DCPP VS. D.H. AND J.H. IN THE MATTER OF R.H. AND B.H. (FN-04-306-13, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-5777-14T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
D.H.,
Defendant-Appellant,
and
J.H.,1
Defendant.
__________________________
IN THE MATTER OF R.H. and
B.H., minors.
________________________________________________________________
Submitted February 28, 2017 – Decided June 2, 2017
Before Judges Espinosa and Suter.
1
No findings were sought against the children's father, J.H., who
was named as a defendant for dispositional purposes only.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Camden
County, Docket No. FN-04-306-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Z.H. Abbasi, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton-
Schaffer, Assistant Attorney General, of
counsel; Jennifer A. Lochel, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen Ann
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
Defendant D.H. (Debra)2 appeals from an adjudication of abuse
and neglect as to her two minor children, R.H. (Ron), born August
5, 1998, and B.H. (Beth), born May 28, 1997. She argues there was
insufficient evidence to support this conclusion. We disagree and
affirm.
I.
To support a finding of abuse and neglect, the Division of
Child Protection and Permanency (the Division) must prove by a
preponderance of "competent, material and relevant evidence,"
N.J.S.A. 9:6-8.46(b), that the parent failed
to exercise a minimum degree of care . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting or
2
We use fictitious names to protect the privacy of the parties.
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allowing to be inflicted harm, or substantial
risk thereof, including the infliction of
excessive corporal punishment; 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)(b).]
A parent fails to exercise a "minimum degree of care" when
the parent engages in conduct that is "grossly or wantonly
negligent, but not necessarily intentional." N.J. Div. of Youth
& Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S.
v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999)).
Such misconduct occurs when "an ordinary reasonable person would
understand that a situation poses dangerous risks and acts without
regard for the potentially serious consequences . . . ." Id. at
306 (quoting G.S., supra, 157 N.J. at 179). Each case of alleged
abuse "requires careful, individual scrutiny" and is "generally
fact sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 33 (2011).
II.
The allegations in this case concern an incident involving
Ron that occurred in October 2012, which followed an incident one
month earlier involving Beth. The amended verified complaint
filed by the Division recited its substantial prior history with
Debra. The first referral occurred in March 2009, when Linda, a
child who has since reached majority, ran away from home after
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arguing with Debra about Debra's drug use. During the period
between that first referral and the 2012 incidents, there were a
number of referrals that related to Debra's history of substance
abuse and mental illness and included allegations that Debra beat
Beth. There was also a prior adjudication of substantiated abuse
and neglect against Debra.
At the fact-finding hearing, N.J.S.A. 9:6-8.44, the Division
presented records that included: (1) the investigation summary
dated September 9, 2012; (2) a police report dated September 9,
2012; (3) a drug screen dated September 18, 2012 and (4) an
investigation summary dated October 12, 2012, all of which were
admitted without objection.
The September 2012 investigation summary detailed the
Division's response to the family home, where they met with Debra,
Beth, Linda, and Ron. The caseworker reported observing Debra to
be "very intoxicated," with slurred and delayed speech, balance
that "appeared to be off" and a disheveled appearance.
The day before, Debra called the police for medical assistance
and, when the person who reported the incident to the Division
arrived, Debra told him Beth and Linda had "jumped her." While
at the home, the reporter was informed "[Debra] attacked [Beth]
and she attempted to strangle her with her hands," which was
corroborated by an observation "that the child has scratches to
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her neck and some bruising." Linda helped Beth get Debra off her,
and Debra sustained a bump to her forehead. The reporter was
advised this was the first incident of this nature, and Debra
"gets emotional" when she drinks, which she had been doing more
of recently due to marital issues. "[Linda] reported her mother
has been drinking with her prescribed medications which are causing
her to act aggressively."
Debra was arrested for simple assault, N.J.S.A. 2C:12-
1(a)(1), and released on her own recognizance. In his
investigation report, Sergeant Robert Worrick noted Debra stated
"she was 'jumped' by her two daughters," but she "kept changing
her story as to how and why she was 'jumped.'" He observed Debra
"was slurring her words and swayed back and forth as she spoke.
Her [eyelids] were slightly open and her eyes were red." Linda
had reported to him that Debra and Beth were "arguing about family
issues" when Debra "began to throw objects around the living room."
Linda told Sgt. Worrick that Debra "smashed a glass vase onto the
floor" then "grabbed [Beth] by the throat and threw her against
the wall." Linda pushed Debra away and, during the struggle,
elbowed Debra in her forehead. Beth advised Sgt. Worrick "she did
not lose consciousness and she was able to breathe during the
struggle." Sgt. Worrick observed "multiple scratches and a little
bruising" on Beth's neck.
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In her statement for the police, Linda asserted Debra had
"consumed a fair amount of liquor" and attacked Beth because she
felt "disrespected." Beth wrote out her own statement:
I, [Beth], told my mom, [Debra] that I was
holding her money because she was WASTED. So
of course she yelled and complained and told
me to give it back. I was out of line and
disrespected her verbally so she decided to
pick up a "glass" vase (It was huge by the
way) & throw it at me. We moved it cut my
finger and the back of my leg & it cut my
sister's toe and butt cheek. Then she decided
to choke me up on the wall & I punched her to
get her off me then we fought 2 more [times]
. . . . Then you guys come.
The Division had Debra undergo a urine drug screening. She
tested positive for marijuana, benzodiazepines and opiates. The
Division substantiated allegations of physical abuse because Beth
"sustained scratches to her neck when [Debra] attempted to strangle
her." Beth stopped living with her mother after this incident.
