DCPP VS. S.A. AND F.W.C., IN THE MATTER OF F.E.C. AND D.J.C. (FN-19-0070-17, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4903-17T3
A-4904-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.A. and F.W.C.,
Defendants-Appellants.
———————————————
IN THE MATTER OF F.E.C.
and D.J.C.,
Minors.
———————————————
Argued June 5, 2019 – Decided June 18, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FN-19-0070-17.
Beth Anne Hahn, Designated Counsel, argued the cause
for appellant S.A. (Joseph E. Krakora, Public Defender,
attorney; Robyn A. Veasey, Deputy Public Defender,
of counsel; Beth Anne Hahn, on the briefs).
Adrienne Marie Kalosieh, Assistant Deputy Public
Defender, argued the cause for appellant F.W.C.
(Joseph E. Krakora, Public Defender, attorney;
Adrienne Marie Kalosieh, on the briefs).
Victoria Almeida Galinski, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Jason Wade Rockwell,
Assistant Attorney General, of counsel; Julie Beth
Colonna, Deputy Attorney General, on the brief).
Sara A. Friedman, Designated Counsel, argued the
cause for minors (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Sara A. Friedman, on the
brief).
PER CURIAM
In these back-to-back appeals, which we have consolidated for purposes
of this opinion, S.A. (Stella1) and F.W.C. (Floyd), challenge a May 18, 2018
order entered following a fact finding hearing concluding they committed abuse
or neglect of their children F.E.C. (Flynn) and D.J.C. (Dylan). We affirm.
We take the following facts from the record of the fact finding hearing.
The underlying incident occurred on the evening of May 17, 2017. At the time,
Flynn and Dylan were less than eight and two years of age, respectively.
1
We use fictitious names to protect the privacy of the children. R. 1:38-
3(d)(12).
A-4903-17T3
2
The parties have had a history with the Division of Child Protection and
Permanency (Division). According to the testimony of Division caseworker
Jasmin Gould, beginning in 2000, the Division received fourteen referrals
related to Stella's substance abuse, which resulted in the removal of her five
older children. Stella was substantiated for child neglect on seven occasions and
Floyd has been substantiated twice.
In November 2016, Stella was admitted to the hospital after she suffered
a seizure, which was determined to be the result of ingesting illicit drugs. As a
result, the Division implemented a safety protection plan, which required Floyd
to supervise Stella's parenting time with Flynn and Dylan. Between November
2016 and May 2017, the Division's records reflected Stella refused to submit to
drug testing on multiple occasions. However, because Floyd was cooperative
and demonstrated an ability to care for and maintain a home for the children, the
Division had no concerns for the children's safety.
At approximately 10:00 p.m. on May 17, 2017, New Jersey State Trooper
Shamik Songui responded with a fellow officer to the parties' residence
regarding a domestic violence complaint. When they arrived, Songui observed
a man inside the home, wearing a black t-shirt with a red graphic on it, look at
him from a window and then walk away. The troopers knocked on the front
A-4903-17T3
3
door, but no one answered and it was locked. Approximately ten to fifteen
minutes later, a man approached in a hooded sweatshirt. Songui stopped the
man and asked him to lift his sweatshirt. The man, later identified as Floyd, was
wearing the same shirt underneath as the man Songui had earlier observed at the
window. Floyd denied he was in the house earlier, but admitted it was his house
and permitted the troopers to enter through an unlocked back door. When the
troopers told Floyd they were responding to a domestic violence complaint, he
stated there was "nobody" in the home.
Once inside the residence, Songui testified there was a bloody towel in the
kitchen and blood spots all over the floor throughout the residence. Troopers
heard noises coming from the hall and discovered Dylan crying alone in a crib.
The child was found in a dark room with an inoperable light switch and had a
bottle containing spoiled milk. Flynn was visiting with his paternal grandmother
at the time.
