DCPP VS. A.W., IN THE MATTER OF E.H. (FN-21-0153-18, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-2491-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.W.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF E.H.,
a Minor.
_____________________________
Submitted December 17, 2019 – Decided January 22, 2020
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FN-21-0153-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Laura M. Kalik, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Danielle Ruiz, Designated Counsel,
on the brief).
PER CURIAM
A mother appeals from an order finding that she abused or neglected her
infant daughter by using illicit drugs while and after she was pregnant with the
child. At birth, the child had amphetamines and methadone in her urine, and she
was diagnosed with mild neonatal abstinence syndrome (NAS). We affirm.
I.
A.W. (Allison) is the biological mother of three children: J.B. (Jon), born
in February 2007; S.W. (Sam), born in June 2014; and E.H. (Ella), born in
December 2017.1 Jon and Sam are in the custody of their great-grandmother
and only Ella is the subject of this appeal.
Allison has a long history of drug abuse. In the past, she has admitted to
using heroin, crystal methamphetamine, and marijuana. In 2014, when Sam was
born, he had drugs in his system and suffered from withdrawal symptoms. Since
1
We use initials and fictitious names to protect privacy interests and the
confidentiality of the record. R. 1:38-3(d)(12).
A-2491-18T4
2
2013, Allison has started, but failed to successfully complete numerous
substance abuse treatment programs. She also admitted to various relapses and
use of drugs between 2014 and 2017.
While pregnant with Ella in 2017, Allison started a methadone treatment
program. In August 2017, four months before the birth of Ella, Allison was
discharged from that program for lack of compliance. She had missed fifteen
days of dosing with methadone, did not attend any group counseling sessions,
and only attended one individual session. Thereafter, Allison declined the offers
of the Division of Child Protection and Permanency (Division) to help her
maintain sobriety.
In December 2017, Allison, then thirty-nine weeks pregnant with Ella,
went to a hospital in Pennsylvania. She tested positive for amphetamines and
marijuana but signed herself out of the hospital against medical advice. Shortly
thereafter, Allison went to another hospital, St. Luke's Hospital in Pennsylvania,
where she gave birth to Ella. At St. Luke's, Allison tested positive for
amphetamines and methadone. She was also found to have an electronic
cigarette or vaping pen, and she threatened hospital staff when they confiscated
that device.
A-2491-18T4
3
At birth, Ella tested positive for amphetamines, methamphetamines and
methadone. Medical records from St. Luke's also showed that Ella's umbilical
cord contained amphetamines, marijuana, methadone, opioids, and morphine.
The child was diagnosed with mild NAS and the hospital monitored Ella for five
days before releasing her. Fortunately, Ella did not experience any withdrawal
symptoms.
A Division worker went to St. Luke's and met with Allison. Allison
acknowledged that both she and Ella had tested positive for amphetamines, but
she denied using that drug. She did admit to smoking marijuana a week before
Ella's birth, and she suggested that the marijuana may have been laced with
methamphetamines.
With regard to the methadone, Allison claimed that she was attending a
methadone treatment program. When the Division followed up with that
treatment program, however, it learned, as noted earlier, that Allison had been
discharged from the program in August 2017 for non-compliance.
B.H. was initially identified as the father of Ella. A subsequent test,
however, revealed that he was not Ella's father. No father had been confirmed
by the time of the fact-finding hearing.
A-2491-18T4
4
When the Division was unable to implement a safety plan to protect Ella,
it removed Ella and placed her in a resource home. Thereafter, the family court
granted the Division custody of Ella. The court also ordered Allison to comply
with substance abuse evaluations and treatment.
After Ella's birth, Allison tested positive for various drugs on December
19, 2017, January 23, 2018, and February 6, 2018. Those drugs included
amphetamines, marijuana, methamphetamines, methadone, and opioids.
The family court conducted a fact-finding hearing on May 10, 2018. One
witness testified: a Division worker. The Division also introduced into evidence
a number of documents, including medical records concerning Ella's birth.
Allison did not attend the hearing and her counsel presented no evidence.
At the conclusion of the evidentiary hearing, the court issued an oral
decision on the record. The court found that Allison had used unprescribed
drugs both during and after Ella's birth. Relying on the medical records, the
court found that Allison had obtained very little prenatal care and Ella was born
with opioids, oxycodone, amphetamines and methadone in her system. The
court also found that Ella had been diagnosed with mild NAS, but she had
suffered no withdrawal symptoms.
A-2491-18T4
5
Based on those findings, the court concluded that the Division had proven
Allison had abused or neglected Ella. In that regard, the court found that Allison
had both exposed Ella to a significant risk of harm and had actually harmed Ella.
In making those findings, the court seemed to accept Allison's claim that she
was in a methadone treatment program while pregnant, but also found that Ella
had been exposed to other drugs. In addition, the family court found that Allison
posed a risk of substantial harm to Ella by continuing to use illicit drugs after
Ella's birth.
