DCPP VS. V.S. AND J.R.IN THE MATTER OF M.M-C. AND J.M-R.(FN-20-0152-13, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1006-14T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
V.S.,
Defendant-Appellant,
and
J.R.,
Defendant.
_____________________________
IN THE MATTER OF M.M-C. and
J.M-R., Minors.
_____________________________
Submitted October 4, 2017 — Decided November 3, 2017
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FN-20-0152-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark E. Kleiman, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Andrea
M. Barilli, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Christopher A.
Huling, Designated Counsel, on the brief).
PER CURIAM
V.S.,1 appeals from a January 29, 2014 determination after a
fact-finding hearing that V.S. abused or neglected her young
daughters M.M-C. (Maureen), born in 2012 and J.M-R (Julie), born
in 2013. She also appeals from a December 8, 2015 order denying
her Rule 4:50-1 motion for relief from judgment. Although
insufficient admissible evidence of harm to Julie was presented
at the fact-finding hearing, we affirm based on the evidence of
neglect of Maureen.
V.S. has an extensive medical history, suffering from
gallstones, polycystic ovary syndrome, scoliosis and sciatica.
She also had gastric bypass surgery in 2010. While V.S. was
pregnant with Maureen, she was hit in the hand and neck by a drive-
by shooter. Her best friend was also shot as well as her best-
friend's sixteen-year-old son, who died. V.S. was prescribed
various medications due to her medical conditions, which included
1
Pursuant to Rule 1:38-3(d)(12), we use initials and fictitious
names to protect the privacy of the family.
2 A-1006-14T2
post-traumatic stress disorder (PTSD) caused by the shooting. She
also used drugs at times without a prescription.
Unrelated to the shooting, Maureen's birth was thirty-three
weeks premature. She has global developmental delays and chronic
respiratory problems, requiring her to be on oxygen at all times,
suctioned regularly to prevent suffocation by aspiration, and to
be on a gastrostomy tube. Prior to Division involvement, Maureen
was receiving physical therapy services twice a week and special-
education therapy once a week. V.S. became skilled at caring for
Maureen and engaged in drug treatment voluntarily.
On June 6, 2013, V.S. left fifteen-month-old Maureen in the
care of an untrained former heroin addict who did not attend to
the baby's medical needs. Maureen was taken to the local hospital
where she was admitted to the intensive care unit. Maureen was
transferred three weeks later to Children's Hospital of
Philadelphia, where she remained until September 10, 2013, more
than three months after her initial hospitalization. She was then
transferred to another children's hospital in New Brunswick. Her
stay in the hospital may have been prolonged by V.S.'s refusal to
grant permission for a tracheotomy, even after being offered a
consultation from a second doctor.
In September 2013, V.S. gave birth to Julie, who did not
initially show withdrawal signs, although V.S. tested positive for
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benzodiazepines at the birth. V.S. had not been prescribed the
drug after becoming pregnant, and was told that the drug would
negatively affect the fetus. As a result of V.S.'s positive test,
Julie's urine and meconium, or first stool, were tested and the
hospital performed a Finnegan2 scoring every four hours. Julie's
urine screen came back negative, but her meconium screen was
positive for morphine and oxymorphone.
Julie's Finnegan scores varied widely over the next several
days. Initially, Julie scored a two. Julie had Finnegan scores
of four, then eight, then four on three occasions. She showed
signs of withdrawal such as trembling and sneezing. Then, a few
days later, she scored a nine twice in a row. Later that day she
scored seven, six, five, and twelve. During this twenty-four-hour
period, Julie had ten stools, a high number. Julie, however, was
never put on morphine treatment for withdrawal. Julie's Finnegan
scores lessened and she was medically cleared for discharge ten
days after her birth. A defense expert testified that Julie's
records presented a confusing picture, and although the fetus was
undoubtedly exposed to drugs prenatally, the baby was not at
"substantial" risk of harm at birth due to her mother's drug usage.
2
The Division's doctor testified that a Finnegan Neonatal
Abstinence Score is an assessment tool to determine whether a
child is suffering from drug withdrawal.
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The Family Part judge made extensive credibility and factual
findings. She noted that even the defense expert opined that
Julie suffered from a mild case of neonatal abstinence syndrome.
The judge found by a preponderance of the evidence that V.S. abused
or neglected Julie by taking drugs leading to the infant's distress
at birth. The judge also found that V.S. neglected Maureen by
taking illegal drugs while caring for a seriously ill baby and
leaving Maureen in the care of an admitted former drug addict who
had no knowledge of how to care for the medically fragile child.
After the fact-finding hearing, a Division-selected doctor
evaluated V.S. psychiatrically. The doctor recommended that
V.S.'s parental rights not be terminated, and opined that V.S. was
properly prescribed benzodiazepine for severe PTSD and should not
lose her children based on her mental health needs. As a result
of this evaluation, V.S. moved to supplement the record before us,
or for a remand for reconsideration under Rule 4:50-1. We granted
such a remand. Upon reconsideration, the judge found that the new
evaluation did not qualify as newly discovered evidence and, even
if considered, did not affect her findings.
