DCPP VS. K.A. AND W.M., IN THE MATTER OF S.G. AND C.M. (FN-21-0174-17, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-0332-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

K.A.,

Defendant-Appellant,

and

W.M.,

Defendant.
______________________________

IN THE MATTER OF S.G. and C.M.,

Minors.
______________________________

Submitted September 9, 2019 – Decided September 18, 2019

Before Judges Rothstadt and Moynihan.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FN-21-0174-17.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Sarah E. Chambers, Designated Counsel, on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Amy M. Mc Kinsey, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Linda Vele Alexander, Designated
Counsel, on the brief).

PER CURIAM

Defendant K.A.1 appeals from the Family Part's October 16, 2017 order

finding that she abused or neglected her six-year-old daughter S.G. and infant

son C.M. under N.J.S.A. 9:6-8.21(c) (Title Nine) based on events that arose from

her being arrested after police found her smoking marijuana at night in a car

with a friend while her two children were in the vehicle's back seat. On appeal,

defendant argues that plaintiff, the Division of Child Protection and Permanency

(Division), failed to prove by a preponderance of the evidence that her conduct

1
To protect privacy interests and for ease of reading, we use initials for the
parents and children. R. 1:38-3(d)(12).

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2
was "willful and wanton" or that it "harmed the children or placed them in

imminent danger." The Division and the children's Law Guardian disagree and

contend that the Division met its burden. We affirm, substantially for the

reasons stated by Judge Haekyoung Suh in her comprehensive oral decision

placed on the record on the same date she entered the order under appeal.

The facts as found by Judge Suh are summarized as follows. Defendant's

daughter was born in May 2010 and her son in February 2016. The children

lived with their mother at their maternal grandmother's home. The daughter's

father is unidentified and the son's father is defendant W.M., who was

incarcerated at the time of the subject incident.

Between 2012 and 2016, the Division received several referrals that

alleged defendant was not properly caring for her daughter and had used

marijuana while pregnant with her son. None of the allegations were

substantiated by the Division, although defendant admitted to smoking

marijuana.

On June 16, 2017, at approximately 10:30 p.m., defendant was sitting in

her parked car with her friend and her children. The vehicle was parked in a

parking lot at a public park after the park had closed for the day. Defendant's

friend was in the driver's seat and her children were secured in their car seats in

A-0332-18T3
3
the back seat of the vehicle, watching a video, while defendant and her f riend

were smoking marijuana in the front seat. The windows in the front of the car

were lowered, but the windows in the back were closed.

While parked in the vehicle, defendant and her friend were approached by

local police. An officer observed that the vehicle "was visibly filled with

smoke," smelled of marijuana, and he saw a "blunt" in the car while speaking to

defendant and her friend. The officer also observed that the children were fine

and that defendant did not appear to be under the influence of any substance.

Defendant cooperated with the police and turned over two small bags that

contained marijuana.

The police proceeded to arrest defendant and her friend in the children's

presence. According to the officer, the older child began to cry "hysterically

and scream[ed] that she did not want her mommy arrested." Defendant called

her mother to pick up the children at the park before the police removed

defendant from the scene.

The police notified the Division about the incident and in response,

Division caseworkers went to the grandmother's home shortly after midnight on

June 17 to observe the children and interview the older child and their

grandmother. The children, who were still awake, appeared to be fine. The

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older child informed the caseworker that her mother and her friend were

smoking "weed" in the car and that she became upset and cried, "really badly,"

when the police arrested her mother. The older child also described what a

"blunt" was and otherwise indicated familiarity with her mother's use of

marijuana.

As to the grandmother, the caseworker reported that she observed the

woman drinking what the caseworker believed to be alcohol. Upon further

investigation, the caseworker determined that the infant son had not been fed

and that his diaper was not changed. The grandmother was neither cooperative

in attending to the children nor responsive to the caseworker's concern about the

children, and she was resistant to having the children placed with her or having

other relatives care for them.

Division caseworkers remained at the home waiting for defendant to be

released from jail and return to her children. While they continued to wait for

defendant, they talked to the grandmother about the children's placement and

realized that the grandmother had been substantiated in 1995 for abusing

defendant as a child and therefore was not a viable option for her grandchildren's

placement.

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 The police notified the Division that defendant was being released from

jail at approximately 1:00 a.m. Rather than returning home to her children,

defendant met her same friend and they went to a bar. At approximately 2:00

a.m., one of the caseworkers was able to contact defendant, who advised that

she would be home within thirty minutes. She finally returned home at

approximately 3:20 a.m.

Upon defendant's arrival, a heated argument ensued between her, her

sister, and her mother that resulted in the police being called. In a conversation

with the police, defendant admitted that she made a mistake by smoking

marijuana in a car with her children present. She also expressed concern about

her mother being considered as a placement for the children. According to

testimony from one of the caseworkers, defendant stated her mother was

"horrible" and that she did not "care where [her] kids [went], as long as [they

were not left] with her." During the entire episode, neither defendant nor her

mother attended to or cared for the children who were exposed to their fight and

the return of the police.