Following the fact-finding hearing and several compliance reviews, the
family court approved the Division's plan to seek the termination of Allison's
parental rights so that Ella could be adopted. Accordingly, the court closed the
Title 9 action and the Division filed a Title 30 action.
II.
Allison now appeals from the May 10, 2018 order finding that she abused
or neglected Ella. She argues that the family court erred because (1) there was
insufficient evidence to establish that Ella was abused or neglected, and (2) it
relied on incompetent, hearsay evidence contained in the hospital records. In
making those arguments, Allison contends that the court improperly focused on
her past behavior, erred in finding actual harm or future risk to Ella without
A-2491-18T4
6
expert testimony, and there was no evidence establishing that Allison failed to
exercise a minimum degree of care for Ella. The substantial credible evidence
at the fact-finding hearing, coupled with the law, rebut all of those arguments.
A.
The scope of our review of an appeal from an order finding abuse or
neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J.
Super. 541, 546 (App. Div. 2014) (citing N.J. Div. of Youth & Family Servs. v.
I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). We will uphold the trial
judge's factual findings and credibility determinations if they are supported by
"adequate, substantial, and credible evidence." N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007) (first citing In re Guardianship of J.T.,
269 N.J. Super. 172, 188 (App. Div. 1993); then citing Cesare v. Cesare, 154
N.J. 394, 411-13 (1998)). Accordingly, we will only overturn the judge's
findings if they "went so wide of the mark that the judge was clearly mistaken."
Ibid. (citing J.T., 269 N.J. Super. at 188-89). We do not, however, give "special
deference" to the trial court's interpretation of the law. D.W. v. R.W., 212 N.J.
232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145,
183 (2010)). Consequently, we apply a de novo standard of review to legal
issues. Id. at 245-46.
A-2491-18T4
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The adjudication of abuse or neglect is governed by Title 9, which is
designed to protect children. N.J.S.A. 9:6-1 to -8.114. Under Title 9, a child is
abused or neglected if:
[a] parent or guardian . . . creates or allows to be created
a substantial or ongoing risk of physical injury to such
child by other than accidental means which would be
likely to cause death or serious or protracted
disfigurement, or protracted loss or impairment of the
function of any bodily organ . . . or 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 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 . . . .
[N.J.S.A. 9:6-8.21(c).]
Thus, abuse or neglect can be based on either (1) actual harm or (2)
substantial risk of harm. The protection of the abuse and neglect statute "is
limited to the condition of a child after birth." N.J. Dep't of Children & Families
v. A.L., 213 N.J. 1, 22 (2013) (citing N.J. Div. of Youth and Family Servs. v.
L.V., 382 N.J. Super. 582, 590 (Ch. Div. 2005)).
[Therefore,] the primary question under Title 9 is
whether [the child], as a newborn, "ha[s] been
impaired" or was in "imminent danger of becoming
impaired" as a result of his [or her] mother's failure to
exercise a minimum degree of care by unreasonably
A-2491-18T4
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inflicting harm or allowing a "substantial risk" of harm
to be inflicted.
[Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).]
"If an expectant mother's drug use causes actual harm to the physical, mental,
or emotional condition of a newborn child, a finding of abuse or neglect is
appropriate." Id. at 8.
Nevertheless, "not every instance of drug use by a parent during
pregnancy, standing alone, will substantiate a finding of abuse and neglect in
light of the specific language of the statute." Id. at 23; see also id. at 23 n.3
(noting that New Jersey has not joined those states whose laws treat prenatal
drug use as per se child abuse); N.J. Div. of Youth & Family Servs. v. N.D., 435
N.J. Super. 488, 494 (App. Div. 2014) (same). Actual harm under the statute
can be established by offering proof that a child suffered drug "withdrawal
symptoms at birth" or by "showing evidence of respiratory distress,
cardiovascular or central nervous system complications, low gestational age at
birth, low birth weight, poor feeding patterns, weight loss through an extended
hospital stay, lethargy, convulsions, or tremors." A.L., 213 N.J. at 22-23 (citing
In re Guardianship of K.H.O., 161 N.J. 337, 349-50 (1999)). Proof of actual
harm "may come from any number of competent sources including medical and
A-2491-18T4
9
hospital records, health care providers, caregivers, or qualified experts." Id. at
23.
Our Supreme Court has clarified that, under certain circumstances, proof
of prenatal drug use coupled with the fact that a newborn suffered withdrawal
symptoms may not be sufficient to establish abuse and neglect. See N.J. Div. of
Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014). Those
circumstances require proof that the mother was (1) participating in a bona fide
treatment program, (2) prescribed methadone by a licensed healthcare
professional, (3) after full disclosure to that professional. Ibid. In that regard,
the Court held,
[A]bsent exceptional circumstances, a finding of abuse
or neglect cannot be sustained based solely on a
newborn's enduring methadone withdrawal following a
mother's timely participation in a bona fide treatment
program prescribed by a licensed healthcare
professional to whom she has made full disclosure. In
this case, a finding of abuse or neglect under N.J.S.A.
