DCPP VS. W.C., IN THE MATTER OF D.M. (FN-02-0303-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1895-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
W.C.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF D.M.,
a Minor.
_____________________________
Submitted January 16, 2019 – Decided February 4, 2019
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0303-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Victor E. Ramos, Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith A. Pollock, Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
S.M. (Samantha) 1 and W.C. (Walter) are the unmarried biological parents
of D.M. (David), who was born in November 2015. Walter appeals from the
November 16, 2017 order terminating protective services litigation and
continuing the parents' joint legal custody and Samantha's physical custody of
David. The order, entered without a plenary hearing, continued Walter's
weekend parenting time supervised by either one of the child's grandmothers,
and required Walter to complete substance abuse treatment with negative
alcohol screens prior to an application for a change in custody or parenting time.
In 2016, the Division of Child Protection and Permanency (Division)
became involved with this family due to the parents' volatile relationship and
Walter's substance abuse. When David was six-months-old, the family court
granted the Division's application for care and supervision of the family and
1
We use initials and pseudonyms to identify the parties to preserve the
confidentiality of these proceedings. R. 1:38-3(d)(12).
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placed restraints on Walter's parenting time with David. The Division provided
services in an effort to rehabilitate Walter and lift the restraints on his parenting
time.
From the start of litigation, Walter was on notice that supervised parenting
time would be unnecessary after he consistently tested negative for alcohol. He
completed a substance abuse program at New Pathway, but after seventeen
months of litigation and services, he continued to test positive for alcohol.
Walter proposed that dismissal of the case be conditioned on his testing negative
for alcohol. After the family court judge granted dismissal of the case without
parenting time restraints conditioned on Walter testing negative, Walter tested
positive. Given Walter's initial consent to the limitation on his parenting time
in the event of a positive alcohol test, we affirm.
The family first became known to the Division in November 2015, when
the hospital where David was born reported that Samantha expressed concerns
about Walter visiting her and David in the hospital because he was "physically
violent." Samantha also reported that Walter had been abusing his prescription
medication for bipolar disorder, "drank a pint of whiskey each day, and . . . had
been abusing [c]ocaine for ten years."
A-1895-17T1
3
Walter denied any incidents of domestic violence or substance abuse and
agreed to submit to random urine screens with the Division. In December 2015,
Walter tested positive for amphetamines.2 Walter missed four scheduled
substance abuse evaluations without providing a reason. In January 2016,
Walter submitted to a substance abuse evaluation and was recommended for
outpatient substance abuse treatment for "mild alcohol use disorder." The
following month, Walter's urine tested positive for amphetamines. Walter did
not comply with recommended outpatient substance abuse treatment.
In May 2016, when David was five months old, the Division received a
referral from the Englewood Police Department because Samantha reported that
while she was at Walter's home with David, Walter was "up all night drinking
whiskey and wine." She told police that Walter "jumped on top of her, pinned
and held her down," and then "shoved her against the wall, dragged her into the
hallway, and spit in her face." David was sleeping in the same room where the
altercation took place. Samantha reported "she feared for her son as [Walter]
was so intoxicated . . . ."
2
Walter's counsel represented to the court that Walter had amphetamines in his
system due to a valid prescription for Adderall. The court reports from January
23, 2017, March 10, 2017, and May 30, 2017 reflect that Walter was not again
tested for amphetamines until he tested negative on June 15, 2017. The court
reports state Walter consistently tested negative for cocaine.
A-1895-17T1
4
On June 1, 2016, the Division filed a complaint for care and supervision
with restraints on Walter's parenting time with David due to concerns for
domestic violence between his parents and substance abuse by Walter. At an
order to show cause hearing, after a Division caseworker testified, the court
granted the Division's application, continuing joint legal custody between the
parents and physical custody with Samantha. The court order provided that (1)
Walter was restrained from unsupervised contact with David and from
Samantha's home, (2) the Division was to supervise Walter's visits with David
for two hours, twice a week at the Division's local office, (3) Samantha was
restrained from attending Walter's visits with David, (4) Samantha and Walter
were to attend psychological evaluations and domestic violence counseling, and
(5) Walter participate in outpatient substance abuse treatment.
In July 2016, the court modified the restraints to allow supervision of
Walter's visits by an approved supervisor in a community setting. The judge
expressed approval of Walter's participation in a substance abuse program. The
following month, the court granted Walter unsupervised parenting time on a
liberal basis.
At a January 2017 hearing, Samantha requested that Walter's parenting
time be supervised again because he was not complying with substance abuse
A-1895-17T1
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treatment despite a caseworker's offer to provide transportation. The caseworker
reported Walter had called her at times and "sounded pretty intoxicated."
