DCPP VS. E.R. IN THE MATTER OF L.C.(FN-09-0288-14, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5778-14T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
E.R.,
Defendant-Appellant.
________________________________
IN THE MATTER OF L.C., a minor.
________________________________
Submitted February 7, 2017 – Decided October 18, 2017
Before Judges Suter and Guadagno.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0288-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Yesmin Diaz, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Sara
M. Gregory, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Defendant E.R. (Erica) appeals the July 16, 2014 order of the
Family Division that found, pursuant to N.J.S.A. 9:6-8.21(c), she
abused or neglected her child, L.C. (Lee).1 We affirm the court's
order. There was sufficient credible evidence that Erica's drug
use harmed her infant child, who suffered withdrawal symptoms upon
birth, requiring seven weeks of hospitalization.
Lee was born on August 17, 2013. Within a day, he tested
positive for opiates and cocaine. His mother, Erica, also tested
positive for the same substances. Erica admitted using cocaine
and Vicodin purchased on the streets of Jersey City two days prior
to Lee's birth. She admitted to the Division of Child Protection
and Permanency (DCPP) caseworker that she had been using cocaine
and heroin on and off for the past six years and moved to Florida
to attend a drug rehabilitation clinic. She was not able to remain
drug free. After she learned she was in her fifteenth week of
1
Fictitious names have been used throughout the opinion to
maintain the confidentiality of the parties.
2 A-5778-14T4
pregnancy, Erica claimed to have stopped using drugs and started
taking prenatal vitamins.
DCPP's complaint filed under Title Nine, N.J.S.A. 9:1-1 to -
25, against Erica2 alleged that her illegal drug use harmed Lee
because he was born positive for opiates and suffered withdrawal
symptoms requiring hospitalization. DCPP was granted care,
custody and supervision of Lee in September 2013 while the child
was still in the hospital.
A fact-finding hearing was held before Family Division Judge
Lois Lipton on DCPP's claim that Lee was abused or neglected by
Erica. Witnesses for DCPP testified that it was notified shortly
after Lee was born that both the child and mother had tested
positive for cocaine and opiates. Witnesses detailed DCPP's
subsequent investigation. The child's treating physician at the
hospital, Dr. Editha Ansay, a neonatologist, testified at the
hearing as an expert witness in the field of pediatrics. She
testified that she diagnosed Lee with Neonatal Abstinence Syndrome
(NAS)3, which meant he was suffering from drug withdrawal. She
2
The child's father was also included in the complaint but is not
part of this appeal.
3
NAS is defined as "[a]ny of the adverse consequences in the
newborn of exposure to addictive or dangerous intoxicants during
fetal development." N.J. Div. of Child Prot. & Permanency v.
Y.N., 220 N.J. 165, 170 n.5 (2014) (alteration in original)
(quoting Taber's Cyclopedic Med. Dictionary 1158 (22d ed. 2013).
3 A-5778-14T4
testified that his diagnosis was based on her personal observations
of Lee during his hospitalization, testing, and Erica's history
of drug use. The symptoms of NAS were "irritability, poor feeding,
increased muscle tone, vomiting, poor weight gain," "excessive,
uncoordinated sucking" and "diarrhea." She testified that within
two days of his birth, Lee exhibited "excessive[,] uncoordinated
sucking," and that "he was irritable, jittery," and "had increased
muscle tone." These symptoms of withdrawal were present "through
the whole seven weeks of his hospitalization." He was treated
with morphine sulfate to counteract the symptoms. Dr. Ansay
testified she personally recalled the "Lipsitz Scoring System"
being administered to Lee, although that part of the hospital
records was not produced at the hearing. She testified Lee's
score on that test was seven or above on three occasions, meaning
that he was experiencing NAS. The doctor also testified that
Erica's toxicology screening tested positive for opiates and
cocaine after Lee's birth. Dr. Ansay's practice group treated Lee
while he was in the hospital; she treated him for three of the
seven weeks.
On July 16, 2014, Judge Lipton entered an order, finding that
Erica had abused or neglected Lee within the meaning of N.J.S.A.
9:6-8.21(c)(4). All of the witnesses were found to be credible.
The court found Dr. Ansay to be "extremely credible." Based on
4 A-5778-14T4
all the evidence, the court found that Lee was positive for opiates
and cocaine at his birth, as was Erica, and that he suffered from
NAS, requiring his hospitalization for seven weeks and treatment
with morphine. Judge Lipton found the child "suffered from those
distressing symptoms and as a result was required to be given
further medication for the withdrawal symptoms and spend the first
[seven] weeks of his little life in the hospital . . . based on
his mother's use of [CDS] during the pregnancy . . .," which was
caused by "his mother's negligence."4
On appeal, Erica contends there was inadequate evidence to
support the court's abuse and neglect finding, that the court
misapplied applicable case law, and that the court relied on
inadmissible evidence.
