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NOT FOR PUBLICATION WITHOUT THE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-5586-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
E.W.,
Defendant-Appellant,
and
R.A.,
Defendant.
___________________________________
IN THE MATTER OF B.W.,
a Minor.
___________________________________
Submitted October 3, 2017 – Decided October 30, 2017
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0174-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Alaina
M. Antonucci, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Karen Ann
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
Defendant E.W. appeals from a March 15, 2016 order entered
by the Family Part following a fact-finding hearing concluding she
committed abuse or neglect of her daughter B.W. (Barbara).1 We
affirm.
E.W. has a long history of using PCP. She is the biological
mother of six children, five of whom tested positive for PCP at
birth. Barbara was born September 15, 2015, with PCP in her
system. As a result, on September 22, 2015, the Division of Child
Protection and Permanency (Division) filed a Verified Complaint
for care, custody, and supervision of Barbara.
By way of background, when the Division filed its complaint,
none of E.W.'s children were in her care. In 2008, the trial
court granted kinship legal guardianship of two children to a
1
We use a pseudonym to protect the child's privacy.
2 A-5586-15T4
relative caretaker. In 2012, E.W.'s parental rights to two other
children were terminated, and in 2015, her parental rights to a
third child were terminated. At the time of the March 15, 2016
fact-finding hearing in this matter, the Division had custody of
Barbara as well.
The only witness to testify at the hearing was Division
caseworker Elizabeth Rosa, who explained the Division's long
history of providing drug treatment services to E.W. Between 2009
and 2015, the Division provided E.W. with 150 referrals for
substance abuse assessments. E.W. attended about fifteen of these
assessments and tested positive for PCP with every random drug
screen. E.W. was admitted to three substance abuse programs
between 2009 and 2015, and was discharged from all of them for
aggression and non-compliance. E.W. also failed to comply with
the Division's referrals to receive mental health treatment.
Rosa testified that between 2009 and 2015, E.W. was offered
supervised visitation with her children. She explained E.W.
displayed aggression and irritability during visits. Division
records demonstrated she was inattentive to the children and
attended visitation under the influence.
According to Rosa's testimony, on September 16, 2015, the
Division received its referral in this matter from Jersey City
Medical Center, citing concerns for Barbara and noting E.W. had
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tested positive for PCP at the time of Barbara's birth. A Division
caseworker responded to the hospital and interviewed E.W. who
claimed "I don't smoke PCP, but I was around people that do."
Rosa explained that even though Barbara did not experience
withdrawal symptoms, the hospital's records indicate her urine
tested positive for PCP between September 15 and 18, 2015. The
Division substantiated E.W. for abuse and neglect because of
Barbara's positive drug test, E.W.'s ongoing PCP use, and failure
to complete substance abuse treatment.
On September 18, 2015, the Division executed an emergency
removal of Barbara. After Barbara's birth, E.W.'s non-compliance
with substance abuse treatment and visitation continued, and she
continued to test positive for PCP.
On March 15, 2016, the trial court held a fact-finding hearing
and found E.W. failed to remediate her "significant substance
abuse issues" prior to her daughter's birth, causing her to test
positive for PCP at birth, and placing her at substantial risk of
harm. The court explained although it was not neglect for Barbara
to test positive for PCP, "other facts . . . in addition to her
having been born positive for PCP, are very relevant and . . .
because of the extreme nature and extent of the facts testified
to, do constitute a substantial risk of serious harm to [Barbara]."
4 A-5586-15T4
Finding the Division had met its burden of showing a
substantial risk of harm by a preponderance of the evidence, the
trial court held:
This is a situation where the totality of the
circumstances is clear to this Court that
little [Barbara], who's now only six years
[sic] old, but was born positive for PCP,
although the child didn't suffer withdrawal,
having five older siblings removed from
[mother]'s care and terminated by the Court
after trials because of largely [E.W.]'s
terrible disease of substance abuse and her
refusal to even take the first step, which is
to acknowledge that she has the disease and
it has to be treated, her inability to care
for any of her children and her consistent
refusal to substantially cooperate with
services offered by the Division, make it
clear that [Barbara], from the time of birth,
was certainly at substantial risk of serious
harm.
[E.W.] was not capable of providing a minimum
degree of care to [Barbara]. I don't think
any parent in their right mind would permit
[E.W.] to watch a baby for two minutes in the
shape she's in, actively suffering from this
disease and having been unable to care for any
of her children, as shown by clear and
convincing evidence.
