DCPP VS. D.M. AND C.M.IN THE MATTER OF J.M. (FN-09-298-13, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-0156-15T4
A-0157-15T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
D.M. and C.M.,
Defendants-Appellants.
_______________________________
IN THE MATTER OF J.M., a minor.
________________________________________________________________
Submitted March 21, 2017 – Decided June 27, 2017
Before Judges Koblitz, Rothstadt, and Sumners.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FN-09-298-13.
Joseph E. Krakora, Public Defender, attorney
for appellant D.M. (Jennifer L. Gottschalk,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant C.M. (Susan P. Gifis, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Natasha C. Fitzsimmons, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (James J. Gross,
Designated Counsel, on the brief).
PER CURIAM
In these two appeals, calendared back-to-back and
consolidated for the purpose of this opinion,1 defendants D.M.
(Diane)2, and her mother C.M. (Carla), challenge the Family Part's
July 12, 2013 order concluding they abused or neglected Diane's
child within the meaning of Title 9, N.J.S.A. 9:6-8.21 to -8.73.
In reaching its decision, the Family Part relied upon Diane's drug
and alcohol abuse, her exposing her child to incidents of violence
with other family members, and her refusal to abide by a safety
plan. As to Carla, the court relied on her failure to keep Diane
away from the child and her inability to provide adequate shelter
for him, both of which also constituted violations of an agreed
upon safety plan. On appeal, defendants argue there was
insufficient evidence to support the court's conclusions.
1
We previously consolidated these matters for other
administrative purposes.
2
We use pseudonyms to refer to the family members to protect
their privacy.
2 A-0156-15T4
We conclude that the Family Part's decision was supported by
substantial credible evidence that demonstrated both defendants'
conduct recklessly created a substantial risk to the child's mental
health and physical safety. See N.J. Div. of Youth & Family Servs.
v. A.L., 213 N.J. 1, 8-9 (2013). Accordingly, we affirm.
The salient facts are derived from the fact-finding hearing
record. Twenty-six year old3 Diane's only child is J.M. (Joey),
who was born on October 20, 2003.4 Carla is Diane's mother.
The Division's first involvement with the family was in 2008.
At that time, Carla had custody of Joey and was having problems
caring for Joey, allegedly due to Diane's drug abuse. The Division
investigated, found Carla's home to be in deplorable condition,
provided services, and closed its file. The Division received
another referral in 2012 based upon allegations of violence between
Diane and Carla that were witnessed and later confirmed by Joey.
According to Carla, these altercations were the result of Diane's
drug abuse. The Division filed a complaint to permit it to
3
Diane's age at the time of the fact-finding hearing.
4
Joey's father, R.P., had been incarcerated for many years and
played no role in Joey's life. The Division did not seek any
relief against R.P.
3 A-0156-15T4
investigate.5 The court ordered Diane to undergo a substance abuse
evaluation and Carla to be psychologically evaluated.
On January 14, 2013, the Division responded to a referral
from Joey's school that Carla was concerned with Diane's drug use
and Joey's performance in school. Carla also reported an incident
that occurred over New Year's Eve when Joey saw his intoxicated
mother naked on a bathroom floor. The same day, a caseworker met
with Joey at school. Joey confirmed that he heard his mother
vomiting in the bathroom and although he denied seeing his mother
use drugs or alcohol or seeing his mother and grandmother fight
in the home, he "fidget[ed] with his hands throughout the
interview" and "remained protective of [Diane] throughout the
interview."
The same day, the Division caseworker also met with Carla at
the family home, where she reported instances of domestic violence
between her and Diane. Carla admitted to previous attempts to
remove Diane from the home, but Diane would return and Carla would
let her back in so as not to upset Joey. Carla also explained
Joey was in individual therapy to help deal with the contentious
relationship between her and Diane. During this visit, the
caseworker observed the home to be in a deplorable condition, with
5
See N.J.S.A. 30:4C-12.
4 A-0156-15T4
an immense amount of personal belongings and renovation supplies
and equipment filling the rooms and hallways of the home. She
later testified that she was concerned about the family's ability
to maneuver in the home in the event of an emergency. The
caseworker provided Carla with Chore services, which could assist
her in cleaning and organizing her home, and Carla agreed to
correct the problem.