We generally defer to fact-finding made by our Family Part
judges because of their "special jurisdiction and expertise in
family matters . . . ." Cesare v. Cesare, 154 N.J. 394, 413
(1998); see also N.J. Div. of Child Prot. & Permanency. v. S.G.,
448 N.J. Super. 135, 143 (App. Div. 2016). They have "the
opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; [and have] a feel of the case
4
The litigation was terminated in July 2015 and this appeal
followed. The record reflects that Erica surrendered her parental
rights to the maternal grandmother.
5 A-5778-14T4
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 and Family Servs. v. E.P., 196
N.J. 88, 104 (2008)). Fact-finding that is supported by
sufficient, substantial and credible evidence in the record is
upheld. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.
210, 226 (2010); N.J. Div. of Child Prot. & Permanancy v. J.D.,
447 N.J. Super 337, 350-51 (2016). However, the court's
interpretation of the law or its legal conclusions are reviewed
de novo. See State in Interest of A.B., 219 N.J. 542, 554-55
(2014) (citations omitted).
Title Nine defines an "[a]bused or neglected child" as:
[A] child less than 18 years of age whose
parent or guardian . . . inflicts or allows
to be inflicted upon such child physical
injury by other than accidental means which
causes or creates a substantial risk of death,
or serious or protracted disfigurement, or
protracted impairment of physical or emotional
health or protracted loss or impairment of the
function of any bodily organ . . . .
[N.J.S.A. 9:6-8.21(c)(1).]
Under Title Nine, the question is whether the child "'ha[s]
been impaired' or [is] in 'imminent danger of becoming impaired'
[because] of his [parent's] failure to exercise a minimum degree
of care by unreasonably inflicting harm or allowing a 'substantial
risk' of harm to be inflicted." N.J. Dep't of Children & Families,
6 A-5778-14T4
Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013).
"[E]vidence of actual impairment to the child will satisfy the
statute . . . ." Ibid. The Court in A.L. observed "proof that a
child is suffering from withdrawal symptoms at birth could
establish actual harm." Ibid. In the absence of "actual harm,"
abuse or neglect under the statute can be shown by proof of
"imminent danger or a substantial risk of harm to a child by a
preponderance of the evidence." Dep't of Children & Families,
Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178
(2015)(emphasis omitted) (quoting A.L., supra, 213 N.J. at 22).
In A.L., supra, the Court clarified that in a Title Nine
case, "[t]he proper focus is on the risk of substantial, imminent
harm to the child, not on the past use of drugs alone." 213 N.J.
at 23. "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[,]" but otherwise
"the statute requires a showing of 'imminent danger' or a
'substantial risk' of harm." Id. at 8 (citation omitted). In
A.L., there was no proof the child was actually harmed by mother's
drug use.
In Y.N., supra, 220 N.J. at 181, the Court clarified that
Title Nine was "not a strict liability statute." Courts must
consider "the reasonableness of the parent's conduct." Ibid. In
7 A-5778-14T4
Y.N., the Court did not find abuse or neglect under Title Nine
where the newborn "suffered neonatal abstinence syndrome as a
result of [the child's mother's] participation in a medically
prescribed methadone maintenance treatment program." Id. at 183.
This is not the case here. Judge Lipton's finding of abuse
or neglect was consistent with the standard set forth in A.L. She
found that Lee tested positive for opiates and cocaine as a result
of Erica using drugs during her pregnancy, which caused Lee to
suffer withdrawal symptoms and require hospitalization for seven
weeks. There was no evidence that Erica was in a treatment program
when Lee was born. This is the type of actual harm cited in A.L.
that fits the definition of abuse or neglect under Title Nine. We
discern no error in the court's order or analysis, which was amply
supported by the record.
We briefly address the evidentiary issues raised in the
appeal. "Evidentiary decisions are reviewed under the abuse of
discretion standard because, from its genesis, the decision to
admit or exclude evidence is one firmly entrusted to the trial
court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins.
Co., 202 N.J. 369, 383-84 (2010) (citations omitted) (citing Green
v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We reject the
argument that Dr. Ansay's testimony was a net opinion. Her
testimony was based in part on her personal observation. See
8 A-5778-14T4
Townsend v. Pierre, 221 N.J. 36, 53 (2015) (holding that N.J.R.E.
703 requires that an expert's opinion be based on, among other
things, "facts or data derived from (1) the expert's personal
observations . . . ."). She testified Lee's diagnosis was based
on testing, observation of the child and the mother's history of
drug use. This provided the "why and wherefore" that supported
her opinion.
As for the hospital records, Dr. Ansay's testimony
established the records as business records under N.J.R.E.
803(c)(6). Although incomplete, their admission did not
constitute reversible error because Dr. Ansay's testimony
independently supported the Family Division's order, finding abuse
or neglect.
Affirmed.
9 A-5778-14T4