Dcpp v. A.J. and D.P., in the Matter of H.P.

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NOT FOR PUBLICATION WITHOUT THE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-3340-21

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

A.J.,

Defendant-Appellant,

and

D.P.,

Defendant.

IN THE MATTER OF H.P.,
a minor.

Submitted October 12, 2023 – Decided December 12, 2023

Before Judges Currier and Firko.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FN-08-0117-21.

Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).

Matthew J. Platkin, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Cory H. Cassar,
Designated Counsel, on the brief).

PER CURIAM

Defendant A.J.1 (Althea) appeals from the October 13, 2021 order finding

she abused and neglected her daughter H.P. (Hazel) under N.J.S.A. 9:6-

8.21(c)(4)(b). Because the court did not make particularized findings that

Althea's actions were grossly negligent or posed a substantial risk of harm to

Hazel to support its conclusion of abuse and neglect, we vacate the order and

remand to the trial court to make the required statutory findings.

1
We use initials and fictitious names to protect the parties' privacy. R. 1:38-
3(d)(12).

A-3340-21
2
 I.

Hazel, born in March 2021, is the daughter of Althea and defendant D.P.

(Derrick).2 The Division of Child Protection and Permanency (the Division)

first became involved with Althea in 2019 when concerns arose regarding her

older son, Z.S. (Zander). At that time, Althea was admitted into a rehabilitation

facility to treat her substance abuse issues. Zander's father obtained full custody

of Zander; at the time of the hearing in this matter, Althea had supervised

visitation with Zander once a week.

While pregnant with Hazel, Althea tested positive for opiates in August

2020 and positive for fentanyl following a hair follicle test in January 2021, "but

it was not segmented." 3 After Hazel was born prematurely in March 2021,

Althea tested positive for prescribed methadone. Hazel also tested "positive for

methadone but did not experience withdrawal."

2
As there were no findings of abuse and neglect against Derrick, he is not a
party to this appeal.
3
According to the laboratory that processed the hair follicle test, hair specimens
taken from the head "can be segmented by 0.5 inch or 1.5 inch sections to show
approximate usage trends over time." The average person's hair grows
approximately 0.5 inch per month; a 1.5 inch segment would show roughly three
months of usage history.
A-3340-21
3
 During the Division's visit to the hospital following Hazel's birth, Althea

told caseworkers "she had been substance free for over a year . . . and that she

had taken an old prescription for tooth pain while she was pregnant" that

accounted for the positive opiate test result.

On April 9, 2021, Althea was involved in a motor vehicle accident while

Hazel was in the car. She reported she was struck in the rear of her car and

pushed forward into the car ahead of her. Law enforcement contacted the

Division, informing it that Althea "appeared to be intoxicated and was arrested

and charged with" driving while intoxicated (DWI), N.J.S.A. 39:4-50. The

officers stated Hazel was "properly secured in her car seat." Neither Althea nor

Hazel were injured. Althea was not at fault for the accident.

Later that night, Division caseworkers spoke with Althea and Derrick at

their home. Althea reported that she was on her way home from shopping when

she was involved in a minor car accident. She stated that when the police

arrived, they "thought that she was on something and she . . . shared with them

that she was prescribed [m]ethadone and she had her dose that" morning. Althea

reported the officers conducted a field sobriety test, which she passed, but the

officers were convinced Althea was under the influence. Althea said she

A-3340-21
4
"refused the breathalyzer" and drug test because "she felt like the officers were

harassing her."

The Division workers also spoke with Derrick. He stated that when Althea

left the home that day, he thought she was going to a urine screen 4 and then to

the grocery store. Derrick stated Althea called him later to tell him she was in

a car accident. Althea's sister was going to meet her at the scene of the accident.

Derrick stated Althea did not appear to be under the influence before

leaving the home nor when he saw her later. He did not think she was using any

illegal substances.

The caseworkers also spoke with Althea's sister, Alice, who reported she

was concerned that Althea was under the influence because she was "nodding

off" after being in the accident and "being very difficult" with the police officers

both at the scene and later at the police station. Alice said Althea locked herself

in the bathroom after the accident where she tried to "cleanse" her system

because she knew the Division would require her to complete a urine screen.