At the end of the visit, the Division executed a safety
protection plan with Carla. Under the terms of the plan, Carla
would have Diane immediately leave the home where Carla and Joey
resided and agreed she would correct her hoarding-like behavior
by January 18, 2013. The Division also "substantiate[d] the
allegations of physical injury/environment injurious to health and
welfare" against Diane and Carla.
The following day, the caseworker met with Diane at the family
home and observed her belongings packed. Diane admitted to a
history of drug and alcohol abuse, but denied current use even
though during the interview she had slurred speech, glassy eyes,
and could not remain still. Diane also agreed to submit to a
urine screen test the same day at the Division office, and she
tested positive for cocaine and phencyclidine (PCP).
On January 18, 2013, the Division caseworker visited the
family home again to assess whether progress had been made in
5 A-0156-15T4
removing the bags of clothing and construction materials. She
observed Carla had made progress and encouraged her to continue
and informed Carla of Diane's positive drug screening from January
15. The caseworker reiterated the terms of the safety protection
plan that restrained Diane from the home, and it was at this
meeting that Carla also agreed she would not allow Diane to have
unsupervised contact with Joey.
The Division caseworker returned to the home on January 25,
2013, and observed remodeling had begun and continued progress had
been made in removing the hoarded clothing and construction
materials from the home. The caseworker explained to Carla that
cleaning still needed to be done and that Chore services had been
attempting to reach her. Carla explained she would return their
call, and at the conclusion of the visit, the caseworker reiterated
the terms of the safety protection plan which barred Diane from
the home and from having unsupervised contact with Joey. On
February 6, Diane submitted to another drug test, which was
positive for PCP.
The Division received another referral on February 14, that
indicated Joey disclosed to his therapist that he had recently
witnessed a fight between Diane and her cousins in which Diane was
struck with a metal bat. Joey was being seen by a therapist since
2012 to deal with the stress caused by Carla's and Diane's
6 A-0156-15T4
relationship with each other. On the same day, a Division
permanency worker visited the home and found Joey asleep in his
bed alongside Diane. She also observed the home was again in
extreme disarray with dishes in the sink, bags of clothing and
other items all over, and rooms overflowing with items to the
point where it made ingress and egress difficult.
When Carla was questioned about Diane's presence in the home,
especially given the safety protection plan, Carla stated Diane
had come over the previous night and stayed over because Joey did
not have school that day and explained Diane does whatever she
wants. Joey confirmed that Diane was picking him up from school
and that he went with her to her boyfriend's home. The permanency
worker then informed Carla that on February 6, Diane tested
positive for PCP.
The Division determined a "Dodd removal"6 was necessary to
protect Joey and he was removed from the home due to the tumultuous
home environment, Carla allowing Diane to have unsupervised
6
"A 'Dodd removal' refers to the emergency removal of children
from the home without a court order, pursuant to the Dodd Act,
which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The
Act was authored by former Senate President Frank J. 'Pat' Dodd
in 1974." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.
17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v.
N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
7 A-0156-15T4
contact with Joey, Diane having two positive drug screens, and
Carla violating the existing safety protection plan.
The Division filed a complaint for care, custody, and
supervision of Joey on February 19, and the court awarded the
Division custody and care of Joey. Joey remained in the Division's
custody until September 2013.7
The court conducted a fact-finding hearing at which the
Division relied on the testimony of its two caseworkers as well
as documentary evidence, including photographs of Carla's home.
Neither Carla nor Diane testified or called any witnesses on their
behalf.
After considering the evidence, Judge Bernadette DeCastro
entered the court's fact-finding order and issued a written
decision setting forth her reasons for finding that both Diane and
7
In September 2013, the Division reunited Joey with Diane, while
maintaining supervision over him. The court granted Diane legal
and physical custody and dismissed Carla from the litigation.
Joey, however, was later placed by Diane with Carla due to Diane's
ongoing struggle with drugs and alcohol. In July 2014, the
Division again conducted a Dodd removal from Carla's custody
alleging she failed to protect him from Diane by not supervising
him closely enough, giving Diane an opportunity to have
unsupervised time with Joey in contravention of another safety
plan. The court ultimately found the Division had not met its
burden of proof and retuned Joey to Diane's legal custody and
Carla's physical custody. In July 2015, the court awarded Carla
and Diane joint legal custody of Joey, with Carla having physical
custody and Diane only allowed supervised contact with Joey, and
it terminated this litigation.
