DCPP VS. H.R. IN THE MATTER OF M.H. (FN-02-0318-14, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-2143-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
H.R.,
Defendant-Appellant.
________________________________
IN THE MATTER OF M.H., a minor.
________________________________
Submitted June 6, 2017 – Decided June 21, 2017
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0318-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marina Ginzburg, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Mehnaz
Rahim, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa J. Godfrey,
Assistant Deputy Public Defender, on the
brief).
PER CURIAM
Defendant H.R. appeals from an order entered by the Family
Part on December 16, 2014, which found that she abused or neglected
her son, M.H. We affirm.
This appeal arises from the following facts. On May 13, 2014,
members of a multi-jurisdictional Heroin Task Force were
conducting surveillance in the City of Paterson and observed H.R.
drive her car into the area and park. A male approached and entered
the car. H.R. then drove her car a short distance and pulled over.
The male then exited the car and walked away.
Based on their training and experience, the officers thought
that H.R. had engaged in an illegal narcotics transaction. The
officers followed and then stopped H.R.'s vehicle. The officers
identified themselves and asked H.R. to exit the car. M.H. was in
the back seat of the vehicle. He was two years old at the time.
The officers informed H.R. of her Miranda rights.1
H.R. told the officers that there was heroin in the car. She
then handed the officers five glassine folds of suspected heroin.
H.R. was arrested. She told the officers that she did not have
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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anyone to pick up her son. The police transported H.R. and the
child to the Hawthorne police headquarters. The officers then
contacted the Division of Child Protection and Permanency
(Division), and one of its workers responded.
Because H.R. did not have anyone to care for M.H., and because
there was a final restraining order against G.H., the child's
biological father, which precluded him from having any contact
with the child, the Division removed the child on an emergency
basis and placed him in a non-relative resource home.
On May 15, 2014, the Division filed a complaint in the Family
Part, Passaic County, pursuant to N.J.S.A. 9:6-8.21 to -8.73, and
N.J.S.A. 30:4C-12 to -24, seeking custody, care, and supervision
of the child. The Division alleged that H.R. abused or neglected
M.H. by subjecting him to a substantial risk of harm when she made
an illegal purchase of drugs in Paterson with the child in the
car.
The Family Part judge entered an order that day finding that
the removal of the child was required due to the imminent danger
to the child's life, safety, and health. The order placed the
child in the Division's custody, care, and supervision. Among
other provisions, the order required H.R. and G.H. to undergo
psychological and substance-abuse evaluations, and to participate
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in services. H.R. was allowed weekly, supervised visits with the
child.
The order also stated that the action should have been brought
in Bergen County and it required the Division to re-file the
complaint in that vicinage. The order further required H.R. and
G.H. to show cause why the child should not remain under the care
and supervision of the Division.
Thereafter, the Division filed its complaint in the Family
Part, Bergen County, and on the return date of the order to show
cause, the Family Part judge entered an order dated June 26, 2014,
continuing the Division's custody, care, and supervision of the
child. The judge later conducted case management reviews on August
14, 2014, and September 9, 2014.
M.H. remained in the Division's care, custody and
supervision. The judge ordered H.R. and G.H. to participate in
substance abuse evaluations, submit to random drug/alcohol
screenings, attend counseling and individual therapy, and attend
parenting skills training.
The Family Part judge conducted a fact-finding hearing on
December 5, 2014. At the hearing, the Division presented testimony
from Totowa Police Officer Daniel V. DiBlasio, Division caseworker
Kim Puyron-Darling, substance abuse evaluator Stacey Bosso, and
Bergen County Sheriff's Detective Tasharah Windley. H.R. did not
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appear at the hearing, but she was represented by counsel. The
Division did not view G.H. as an offending parent. He appeared at
the hearing, without counsel.
Officer DiBlasio testified that in November 2012, he was
dispatched to an apartment in Totowa, after the police received a
call stating that controlled dangerous substances (CDS) had been
found in the apartment. G.H. told DiBlasio that he found several
plastic baggies filled with cocaine in the bedroom he shared with
H.R. DiBlasio entered the bedroom and observed M.H. sleeping in
his crib. M.H. was eight months old at the time. DiBlasio arrested
H.R. for possession of cocaine. M.H. remained in G.H.'s care.
Division caseworker Puyron-Darling testified that she became
involved with H.R. after she was arrested for cocaine possession.
The case remained opened for services from 2012 to 2014 since the
Division had concerns about H.R.'s use of illegal drugs and
domestic violence. Puyron-Darling stated that H.R. did not comply
with the recommended substance abuse treatment, and she only
submitted one urine screen.
In March 2014, the Division received another referral that
H.R. was abusing marijuana. She denied the allegation and agreed
to come to the Division's office and submit to a substance abuse
evaluation. H.R. failed to appear for the scheduled evaluation.