The Division implemented a Safety Protection Plan establishing Derrick

as Althea's supervisor while with Hazel. However, a new plan was needed after

4
The Division caseworker testified there was no urine screen scheduled for that
day.
A-3340-21
5
Derrick returned to work several days later. The Division could not find another

supervisor and they had concerns with Derrick because of the contradictory

information he provided regarding Althea and Alice's statements. Thereafter,

the Division conducted a removal of Hazel on April 12, 2021. The child was

placed with Althea's mother, and different relatives cared for her during the day

while the grandmother was at work. Althea's mother supervised visitation

between Althea and Hazel.

Although Althea initially resisted submitting to a hair follicle and drug

screening, she later agreed to undergo the testing. A caseworker later learned

that Althea did not appear on video chat with the Center for Family Services

(CFS) for her substance abuse assessment scheduled for April 9, 2021. The CFS

worker said she called Althea, "but her phone kept going to voicemail."

However, later that day, Althea contacted the CFS worker, stating "her phone

was shut off and she had to go pay the bill." The CFS worker "found it very

concerning that [Althea]'s phone was shut off conveniently around the time of

her substance abuse evaluation."

On April 13, 2021, Althea and Derrick completed hair follicle tests and

Derrick underwent a random urine screening. His test results were negative.

Althea's urine screen on April 12 was diluted and tested positive for her

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6
prescribed methadone. Althea's hair follicle results, which assessed the last

ninety days, were positive for fentanyl, norfentanyl, and methadone.

On April 21, 2021, the Division received a phone call from Althea's

methadone clinic, informing it that Althea had "consented to releasing

information but did not want her screening results and progress shared with [the

Division]." The clinic worker could not opine as to Althea's progress because

treatment had only started on April 1, but the worker stated Althea "ha[d] a long

road ahead of her because she [wa]s actively trying to hide information from

[the Division]." The clinic worker disclosed that Althea was prescribed one

hundred milligrams of "methadone five days weekly," and was not permitted to

take home vials of the medication. She was also participating in one individual

counseling session per month and three group sessions per month.

Based on all of the denoted information, the Division substantiated the

allegations of abuse and neglect of Hazel by Althea. The Division found Hazel

was only three weeks old on the day Althea was charged with DWI. The child

was "hysterically crying" after the accident and "needed [Althea's] full attention.

[Althea] was nodding off while attempting to feed [Hazel] and was unable to

tend to [Hazel's] needs properly due to being under the influence of what was

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7
suspected to be illicit substances." The Division further found that Hazel's

"safety require[d] a separation of the child from" Althea.

II.

On October 12, 2021, the court conducted a fact-finding hearing during

which Officer John Freitag of the Washington Township Police Department

testified. Freitag responded to the motor vehicle accident involving Althea at

approximately 4:30 p.m. As he spoke with Althea, Freitag noted "her speech

was slow and slurred," and "[h]er eyes appeared glassy and bloodshot." The

officer asked if she had taken any medication, and Althea responded she was

prescribed and had taken methadone at 9:00 that morning.

Freitag saw Hazel in the backseat in a rear-facing child seat and requested

Althea contact a family member to come and take the baby. He stated Hazel

was crying and he asked Althea if the baby was hungry and whether she should

feed her. He noticed that while Althea was feeding the baby, "[Althea] was

nodding off with her head down and chin in her chest," and her hand holding the

bottle was "limp," so Hazel was unable to drink the liquid in the bottle. Freitag

woke Althea up and told her to properly adjust the bottle.

Due to his observations, Freitag decided to conduct field sobriety tests, to

determine whether Althea was under the influence. According to Freitag, during

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8
the "walk-and-turn" test, Althea "moved her right foot . . . in front of her left

foot twice . . . which is an indicator"; and "stumbled to her right," then "stumbled

to her left" several times. While performing the "one-leg-stand" test, Althea

"swayed from side-to-side and waved her arms to aid her balance." She

stumbled and continued to sway throughout the test.

Freitag stated he charged Althea with DWI, refusal to submit a breath

sample, N.J.S.A. 39:4-50.4a, and other motor vehicle summonses and then

arrested her because he "was confident that she was under the influence and

unable to operate a motor vehicle safely." Althea was transported to the police

station where she refused to undergo a breathalyzer test.