After the caseworker talked to defendant about leaving her mother's

apartment and the need for her to find a placement for the children, it became

clear that defendant could not identify an alternate caregiver for the children,

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and her mother could not and would not care for them. As a result, the Division

conducted an emergency "Dodd" removal2 of the children on June 17, 2017, and

initially placed them with a non-relative resource family before later placing

them with a maternal cousin.

The Division filed its complaint on June 19, 2017, and a factfinding

hearing was held on October 16, 2017. A caseworker was the only witness who

testified for the Division. Defendant did not attend the hearing and no one

testified on her behalf.

After considering the testimony and documents admitted into evidence,

Judge Suh determined that the Division proved by a preponderance of the

evidence that defendant abused or neglected her children. In a detailed oral

decision, the judge found that under N.J.S.A. 9:6-8.21(c)(4), defendant exposed

the children's "physical, mental, or emotional condition [to being] impaired or

[placed them] in imminent danger of becoming impaired as the result of

[defendant's] failure . . . to exercise a minimum degree of care." The judge

relied upon defendant's smoking marijuana in her children's presence inside a

2
A Dodd removal is an emergency removal of a child from a parent's custody
without a court order, as authorized by the Dodd Act. See N.J.S.A. 9:6-8.29;
see also N.J. Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210,
215 n.2 (App. Div. 2017).
A-0332-18T3
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smoke-filled car, the children's trauma in observing their mother's arrest and

removal by police, defendant's placing her children with her own mother who

she believed was a danger to the children, and with that belief, choosing to go

out drinking with her friend upon her release from jail instead of going home to

care for her children.

Afterward, the children remained with their maternal cousin, who wished

to adopt them. In May 2018, the judge approved the Division's permanency plan

for termination of parental rights and for the cousin to adopt. In August, the

judge dismissed the Title Nine action and the Division filed a guardianship

complaint. This appeal followed.

Our standard of review on appeal is well-settled. We are bound by the

Family Part'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, 577-78 (App. Div.

2010). We accord particular deference to the family court's factfinding because

of the court's "special expertise" in family matters, 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) (quoting N.J. Div. of

Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)); Cesare v. Cesare,

154 N.J. 394, 412 (1998).

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 Under Title Nine, an abused or neglected child is:

[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 . . . to exercise a minimum degree of care (a) in
supplying the child with adequate food, clothing,
shelter, education, medical or surgical care though
financially able to do so or though offered financial or
other reasonable means to do so, or (b) in providing the
child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted
harm, or substantial risk thereof . . . .

[N.J.S.A. 9:6-8.21(c)(4).]

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.'" N.J. Div. of Youth & Family Servs. v. P.W.R.,

205 N.J. 17, 32 (2011) (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 [Nine] 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, 331

(App. Div. 1991)).

In making a finding of abuse or neglect, a court considers "the totality of

the circumstances, since '[i]n child abuse and neglect cases the elements of proof

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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."'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.

320, 329-30 (App. Div. 2011) (alterations in original) (quoting Dep't of Children

& Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481

(App. Div. 2010)).

Applying these guiding principles, we conclude Judge Suh correctly

determined that the children were abused or neglected by defendant. Contrary

to defendant's contentions on appeal, a parent need not "act with a willful or

purposeful intent to commit child abuse" in order to be found culpable under

Title Nine. G.S., 157 N.J. at 177. Proof that a parent's "actions were inadvertent

and she did not intend to harm" a child does not preclude a finding of abuse or

neglect. Ibid. A parent "fails to exercise a minimum degree of care when he or

she is aware of the dangers inherent in a situation and fails adequately to

supervise the child or recklessly creates a risk of serious injury to that child."

Id. at 181.

It is true that "[a]t the very least, a minimum degree of care means that a

parent's conduct must be 'grossly negligent or reckless'" and "a parent's negligent

conduct is not sufficient to justify a finding of abuse or neglect under [Title

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Nine]." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 180 (2014)

(quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B.,

207 N.J. 294, 306 (2011)). Here, defendant's actions were more than "merely

negligent." T.B., 207 N.J. at 307. By intentionally taking the children out at

night and parking them in the back seat of her car so she could smoke marijuana

in a closed park, she exposed her children to not only the smoke in the car but

also a high risk that she could be arrested in her children's presence , amounting

to far more than mere negligence. Moreover, the substantial risk of

psychological impairment to at least defendant's older child was obvious from

her reaction to what was an avoidable traumatic event and did not require, as

defendant contends, any expert testimony. See Dep't of Children & Families,

Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 180 (2015) (holding

that "[f]ailing to perform a cautionary act" that "rise[s] to the level of gross

negligence" constitutes abuse or neglect).

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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