The referral that is the basis of this appeal occurred
approximately one month later, on October 10, 2012. Debra called
911 and said Ron attacked her with a knife. When the police
arrived, they observed self-inflicted scratch marks on her chest
and determined she had not been attacked with a knife. They were
told Debra hit Ron in the eye, but Ron had no visible injuries and
did not appear to be in pain. Both the person who reported the
incident and the responding police officer stated Debra appeared
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to be under the influence of alcohol. The reporter also stated
Debra "carries a butcher knife on her and she sleeps with it."
Ron was interviewed by Division worker Chandra Edwards and
gave the following account. He hides his Xbox games to prevent
his mother from returning them to the store for money to buy
liquor, but his games were nevertheless missing when he arrived
home from school earlier that day. After Debra told him "somebody
must have come in and stolen them," Ron went to the maintenance
office to ask whether anyone had broken into his home. He was
told Debra was "lying to him again."
Ron told Edwards he did not see the liquor Debra was drinking,
but "[h]e said she was stumbling and slurring her words and he
could just tell." He also reported Debra "overdoses" on her
medicine and has been drinking "a lot" of vodka and beer since
Beth left in September. Ron asserted he did not stab his mother
earlier and that his mother pushed his face, though he had no
marks or bruises.
When Edwards and Division caseworker Theodore Gibson
interviewed Debra on the following day, she "appeared to be under
the influence of a substance" but denied taking medication. They
observed Debra's "thoughts were extremely unorganized" and her
"speech appeared to be slurred as though she was under the
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influence." Debra stated, however, that she was prescribed Vicodin
and Neurontin for her multiple sclerosis.
She asserted she returned Ron's Xbox games the day before
because he was not doing his homework. She told the caseworkers
Ron "threw her against the wall and then followed her into her
bedroom and threw her on the bed and scratched her on her chest."
The caseworkers observed the scratches and noted they "appeared
to be thin and [uniform]."
The caseworkers re-interviewed Ron, who gave an account
largely consistent with his prior statements. He affirmed Debra
was "drunk and stumbling around" when he came home from school.
He asserted she threatened to throw his Xbox through the window,
but he grabbed it from her hand, causing her to stumble into a
wall. She then went into her room for three minutes. Knowing that
Debra keeps a butcher knife under the mattress and recalling she
has thrown the knife at him and other family members when she is
drunk, Ron took the knife when she emerged from the bedroom. He
stated Debra told him "she does not want him and wants DYFS to
take him away." Ron stated Debra "is always drunk and he has
witnessed her 'popping pills' and drinking at the same time." He
expressed a wish to stay with his aunt "as he feels safe in her
care" and "he is fearful of what his mother may try to do to him."
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He advised "he loves his mother, but does not feel safe around
her."
Debra testified in her own defense. She testified that she
returned three of Ron's Xbox games after receiving a call from his
school that Ron had not been doing his homework. She stated Ron
"threw a tantrum," would not calm down and grabbed a knife from
the kitchen but did not stab her or approach her with the knife.
She denied there had been any altercation or struggle or telling
the police Ron stabbed her. She explained the scratches on her
chest were from Ron's nails, but she was "quite sure [that] was
an accident."
On cross-examination, Debra testified she was not intoxicated
that day. She explained that her multiple sclerosis causes speech
impairment, such as slurring, when she is stressed, but she did
not explain why she might have been "swaying back and forth" as
noted in the police report. When confronted with her positive
urine screen, she said, "I don’t see how I tested for marijuana."
She explained that, at the time, she had been prescribed
Clonazepam, Prednisone, Hydrocodone, Neurontin, and "different
medications." She testified she does not drink alcohol while on
medication and denied taking her medication or drinking alcohol
on the two days she engaged in altercations with Beth and Ron.
9 A-5777-14T3
The Division called Gibson as a rebuttal witness. He refuted
Debra's testimony, stating Debra told him Ron had cut her and
showed him the marks on her chest. He further testified her speech
was slurred and she appeared disorganized and nervous.
The family court cited Ron's statement, Gibson's testimony
and report, and the police report as evidence that supported the
conclusion that Debra was under the influence of alcohol during
the October incident. The court did not find credible Debra's
denials and explanation that her slurred words, swaying, and
disorganization were attributable to her medical condition. The
court found that Debra's voluntary intoxication led to a "pretty
serious altercation" with Ron that justified a finding of abuse
and neglect. The court held the Division sustained its burden of
proving Debra "failed to ensure the health, safety and welfare of
the children by being under the influence of drugs and alcohol and
therefore [did] not provide proper supervision."
Debra argues the evidence of intoxication was insufficient
because expert testimony was necessary to establish that she was
under the influence of alcohol or drugs. This argument lacks
merit. Lay opinion may be used to establish whether a person was
intoxicated; expert opinion is not necessary. See State v. McLean,
205 N.J. 438, 457 (2011). "[T]he average witness of ordinary
intelligence, although lacking special skill, knowledge and
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experience but who has had the opportunity of observation, may
testify whether a certain person was sober or intoxicated." State
v. Bealor, 187 N.J. 574, 585 (2006) (citation omitted). There was
ample evidence to establish that Debra was under the influence of
intoxicating substances and that her intoxication impaired her
parenting ability.
Finally, Debra argues her actions should be excused because
they were taken in response to Ron's "extreme behavior" as a
"misbehaving child." Debra's false report to the police that Ron
stabbed her in the chest was not an appropriate disciplinary
response to any misbehavior by Ron. To the contrary, Debra's
behavior was consistent with her prior assaultive behavior against
both Beth and Linda. Moreover, although we note the trial judge
found her testimony not credible, Debra denied there was any
altercation at all.
We conclude the Division proved by a preponderance of the
evidence that Debra engaged in conduct that was grossly negligent,
warranting an adjudication of abuse and neglect. N.J.S.A. 9:6-
8.21(c)(4)(b).
Affirmed.
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