The Division caseworker also testified, describing her interactions with

Althea on the day of the accident and thereafter and the results of the drug

testing. Althea's counsel did not object to the admission of the hair follicle

results into evidence but objected to the court's consideration of the test results

because they spanned ninety days prior to taking the test, which was before the

motor vehicle accident and before Hazel was born. Counsel argued the court

could not consider the testing as evidence that Althea "was under the influence

at the time of the accident." The court agreed and declined to consider the

positive hair follicle test in its "overall decision" because it showed "that she did

A-3340-21
9
have [substances] in her system but whether or not it was on that particular day

at the time of the accident" was unknown.

On October 13, 2021, the judge issued an oral decision concluding Althea

was under the influence at the time of the accident and finding the Division had

proved abuse and neglect under N.J.S.A. 9:6-8.21(c)(4). The judge "f[ou]nd

Officer Freitag to be a credible witness" because "[Freitag] made good eye

contact throughout his examination" and "answered all questions both on direct

and on cross-examination without equivocation." The judge stated Freitag "was

in command of his recollection as to what occurred on th[e day of the accident]."

The judge also found the Division caseworker "answered all of the questions on

direct and on cross-examination with[out] equivocation" and "made good eye

contact and . . . was in command of the facts as they were purported in her

testimony as well as her report."

The judge concluded "[Althea] was the sole caretaker of [Hazel] who was

. . . in the vehicle at the time of the accident." Relying on Freitag's testimony

regarding his observations and the field sobriety tests, and the officer's

conclusion that Althea was under the influence at the time of the accident, the

judge found Althea abused and neglected Hazel.

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10
 III.

On appeal, Althea contends: the judge did not make any particularized

findings that she was grossly negligent; this court should not defer to the judge's

factual findings regarding the field sobriety tests or his credibility determination

regarding Freitag; and the Division did not prove Althea posed a substantial risk

of harm to Hazel. The Division and the Law Guardian dispute these arguments

and request this court affirm the order.

We defer to the family court's factual findings "when supported by

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998). Deference is accorded because of the family courts' "specialized

knowledge and experience in matters involving parental relationships and the

best interests of children." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.

420, 427 (2012).

However, our review of the determination that Althea abused or neglected

Hazel under Title Nine is de novo. N.J. Div. of Child Prot. & Permanency v.

Y.N., 220 N.J. 165, 177 (2014) (quoting Murray v. Plainfield Rescue Squad, 210

N.J. 581, 584 (2012)).

A-3340-21
11
 A.

We begin in addressing Althea's contention that the trial court did not

explain how her behavior amounted to gross negligence, as required for a

statutory finding of abuse and neglect. Althea asserts the evidence did not

demonstrate she overmedicated on her prescribed methadone treatment, and

under New Jersey case law, the use of prescribed medication alone cannot

establish abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b).

"Title [Nine] controls the adjudication of abuse and neglect cases." N.J.

Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing

N.J.S.A. 9:6-8.21 to -8.73). It was enacted "to protect children 'from acts or

conditions which threaten their welfare.'" G.S. v. Dep't of Hum. Servs., 157 N.J.

161, 176 (1999) (quoting State v. Demarest, 252 N.J. Super. 323, 330 (App. Div.

1991)). An abused or neglected child is defined under the statute as

a child whose physical, mental, or emotional condition
has been impaired . . . as the result of the failure of his
parent or guardian, as herein defined, to exercise a
minimum degree of care . . . (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)(b).]

A-3340-21
12
 "[U]nder Title [Nine], whether the [parent or] guardian intended to harm

the child is irrelevant. If a parent or guardian commits an intentional act that

has unintended consequences," the statute applies. G.S., 157 N.J. at 176. Our

Supreme Court has found "that N.J.S.A. 9:6-8.21(c)(4) can apply to some

accidentally-caused injuries." Id. at 177.

The G.S. Court interpreted the phrase "failure to exercise a minimum

degree of care," under N.J.S.A. 9:6-8.21(c)(4)(b), to mean that the parent or

guardian has committed "conduct that is grossly or wantonly negligent, but not

necessarily intentional," which is conduct that is "done with the knowledge that

injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin v.