Now, we see nothing's changed. . . . I think
that it's certainly been proven by the
Division by a preponderance of the evidence
that [Barbara] was and still is at imminent
risk of substantial harm were she placed in
[E.W.]'s care.
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The trial court entered an order memorializing the abuse and
neglect finding and continuing the Division's custody of Barbara.
E.W. now challenges the order.
We begin with our standard of review. "[B]ecause of the
family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court
factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). "Moreover, appellate courts 'defer to the factual
findings of the trial court because it has the opportunity to make
first-hand credibility judgments about the witnesses who appear
on the stand; it has a feel of the case that can never be realized
by a review of the cold record.'" M.C. III, supra, 201 N.J. at
342-43 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 104 (2008)).
"Although we defer to the trial court's findings of fact,
especially when credibility determinations are involved, we do not
defer on questions of law." N.J. Div. of Youth & Family Servs.
v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011) (citing N.J.
Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88-89
(App. Div. 2006)). However, "[f]indings by the trial judge are
considered binding on appeal when supported by adequate,
substantial and credible evidence." Pascale v. Pascale, 113 N.J.
6 A-5586-15T4
20, 33 (1988) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
65 N.J. 474, 484 (1974)). "[W]e do not disturb the factual
findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice[.]" Rova Farms,
supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen,
78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221
(1963)).
Citing N.J. Div. of Child Prot. & Perm. v. A.L., 213 N.J. 1,
22 (2013), E.W. argues that "[t]he statute does not cover a past
risk of harm during pregnancy, which did not materialize. The
Division bears the burden of proof at a fact-finding hearing and
must prove present or future harm to a child by a preponderance
of the evidence." She asserts we have rejected a categorical
approach equating substance abuse with child abuse or neglect.
See V.T., supra, 423 N.J. Super at 331.
Moreover, E.W. argues the Division failed to establish
imminent risk to Barbara because her conduct did not fall below
the minimum degree of care required in G.S. v. Dep't of Human
Servs., 157 N.J. 161, 178 (1999), whereby "[t]he phrase 'minimum
degree of care' denotes . . . something more than ordinary
negligence" and "refers to conduct that is grossly or wantonly
7 A-5586-15T4
negligent, but not necessarily intentional." She contends because
Barbara did not suffer withdrawal symptoms though she tested
positive for PCP at birth, and because she was "never given the
opportunity to care for [Barbara]," the court erred in finding the
Division met its burden.
E.W. also argues the Division failed to establish that she
acted with gross negligence or recklessness to succeed in a
prosecution under N.J.S.A. 9:6-8.21(c)(4)(b). Citing N.J. Div.
of Child Prot. & Perm. v. Y.N., 220 N.J. 165 (2014), rev'd, 222
N.J. 308 (2015), E.W. asserts the Division did not prove she failed
to exercise a minimum degree of care "in light of the dangers and
risks associated with the situation." Y.N., supra, 220 N.J. at
181, 184 (quoting G.S., supra, 157 N.J. at 181-82). E.W. contends
because Barbara was removed from her care immediately after the
child tested positive for PCP at birth, she was never given the
opportunity to care for daughter, and therefore the Division could
not assess the harm to Barbara "to protect [her] from a wide range
of conduct that clearly qualifies as neglect." G.S., supra, 157
N.J. at 181.
E.W. further argues because the trial court found Barbara did
not suffer from E.W.'s use of PCP, and "relied primarily on
[E.W.]'s past history in determining future harm," the Division
could not sustain its burden of proving abuse or neglect by a
8 A-5586-15T4
preponderance of the evidence. We address these arguments in
turn.
The purpose of a fact-finding hearing is "to determine whether
the child is [] abused or neglected." N.J.S.A. 9:6-8.44. An
"[a]bused or neglected child" includes a minor 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 . . .
(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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
"Courts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect." In re
Guardianship of DMH, 161 N.J. 365, 383 (1999) (citing N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986)).
Though a past risk of harm is not proscribed by the statute, "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." G.S., supra, 157 N.J. at 181.
9 A-5586-15T4
"Whether the parent has exercised the requisite degree of
care is to be analyzed in light of the dangers and risks associated
with the particular situation at issue." N.J. Dep't of Youth &
Family Servs. v. J.L., 410 N.J. Super. 159, 168 (2009) (citing
G.S., supra, 157 N.J. at 181-82). "The inquiry must focus on the
harm to the child and 'whether that harm could have been prevented
had the guardian performed some act to remedy the situation or
remove the danger.'" Ibid. (quoting G.S., supra, 157 N.J. at
182). "[T]he fact-sensitive nature of abuse and neglect cases
turns on particularized evidence." A.L., supra, 213 N.J. at 28
(citation omitted).
