DCPP VS. K.G. AND M.A., IN THE MATTER OF L.A. AND M.A. (FN-09-0127-17, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5298-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.G.,1
Defendant-Appellant,
and
M.A.,
Defendant.
_______________________________
IN THE MATTER OF L.A. and M.A.,
Minors.
_______________________________
Submitted November 7, 2019 – Decided November 15, 2019
1
We use initials and pseudonyms to protect the parties' confidentiality and
privacy interests in accordance with Rule 1:38-3(d)(12).
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0127-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Jessica Faustin, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Melissa R. Vance, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
Defendant K.G. appeals from a May 16, 2017 fact-finding order
determining she abused and neglected her minor children, L.A. (Lisa), born
October 21, 2008, and M.A. (Mark), born June 13, 2014. We affirm.
The facts are as follows. On January 10, 2017, the police were called to
defendant's residence because of an incident involving defendant and M.A.
(Matt). Thirty to forty-five minutes later, the police again were dispatched to
defendant's home. Defendant's mother reported defendant was not home and the
police began looking for defendant. The officers found defendant walking with
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Lisa around 4:30 a.m. on January 10, 2017. 2 Defendant explained she was
going to the hospital, located a few miles away in another town, because Lisa
had a stomach ache. Because the hospital was not within a short walking
distance, the police called for an ambulance to take defendant and Lisa to the
hospital.
The Division of Child Protection and Permanency (Division) received a
telephone call from a hospital staff member regarding defendant. The staff
member reported defendant claimed Matt poisoned her and the children.
Defendant admitted herself to the hospital because she was feeling anxious and
paranoid. The hospital staff member advised the Division that defendant tested
positive for illegal substances.
A Division caseworker went to the hospital to investigate. The
caseworker spoke to defendant, Matt, defendant's mother, and Lisa. Lisa told
the caseworker that she had an upset stomach but was feeling better. Lisa stated
her father had not given her anything that made her feel sick. The child also
denied any members of the family used alcohol or drugs.
2
On the date of the incident, there was a court order precluding defendant from
having unsupervised contact with the children.
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When speaking to defendant, the caseworker observed defendant did not
maintain eye contact and made jerking movements while lying on the hospital
bed. Defendant denied using drugs or alcohol. She also claimed she attempted
to find a neighbor to drive her and Lisa to the hospital around 3:30 a.m.
Defendant told the caseworker that Matt attempted to poison her but not Lisa.
The Division executed an emergency removal of the children as a result
of defendant's admission to the hospital. The children were placed with their
paternal great-grandmother.
The Division caseworker again interviewed defendant the day after she
was discharged from the hospital. At that time, defendant was more lucid and
maintained eye contact with the caseworker.
A few days after the hospital incident, the Division filed a complaint for
temporary custody of the children. The trial court held a hearing, and the judge
entered an order maintaining custody of the children with the Division and
allowing defendant liberal, supervised visitation with her children.
During follow-up interviews with the Division's caseworker, defendant
admitted she snorted "mollies" (MDMA or ecstasy) just before she went to the
hospital. Defendant also said Matt had not tried to drug or poison her, and she
attributed her erratic behavior on January 10 to the "mollies."
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The judge conducted a fact-finding hearing to determine if defendant and
Matt abused or neglected Lisa and Mark. After hearing testimony from a police
officer and a Division employee, and reviewing exhibits introduced as evidence,
Judge Lois Lipton rendered a comprehensive oral decision, finding defendant
abused or neglected Lisa and Mark. Judge Lipton concluded the Division
proved by a preponderance of the evidence that defendant neglected her children
under N.J.S.A. 9:6-8.21(c). She also found the testimony of the police officer
and Division caseworker credible. Judge Lipton stated:
When [defendant] was with them she was
exhibiting behavior . . . which was clear by a
preponderance of the evidence that she was not capable
of properly supervising those children.
[Defendant] was alone with them contrary to a
[c]ourt [o]rder. And . . . that's not a per se active abuse
and neglect, but when taken with her behavior in the
hospital, her admission that she'd used [m]ollies and
where she was at what hour, the hospital being far away
in the next town, far enough that the police officer
rather than driving her took her the two blocks home
and called an ambulance. So I do find by a
preponderance of the evidence that [defendant] did, by
failing to appropriately supervise those children, did
abuse or neglect them by placing them at imminent risk
of substantial harm.
On appeal, defendant argues the trial court erred in finding she abused or
neglected her children because the Division failed to provide sufficient evidence
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in support of that finding. Defendant claims the Division failed to show her
behavior constituted more than ordinary negligence and provided no expert
testimony to conclude the drugs she took affected her ability to parent.
We accord deference to family court findings, "recognizing the court's
'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin–
Thieme, 227 N.J. 269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,
413 (1998)). Findings by a family court are binding on appeal "when supported
by adequate, substantial, credible evidence." Id. at 283 (quoting Cesare, 154
N.J. at 411-12).
"Indeed, we defer to family part judges 'unless they are so wide of the
mark that our intervention is required to avert an injustice.'" N.J. Div. of Child
Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017) (quoting N.J. Div. of
Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012)). A trial judge's
findings and credibility determinations receive deference because the trial court
can observe the witnesses and "has a better perspective than a reviewing court
in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33
(1988). A trial court's "legal conclusions are reviewed de novo: when they are
unsupported by competent evidence in the record, they will be reversed." N.J.
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Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470 (App. Div.
2014) (citing Cesare, 154 N.J. at 412).
Having reviewed the record, and deferring to the judge's well-supported
findings of fact and credibility determinations, we agree the Division proved by
a preponderance of the evidence that defendant's failure to properly supervise
her children exposed them to imminent danger and a substantial risk of harm .
We are satisfied that defendant abused or neglected her children for the rea sons
expressed in Judge Lipton's thorough oral decision. R. 2:11-3(e)(1)(A).
Affirmed.
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