8 A-0156-15T4
Carla abused or neglected Joey. The judge first recounted the
history of the Division's involvement with the family and its
attempts to address the concerns raised by Diane's drug issues,
her violent behavior, and the deplorable condition of Carla's
home. Judge DeCastro recognized that Carla's and Diane's violation
of the safety plan alone could not justify a finding of abuse or
neglect, but "given the totality of the circumstances," and citing
to N.J.S.A. 9:6-8.21(c)(4)(b), she found that Carla and Diane
placed Joey at a substantial risk of harm. The judge noted that
the plan "demonstrated that [Carla] was aware of her daughter's
drug use which could pose a risk to" Joey. Relying on Joey's
statements to the caseworker, she also found Diane placed Joey at
risk when "she engaged in an act of domestic violence with her
cousin in the presence of and while caring for [Joey]." As to
Carla, the judge observed that despite the Division notifying
Carla that Diane had tested positive for drugs on January 15,
Carla still permitted Diane to have unsupervised contact with Joey
less than three weeks later at the party where the metal bat
incident occurred. Furthermore, Judge DeCastro cited to N.J.S.A.
9:6-8.21(c)(4)(a) and found Carla failed to provide adequate
shelter to Joey, due to the large amount of clutter and hoarding-
like behavior that permeated the home, which created a safety
hazard, as depicted in the photographs that were in evidence.
9 A-0156-15T4
The judge entered a fact finding order and eventually
terminated the litigation in 2015. This appeal followed.
We begin our review by recognizing it is limited and narrow.
We defer to the Family Part's factual findings "when supported by
adequate, substantial and credible evidence." N.J. Div. of Youth
& Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014)
(quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.
Super. 427, 433 (App. Div. 2002)). "Where the issue to be decided
is an 'alleged error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom,' we
expand the scope of our review." N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993)). The trial judge's interpretation of the law and the
application of such legal conclusions to the facts are subject to
plenary review. See Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). In our review, we consider
the totality of the circumstances in abuse or neglect proceedings.
P.W.R., supra, 205 N.J. at 39.
"New Jersey's child-welfare laws balance a parent's right to
raise a child against 'the State's parens patriae responsibility
to protect the welfare of children.'" N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 178 (2014) (quoting A.L., supra,
10 A-0156-15T4
213 N.J. at 17-18). "The adjudication of abuse or neglect is
governed by Title 9, which is designed to protect children who
suffer serious injury inflicted by other than accidental means."
S.I., supra, 437 N.J. Super. at 152 (citing G.S. v. N.J. Div. of
Youth & Family Servs., 157 N.J. 161, 171 (1999)); see also N.J.S.A.
9:6-8.21 to -8.73. Title 9 is intended to safeguard children who
have been abused or are at risk of imminent harm. A.L., supra,
213 N.J. at 18, 22. "To that end, Title [9] provides for the
civil prosecution of a parent or guardian who abuses or neglects
a child." Y.N., supra, 220 N.J. at 178 (citing N.J.S.A. 9:6-
8.33).
N.J.S.A. 9:6-8.21(c)(4) provides that a child is "abused or
neglected" when his or her
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 or guardian, as herein
defined, 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, or substantial
risk thereof, . . . or by any other acts of a
similarly serious nature requiring the aid of
the court . . . .
11 A-0156-15T4
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." N.J. Div. of Child Prot. &
Permanency v. E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S.,
supra, 157 N.J. at 181). Therefore,
the primary question under Title 9 is whether
[the child] . . . "ha[d] been impaired" or
w[ere] in "imminent danger of becoming
impaired" as a result of [their parent's]
failure to exercise a minimum degree of care
by unreasonably inflicting harm or allowing a
"substantial risk" of harm to be inflicted.
[A.L., supra, 213 N.J. at 22 (second
alteration in original) (quoting N.J.S.A. 9:6-
8.21(c)(4)(b)).]
"Accordingly, Title 9 initially looks for actual impairment
to the child. . . . [W]hen there is no evidence of actual harm,
the focus shifts to whether there is a threat of harm." E.D.-O.,
supra, 223 N.J. at 178. "[T]he standard is not whether some
potential for harm exists." Id. at 183 (quoting N.J. Dep't of
Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App.
Div. 2009)). "[A] finding of abuse and neglect can be based on
proof of imminent danger and a substantial risk of harm." Id. at
178 (emphasis added) (quoting A.L., supra, 213 N.J. at 23).