Samantha also reported that Walter's attendance at co-parenting therapy was
"very inconsistent." The co-parenting therapy provider recommended
individual therapy because Walter "demonstrated that he's not ready for co-
parenting."
On February 17, 2017, the court held an emergent hearing after the results
from a blood spot 3 received the day of the hearing were positive for alcohol.
Also, the police observed Walter under the influence when he was more than an
hour late to pick up David on February 6, 2017. The urine test from the
following day was positive for alcohol. Walter refused a random alcohol screen
on the morning of the hearing. The court issued an order providing for weekly
parenting time supervised by the Division, two hours per visit, twice per week.
The order provided that "[Walter's] visits may revert to unsupervised [on] a self-
executing basis upon receipt of positive collaterals from [his] treating therapist."
3
Testing was performed by the United States Drug Testing Laboratories, Inc.
A blood spot test uses a sample of blood from a finger prick, and is a less
invasive method of testing blood for alcohol than other alternatives, such as
needle and vial collection. Adult & Child Drug Testing Services, United States
Drug Testing Laboratories, Inc. 7 (last visited January 28, 2019),
https://issuu.com/usdtl/docs/forensic_catalog_2016?e=16760800/33882592.
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Four months later, Walter complied with a hair follicle test 4 that was positive
for alcohol.
On September 14, 2017, the Division requested dismissal of the matter.
The Law Guardian reported that David was doing well in Samantha's care.
Walter had completed an outpatient substance abuse program, but missed two
blood spot tests due to employment obligations. Walter sought dismissal of the
case without parenting time restraints. Regarding a blood spot test taken that
morning, Walter's counsel said to the court: "[w]hatever it does come up as . . .
I want to make sure everyone's on notice that we -- we may seek to -- to ask for
a hearing regarding [dismissal with restraints]." Counsel continued: "my client
[understands] what Your Honor's order is and, more importantly, that it may be
conditioned upon . . . the results of the . . . blood spot test. We are asking that
if the blood spot test comes back negative that he be permitted to have
unsupervised contact with his child." 5 The court issued an order which provided
that the Division's recommendation for dismissal was reserved and Walter's
4
A hair follicle test may detect drugs and alcohol for a period of up to ninety
days prior to testing. See id. at 4-5, 8-9.
5
Samantha reported Walter had shown her "two different body cleanses, one a
liquid form and another a pill form, that he takes before providing screens."
Thus, Walter may have believed he could drink alcohol and still test negative.
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parenting time would be unsupervised upon receipt of a negative blood spot test.
The court made clear that "we will be on the course for a dismissal next time."
Walter's September 14, 2017 blood test was positive for alcohol. On
November 16, 2017, the court held a final compliance review hearing. Walter
objected to dismissal with restraints on parenting time, noting that it was unclear
whether the test results indicated that Walter had a drinking problem, or that he
drank socially while he was not caring for David. Walter sought an additional
hearing:
[WALTER'S COUNSEL]: I would just ask for some --
another hearing, because I don't think it's fair that my
client is being restricted with his child without
something more. I think the Division just gave up.
They don't want this case anymore.
THE COURT: Oh, I don't think that the Division gave
up at all . . . . I think the Division has given [Walter]
more than ample opportunity to rectify this situation.
Alcohol has been a concern since the beginning. I was
going to dismiss this case last time. I did not. I wanted
the blood spot and guess what? It's positive for alcohol.
He is not taking his recovery seriously at all -- or his
drinking seriously at all and he poses a risk to his son.
Regardless of whether it's an illegal substance or it's not
an illegal substance, alcohol is a very serious substance
and he's not, in my opinion safe to be unsupervised with
his child.
[WALTER'S COUNSEL]: Judge, but we --
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THE COURT: And I've given him the opportunity and
this case has been open for a very long time and he still
hasn't rectified the situation. He's gone to a program
and he did successfully complete it and now he's right
back where he started from. So we're not going to keep
this case open infinitely. I'm dismissing the case today.
The court terminated litigation, finding "no risk or safety issues for the
minor in the custody of the mother." The court order continued legal custody of
David with both parents and physical custody with Samantha. Walter was
provided parenting time Saturday and Sunday supervised by the maternal or
paternal grandmother from 1:00 to 5:00 p.m. The order required Walter to
complete substance abuse treatment with negative screens prior to an application
for a change in parenting time. The order denied Walter's application for a
dispositional hearing "for the reasons set forth on the record."
Our review of family court decisions is limited. Hand v. Hand, 391 N.J.
Super. 102, 111 (App. Div. 2007). "Because of their special expertise in family
matters," a reviewing court accords deference to family court fact-finding. Ibid.(citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
While "a court must ensure that the statutory and constitutional rights of
the parent or guardian are scrupulously protected," these rights must be balanced
against the State's responsibility to protect the welfare of children. N.J. Div. of
Youth & Family Services v. G.M., 198 N.J. 382, 397 (2009).
