DCPP VS. M.C. AND D.O.IN THE MATTER OF D.O. AND T.O.(FN-03-0187-14, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-3976-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.C.,
Defendant,
and
D.O.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF D.O. and T.O.,
MINORS.
_________________________________
Submitted May 30, 2017 – Decided June 7, 2017
Before Judges Sabatino and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FN-03-0187-14.
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; Hannah F. Edman, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Nancy P. Fratz,
Assistant Deputy Public Defender, on the
brief).
PER CURIAM
Defendant D.O., the father of two young children, appeals the
Family Part's determination that he abused or neglected his
children in violation of N.J.S.A. 9:6-8.21(c). We affirm.
It is undisputed that defendant and the children's mother,
M.C., have had long-standing histories of drug abuse, including
heroin and cocaine. Both parents have criminal records involving
drug charges. At the time of the events in question, the children
were ages five and three and living with defendant and M.C.
The Division of Child Protection and Permanency ("the
Division") became involved with this household in March 2013 after
receiving a report that the parents took the children with them
to purchase drugs in Camden. Although that initial referral was
not substantiated, the Division received another referral in
January 2014 from a witness who stated that the parents were using
heroin and cocaine daily. The witness had observed defendant
using drugs in the parking lot at his workplace. In addition, the
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Division learned that M.C. had been fired two days earlier when
her employer discovered bags of heroin in her work locker.
The Division promptly conducted an investigation, which
confirmed the parents' ongoing drug abuse. Defendant acknowledged
in an interview that he was currently illegally using Suboxone,
which had been prescribed not to him but to M.C., because of his
heroin addiction. M.C., who initially had tried to hide from the
Division workers, admitted that she had been recently using heroin
and cocaine. In addition, the older child told a Division worker
that she had seen her mother taking pills, and that at times she
was left with a relative who drank beer while watching her and her
brother. Both defendant and M.C. tested positive for cocaine and
opiates.
The Division conducted an emergency removal of the children
from the household, and they were placed with the paternal
grandmother. The Division ordered evaluations and hair follicle
testing of the parents. Defendant was referred to a drug treatment
program. However, his subsequent hair follicle testing was
positive for morphine. Meanwhile, M.C. stipulated that her own
unabated substance abuse had placed the children at risk of harm.
The Division charged defendant with abuse or neglect under
Title 9, and the litigation progressed to a fact-fining proceeding
on May 21, 2014. Defendant, who had already previously missed a
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court date, failed to appear for the fact-finding hearing.
However, his counsel did appear and consented to the matter going
forward in defendant's absence. The Division moved its
investigative report into evidence without objection, and then
rested. Defense counsel did not present any witnesses or offer
any exhibits or other proofs.
Based upon the evidence supplied, the Family Court judge
concluded by a preponderance of the evidence that the Division had
met its burden under Title 9. As the judge noted in her oral
opinion, "[t]here is a very strong drug history regarding
[defendant]," who "has an ongoing substance abuse problem which
was a problem when the children were removed and is still a
problem."
Defendant now appeals, contending that there was insufficient
evidence to support a conclusion of abuse or neglect against him.
He emphasizes that there was no proof that he was actually using
drugs in the presence of the children. He also notes that the
older child told the Division investigators that her parents did
not use needles in her presence. Defendant contends that the
children were not placed at risk by his drug abuse.
We have no hesitation in affirming the trial court's
determination. Case law has made clear that the Division does not
have to wait for a child to experience actual harm in order to
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pursue abuse or neglect charges against a parent who has endangered
his or her children. See, e.g., N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 449 (2012); In re Guardianship of D.M.H.,
161 N.J. 365, 383 (1999). The Division only needs to show under
the statute that a child's physical, mental, or emotional condition
has been "impaired or is in imminent danger of becoming impaired."
N.J.S.A. 9:6-8.21(c)(4) (emphasis added); see also G.S. v. Dept.
of Human Servs., 157 N.J. 161, 181 (1999).
Here, defendant's positive drug screens, his admitted
improper use of Suboxone, and his awareness that the children's
other caregivers in the household were abusing drugs or alcohol
provided ample grounds for the court to conclude that defendant's
irresponsible conduct had endangered the children. It was not
essential for the Division to show that defendant actually ingested
drugs in the physical presence of the children for them to be at
risk, particularly given their young ages. The cases cited in
defendant's brief holding that a parent's substance abuse is not
per se child abuse or neglect do not undermine the trial court's
reasonable findings of abuse or neglect in this case, given the
totality of circumstances that placed the children at risk.
Although the Division proved its case here through a written
submission rather than with any live testimony, such testimony was
not imperative, given defense counsel's expressed lack of
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opposition to the court's consideration of the investigative
report. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 340 (2010) (applying the concept of "invited error").
Affirmed.
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