DCPP VS. C.S. AND W.S., IN THE MATTER OF I.S. (FN-12-0234-15, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                      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    NOT FOR PUBLICATION WITHOUT THE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-2185-17T1
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    C.S.
    Defendant-Appellant/
    Cross-Respondent,
    and
    W.S.,
    Defendant-Respondent/
    Cross-Appellant.
    ____________________________
    IN THE MATTER OF I.S.,
    a Minor.
    ____________________________
    Submitted March 6, 2019 – Decided April 4, 2019
    Before Judges Koblitz, Currier and Mayer.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Middlesex County,
    No. FN-12-0234-15.
    Joseph E. Krakora, Public Defender, attorney for
    appellant/cross-respondent    (Kevin G.  Byrnes,
    Designated Counsel, on the briefs).
    Joseph E. Krakora, Public Defender, attorney for
    respondent/cross-appellant (Arthur D. Malkin,
    Designated Counsel, on the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Christina A. Duclos, Deputy
    Attorney General, on the brief).
    Joseph E. Krakora, Public Defender, Law Guardian,
    attorney for minor (David B. Valentin, Assistant
    Deputy Public Defender, on the brief).
    PER CURIAM
    Defendant C.S.1 appeals from a March 22, 2016 order, finding her guilty
    of child abuse or neglect, N.J.S.A. 9:6-8.21(c), after a six-day plenary hearing.
    The family court's finding stemmed from an incident where C.S.'s then-six-year-
    old daughter, I.S., ate a tube of maximum strength Orajel, a toothache pain
    reliever, which has the active ingredient benzocaine, and went into cardiac
    arrest. C.S. performed Cardiopulmonary Resuscitation (CPR) while her adult
    1
    We use initials to maintain confidentiality. R. 1:38-3(d)(12).
    A-2185-17T1
    2
    daughter called 9-1-1. The child was not able to breathe on her own until she
    reached the hospital. After reviewing the record in light of the contentions
    advanced on appeal, we affirm.
    C.S. argues that because she did not intentionally cause I.S. to eat the
    Orajel, she did not abuse or neglect I.S. The family court found that C.S. failed
    to exercise a minimum degree of care, based on the condition of C.S.'s home,
    her prior awareness that I.S. ate non-food items, and her decision to keep Xanax
    and Orajel in a cabinet accessible to I.S. C.S. also recklessly disregarded I.S.'s
    safety by allowing her home to fall into a deplorable condition. Division of
    Child Protection and Permanency (Division) caseworkers testified that the home
    smelled of body odor, urine, and cigarette smoke. Clutter was everywhere,
    stacked five-feet high; dirty dishes were in the sink; the floors were sticky;
    stagnant dark water had filled the bathtub and toilet; cigarette butts were found
    in a child's playhouse; and flies were everywhere. An empty maximum-strength
    tube of Orajel was found by I.S.'s bed.
    I.S.'s father, defendant W.S., appeals from the family court's December 6,
    2017 order terminating the abuse or neglect litigation and returning I.S. to the
    legal custody of both parents and primary physical custody of her mother, at the
    request of the Division. We affirm.
    A-2185-17T1
    3
    The Division, the law guardian, and C.S. all agreed to terminate the
    litigation because I.S. had been safely returned to her mother's custody. W.S.
    argues that the family court erred in dismissing the matter without considering
    his pro se motions for parenting time and custody. At the termination hearing,
    the family court spoke extensively with W.S., explaining that in the future W.S.
    could bring motions for visitation and custody under the domestic violence
    docket number.
    At the beginning of this litigation, W.S. had not been in contact with then-
    six-year-old I.S. for the preceding three years. He contested paternity, and I.S.
    did not know he was her father. W.S. stated on the record that he was filing
    motions "to punish" C.S. The family court initially told W.S. he could not have
    visitation with I.S. until he took a paternity test. W.S. refused to take the
    paternity test for over one year. W.S. also resisted a psychological evaluation.
    After W.S. was determined to be I.S.'s father, the family court granted W.S.
    supervised parenting time, even when I.S. later stated she did not want to see
    W.S.
    As a result of deplorable conditions in the home, the Division first
    removed I.S. in 2010, returned the child to her mother in 2011, removed her
    again later in 2011, and returned her in 2012. When the Division filed its
    A-2185-17T1
    4
    complaint for custody of I.S. on March 22, 2015, a final restraining order was
    in place between C.S. and W.S.
