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NOT FOR PUBLICATION WITHOUT THE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-0583-15T2
A-0584-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.J. and A.C.,
Defendants-Appellants.
___________________________
IN THE MATTER OF J.J.
and N.J., minors.
___________________________
Argued October 11, 2017 – Decided November 17, 2017
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0215-14.
David A. Gies, Designated Counsel, argued the
cause for appellant J.J. (Joseph E. Krakora,
Public Defender, attorney; Mr. Gies, on the
brief).
Susan M. Markenstein, Designated Counsel,
argued the cause for appellant A.C. (Joseph
E. Krakora, Public Defender, attorney; Ms.
Markenstein, on the brief).
Julie B. Colonna, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Ms. Colonna, on the brief).
Lisa M. Black, Designated Counsel, argued the
cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms. Black,
on the brief).
PER CURIAM
A mother and father appeal from an August 12, 2014 order
finding that they abused or neglected their two young children by
exposing them to a substantial risk of harm resulting from the
ongoing domestic violence between the parents, the father's
substance abuse, and the parents' violations of a child safety
protection plan and court order. We affirm because the findings
of abuse or neglect were supported by substantial credible
evidence.
I.
A.C. (Alice),1 the mother, and J.J. (James), the father, are
the parents of two children: J.J., Jr. (Jake), born in September
2010, and N.J. (Nora), born in September 2011. The family has an
extensive history with the Division of Child Protection and
Permanency (Division). The abuse or neglect findings in this case
1
To protect privacy interests and for ease of reading, we use
initials and fictitious names for the parents and child. See R.
1:38-3(d)(12).
2 A-0583-15T2
focused on the two young children, who were three and two years
old in 2014 when the abuse or neglect occurred.
In January 2014, the Division received a referral regarding
a domestic dispute between Alice and James. Each of the parents
had consumed a forty-ounce container of beer and, thereafter, they
got into an argument, which turned physical. During that
altercation, Alice bit James on both his arms. As a result, Alice
was arrested.
An ensuing investigation revealed that the parents had a
history of domestic violence. At the time of the incident in
January 2014, James was on probation for an aggravated assault of
Alice and he admitted that he had assaulted her on another
occasion. Certified police records revealed ten investigations
of the parents, most of which involved domestic violence. The
children were reportedly present during some of those domestic
violence incidents. Those police reports also revealed that Alice
reported that James repeatedly hit her and punched her in the
face. In January 2014, Alice told a Division worker that she
understood that her children could be harmed by growing up in a
home with domestic violence.
During its investigation, the Division also learned that
James had a history of crack cocaine abuse. Alice acknowledged
that she was aware of James's substance abuse. Nevertheless, she
3 A-0583-15T2
informed the Division that she left James as the sole caretaker
of the children when she went to work.
In February 2014, James tested positive for cocaine and
ultimately admitted to using cocaine. Thereafter, the Division
implemented a safety protection plan under which James's contact
with the children was to be supervised by his grandmother. Both
Alice and James signed the safety plan.
After the safety plan was put in place, the Family court
entered an order enforcing the plan. The court order also
prohibited James and Alice from being in the same place at the
same time with the children, and provided that James could not be
in Alice's home with the children except when Alice is not present
and James's grandmother was present.
Alice and James were found to be in violation of the safety
plan and court order twice. On February 27, 2014, the owner and
manager of a bar below Alice's apartment reported that he found
James in the apartment with Alice and the children. A responding
police officer reported that there was only one bed in the
apartment, and the officer believed that the parents had been
sleeping in the same bed with the children.
Alice and James violated the safety plan and order again on
March 6, 2014. Alice admitted that James had been in her home
where the children reside without supervision by his grandmother.
4 A-0583-15T2
Simultaneous with these incidents, James reported to the
Division that he was in full relapse, had been discharged from his
treatment program, and could not control his substance abuse.
James was, thereafter, admitted into an inpatient treatment
program for several weeks. While in treatment, James was diagnosed
with cocaine and alcohol dependency, depressive disorder, and
hypertension. James's attending physician from the program
testified that James had a high probability of relapsing because
he lacked coping skills and he was in a poor environment for
recovery.
In May 2014, after James completed the inpatient program, a
police officer responded to a report of a man wandering in the
middle of an intersection. The officer identified the man as
James and testified that he appeared to be highly intoxicated and
could not explain why or what he was doing in the middle of the
street.
In response to the parents' violations of the safety plan and
court order, and James's continued substance abuse, in late March
2014, the Division removed the children from their parents' care
and applied for custody of the children. The court granted that
application after finding that the parents had violated the safety
plan and order. The court also directed both parents to attend
substance abuse evaluations and domestic violence counseling.
