DCPP VS. H.L., IN THE MATTER OF A.L. AND A.L. (FN-20-0057-16, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-2044-16T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
H.L.
Defendant-Appellant.
______________________________
IN THE MATTER A.L. and
A.L., Minors.
______________________________
Submitted June 5, 2018 – Decided June 26, 2018
Before Judges Moynihan and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FN-20-0057-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marc R. Ruby, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Mary C. Zec,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen A.
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
H.L. appeals the trial court's finding of abuse or neglect,
N.J.S.A. 9:6-8.21(c)(4), based on grossly negligent conduct that
exposed her children, Chloe and Charlie1 – both under the age of
five – to a substantial risk of harm. She argues, "[n]either
Chloe nor Charlie were harmed, or even in danger. And there was
insufficient competent evidence supporting the finding that [she]
failed to exercise a minimum degree of care at the time of the
incident" when she left the children "in the supervised care of
an adult, inside a home with dirty dishes, and a roach problem,
while she drank a few beers, before visiting her dying husband's
hospital bedside." We are unpersuaded and affirm.
Following a fact-finding hearing conducted pursuant to
N.J.S.A. 9:6-8.44, the trial judge found the Special Response Unit
(SPRU) investigator and intake supervisor who testified for the
New Jersey Division of Child Protection and Permanency were
"extremely prepared" and testified "from personal knowledge." He
characterized the SPRU investigator's "recall and preparation [as]
compelling," concluding she "testified so very credibly."
1
We use the same pseudonyms for the children – including H.L.'s
adult son — as did H.L. in her merits brief.
2 A-2044-16T2
From that testimony, as confirmed by H.L.'s merits brief, the
Division commenced this action after it received a referral from
the hospital at which H.L. visited her dying husband in October
2015, leaving the children in the care of her adult son, Jackson.
Hospital workers informed the SPRU investigator that they observed
blood on H.L.'s forehead – which she attributed to nail polish –
and that she appeared intoxicated. After receiving information
that H.L. – who was no longer present at the hospital – had an
open case with the Division and that there were concerns about her
alcohol use, the investigator proceeded to H.L.'s residence to
check on her younger children.2
The trial judge found from the investigator's testimony that
the condition of H.L.'s apartment when she arrived had changed
drastically from that reported just two months prior; it was
littered with food and clothes, infested with roaches and flies,
and wires were "all over" the children's bedrooms. The children
were found "smelly [and] dirty."
The judge, crediting the investigator's testimony, found
Chloe told the investigator that she saw H.L. and Jackson "drink
beer all the time" and that H.L. "gets crazy and she falls down."
2
The judge admitted the evidence the SPRU investigator gathered
at the hospital only to show how it informed the investigator's
further actions.
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The investigator also observed H.L. when she returned to the
apartment "walking [in the middle of the street] from side to side
like . . . she was about to fall." Recalling Chloe's statement
about her mother falling after drinking, the judge rejected H.L.'s
attribution of her wobbly gait to an ankle injury or "chronic
ankle trouble," also noting she did not report an ankle problem
until she was later interviewed by the intake supervisor. He also
observed that H.L. completed "an hour walk to a hospital" that
morning. When the investigator approached H.L., she observed a
cut on her forehead and that H.L. smelled like alcohol. H.L.
related that she had fallen at the hospital and had consumed two
beers that morning; she denied that she was drunk or had a drinking
problem. H.L. later told the intake supervisor she did not realize
that her face was bleeding and that she had just one beer that
morning to settle her stomach before going to the hospital.
The judge also found unavailing that Jackson was an acceptable
caretaker for the children while H.L. was at the hospital. The
judge opined Jackson, who lived in the apartment,
better have a better clue about what's
acceptable. There has to be boxes of soap.
There has to be sinks you can wash things in.
There have to be garbage cans where old food
can be thrown out, so you have less
opportunity for flies and roaches . . . .
It's not healthy and it's creating a more
significant, substantial risk of harm to the
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children to have the presence of roaches and
flies and food out.