    During the early hours of March 22, 2015, Division caseworker Rita Pardo
    reported to the Robert Wood Johnson Hospital where I.S. was in the Pedi atric
    Intensive Care Unit. C.S. told Pardo that she and I.S. usually slept in separate
    beds in one room. That night, I.S. had asked C.S. if she could sleep with her
    because she was cold. C.S. woke to I.S. vomiting in the bed. When C.S. saw
    that I.S. was struggling to breathe, she told her adult daughter to call 9-1-1 while
    C.S. administered CPR. Emergency Medical Technicians spent approximately
    thirty minutes stabilizing I.S. The child began breathing on her own when she
    arrived at the hospital. I.S. was ultimately diagnosed with respiratory failure
    and severe methemoglobinemia 2 due to Orajel ingestion.
    C.S. reported that toiletries were kept in a hall cabinet that was accessible
    to I.S. C.S. believed I.S. took the Orajel after C.S. and her adult daughter fell
    asleep. C.S. also reported that I.S. was "mischievous" and a "handful." She
    stated that I.S. "wander[ed] the house" and, in the past, had clogged the bathtub
    2
    The Division's expert, Dr. Gladibel Medina, testified that this condition affects
    the body's ability to access oxygen, akin "to not breathing at all." The child
    required intubation.
    A-2185-17T1
    5
    and sprayed shaving cream in the bathroom after C.S. fell asleep. C.S. also
    acknowledged that I.S. had previously tried to eat toothpaste.
    I.S. was treated in the hospital with medication and blood transfusions.
    C.S. told hospital staff that I.S. had a history of exploring the house and chewing
    or eating objects like erasers and crayons, though there was never a formal
    diagnosis of pica, the ingestion of non-food items. During her hospital stay,
    "foreign bodies" were found in I.S.'s stool, which C.S. attributed to I.S.'s habit
    of chewing on "whatever she [could] find."
    Pardo conducted a home inspection, finding "deplorable" conditions.3
    The Division took custody of I.S., who said she "swallowed the stuff that numbs
    your teeth while her mom was sleeping," the house was messy, the flies used to
    be her friends, and she did not bathe often.
    Dr. Medina testified as the Division's expert in pediatrics and child abuse
    pediatrics. Dr. Medina testified that I.S.'s ingestion of benzocaine, the active
    ingredient in Orajel, would have been lethal without medical intervention, and
    this injury to the child was preventable. Dr. Medina's opinion was based on the
    following: (1) C.S. knew I.S. wandered around the house when C.S. fell asleep;
    3
    Photographs from the home inspection were admitted into evidence and
    considered by the family court.
    A-2185-17T1
    6
    (2) C.S. described I.S. as mischievous and a handful; (3) C.S. told hospital staff
    that I.S. ate non-food items like erasers and pencils; and (4) in Dr. Medina's
    opinion, potentially dangerous items should not have been within six-year-old
    I.S.'s reach.
    Dr. Zhongxue Hua testified as C.S.'s expert in pathology and toxicology.
    Dr. Hua opined that the incident was an accident, and he did not agree that it
    was preventable. The family court ultimately found Dr. Hua less credible and
    persuasive than Dr. Medina because Dr. Medina appeared more familiar with
    the case records.
    The family court noted the facts were not in dispute because C.S. did not
    testify. The family court found the Division proved, by a preponderance of the
    evidence, that C.S. failed to exercise a minimum degree of care in two respects:
    by creating an unhealthy living environment and providing inadequate
    supervision. The court found that "[I.S.] suffered harm as the result of [C.S.'s]
    failure to exercise a minimum degree of care. Her conduct was grossly negligent
    in allowing this home to get to the point that this [c]ourt finds is unsanitary and
    deplorable and unsafe."
    On December 6, 2017, the Division moved to terminate the litigation
    because "no child safety concerns" remained. C.S. had custody before the abuse
    A-2185-17T1
    7
    or neglect case began and custody was returned to her. The Division noted that
    although I.S. stated she did not wish to see her father, the Division would
    "administratively" establish "some type of family counseling" and supervised
    visitation would continue. The law guardian and C.S. both agreed to termination
    of the litigation.
    I. Fact-finding
    We defer to the family court's factual findings in an abuse or neglect
    proceeding because the family court "has the opportunity to make first -hand
    credibility judgments about the witnesses who appear on the stand; it has a 'feel
    of the case' that can never be realized by a review of the cold record." N.J. Div.
    of Youth & Family Servs. v. M.C. III, 
    201 N.J. 328
    , 342-43 (2010) (quoting N.J.
    Div. of Youth & Family Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008)).
    We must also defer to the family court's credibility determinations.