While Songui was speaking with Floyd, he noticed his pupils were
constricted and his answers to questions were incoherent. Songui observed drug
paraphernalia, including a pipe, plastic baggies, copper wire, and empty wax
folds, strewn around the master bedroom, which Songui believed was evidence
of heroin use. When Songui questioned Floyd about a broken window and blood
A-4903-17T3
4
spots on the floor in the bedroom, he explained Stella had kicked the window
during an earlier fight. Songui discovered three hypodermic needles in plain
view inside Flynn's bedroom. The troopers arrested Floyd for drug possession,
child endangerment, and assault.
At this time, Stella entered the residence. Songui observed she had a cut
and dried blood on her face, and smelled of alcohol. She informed Songui she
had been drinking, Floyd struck her, and the blood throughout the house was
hers.2 She stated she was in the wooded area behind the home when police
arrived. Songui deduced the parties fled the house as soon as they saw police
arrive. Stella was also arrested for obstructing an investigation and endangering
the welfare of a child.
A Division Special Response Unit (SPRU) caseworker responded to the
State Police barracks to interview the parties. Stella told the worker Floyd had
head butted her after they got into an argument about their pending eviction.
She then hid from him in the woods behind their home. Although she denied
being drunk or using drugs, the caseworker noted Stella still smelled of alcohol
several hours after the incident. When the SPRU caseworker attempted to
2
In addition to the kitchen and master bedroom, there was blood on the hallway
floor, on the bathroom door, and in the bathroom.
A-4903-17T3
5
interview Floyd and question him about the alleged drug use, he responded "well
I'm being charged with it. So it must be." He then began to cry because he
claimed he was "going to lose [his] kids anyway."
The following day, Division caseworker Jasmin Gould interviewed Floyd
in the barracks. He confirmed he and Stella had been in a physical altercation
over their pending eviction and that he was under the influence of heroin at the
time. When Gould inquired about the scratches on his body, he claimed Stella
attacked him with a knife. He would not comment about leaving Dylan alone in
the home.
The same day Gould interviewed Stella, who had been released from
custody and returned to the parties' residence. Gould observed Stella's eyes were
"pinpoint" and that she had bruises and lacerations on her face. Stella also had
track marks on her arm consistent with drug use.
Stella repeated her earlier account of the physical violence the night
before and her escape into the woods. She added that Floyd attempted to choke
her and she scratched his face in self-defense. Stella also stated she left Dylan
in the residence because she feared for her life and did not want to violate the
safety protection plan.
A-4903-17T3
6
The trial judge set forth his decision in a forty-three page oral opinion.
The judge found Gould and Songui testified credibly. There were no other
witnesses at trial. The judge stated "this case is about a continuum of events
that placed [the children] at a substantial risk of imminent harm[.]" He found
Stella and Floyd's drug and alcohol abuse, respectively, had created the
conditions leading to the events the night of the incident and posed a risk of
harm to the children. He concluded:
It is the totality of the circumstances in this case
that convinces the [c]ourt [Stella] committed an act of
child abuse [or] neglect. She engaged in a violent
confrontation with [Floyd.] She was intoxicated
through the use of alcohol and was still demonstrating
signs of that alcohol use three hours later when
interviewed by the SPRU workers and she left a
defenseless infant behind with . . . another adult, who
was also under the influence of drugs, to care for the
child when she fled the premises for an extended period
of time.
The sum of . . . the surrounding circumstances are
synergistically related. Even if [Stella]'s conduct was
viewed as merely being a slight inadvertence . . . her
actions still constitute abuse and neglect. The
foreseeable consequences of what she did created the
substantial risk of imminent harm by leaving a child to
be cared for by another adult who was also intoxicated
and under the influence of illicit substances.
The analysis and results of [Floyd]'s conduct are
even more compelling. . . .
A-4903-17T3
7
....