Abuse or neglect proceedings are brought pursuant to Title
9, N.J.S.A. 9:6-8.21 to -8.73. "The main goal of Title 9 is to
protect children 'from acts or conditions which threaten their
welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)
5 A-1006-14T2
(quoting State v. Demarest, 252 N.J. Super. 323, 331 (App. Div.
1991)).
The statute sets forth seven definitions of the term "abused
or neglected child." N.J.S.A. 9:6-8.21(c). Relevant to this
case, N.J.S.A. 9:6-8.21(c)(4)(b) states:
"Abused or neglected child" means
. . . a 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, including the infliction of
excessive corporal punishment; or by any other
acts of a similarly serious nature requiring
the aid of the court
(Emphasis added).
"The phrase 'minimum degree of care' refers to conduct that
is grossly or wantonly negligent, but not necessarily
intentional." G.S., supra, 157 N.J. at 178. "[A] guardian 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." Id. at 181. "Whether a parent or guardian has
failed to exercise a minimum degree of care is to be analyzed in
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light of the dangers and risks associated with the situation."
Id. at 181-82.
The State has the burden of proof of demonstrating "by a
preponderance of the competent, material and relevant evidence the
probability of present or future harm." N.J. Div. of Youth &
Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008)
(quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.
Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426(2005)).
We accord particular deference "to fact findings of the family
court because it has the superior ability to gauge the credibility
of the witnesses who testify before it and because it possesses
special expertise in matters related to the family." N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). A
trial court "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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
V.S. disputes the judge's determination that the Division
proved Julie was put at substantial risk by V.S.'s drug ingestion.
V.S.'s expert opined that the infant was not put at substantial
risk in spite of the positive meconium and erratic Finnegan scores.
See N.J. Dept. of Youth & Family Serv. v. A.L., 213 N.J. 1 (2013)
7 A-1006-14T2
(holding that a finding of abuse or neglect is not sustained even
if the mother tested positive for drugs upon admission to the
hospital and the newborn's meconium tested positive for drugs,
absent a showing of actual harm, imminent danger, or a substantial
risk of harm to the infant).
The doctor who testified for the Division had not prepared
an expert report, although a report was required prior to expert
testimony pursuant to the court's case management order. The
court thus allowed the doctor to testify only as a fact witness.
The doctor's testimony did not arise from her first-hand knowledge
of Julie's treatment. She was not the hands-on supervisor of the
treating doctors with regard to Julie, in that she disagreed on
the stand with their treatment decisions, about which she was
unaware at the time of treatment. She stated, "If I were there
or I was called, I would have started this child on morphine
. . . . My colleagues did not do that, but I would have done that."
Thus, this doctor was not sufficiently involved in the treatment
of V.S. or Julie to testify as a fact witness. See Carchidi v.
Iavicoli, 412 N.J. Super. 374, 383 (App. Div. 2010) (finding that
doctors could not proffer their testimony as fact witnesses who
did not consult with or examine a patient "for the purpose of
treatment or diagnosis preliminary to treatment").
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If we disregard the testimony of the Division's doctor as
improperly admitted into evidence, the proof that Julie was put
at substantial risk of harm was weak. Thus, we cannot affirm the
finding of neglect with regard to Julie.
The judge's findings regarding Maureen are not affected by
V.S.'s post-trial psychiatric evaluation. "Title 9's main focus
is not the 'culpability of parental conduct' but rather 'the
protection of children.'" N.J. Div. of Child Prot. & Permanency
v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S., supra, 157
N.J. at 177). "[T]he definition of child abuse and neglect
contained in the civil provision 'describe[s] only the kind of
"harm" to the child and not the mental state of the accused
required to establish an offense.'" G.S., supra, 157 N.J. at 176(quoting Demarest, supra, 252 N.J. Super. at 331.)).
V.S.'s psychiatric evaluation criticized the Division for its
lack of understanding of the severity of V.S.'s PTSD. Leaving a
young medically fragile baby alone with an untrained supervisor
for an extended period of time, resulting in an extended
hospitalization, represents substantial evidence to support a
finding of neglect. We therefor affirm the fact-finding insofar
as the judge found that V.S. neglected her daughter Maureen. Such
a finding results in serious consequences. A.L., supra, 213 N.J.
at 25-26. One of the consequences is a listing in the Child Abuse
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Registry (Registry). N.J.S.A. 9:6-8.11. "The records may be
disclosed to physicians, courts, child welfare agencies, and
certain employers. N.J.S.A. 9:6-8.10a(b)(1)-(23))." E.D.-O.,
supra, 223 N.J. at 170, n.2.
We affirm the finding of abuse or neglect, although we affirm
only with regard to Maureen. We also affirm the denial of
reconsideration. If V.S.'s Registry information is no longer
accurate based on our affirmance as to Maureen only, we direct the
Division to make the necessary correction.
Affirmed.
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