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) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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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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
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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).
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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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