Accordingly, the [c]ourt is more than satisfied
from the totality of these circumstances that [Floyd]
was under the influence of an illegal and illicit
substance, probably heroin, while he was in a
caretaking role for [Dylan] on the night of May 17,
2017. He was supposed to be supervising [Stella] . . . ,
but instead engaged in a significant confrontation
wherein both parties ended up being injured resulting
in [Stella], who was also readily intoxicated,
determined to leave the premises, thereby [leaving
Floyd] . . . alone under the influence to care for a
[sixteen]-month-old child.
[Floyd] then exacerbated these circumstances
once he observed through the window the trooper car
pull up to the front of the house. [Floyd] then departs
the premises through the back sliding glass door,
leaving the door wide open and leaving [Dylan] alone
in the house.
....
. . . A responsible caretaking adult simply cannot
be under the influence of drugs, and then leave the
residence leaving a [sixteen]-month-old behind. Even
if the child is asleep in a secure crib, an individual
under those circumstances, which are the circumstances
[Floyd] created, exposes the child to imminent danger
and a substantial risk of harm.
Although Flynn was not present during the incident, the judge concluded the
parties' conduct posed a risk of harm to both children.
A-4903-17T3
8
The judge signed the May 18, 2018 order memorializing his
determination. These appeals followed.
In A-4903-17 Stella raises the following point:
POINT I - THE TRIAL COURT ERRED IN FINDING
THAT [STELLA] ABUSED AND NEGLECTED
[FLYNN] and [DYLAN].
....
B. There Was No Adequate, Substantial,
Credible Evidence That [Floyd]'s Assault
Upon [Stella] Exposed The Children To An
Imminent Risk of Substantial Harm.
C. There Was No Adequate, Substantial,
Credible Evidence That [Stella] Was
Under The Influence While In A
Caretaking Role Or If Her Alleged Alcohol
Consumption Exposed The Children To An
Imminent Risk Of Substantial Harm.
D. There Was No Adequate, Substantial,
Credible Evidence That [Stella]
Inadequately Supervised The Children
Thereby Exposing Them To An Imminent
Risk Of Substantial Harm.
In A-4904-17, Floyd the following points:
POINT I - THE DETERMINATION THAT [FLOYD]
VIOLATED N.J.S.A. 9:6-8.21(c) WAS NOT BASED
ON EVIDENCE TO SUPPORT A CONCLUSION
THAT HE FAILED TO MEET A MINIMUM
DEGREE OF CARE AND PLACED THE BOYS AT
SUBSTANTIAL RISK OF IMMINENT DANGER
A-4903-17T3
9
WHERE DCPP PRESENTED NO EVIDENCE THAT
[DYLAN] WAS NOT SAFE AND WHERE [FLYNN]
WAS NOT HOME.
A. THE COURT ERRED IN
CONCLUDING THAT [FLOYD]’S
BEING LESS THAN TWENTY FEET
AWAY FROM THE HOUSE AND
ALLEGED TO HAVE USED
SUBSTANCES AT SOME UNKNOWN
TIME FAILED TO PROVIDE LESS
THAN "SCANT CARE" OR
DISREGARDED A PERILOUS
SITUATION TO CONSTITUTE GROSS
NEGLIGENCE REQUIRED FOR TITLE
9 LIABILITY.
1. Failure to meet the minimum
standard of care requires evidence of gross
negligence, defined as less than "scant" or
"slight" care that is "likely to, or probably
will" result in injury, here absent.
2. Not only must there be evidence of
gross negligence to violate Title 9, absent
actual injury, the record must establish
"substantial risk" of "imminent" harm,
which is not shown by a mere potential for
harm or an "anything could have
happened" analysis.
3. Suspected ingestion of substances,
without more, does not abrogate the Family
Part's responsibility to evaluate whether a
child was placed at a substantial risk of
imminent harm that a parent created or
should have known was likely to result.
A-4903-17T3
10
POINT II - REVERSAL OF THE CONCLUSION
THAT [FLOYD] VIOLATED N.J.S.A. 8:6-8.21(c)(4)
AS TO [FLYNN] IS REQUIRED AS A MATTER OF
LAW.
I.