Applying this statutory standard, "something more than
ordinary negligence is required to hold the actor liable." G.S.,
12 A-0156-15T4
supra, 157 N.J. at 178. Proscribed is "conduct that is grossly
or wantonly negligent, but not necessarily intentional." Ibid.The standard "implies that a person has acted with reckless
disregard for the safety of others." Id. at 179. However, whether
a particular event is mere negligence, as opposed to gross or
wanton negligence, can be difficult to determine. See N.J. Dep't
of Children & Families v. T.B., 207 N.J. 294, 309 (2011)
(describing the "continuum between actions that are grossly
negligent and those that are merely negligent"). As we recently
explained:
"[T]he elements of proof are synergistically
related." [N.J. Div. of Youth & Family Servs.
v. V.T., 423 N.J. Super. 320, 329 (App. Div.
2011)] (citation and internal quotation marks
omitted). In this regard, "[o]ne act may be
substantial or the sum of many acts may be
substantial" to prove abuse or neglect. Id.
at 330 (citation and internal quotation marks
omitted). A court need not wait until a child
is actually harmed or neglected before it can
act to address parental conduct adverse to a
minor's welfare.
[S.I., supra, 437 N.J. Super. at 154 (final
alteration in original).]
"Strict adherence to the statutory standards . . . is
important because the stakes are high for all parties concerned."
Y.N., supra, 220 N.J. at 179. Consequently, whether a parent has
engaged in acts of abuse or neglect is considered on a case-by-
case basis and must be "analyzed in light of the dangers and risks
13 A-0156-15T4
associated with the situation," N.J. Dep't of Children & Families
v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S.,
supra, 157 N.J. at 181-82), and evaluated "at the time of the
event that triggered the Division's intervention." E.D.-O.,
supra, 223 N.J. at 170.
At a fact-finding hearing, N.J.S.A. 9:6-8.44, the Division
must prove abuse or neglect by a preponderance of the evidence,
and "only competent, material and relevant evidence may be
admitted." N.J.S.A. 9:6-8.46(b); see also P.W.R., supra, 205 N.J.
at 32 (holding the State bears the burden to present proofs to
establish abuse or neglect, as defined in the statute); N.J. Div.
of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App.
Div. 2004) (explaining the State must "demonstrate by a
preponderance of the competent, material and relevant evidence the
probability of present or future harm" to the minor child), certif.
denied, 182 N.J. 426 (2005).
In cases involving allegations of parental drug abuse, while
courts have recognized "the societal concern that no child come
under the care of an intoxicated parent[,] . . . 'not all instances
of drug ingestion by a parent will serve to substantiate a finding
of abuse or neglect.'" N.J. Div. of Child Prot. & Permanency v.
R.W., 438 N.J. Super. 462, 469-70 (App. Div. 2014) (quoting V.T.,
supra, 423 N.J. Super. at 332). Rather than "filling in missing
14 A-0156-15T4
information, an understandable response by judges who regularly
witness the evils inflicted on children by their parents' drug
use, judges must engage in a fact-sensitive analysis turning on
'particularized evidence.'" Id. at 470 (quoting A.L., supra, 213
N.J. at 28). So too in cases involving allegations of domestic
violence, "the act of allowing a child to witness domestic violence
does not equate to abuse or neglect of the child in the absence
of additional proofs." N.J. Div. of Youth & Family Servs. v.
I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010); see also N.J.
Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 69
(App. Div. 2005) (reversing finding of abuse or neglect based on
domestic violence due to lack of harm to the child.
Here, we conclude the totality of the evidence in the record
supports Judge DeCastro's conclusion that Carla and Diane abused
or neglected Joey. While exposing a child to an episode of
domestic violence is not enough to substantiate a finding of abuse
or neglect especially where the child exhibited no signs of
distress, see S.S., supra, 372 N.J. Super. at 22-26, Diane's
exposure of Joey to the effects of her drug abuse and her outbursts
of violence subjected the child to a substantial risk of harm.
Specifically, Joey explained to the caseworker, and the caseworker
testified as such, that when his mother was involved in an
altercation with her cousin, he was crying, worried about his
15 A-0156-15T4
mother, and tried to help her. Indeed, Joey discussed this
violence with his therapist, whose services were required for this
very reason.
