DCPP VS. M.C. AND D.O.IN THE MATTER OF D.O. AND T.O.(FN-03-0187-14, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3976-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.C.,

Defendant,

and

D.O.,

Defendant-Appellant.
_________________________________

IN THE MATTER OF D.O. and T.O.,
MINORS.
_________________________________

Submitted May 30, 2017 – Decided June 7, 2017

Before Judges Sabatino and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FN-03-0187-14.

Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Z. H. Abbasi, Designated
Counsel, on the briefs).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Hannah F. Edman, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Nancy P. Fratz,
Assistant Deputy Public Defender, on the
brief).

PER CURIAM

Defendant D.O., the father of two young children, appeals the

Family Part's determination that he abused or neglected his

children in violation of N.J.S.A. 9:6-8.21(c). We affirm.

It is undisputed that defendant and the children's mother,

M.C., have had long-standing histories of drug abuse, including

heroin and cocaine. Both parents have criminal records involving

drug charges. At the time of the events in question, the children

were ages five and three and living with defendant and M.C.

The Division of Child Protection and Permanency ("the

Division") became involved with this household in March 2013 after

receiving a report that the parents took the children with them

to purchase drugs in Camden. Although that initial referral was

not substantiated, the Division received another referral in

January 2014 from a witness who stated that the parents were using

heroin and cocaine daily. The witness had observed defendant

using drugs in the parking lot at his workplace. In addition, the

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Division learned that M.C. had been fired two days earlier when

her employer discovered bags of heroin in her work locker.

The Division promptly conducted an investigation, which

confirmed the parents' ongoing drug abuse. Defendant acknowledged

in an interview that he was currently illegally using Suboxone,

which had been prescribed not to him but to M.C., because of his

heroin addiction. M.C., who initially had tried to hide from the

Division workers, admitted that she had been recently using heroin

and cocaine. In addition, the older child told a Division worker

that she had seen her mother taking pills, and that at times she

was left with a relative who drank beer while watching her and her

brother. Both defendant and M.C. tested positive for cocaine and

opiates.

The Division conducted an emergency removal of the children

from the household, and they were placed with the paternal

grandmother. The Division ordered evaluations and hair follicle

testing of the parents. Defendant was referred to a drug treatment

program. However, his subsequent hair follicle testing was

positive for morphine. Meanwhile, M.C. stipulated that her own

unabated substance abuse had placed the children at risk of harm.

The Division charged defendant with abuse or neglect under

Title 9, and the litigation progressed to a fact-fining proceeding

on May 21, 2014. Defendant, who had already previously missed a

3 A-3976-15T2
court date, failed to appear for the fact-finding hearing.

However, his counsel did appear and consented to the matter going

forward in defendant's absence. The Division moved its

investigative report into evidence without objection, and then

rested. Defense counsel did not present any witnesses or offer

any exhibits or other proofs.

Based upon the evidence supplied, the Family Court judge

concluded by a preponderance of the evidence that the Division had

met its burden under Title 9. As the judge noted in her oral

opinion, "[t]here is a very strong drug history regarding

[defendant]," who "has an ongoing substance abuse problem which

was a problem when the children were removed and is still a

problem."

Defendant now appeals, contending that there was insufficient

evidence to support a conclusion of abuse or neglect against him.

He emphasizes that there was no proof that he was actually using

drugs in the presence of the children. He also notes that the

older child told the Division investigators that her parents did

not use needles in her presence. Defendant contends that the

children were not placed at risk by his drug abuse.

We have no hesitation in affirming the trial court's

determination. Case law has made clear that the Division does not

have to wait for a child to experience actual harm in order to

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pursue abuse or neglect charges against a parent who has endangered

his or her children. See, e.g., N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 449 (2012); In re Guardianship of D.M.H.,

161 N.J. 365, 383 (1999). The Division only needs to show under

the statute that a child's physical, mental, or emotional condition

has been "impaired or is in imminent danger of becoming impaired."

N.J.S.A. 9:6-8.21(c)(4) (emphasis added); see also G.S. v. Dept.

of Human Servs., 157 N.J. 161, 181 (1999).

Here, defendant's positive drug screens, his admitted

improper use of Suboxone, and his awareness that the children's

other caregivers in the household were abusing drugs or alcohol

provided ample grounds for the court to conclude that defendant's

irresponsible conduct had endangered the children. It was not

essential for the Division to show that defendant actually ingested

drugs in the physical presence of the children for them to be at

risk, particularly given their young ages. The cases cited in

defendant's brief holding that a parent's substance abuse is not

per se child abuse or neglect do not undermine the trial court's

reasonable findings of abuse or neglect in this case, given the

totality of circumstances that placed the children at risk.

Although the Division proved its case here through a written

submission rather than with any live testimony, such testimony was

not imperative, given defense counsel's expressed lack of

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opposition to the court's consideration of the investigative

report. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 340 (2010) (applying the concept of "invited error").

Affirmed.

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