9:6-8.21(c)(4)(b) required proof that [the mother]
unreasonably inflicted harm on her newborn and did so,
at least, by acting with gross negligence or
recklessness.
[Id. at 168-69.]
We agree that there is insufficient credible evidence to show that Ella
suffered actual harm. The evidence does, however, establish that Allison failed
A-2491-18T4
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to exercise a minimum degree of care and exposed Ella to a substantial risk of
harm.
The failure to exercise a "minimum degree of care" refers to "conduct that
is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't
of Human Servs., 157 N.J. 161, 178 (1999). "Conduct is considered willful or
wanton if done with the knowledge that injury is likely to, or probably will,
result." Ibid. A parent fails to exercise a minimum degree of care if, despite
being "aware of the dangers inherent in a situation," the parent "fails adequately
to supervise the child or recklessly creates a risk of serious injury to that child."
Id. at 181.
After birth, Ella tested positive for amphetamines and methadone. Her
umbilical cord also contained amphetamines, marijuana, methadone, opioids ,
and morphine. She was diagnosed with mild NAS. She suffered no withdrawal
symptoms, but the hospital monitored her for five days. That evidence
establishes that Ella was exposed to a substantial risk of harm from Allison's
drug use. Moreover, Allison was well-aware of the substantial risk of harm.
Her prior drug use had resulted in her second child, Sam, being born with drugs
in his system and Sam had suffered from drug withdrawal.
A-2491-18T4
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The family court also found that Allison's continued use of unprescribed
drugs after Ella's birth posed a substantial risk of harm to Ella. That finding is
also supported by substantial credible evidence. Allison was not capable of
providing unsupervised care to Ella after her birth. She was referred to
treatment, but she failed to comply with that treatment. She tested positive for
amphetamines, methamphetamines, opioids, and marijuana three times in
January and February 2018. As a consequence, Allison could not act as a
caregiver to Ella because her continued drug use posed a substantial risk of harm
to Ella. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320,
331 (App. Div. 2011) (holding that infants are "vulnerable to the slightest
parental misstep" and noting that the risk of parental drug use varies with the
age of the child).
B.
Neither the credible facts nor the law support any of Allison's arguments.
As already summarized, there was substantial credible evidence that Allison
failed to provide a minimum degree of care to Ella and exposed her to a
substantial risk of harm. Allison argues that under Y.N. and V.T. the finding of
abuse and neglect should be reversed. We disagree.
A-2491-18T4
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Allison's reliance on Y.N. is misplaced. In Y.N., the sole drug identified
as causing the withdrawal symptoms was methadone. Id. at 170. The court
accepted Y.N.'s testimony that she was taking methadone as part of a treatment
program she entered prior to giving birth. Id. at 169-70. Here, in contrast, there
was no evidence in the record that Allison was prescribed methadone in
conjunction with a bona fide treatment program or that her use of methadone
during her pregnancy was authorized by a qualified professional after full
disclosure. The only evidence concerning a methadone treatment program was
a claim that Allison made to a Division worker. Allison herself did not testify.
Her unsubstantiated claim is insufficient to establish that she was in a qualified
methadone treatment program.
Allison's reliance on V.T. is also misplaced. In that case, we held that
V.T.'s use of illegal drugs approximately two days prior to two supervised visits
with an eleven-year-old child did not constitute neglect as a matter of law. V.T.
was not visibly impaired and behaved appropriately at those visits. V.T., 423
N.J. Super. at 331. In that regard, we observed that conduct that did not pose a
substantial risk to an eleven-year-old might pose a substantial risk to an infant.
Ibid. Here, Ella is "vulnerable to the slightest parental misstep." Ibid.A-2491-18T4
13
Therefore, we discern no error in the family court's determination that Allison's
repeated use of drugs after Ella's birth posed a substantial risk of harm to Ella.
We also reject Allison's argument that expert testimony was necessary to
establish a substantial risk of harm to Ella. We grant substantial deference to a
trial judge's evidentiary rulings. N.J. Div. of Youth & Family Servs. v. N.S.,
412 N.J. Super. 593, 622 (App. Div. 2010). Rule 5:12–4(d) permits the Division
to introduce "reports by staff personnel or professional consultants" into
evidence provided the documents satisfy the requirements of the business
records exception and are trustworthy. N.J.R.E. 803(c)(6) and 801(d); N.J. Div.
of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-30 (App. Div.
2010).
Drug testing does not entail "the exercise of subjective judgement" rather,
it is a "straightforward, simple diagnosis based upon objective criteria." N.J.
Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174-75 (App. Div.
2012). The family court did not abuse its discretion by admitting the medical
records into evidence under Rule 803(c)(6). As already noted, expert testimony
was also not required to determine whether the level of drugs in Allison's system
was sufficient to expose Ella to a substantial risk of harm. See V.T., 423 N.J.
Super. at 331.
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Affirmed.
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