In April 2014, the Division received another referral about H.R.'s
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alleged use of illegal drugs. Puyron-Darling spoke with H.R., and
she agreed to come to the Division's office and undergo a substance
abuse evaluation. H.R. did not appear for the evaluation.
On May 13, 2014, the Paterson police informed the Division
that H.R. had been arrested for heroin possession and her two-
year-old son was in the car when H.R. was arrested. The officer
reported that the child required placement because H.R. said she
had no family or friends who were available to care for the child.
Officer Windley testified about H.R.'s arrest on May 13,
2014. The officer stated that on that day, she was part of the
Heroin Task Force in Paterson. Windley said she was conducting
surveillance in an area of Paterson known for its high crime rate
and drug sales.
At around 10:00 a.m., Windley noticed a woman driving a grey
Ford Focus circling the area. The woman pulled over and a young
man entered the vehicle. The woman drove a block and stopped. The
man exited the car. Windley testified that, based on her training
and experience, these actions were consistent with drug
transactions in an area known for drug sales.
Windley stopped the car and asked the driver to step out. She
identified H.R. as the driver of the car. H.R. admitted that she
had just purchased heroin from the man who exited her car. H.R.
voluntarily retrieved the drugs from her purse and gave the officer
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five bags of heroin. Windley observed M.H. sitting in a car seat
in the car. She described the car as "very dirty" and strewn with
clothes and trash. The child's hands and face were dirty. M.H. was
only wearing pajamas, and he had no shoes on his feet. Urine from
the child's diaper had soaked through the child's pajamas onto the
car seat.
H.R. could not provide the name of M.H.'s father or any other
person who might be able to pick him up. Windley then transported
the child to the Hawthorne police station, and the Division was
contacted. H.R. was placed under arrest and transported to the
Hawthorne police station in another vehicle.
Windley pointed out that M.H. could not walk around the police
station because he had no shoes. H.R. did not have a diaper bag,
diapers, or a drinking cup for the child. H.R. explained that she
did not have time to grab these items because she ran out of the
house.
Windley stated that she was concerned for the child because
he was in the car with his mother while she purchased drugs from
an unknown man in a "high" drug and crime area. The officer said
there was a danger that H.R. could be car-jacked, raped, or robbed.
The officer noted that about sixty percent of drug dealers carry
weapons, such as handguns and knives, while engaging in drug
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transactions. Many drug purchasers in the area report that they
had been robbed by drug dealers.
The Division offered H.R. services in an attempt to achieve
reunification, and Preferred Children's Services (PCS) performed
a substance abuse evaluation of H.R. Bosso, the substance abuse
evaluator, testified that H.R. had admitted to a long-standing
drug addiction, which began when H.R. was an adolescent.
H.R. reported that she had started ingesting oxycodone daily,
and that by the age of seventeen, she began to snort about two
bundles of heroin each day. Her addiction progressed, and H.R.
began injecting up to five bags of heroin at a time, and using
eleven-and-a-half bundles of the drug each day. H.R. also admitted
to smoking marijuana and snorting cocaine every day, and this led
to a daily crack habit. At the height of her addiction, H.R. was
spending $700 a day on CDS.
H.R. said she stopped using drugs at age nineteen, after she
was incarcerated. She claimed to have remained sober until November
2013, when she relapsed on heroin. She was then twenty-three years
old. H.R. began snorting heroin daily, and she progressed to
injecting anywhere from four bags to two bundles a day. Bosso
testified that, at the time of the evaluation, H.R. was injecting
four bags to two bundles of heroin a day, and she snorted cocaine
three days before the evaluation. The Division referred H.R. to a
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detoxification program. She attended an intake appointment on
August 12, 2014, but left the next day. Bosso said H.R. never
returned to the program, and she had no further contact with PCS.
On December 16, 2014, the judge filed a written opinion
finding that H.R. had abused or neglected the child as a result
of her actions on May 13, 2014. The judge found that the Division's
witnesses were credible. She determined that H.R. had acted in a
grossly negligent manner, and she placed M.H. at substantial risk
of harm by abusing drugs and transporting the child in a car while
she engaged in an illegal drug purchase. The judge memorialized
her findings in an order dated December 16, 2014.
The judge later conducted hearings in the matter on February
5, 2015; May 7, 2015; August 6, 2015; November 12, 2015; and
December 18, 2015. H.R. only appeared at the August hearing. On
December 18, 2015, the judge awarded sole legal and physical
custody of the child to G.H. and terminated the litigation. This
appeal followed.
On appeal, H.R. argues that: (1) the Division failed to prove
by a preponderance of the material and relevant evidence that she
abused or neglected M.H.; and (2) the Division did not prove that
she failed to exercise a minimum degree of care or that M.H. was
actually harmed by her actions.