5 A-0583-15T2
A fact-finding hearing was conducted on June 10, 2014. The
Division presented testimony from six witnesses and entered a
number of documents into evidence. Neither Alice nor James
testified at the hearing, and they did not present any witnesses
on their own behalf. Following the hearing, the Family judge
issued an order and written decision on August 12, 2014, finding
that the Division had proven by a preponderance of the evidence
that both parents had abused or neglected the two children.
The judge found the witnesses who testified on behalf of the
Division to be credible. Relying on the testimony of the witnesses
and the facts established in the documents submitted into evidence,
the judge found that the parents had a history of "severe domestic
violence, including a number of physical assaults causing injury."
The judge also found that the children were present during some
of the domestic violence incidents.
In addition, the Family judge found that James had a
significant and ongoing substance abuse problem. The court also
found that Alice was aware of James's substance abuse problems,
but left him as the primary caregiver of their two young children
on a regular basis. The judge then found that James's role as
primary caretaker, while he was suffering from ongoing substance
abuse problems, created a substantial risk of harm to the young
children.
6 A-0583-15T2
Turning to the issue of whether the children were exposed to
a risk of harm, the judge found that the extensive domestic
violence between the parents, James's substance abuse, and the
violations of the safety plan and court order placed the children
at a substantial risk of harm. In that regard, the trial court
found that both parents knowingly and willfully violated the safety
plan and court order.
After finding that the parents abused or neglected their
children, the court held several compliance hearings. In July
2015, the court entered an order approving the Division's
permanency plan of termination of parental rights. Accordingly,
the Title 9 action was terminated, and the Division filed a Title
30 action for guardianship and termination of parental rights. At
oral argument, counsel informed us that, thereafter, the Division
returned custody of the two children to Alice.
II.
Both parents now appeal from the order finding that they
abused or neglected their two children. The appeals were
consolidated. Alice argues that she did not abuse or neglect her
children and she contends that James's substance abuse did not
support a finding of abuse or neglect. Alice also argues that
there was insufficient evidence for the court to find that the
7 A-0583-15T2
domestic violence between the parties placed the children in
imminent danger or created a substantial risk of harm.
James presents two arguments for our consideration. First,
he contends that the court erred when it found that the burden of
persuasion shifted to the parents to show that they did not abuse
or neglect the children. Second, he argues that the trial court
erred when it found that the children were in imminent danger of
harm due to his substance abuse when there was no expert testimony
supporting such a conclusion. Having reviewed these arguments in
light of the record, we affirm the August 12, 2014 order finding
that both parents abused or neglected their two young children.
The scope of our review in an appeal from an order finding
abuse or neglect is limited. N.J. Div. of Child Prot. & Permanency
v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold
the trial judge's factual findings and credibility determinations
if they are supported by adequate, substantial, and credible
evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007). Accordingly, we will only overturn the judge's
findings if they "went so wide of the mark that the judge was
clearly mistaken." Ibid.
We do not, however, give "special deference" to the trial
court's interpretation of the law. D.W. v. R.W., 212 N.J. 232,
245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202
8 A-0583-15T2
N.J. 145, 183 (2010)). Consequently, we apply a de novo standard
of review to legal issues. D.W., supra, 212 N.J. at 245-46.
The adjudication of abuse or neglect is governed by Title 9,
which is designed to protect children. N.J.S.A. 9:6-8.21 to -
8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or
neglected if:
[a] parent or guardian . . . 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
. . . 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 . . . 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[.]
[N.J.S.A. 9:6-8.21(c)(2) and (c)(4)(b).]
The statute does not require that the child experience actual
harm. N.J.S.A. 9:6-8.21(c)(4)(b). A child is abused or neglected
if his or her 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)(b). In cases where there is an absence of actual
harm, but there exists a substantial risk of harm or imminent
danger, the court must consider whether the parent exercised a
9 A-0583-15T2
minimum degree of care under the circumstances. G.S. v. Dep't of
Human Servs., 157 N.J. 161, 171 (1999).
In G.S., the New Jersey Supreme Court explained that failure
to exercise a "minimum degree of care" refers to "conduct that is
grossly or wantonly negligent, but not necessarily intentional."
Id. at 178. "Conduct is considered willful or wanton if done with
the knowledge that injury is likely to, or probably will, result."
Ibid. A parent fails to exercise a minimum degree of care if,
despite being "aware of the dangers inherent in a situation," the
parent "fails adequately to supervise the child or recklessly
creates a risk of serious injury to that child." Id. at 181.