Rova Farms, Inc., 56 N.J. 288, 305 (1970)). In other words, "a guardian 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. Wanton or willful

conduct may also consist of "actions taken with reckless disregard for the

consequences." Id. at 178. In sum, the Court reasoned that if the action is

committed intentionally, "whether the actor actually recognizes the highly

dangerous character of her conduct is irrelevant." Ibid.

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13
 The Court instructed the Division and courts to examine the harm to the

child and whether the parent or guardian could have avoided that harm by acting

"to remedy the situation or remove the danger." Id. at 182. "When a cautionary

act by the guardian would prevent a child from having his or her physical, mental

or emotional condition impaired, that guardian has failed to exercise a minimum

degree of care as a matter of law." Ibid. This standard, the Court reasoned,

"allows the State to intervene to protect children without unduly infringing on

parents['] rights to raise and discipline their children." Id. at 180.

Following its decision in G.S., the Court has acknowledged that "the

question of whether a particular event is to be classified as merely negligent,

grossly negligent, or reckless can be a difficult one." Dep't of Child. & Fams.,

v. T.B., 207 N.J. 294, 309 (2011). The determination "is quite frequently 'fact

sensitive.'" N.J. Div. of Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 544

(App. Div. 2011) (quoting N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J.

17, 33 (2011)). In T.B., the Court clarified that "every failure to perform a

cautionary act is not abuse or neglect. When the failure to perform a cautionary

act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or

neglect statute." 207 N.J. at 306-07. "[W]here a parent is merely negligent there

is no warrant to infer that the child will be at future risk." Id. at 307.

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 We are further guided by the Court's decision in Y.N., 220 N.J. at 169.

There, the defendant learned she was four months pregnant on a visit to the

hospital for an unrelated injury. Ibid. She told hospital staff she was taking

Percocet prescribed for pain following injuries she sustained in a car accident.

Ibid. The defendant was instructed not to suddenly stop taking Percocet as the

withdrawal could risk her pregnancy. Ibid. She enrolled in a methadone

maintenance treatment program. Id. at 169-70. When the defendant gave birth,

the child showed withdrawal symptoms from methadone. Id. at 170.

After an incident of domestic violence between the defendant and the

child's father, the police informed the Division. Id. at 171. Several weeks later,

the child's father reported to the Division that the defendant was "high on drugs."

Ibid. The defendant was told she had to submit to a random urine sample. Ibid.

When the defendant left before the test was completed, the facility categorized

the failure to undergo the test "the equivalent of a positive test result." Ibid.

The Division thereafter filed a complaint for the custody, care, and

supervision of the child and alleged abuse and neglect. Ibid. The following day,

the defendant passed a drug test, and the court granted her custody of the child.

Id. at 172. At the abuse and neglect hearing, the court found the Division had

established abuse and neglect. Ibid. This court affirmed, "solely on the basis

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15
that [the defendant] caused her child to suffer withdrawal symptoms from the

methadone she took as part of a prescribed, bona fide medical treatment plan."

Id. at 168.

The Supreme Court reversed. Id. at 186. The Court "reject[ed] the

Appellate Division's conclusion that '[w]here there is evidence of actual

impairment, it is immaterial whether the drugs taken were from a legal or illicit

source.'" Id. at 184 (alteration in original) (quoting N.J. Div. of Youth & Fam.

Servs. v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013)), rev'd, 220 N.J. 165

(2014). The Court reasoned that the Appellate Division's decision would have

"create[d] a perverse disincentive for a pregnant woman to seek medical help

and enter a bona fide detoxification treatment program that w[ould] address her

and her baby's health needs." Ibid. The Court found that the greater potential

harm to the child would be the defendant deciding not to seek proper prenatal

treatment, and not "timely entering a medically approved detoxification program

that w[ould] improve the outcome for her newborn." Ibid.

The Court recognized the effectiveness of methadone treatment according

to the Centers for Disease Control and Prevention, and that the United States

Department of Health and Human Services has concluded that "methadone

maintenance treatment can save the life of a baby born to an addicted mother

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and that a newborn experiencing methadone withdrawal is far better off than a

newborn addicted to heroin." Id. at 184-85. We have since described the

defendant's actions as a "prudent, medically sound course of action." N.J. Div.

of Child Prot. & Permanency v. K.M., 444 N.J. Super. 325, 333 (App. Div.