Diane also tested positive on several occasions over a one-
month period when she was serving in the role of an unsupervised
caretaker responsible for Joey – albeit in direct contravention
to the safety protection plan. There were at least two occasions
when Diane had unsupervised contact with Joey within several days
of having a positive drug screen, and both occasions involved
Diane taking Joey somewhere. And, even though Diane now claims
on appeal there were other adults present when Joey was in her
care to ensure his safety, there was no evidence at the fact-
finding hearing that anyone but Diane was supervising Joey. Her
undisputed conduct was sufficient to support the judge's finding
of abuse or neglect.
The record also provides sufficient evidence to support the
judge's finding of neglect against Carla. The Division introduced
a series of photographs of the home that corroborated and enhanced
the testimony of those witnesses who observed the apartment on
January 14, 2013 and February 14, 2013. Those pictures verify
that the Division workers confronted a situation that posed an
imminent risk of physical harm to the occupants. Specifically,
the rooms and hallways of the home were overflowing with blankets
16 A-0156-15T4
and bags filled with clothing and other things. There were so
many items hoarded in the home that the kitchen cabinets were
partially blocked from being opened and the hallways were nearly
inaccessible because they were crowded with bags and boxes of
items. The kitchen table and Joey's bed also were piled high with
bags, plastic containers, and other items. The home was also
filled with electronics, construction equipment and paint cans,
ladders, a bicycle, pots and kitchen items, and other refuse.
Carla's permitting her home to become a fire hazard, which she
recognized was a hazard to Joey, was not an "unforeseen peril[]
or accident[, but constituted a] reckless disregard for the
consequences." G.S., supra, 157 N.J. at 178.
Carla relies on our decision in Doe v. G.D., 146 N.J. Super.
419, 430-31 (App. Div. 1976), aff’d, sub. nom., Doe v. Downey, 74
N.J. 196 (1977), in arguing that abuse or neglect cannot be based
upon a caretaker's "failure to keep the apartment clean . . . ."
Her reliance is misguided as the finding of abuse or neglect was
not based on her failure to keep a clean apartment, but rather was
based on the imminent risk of harm the hoarded items created for
Joey in the event of an emergency. In Doe, the mother of an infant
was charged with abuse or neglect. Id. at 423. Following a fact-
finding hearing, the trial judge found that the child had not
suffered physical injury or abuse, but nevertheless determined
17 A-0156-15T4
that the child's mental and emotion health were in imminent danger
of being impaired because of the child's substandard and dirty
housing conditions. Id. at 428. On appeal we reversed,
determining that substandard, dirty and inadequate sleeping
conditions "may be unfortunate incidents of poverty," but "do not
establish child neglect or abuse." Id. at 431.
While the trial court here did not discuss Doe, the hoarding
within Carla's home was not an indication of poverty. There is
no evidence in the record that her home lacked food, running water,
or electricity. Furthermore, Carla's economic status did not
prevent her from removing the piles and bags of clothing from the
home. In fact, she demonstrated an ability to clear the home of
hoarded items as the caseworker noted when she returned to the
home on January 25, 2013. The Division also provided Carla with
services that would help her rid the home of the excessive amount
of hoarded belongings, but she refused these services. In sum,
Carla simply displayed an indifference to the imminent risk of
harm that such deplorable conditions posed for Joey. Accordingly,
the finding of abuse or neglect does not violate the holding in
Doe.
Carla also ignored the safety protection plan implemented by
the Division and the court orders designed to protect Joey from
the risk of harm to which Diane exposed him. While her permitting
18 A-0156-15T4
contact with Diane without more did not necessarily give rise to
abuse or neglect, under the totality of the circumstances,
including evidence of Carla's awareness and acknowledgement of the
danger that Diane posed to Joey through her drug abuse and violent
outbursts, and Carla's intentional disregard of that danger,
supported a finding of abuse or neglect. See N.J. Div. of Child
Prot. and Permanency v. J.L.G., ___ N.J. Super. ____, ____ (App.
Div. 2015) (slip op. at 10), aff'd o.b., __ N.J. __ (2017) (finding
the focus in an abuse or neglect determination should be on whether
the guardian "should have . . . prevented" the harm by
"perform[ing] some act to remedy the situation or remove the
danger").
To the extent we have not specifically addressed any of
Diane's or Carla's remaining arguments, we find them without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
19 A-0156-15T4