    Cesare v. Cesare, 
    154 N.J. 394
    , 411-12 (1998). We generally defer to a family
    court's decision unless it "went so wide of the mark that a mistake must have
    made." N.J. Div. of Youth & Family Servs. v. M.M., 
    189 N.J. 261
    , 279 (2007)
    (quoting C.B. Snyder Realty, Inc. v. BMW of North America, Inc., 
    233 N.J. Super. 65
    , 69 (1989)).
    A child under eighteen years old is abused or neglected if that child's
    A-2185-17T1
    8
    physical, mental, or emotional condition has been
    impaired or is in imminent danger of becoming
    impaired as the result of the failure of his [or her] 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
    ....
    [N.J.S.A. 9:6-8.21(c)(4).]
    In an abuse or neglect proceeding, the question of "[w]hether a parent exercised
    a minimum degree of care must 'be analyzed in light of the dangers and risks
    associated with the situation.'" N.J. Div. of Child Prot. & Permanency v. Y.N.,
    
    220 N.J. 165
    , 184 (2014) (quoting G.S. v. Dep't of Human Servs., 
    157 N.J. 161
    ,
    181-82 (1999)).
    Our Supreme Court has found that the minimum degree of care standard
    "refers to conduct that is grossly or wantonly negligent, but not necessarily
    intentional." G.S., 
    157 N.J. at 178
    . 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." 
    Ibid. at 181
    . We defer to the family court's detailed findings, well-
    supported by the record, substantiating neglect.
    A-2185-17T1
    9
    C.S. argues that an expert opinion as to whether the harm to the child was
    foreseeable, and therefore preventable, exceeds the scope of the witness's
    expertise. The court listened to opposing experts on this topic. C.S. presented
    her defense expert's opinion that the harm was not foreseeable, and therefore not
    preventable. Her belated objection, for the first time on appeal, after her expert
    lost the credibility contest between the opposing experts, constitutes invited
    error. M.C. III, 
    201 N.J. at 340
     ("The doctrine of invited error operates to bar a
    disappointed litigant from arguing on appeal that an adverse decision below was
    the product of error, when that party urged the lower court to adopt the
    proposition now alleged to be error.") (quoting Brett v. Great Am. Recreation,
    
    144 N.J. 479
    , 503 (1996)).
    II. Dismissal of Litigation.
    We review a family court's legal conclusions in an abuse or neglect case
    de novo. N.J. Div. of Child Prot. & Permanency v. A.D., 
    455 N.J. Super. 144
    ,
    156 (App. Div. 2018). After the family court concludes that a child is abused
    or neglected, it must hold a dispositional hearing. N.J. Div. of Youth & Family
    Servs. v. T.S., 
    426 N.J. Super. 54
    , 63 (App. Div. 2012). During the abuse or
    neglect fact-finding hearing, "only competent, material and relevant evidence
    may be admitted." N.J.S.A. 9:6-8.46(b)(2). During the dispositional hearing,
    A-2185-17T1
    10
    however, "material and relevant evidence may be admitted," even if not
    competent. N.J.S.A. 9:6-8.46(c).
    Our Supreme Court has held that "the statutory framework of Title Nine
    provides that upon a finding of abuse and neglect, the offending parent or
    guardian is entitled to a dispositional hearing to determine whether the children
    may safely return to his or her custody, and if not, what the proper disposition
    should be." N.J. Div. of Youth & Family Servs. v. G.M., 
    198 N.J. 382
    , 387-88
    (2009). "At the dispositional hearing, both sides may present material and
    relevant evidence for the court to determine whether the children may safely be
    released to the custody of their mother, who was responsible for their care at the
    time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6 –
    8.51, some other disposition is appropriate." 
    Id. at 402
    . Here, I.S. was returned
    to her caretaker.
    The family court sufficiently addressed W.S.'s motions. W.S. delayed
    more than a year before taking the ordered paternity test. His psychological
    evaluation found significant concerns concerning his impulse control and
    violent behavior. He had only recently begun to engage in therapy. The court
    returned joint legal custody to both parents and continued W.S.'s supervised
    parenting time. W.S. chose to litigate without an attorney for most of this
    A-2185-17T1
    11
    matter. He may continue to do so and present his motions in the domestic
    violence docket.
    The family court addressed this family's issues in a fact-based and
    sensitive manner. The court's findings were thorough and based on substantial
    evidence in the record. It rendered a detailed oral opinion finding abuse or
    neglect.   Similarly, the family court detailed on the record why it was
    terminating the litigation despite W.S.'s objection. We affirm substantially for
    the reasons expressed by the family court.
    Affirmed.
    A-2185-17T1
    12