2016).

It is clear from Y.N. that the use of prescribed medication without

evidence of other illegal use cannot sustain a finding of abuse or neglect under

Title Nine. Here, the trial court did not find the use of methadone constituted

abuse and neglect. Rather, the court found Althea was impaired and under the

influence while she was driving with Hazel, and that impairment established

abuse and neglect. The court's decision was grounded solely on Freitag's

observations of Althea following the accident.

The court did not make particularized findings, and did not classify the

incident as merely negligent, grossly negligent, or reckless as required under

T.B. There was no evidence Hazel was harmed. There was no indication

whether Althea's use of methadone earlier that day caused the fatigue, slurred

speech or glassy eyes observed by Freitag or whether Althea was aware of the

effects the methadone had on her.

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 Because the court did not make any findings as to Althea's culpability, if

any, we cannot properly review the abuse and neglect finding. There was no

suggestion in the court's opinion as to whether Althea was merely negligent,

grossly negligent, or reckless. As we have stated, if a defendant "ingested only

a prescribed amount of [a medication] and it [was] found that she abused no

other substances in connection therewith, the legal standard contained in the

statute, as described in T.B., would preclude a finding of abuse or neglect." N.J.

Div. of Youth & Fam. Servs. v. S.N.W., 428 N.J. Super. 247, 258 (App. Div.

2012).

Here, there was no evidence elicited at the fact-finding hearing that

Althea's impairment at the time of the accident was the result of any other

substance other than her prescribed methadone. The April 12, 2021 urine sample

only showed positive results for methadone, and the April 13, 2021 hair follicle

test did not reveal any admissible positive results to demonstrate Althea was

under the influence of any other substances at the time of the accident.

If the trial court based its finding of abuse and neglect on facts other than

Althea appeared intoxicated because she was taking prescribed methadone, it

must articulate those particularized findings. Without those findings, it was

improper for the court to support its decision solely on Freitag's perception and

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conclusion that Althea was impaired by her prescribed methadone. There was

no evidence, one way or another, that Althea exceeded her prescribed dosage of

methadone. Nor was there evidence that she was not permitted to drive while

taking the prescribed amount of methadone. To the contrary, Althea could only

obtain the methadone at the clinic, and she drove herself there for the treatment.

In addition, Hazel was properly secured in her car seat and Althea was not at

fault for the accident. To find abuse and neglect, the court had to make more

specific findings and a determination of Althea's culpability for her condition.

As we stated in S.N.W., "[t]he Division was required to prove that defendant's

condition, as described by the judge in his findings, was produced by a grossly

negligent or reckless act." 428 N.J. at 257.

We are constrained to vacate the order and remand for the court to make

those factual findings. These facts might include whether Althea "ingested only

a prescribed amount of [methadone]" and whether "she abused no other

substances in connection therewith," to provide the basis for whether that

amounted to gross negligence or recklessness and whether that prohibited Althea

from exercising the minimum degree of care. See id. at 258.

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 B.

We briefly address Althea's argument regarding the judge's consideration

of Freitag's testimony, specifically that the judge erred in accepting Freitag's

opinion regarding Althea's performance on the field sobriety tests.

As stated, we defer to the trial court's factual findings and credibility

determinations when supported by credible evidence, Cesare, 154 N.J. at 411-

12, "unless the trial court's findings 'went so wide of the mark that a mistake

must have been made.'" N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.

261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233

N.J. Super. 65, 69 (App. Div. 1989)). We discern no reason to disturb the trial

judge's findings regarding Freitag. The court observed Freitag, had the

opportunity to assess his demeanor and testimony and found the officer credible.

Based on Freitag's training and experience, the court found Freitag was credible

in his description of Althea's performance on the sobriety tests.

In addition, defense counsel did not object to any procedural aspect of the

hearing or to the court permitting Freitag to review his report to refresh his

recollection. A review of the record reveals no plain error. R. 2:10-2. The court

properly permitted Freitag to refresh his recollection using his report. Thus, the

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trial court's factual findings regarding the field sobriety tests were supported by

substantial credible evidence in the record.

Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.

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