A-1895-17T1
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Walter argues on appeal that the court violated his due process rights when
it dismissed the case with restraints on parenting time and imposed conditions
on lifting the restraints without holding an evidentiary hearing as to whether the
restraints were in David's best interests. In response, the Division argues that
Title 30 actions, unlike those brought under Title 9, do not require dispositional
hearings. Compare N.J.S.A. 30:4C-12, with N.J.S.A. 9:6-8.21(c). It is the
Division's position that "the trial court appropriately exercised its discretion and
relied on its long history with the case to properly conclude that no genuine issue
of fact warranted an evidentiary hearing at the time of dismissal from litigation
on November 16, 2017." The Law Guardian supports the Division's position,
citing "unrefuted evidence of [Walter's] continued substance abuse."
Under Title 30, the Division may investigate a complaint alleging that the
parents are "unfit to be entrusted with the care" of a child, "fail to ensure the
health and safety of the child, or [are] endangering the welfare of such child."
N.J.S.A. 30:4C-12.
"[T]he Legislature intended N.J.S.A. 30:4C-12 to authorize the Division
to intervene when children need services and a parent cannot provide that help
for no fault-based reason." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J.
8, 15 (2013). "Title 30 does not discuss dispositional hearings, as delineated in
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Title 9." N.J. Div. of Youth & Family Servs. v. J.D. (In re J.B.), 417 N.J. Super.
1, 23 (App. Div. 2010); N.J.S.A. 30:4C-12. "[T]he court's determination is
based on the best-interests-of-the-child standard . . . ." N.J. Div. of Youth &
Family Servs. v. A.L., 213 N.J. 1, 33 (2013). "Absent a showing that services
or [Division] supervision or both appear to be in the best interests of the child
because the services are needed to ensure the child's health and safety, a case
should be dismissed." N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J.
Super. 54, 66 (App. Div. 2012). While "best interests" is not defined within the
statute, it has been interpreted to mean "protection of children fro m harm when
the parents have failed or it is 'reasonably feared' that they will." T.S., 426 N.J.
Super. at 65 (quoting N.J. Div. of Youth & Family Servs. v. Wunnenburg, 167
N.J. Super. 578, 586 (App. Div. 1979)). "Parents do not have the right to extend
litigation indefinitely until they are able to safely care for their children . . . ."
N.J. Div. of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511, 524 (App.
Div. 2018).
After seventeen months of litigation, the trial court made a finding that
David was safe in the physical custody of his mother with supervised parenting
time with his father. Rather than argue that he was ready for unsupervised
visitation, Walter requested more time to engage in services. Similar to the
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parent in S.D., Walter demonstrated that he is unable to correct the
circumstances leading to the restraints on parenting time by continuing to test
positive for alcohol in the face of a court order that conditioned unsupervised
parenting time on a negative alcohol screening, and thus dismissal of the
litigation with supervised visitation was appropriate. See ibid. Walter retains
the opportunity to apply for modification of parenting time when he completes
substance abuse treatment.
Walter relies on G.M., 198 N.J. at 402, where the Court addressed an
action brought pursuant to Title 9, and remanded the case for a dispositional
hearing, at which "both sides may present material and relevant evidence," as
required by the dispositional hearing clause in the statute. Here, the Division
withdrew its Title 9 complaint, and pursued the action under Title 30, which
does not have a dispositional hearing requirement. N.J.S.A. 30:4C-12. I.S., 214
N.J. at 15-16, is also distinguishable because that case was brought under both
Title 9 and Title 30, and the children were removed from their mother's custody.
There, the Court found the Title 9 action should have been dismissed because
there was no finding of abuse or neglect. Id. at 31. Nonetheless, it noted
approval of the trial court's custody hearing, applying the best-interests test
before a transfer of custody. Id. at 40-41. Here, however, this case was not
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brought under Title 9 and does not involve a transfer of custody. Walter
maintained joint legal custody of David, and Samantha retained physical
custody. See also Wilke v. Culp, 196 N.J. Super. 487, 503 (App. Div. 1984)
(remanding for a plenary hearing where the parent was denied parenting time
entirely).
Walter, who was represented by counsel, conceded that his abstention
from alcohol was required for him to exercise unsupervised parenting time with
his infant child. He agreed to take alcohol tests, which subsequently tested
positive. He offered to condition lifting restraints on the results of his
September 14, 2017 test, which also tested positive. The record is replete with
evidence of his unhealthy alcohol involvement. In this factual situation, we do
not find a plenary hearing was necessary. The other issues raised by Walter on
appeal are without sufficient merit to warrant discussion in an opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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