The Division must prove by a preponderance of competent,
material, and relevant evidence that a child is abused or
neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires
the Division to demonstrate a probability of present or future
harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.
13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).
Title 9 cases are fact-sensitive, and the court should base its
findings on the totality of circumstances. N.J. Div. of Youth &
Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
The issues raised by Alice and James on appeal can be
distilled into two arguments. First, they both allege that there
was not enough evidence to support a finding of abuse or neglect.
10 A-0583-15T2
In particular, Alice and James contend that James's substance
abuse did not pose a risk of harm to the children. They also
argue that there was no evidence to support the trial court's
finding that their ongoing domestic violence exposed the children
to a substantial risk or imminent danger.
Second, James challenges the trial court's application of a
burden-shifting analysis to find abuse or neglect. He argues that
the trial court erred as a matter of law when it shifted the burden
of persuasion to him and Alice to rebut the presumption of abuse
or neglect.
We are not persuaded by either of these arguments. We will
analyze them in turn.
A. The Substantial Evidence
Alice and James argue that the trial court erred in finding
that there was sufficient evidence to show that their ongoing
domestic violence, James's substance abuse, and their violations
of the safety plan and order actually exposed their children to a
substantial risk of harm or imminent danger.
The trial court found that there was a lengthy history of
domestic violence between James and Alice. The court also found
that the children were present during some of those domestic
violence incidents. Finally, the court found that both parents
were aware that exposing their children to domestic violence
11 A-0583-15T2
created a substantial risk of harm to the children. Alice
acknowledged that potential harm to the Division in January 2014.
Alice and James also both signed the safety plan, which
demonstrates that they were aware that there was a risk to the
children. All of those findings are supported by substantial
credible evidence in the record.
The trial court also found that James had a substantial and
ongoing substance abuse problem. Alice acknowledged that James
had that problem. The court then found that despite both parents'
knowledge of the potential for harm, James was often left as the
primary caregiver to the children. Here again, the court relied
on the safety plan and court order. The safety plan and order do
not in and of themselves establish the harm to the children.
Instead, they establish that the parents were aware that leaving
James with the children posed a substantial risk of harm. Again,
all of those findings by the court were supported by substantial
credible evidence.
B. The Burden Shifting
As already noted, James contends that the trial court erred
by shifting the burden of persuasion to the parents to rebut a
presumption of abuse or neglect. We reject this argument for two
reasons. First, we do not read the trial court's decision as
shifting the burden of persuasion to the parents. Instead, as
12 A-0583-15T2
already analyzed, the trial court found that the Division had
established by a preponderance of the evidence that the children
were exposed to a substantial risk of imminent harm due to the
parents' ongoing domestic violence, James's substance abuse, and
their violation of the safety plan and order. Those findings were
made without shifting any burden.
Second, while the court made reference to shifting the burden,
read in context, it is clear that the court was discussing the
parents' decision not to present any evidence at the fact-finding
hearing. At oral argument before us, all counsel agreed that the
burden should not shift in this case. We agree with that
conclusion. Thus, while the trial court's discussion of burden
shifting may arguably have created some confusion, the trial
court's decision was based on findings supported by substantial
credible evidence presented by the Division.
The trial court's decision was also supported by well-
established law. In that regard, our Supreme Court has held: "A
parent fails to exercise a minimum degree of care if he [or she]
is aware of the danger inherent in a situation and fails to
adequately supervise the child or recklessly creates a risk of
serious injury to that child." G.S., supra, 157 N.J. at 181. See
also Dep't of Children & Families, Div. of Youth & Family Servs.
v. T.B., 207 N.J. 294, 306-07 (2011) ("Indeed, where a parent or
13 A-0583-15T2
guardian acts in a grossly negligent or reckless manner, that
deviation from the standard of care may support an inference that
the child is subject to future danger.").
Here, as we have noted, the children faced two dangers: (1)
exposure to ongoing domestic violence between their parents, and
(2) being left in the care of James who had a substance abuse
problem with substantial risk of relapse. The record supports the
trial court's finding that both parents were aware that James
needed supervision when he was with the children. Both parents
were also aware that allowing James to care for the children
without supervision exposed the children to a substantial risk of
harm. Accordingly, the burden of persuasion did not shift to the
parents. Instead, both parents recognized the domestic violence
and substance abuse problems, and their knowledge of the risk of
harm posed to the children was reflected in the safety plan, as
well as the court order. Thereafter, despite knowing of the risks,
the parents allowed James to be present with the children
unsupervised.
Affirmed.
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