.J. Super. 142, 152 (App. Div. 2014).]
This scope of review is expanded when "the issue to be decided is
an 'alleged error in the trial judge's evaluation of the underlying
facts and the implications to be drawn therefrom . . . .'" N.J.
Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)
(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89
(App. Div. 1993)). On the other hand, a trial judge's legal
conclusions and the application of those conclusions to the facts
8 A-0642-15T3
are always subject to our plenary review. S.I., supra, 437 N.J.
Super. at 152.
The adjudication of abuse or neglect is
governed by Title 9, which is designed to
protect children who suffer serious injury
inflicted by other than accidental means.
G.S. v. Dep't of Human Servs., 157 N.J. 161,
171 (1999) (citing N.J.S.A. 9:6-8.8). See
also N.J.S.A. 9:6-8.21 to -8.73 (governing
protection of abused and neglected children).
"The statute in question addresses harm to a
child[.]" [N.J. Div. of Youth & Family Servs.
v. ]A.L., 213 N.J. [1,] 8 [(2013)].
[Ibid.]
An "abused or neglected child" is defined in N.J.S.A. 9:6-
8.21(c) as
a child less than 18 years of age whose parent
or guardian, as herein defined, . . . (2)
creates or allows to be created a substantial
or ongoing risk of physical injury to such
child by other than accidental means which
would be likely to cause death or serious or
protracted disfigurement, or protracted loss
or impairment of the function of any bodily
organ; . . . (4) or a child 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 . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, . . . .
Whether a parent or guardian has engaged in acts of abuse or
neglect is considered on a case-by-case basis and must be "analyzed
9 A-0642-15T3
in light of the dangers and risks associated with the situation."
N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58
(App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82). The
Division must prove the conduct is "something more than ordinary
negligence" to prove liability. G.S., supra, 157 N.J. at 178.
Indeed, "[o]ne act may be substantial or the sum of many acts may
be substantial" to prove abuse or neglect. N.J. Div. of Youth &
Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011)
(citation omitted).
A court considering whether a parent or guardian's conduct
meets the statutory standard must analyze all facts, id. at 329,
and decide whether the parent or guardian exercised a minimum
degree of care under the circumstances. N.J. Div. of Child Prot.
& Permanency v. J.A., 436 N.J. Super. 61, 69 (App. Div. 2014). In
doing so, we recognize "the elements of proof are synergistically
related." V.T., supra, 423 N.J. Super. at 329 (citation omitted).
In reviewing N.J.S.A. 9:6-8.21(c)(2),
[t]he phrase "accidental means" in this
provision refers to "the events leading up to
the injury and not the resulting injury
itself." G.S. [supra,], 157 N.J. [at] 174
(citation omitted). "Where an action is
deliberate, and the actor can or should
foresee that his conduct is likely to result
in injury, as a matter of law, that injury is
caused by 'other than accidental means.'" Id.
at 175 (citations omitted). The parent's
10 A-0642-15T3
intent is irrelevant. Ibid. (citations
omitted).
[N.J. Div. of Child Prot. & Permanency v.
B.O., 438 N.J. Super. 373, 381 (App. Div.
2014).]
In carrying its burden of proof, the Division's proofs must
"demonstrate by a preponderance of the competent, material and
relevant evidence the probability of present or future harm" to
the minor child. N.J. Div. of Youth & Family Servs. v. S.S., 372
N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif.
denied, 182 N.J. 426 (2005); see also N.J.S.A. 9:6-8.46(b). Under
this standard, "[t]he Division need only show that it was more
likely than not that the defendant abused or neglected the child."
B.O., supra, 438 N.J. Super. at 380 (citing N.J. Div. of Youth &
Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010)).
A.D. argues the trial judge erred because there is no proof
her conduct caused the infant harm, citing A.L., supra, 213 N.J.
1. In a related argument, she states the trial judge misapplied
the standard for abuse or neglect because there was no actual
evidence of A.D.'s blood alcohol level to demonstrate gross
negligence. We reject these contentions.
The facts presented in A.L., are distinguishable from those
presented in this matter. In A.L., the Division proved the
defendant mother used illicit substances, but did not show that
11 A-0642-15T3
drug use caused actual harm to her baby, which was born without
any discernable problems. Id. at 9. The Court concluded the
statutory requirements of N.J.S.A. 9:6-8.21(c) require the
Division to demonstrate actual harm or to show the likelihood of
an imminent substantial risk of harm rising above mere negligence,
by the parent's conduct. Id. at 28. "Judges at the trial and
appellate level cannot fill in missing information on their own
or take judicial notice of harm. Instead, the fact-sensitive
nature of abuse and neglect cases, turns on particularized
evidence." Ibid.
Here, Dr. Hood determined the cause of death was co-sleeping,
sudden infant death. Other direct and circumstantial evidence
shows, for at least three days, A.D. drank heavily; she took at
least three Klonopin tablets, a benzodiazepine which was not
prescribed for her. Even though she agreed to care for the infants
between 12:30 a.m. and the time the baby expired (stated as
approximately 1:30 to 2:30 a.m.), A.D. drank one-half of a bag of
boxed wine, drinking more than she had the prior nights. The
substance abuse caused her to black out, such that she could not
clearly remember what she did, although she recalled the baby was
fussy and she wanted her to stop crying. She could not remember
removing the baby from her carrier, but had a recollection of
being aggressive with the baby. A.D. lost consciousness and did
12 A-0642-15T3
not return the baby to her carrier, instead she chose to co-sleep
with her on the couch, while intoxicated, laying the infant face
down. Moreover, her intoxication was so pronounced, A.D. never
realized the baby stopped breathing and could not even summon help
when the infants' father shook her awake.
"Parents who use illegal drugs when caring for an infant
expose that baby to many dangers due to their impaired judgment."
B.O., supra, 438 N.J. Super. at 385 (citing V.T., supra, 423 N.J.
Super. at 331) (commenting infants are susceptible to even slight
"parental missteps"). "Although a sober parent could also
inadvertently smother a baby when co-sleeping, a parent who falls
asleep after ingesting illegal drugs is less likely to exercise
good judgment in protecting the baby in bed. Just as a sober
driver may have an automobile accident, an impaired driver is much
more likely to do so." Ibid. (footnote omitted).
Unlike the mother in A.L., whose baby suffered no proven
effect from prenatal drug use, in this matter, as a result of
A.D.'s intoxication, she placed the baby face down, which resulted
in the infant's death. While A.D. may not have intended harm to
the baby, she deliberately became intoxicated to the point of not
knowing what she was doing. This non-accidental conduct led to
the tragically harmful result. See, e.g., G.S., supra, 157 N.J.
at 174; B.O., supra, 438 N.J. Super. at 381.
13 A-0642-15T3
The trial judge's findings are supported by the credible
evidence in the record. The conclusion of neglect will not be
disrupted.
Affirmed.
14 A-0642-15T3