"[W]e generally defer to the factual findings of the trial court because it
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. R.D., 207
N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 396 (2009)). "Because of the Family Part's special jurisdiction and
expertise in family matters, we accord particular deference to a Family Part
judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J.
Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413
(1998)).
We must examine "whether there was sufficient credible evidence to
support the trial court's findings." N.J. Div. of Youth & Family Servs. v. M.C.
III, 201 N.J. 328, 342 (2010). "We will not overturn a family court's factfindings
unless they are so 'wide of the mark' that our intervention is necessary to correct
an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448
A-4903-17T3
11
(2012) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008)).
II.
The purpose of a fact-finding hearing is "to determine whether the child
is . . . abused or neglected[.]" N.J.S.A. 9:6-8.44. An "[a]bused or neglected
child" includes a minor 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, as herein defined, 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, . . . or by any other acts of a similarly serious
nature requiring the aid of the court[.]
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
"Courts need not wait to act until a child is actually irreparably impaired
by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365,
383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,
616 n.14 (1986)). "[W]hen there is no evidence of actual harm, the focus shifts
to whether there is a threat of harm." N.J. Div. of Child Prot. & Permanency v.
E.D.-O., 223 N.J. 166, 178 (2015). "[T]he standard is not whether some
potential for harm exists[,]" rather, "[a] parent fails to exercise a minimum
A-4903-17T3
12
degree of care when 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
the child.'" Id. at 183-84 (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 (citation omitted).
"Whether the parent has exercised the requisite degree of care is to be
analyzed in light of the dangers and risks associated with the particular situation
at issue." J.L., 410 N.J. Super. at 168 (citing G.S. v. Dep't of Human Servs.,
157 N.J. 161, 181-82 (1999)). The trial judge must consider "the totality of the
circumstances, since '[i]n child abuse and neglect cases the elements of proof
are synergistically related. Each proven act of neglect has some effect on the
[child]. One act may be "substantial" or the sum of many acts may be
"substantial."'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.
320, 329-30 (App. Div. 2011) (alterations in original) (quoting N.J. Div. of
Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).
We have repeatedly "reiterated the societal concern that no child come
under the care of an intoxicated parent." N.J. Div. of Child Prot. & Permanency
v. R.W., 438 N.J. Super. 462, 469 (App. Div. 2014) (citing V.T., 423 N.J. Super.
A-4903-17T3
13
at 331). However, "not all instances of drug ingestion by a parent will serve to
substantiate a finding of abuse or neglect." V.T., 423 N.J. Super. at 332.
We have stated "parental inaction in addressing past conditions pos[es] a
danger to a child [and] is a circumstance pertinent to a finding of abuse or
neglect" when a drug-abusing parent is involved. N.J. Div. of Child Prot. &
Permanency v. M.C., 435 N.J. Super. 405, 419 (App. Div. 2014), abrogated on
other grounds by E.D.-O., 223 N.J. at 189. See N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 281-83 (2007) (finding abuse or neglect where the
father refused to provide care to his child separate from the child's mother who
posed a serious risk to the child due to her substance abuse problems); see also
N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 425-26, 435-
36 (App. Div. 2009) (finding abuse or neglect based on the violation of an order
prohibiting the father from the home while known to have been actively using
drugs).
Having considered the parties' arguments in light of the aforementioned
standards, we affirm for the reasons expressed in the trial judge's decision. The
totality of the circumstances did indeed demonstrate that both parties were
intoxicated during their altercation, which—given their history of
substantiations for neglect—posed an unacceptable imminent risk of a
A-4903-17T3
14
substantial harm to the children. Finally, that Flynn was not present for the
incident is irrelevant as proof of abuse or neglect regarding one child is
admissible as evidence of the abuse or neglect of another as a matter of law.
N.J.S.A. 9:6-8.46(a)(1); N.J. Div. of Youth & Family Servs. v. Robert M., 347
N.J. Super. 44, 68 (App. Div. 2002).
Affirmed.
A-4903-17T3
15