From this evidence the judge properly inferred defendant had
a drinking problem for which she did not seek help from the
Division's "treasure chest" of available resources.3 H.L.'s
drinking, he found, resulted in bizarre behavior including
medically treating an upset stomach with beer and failing to
recognize her head injury. Moreover, he found her drinking and
failure to address that problem resulted in the unacceptable "way
[the children] smelled, the way they were clothed, the mess and
disarray of the house," conditions that would reoccur until H.L.
addressed her drinking problem. The judge concluded the Division
proved the children were abused and neglected as provided under
N.J.S.A. 9:6-8.21(c)(4)(b), which defines such a child as one
under the age of eighteen years:
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
3
The trial judge considered that H.L. was referred in August 2015
for a substance abuse evaluation that resulted – based on negative
urine screens and H.L.'s self-reported history – in a
recommendation that no treatment was necessary, only as evidence
that H.L. knew services were available from the Division to address
an alcohol problem.
5 A-2044-16T2
. . . or by any other acts of a similarly
serious nature requiring the aid of the court.
We measure a "minimum degree of care" by the Supreme Court's
definition: "grossly or wantonly negligent, but not necessarily
intentional" conduct, G.S. v. Dep't of Human Servs., 157 N.J. 161,
178 (1999), such that a parent, "aware of the dangers inherent in
a situation . . . fails adequately to supervise the child or
recklessly creates a risk of serious injury to that child," id.
at 181.
As we recognized in N.J. Div. of Child Prot. & Permanency v.
J.A., 436 N.J. Super. 61, 69 (App. Div. 2014):
Our Supreme Court later illuminated G.S.'s
interpretation, explaining that "every
failure to perform a cautionary act is not
abuse or neglect"; "[w]hen the failure to
perform a cautionary act is merely negligent,
it does not trigger" the statute. N.J. Div.
of Youth & Family Servs. v. T.B., 207 N.J.
294, 306-07 (2011). The focus on the parent's
level of culpability in assessing whether a
minimum degree of care has been exercised
is in synchronicity with the
Legislature's expressed purpose to
safeguard children. Indeed, where a
parent or 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.
To the contrary, where a parent is
merely negligent there is no warrant
to infer that the child will be at
future risk.
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[Id. at 307 (alteration in
original).]
When we apply this legal standard to our standard of review,
deferring to the trial judge's fact findings that are rooted in
the judge's familiarity with the case, opportunity to make
credibility findings based on live testimony, and family judges'
expertise in handling these cases, Cesare v. Cesare, 154 N.J. 394,
411-413 (1998), we affirm the trial court's finding of abuse and
neglect which is supported by the substantial, credible evidence
in the record, N.J. Div. of Youth and Family Servs. v. E.P., 196
N.J. 88, 104 (2008). Reviewing, as we must in abuse and neglect
cases, the totality of the circumstances, N.J. Div. of Youth and
Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011), we do not conclude
the trial court's fact-findings or inferences were erroneously
drawn, N.J. Div. of Child Prot. & Permanency v. S.I., 437 N.J.
Super. 142, 152 (App. Div. 2014).
H.L.'s drinking sufficiently impaired her judgment so that –
as evidenced by the children's condition and that of their home –
there was a substantial risk of harm. See N.J. Dep't of Children
& Families v. A.L., 213 N.J. 1, 23 (2013) (holding "a finding of
abuse and neglect can be based on proof of imminent danger and
substantial risk of harm"). Even absent proof of actual harm, her
failure to recognize and then address her problem, especially when
7 A-2044-16T2
services were available from the Division, created a risk of
serious injury to the children. "Courts need not wait to act
until a child is actually irreparably impaired by parental
inattention or neglect." In re Guardianship of D.M.H., 161 N.J.
365, 383 (1999).
The findings by the trial judge did not fully detail the
sordid conditions found by the SPRU investigator. The record
reflects a "really foul odor" emanated from the apartment; food
was present in dishes in the sink, stove-top pots and on the table;
the apartment walls were "filthy" and "[v]ery dirty [with] black
stains"; the refrigerator was dirty and stained; the children's
sleeping quarters were hazardous. The judge found the household
– and the children's – conditions would continue; there is no
evidence they would be remediated in light of the judge's findings
that the mother chose alcohol over the care of her children. His
findings were sufficient to elevate this case to one of gross
negligence. As the judge found, H.L. was aware of the dangers her
continued drinking presented but failed to adequately supervise
her children and recklessly created a risk of serious injury to
them.
Affirmed.
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