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The scope of our review in an appeal from an order finding
abuse or neglect is limited. N.J. Div. of Youth & Family Servs.
v. R.D., 207 N.J. 88, 112 (2011). We must uphold "factual findings
undergirding the trial court's decision if they are supported by
'adequate, substantial and credible evidence' on the record." N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)
(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188
(App. Div. 1993)).
An "abused or neglected child" is defined by N.J.S.A. 9:6-
8.21(c)(4) as a child who is less than eighteen years of age and
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 (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[;] . . . or by any other acts of
a similarly serious nature requiring the aid
of the court[.]
"'Whether a parent or guardian has failed to exercise a
minimum degree of care' in protecting a child is determined on a
case-by-case basis and 'analyzed in light of the dangers and risks
associated with the situation.'" N.J. Div. of Youth & Family Servs.
10 A-2143-15T4
v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010) (quoting G.S.
v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). "'[M]inimum
degree of care' refers to conduct that is grossly or wantonly
negligent, but not necessarily intentional." G.S., supra, 157 N.J.
at 178.
This standard "implies that a person has acted with reckless
disregard for the safety of others." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting
G.S., supra, 157 N.J. at 179). Moreover, a parent may be found to
have abused or neglected a child when the parent creates a
substantial risk of harm, since a court "need not wait until a
child is actually irreparably impaired by parental inattention or
neglect." In the Matter of the Guardianship of D.M.H., 161 N.J.
365, 383 (1999).
Here, there is sufficient credible evidence to support the
trial court's finding that H.R. abused or neglected M.H. by
engaging in an illegal drug transaction with an unknown man, in a
high-crime area. There also is sufficient credible evidence in the
record to support the judge's determination that H.R. failed to
meet the child's basic needs because she was only focused on her
need to obtain illegal drugs.
H.R. does not dispute that she went to Paterson to purchase
heroin, and she had the child with her in the car. H.R.
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acknowledges that she allowed an unidentified man to enter her car
and she admits that the police found heroin in her car. She argues,
however, that there is nothing to suggest she was under the
influence of narcotics at the time. She contends that the "simple
act" of having narcotics in her car did not place M.H. at
substantial risk of harm. She also contends that the child was not
harmed by his filthy clothes, soiled diaper, and lack of shoes.
These arguments are without merit. The evidence shows that
H.R. has a long history of substance abuse and a history of arrests
related to her possession of CDS. On May 13, 2014, H.R. took the
child with her when she went to purchase heroin, and as Officer
Windley testified, H.R. exposed herself, as well as her child, to
the risk of serious criminal activity.
Windley noted that drug dealers often possess weapons while
engaging in drug transactions, and that drug purchasers report
they have been robbed by drug dealers. Windley also pointed out
that, by allowing an unidentified person to enter her car, H.R.
could have been the victim of a sexual assault or a carjacking.
As the Family Part judge correctly determined, in doing so, H.R.
placed the child at substantial risk of harm.
Moreover, the evidence presented at the fact-finding hearing
showed that when H.R. was arrested, the officer noted that M.H.'s
face and hands were filthy. He was wearing pajamas and did not
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have shoes. His clothing also was soaked in urine, apparently
because his diaper had not been changed. H.R. did not have a diaper
bag with her. She claimed this was merely an oversight, but the
judge properly drew the inference that H.R. was "so focused on
getting her drugs that she neglected to care for her child's most
basic needs."
Thus, there is sufficient credible evidence in the record to
support the judge's finding that H.R.'s actions were grossly
negligent and placed the child at substantial risk of harm. The
record therefore supports the judge's determination that H.R.
failed to exercise the minimum degree of care, and as a result,
M.H. was abused or neglected, as defined in N.J.S.A. 9:6-
8.21(c)(4).
H.R. argues that the judge erred by admitting what she
characterized as inadmissible hearsay and irrelevant evidence and
testimony. She contends the judge erred by admitting the Division's
investigation report, which included statements from persons who
were interviewed. She contends that the judge erred by admitting
reports from the Bergen County Sheriff's Office and the Totowa
police, which discussed certain previous incidents involving H.R.
H.R. further argues that the judge erred by admitting a July
11, 2014 report of a psychological evaluation prepared by Dr.
Margaret DeLong. In addition, H.R. contends the court should not
13 A-2143-15T4
have admitted a report of a urine screening, which she claims was
not properly authenticated.
We find no merit in these arguments. We note that the
essential facts supporting the judge's finding that H.R. abused
or neglected M.H. were established by testimony presented at the
fact-finding hearing, which the judge found credible. The judge
admitted the Division's investigative report, but noted that she
would not consider any inadmissible hearsay in that report.
Furthermore, Officers Windley and DiBlasio testified as to
the key facts set forth in the investigative reports of the Bergen
County Sheriff's Office and the Totowa police. In addition, the
judge admitted Dr. DeLong's report, but the statements in that
report were not essential to the judge's decision, which was based
primarily on the events of May 13, 2014.
H.R.'s remaining arguments are without sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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