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 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."'" V.T., supra, 423 N.J. Super. at 329-30 (quoting
N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472,
481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011)).
Pursuant to N.J.S.A. 9:6-8.46(b), "[u]nder the preponderance
standard, 'a litigant must establish that a desired inference is
more probable than not.'" Liberty Mut. Ins. Co. v. Land, 186 N.J.
10 A-5586-15T4
163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence,
comment 5a on N.J.R.E. 101(b)(1) (2005)).
In A.L., supra, 213 N.J. at 127, a mother and her child both
tested positive for cocaine at the child's birth, based on the
mother's allegedly accidental ingestion of cocaine. The Supreme
Court reversed a finding of abuse or neglect, holding "a report
noting the presence of cocaine metabolites in meconium, without
more, does not establish proof of imminent danger or substantial
risk of harm." Id. at 27-28. The Court expounded "evidence of
actual impairment to the child will satisfy the statute, but in a
case where there is no such proof, the critical focus is on
evidence of imminent danger or substantial risk of harm." Id. at
22.
Furthermore, whether the Division has met its burden of proof
for an abuse and neglect complaint when a child tests positive for
illicit substances at birth depends on the Division's proofs. Id.
at 29. These proofs must "reveal the severity or extent of the
mother's substance abuse or, most important in light of the
statute, the degree of future harm posed to the child." Id. at
27. "Proof that a child's mother frequently used . . . dangerous
substances during pregnancy would be relevant to [the] issue" of
abuse and neglect. Id. at 23.
11 A-5586-15T4
In V.T., supra, 423 N.J. Super. at 324-25, a father tested
positive for cocaine and marijuana during supervised visits with
his ten-year-old son, but the father "behaved appropriately" at
the visits. We reversed a finding of neglect, holding the Division
was "unable to demonstrate whether or not [the father] was impaired
to the point of posing a risk to [his son] in a supervised setting."
Id. at 331. We noted the father "behaved appropriately" during
visitation, and the son "unlike an infant" was "not vulnerable
during these visits to the slightest parental misstep." Ibid.
E.W.'s circumstances are different from the circumstances we
addressed in V.T. E.W. has an extensive history of PCP use and
non-compliance with substance abuse services and mental health
treatment services. E.W. tested positive for PCP in August 2015
before Barbara's birth, at the time of Barbara's birth, and after
Barbara was placed in the Division's custody.
Also, unlike A.L., the record here suggests E.W.'s PCP use
was deliberate. Her extensive history of non-compliance with the
Division demonstrates E.W.'s unwillingness to address her
substance abuse. Indeed, E.W. attended approximately fifteen out
of 150 substance abuse assessments offered by the Division. She
failed to complete substance abuse programs between 2009 and 2015.
She continuously tested positive for PCP when the Division
administered drug screens. Five of her six children have tested
12 A-5586-15T4
positive for PCP at birth and were removed from her custody over
a period of seven years, yet E.W.'s drug use continued.
Unlike the parent in V.T., E.W. was incapable of acting as a
custodian for her daughter. She lacked stable housing and had
made no provisions for Barbara after her birth. Also, the father
in V.T. behaved appropriately during supervised visits. V.T.,
supra, 432 N.J. Super. at 325. In this case, however, E.W. was
aggressive, irritable, inattentive to her children, and attended
her visits under the influence, demonstrating a risk of harm to
Barbara.
In V.T., we stated the age of the child was also a relevant
factor. There, we noted the child was ten-years-old, whereas an
infant could be vulnerable "to the slightest parental misstep."
See id. at 331. Here, Barbara is an infant and therefore would
be vulnerable, especially where the trial court noted E.W.'s
inability to care for her children, including Barbara, in her
current state of addiction. In fact, the trial court found Barbara
was at a substantial risk of future harm because of E.W.'s
"terrible disease of substance abuse and her refusal to . . . be
treated, her inability to care for any of her children and her
consistent refusal to substantially cooperate with services
offered by the Division," and her inability to maintain sobriety.
13 A-5586-15T4
The trial court's findings considered the totality of the
circumstances. We are satisfied the adequate, substantial, and
credible evidence in the record supports the court's conclusion
E.W. placed Barbara at a substantial risk of harm constituting
abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).
Affirmed.
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