DCPP VS. L.P. AND M.B.IN THE MATTER OF A.B. AND H.B.(FN-02-0249-14, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-3781-14T2
A-3782-14T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.P. and M.B.,
Defendants-Appellants.
______________________________
IN THE MATTER OF
A.B. and H.B., minors.
______________________________
Argued telephonically October 4, 2017 -
Decided October 26, 2017
Before Judges Reisner and Mayer.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FN-02-0249-14.
Victor E. Ramos, Assistant Deputy Public
Defender, argued the cause for appellant L.P.
(Joseph E. Krakora, Public Defender, attorney;
Mr. Ramos, of counsel and on the briefs).
Carol M. Willner, Designated Counsel, argued
the cause for appellant M.B. (Joseph E.
Krakora, Public Defender, attorney; Ms.
Willner, on the briefs).
Ellen L. Buckwalter, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Ms. Buckwalter, on the brief).
Todd S. Wilson, Designated Counsel, argued the
cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney for minors;
Mr. Wilson, on the brief).
PER CURIAM
Defendants L.P. (mother) and M.B. (father) appeal a September
9, 2014 fact finding order, determining that they abused or
neglected their young children – H.B., age three weeks, and A.B.,
age three years - by using heroin while they were the children's
primary caretakers, thus placing the children at a substantial
risk of harm. L.P. also appeals a finding that she caused H.B.
harm by using heroin while she was pregnant, causing the baby to
suffer withdrawal symptoms after birth.1
On appeal, defendants argue that there was insufficient
credible evidence in the record to support the judge's factual
findings. L.P. also challenges the admission of the children's
medical records as noncompliant with the certification
requirements under N.J.S.A. 9:6-8.46(a)(3). She also contends
1
L.P.'s brief advises us that both parents entered identified
surrenders of their children on April 8, 2015.
2 A-3781-14T2
that statements in H.B.'s medical records noting a diagnosis of
withdrawal syndrome were inadmissible hearsay. Finding no merit
in any of those arguments, we affirm.
The evidence is straightforward. On March 20, 2014, the
Division of Child Protection and Permanency (Division) received a
referral from a hospital, after the mother was admitted for post-
partum depression and tested positive for opiates. At the time,
defendants and their children were residing with the paternal
grandparents. However, according to Lori Laverty, a Division case
worker, both defendants told Laverty that they were the children's
primary caretakers. They told her that H.B. slept in their bedroom
with them.
Both parents also admitted to Laverty that they used heroin.
In fact, the father told Laverty that he injected heroin on a
daily basis to avoid having withdrawal symptoms. The mother
admitted snorting heroin before being hospitalized and injecting
heroin the night she was released, but she denied taking drugs
while she was pregnant. She later admitted to a substance abuse
evaluator that she used heroin "daily" in the weeks after giving
birth. Both parents also admitted to using marijuana.
Both parents submitted to drug screening the day after the
Division referral and both tested positive for opiates. They
tested positive again in April, May and June 2014. Both parents
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were medically evaluated for drug treatment and were found to be
in need of inpatient detoxification programs. As of the date of
the fact finding hearing, the mother had failed to attend
treatment; the father attended a program but left before completing
it.
Laverty explained the Division's concern that a parent under
the influence of heroin could have impaired judgment and impaired
ability to keep the children safe. There was also evidence that
both parents were under the influence of drugs during a supervised
visit with their children on June 4, 2014. The assistant family
service worker supervising the visit observed them "acting
strangely, speaking slowly and just having unusual behavior." Both
parents were tested for drugs later that day, and both tested
positive for opiates. Neither parent testified or presented any
other witnesses or evidence at the fact finding hearing.
In an oral opinion issued on September 9, 2014, the trial
judge found that the Division proved
by a preponderance of the evidence that by
virtue of their active drug use the parents,
who were the primary caretakers for the
children while abusing drugs, placed their
children at substantial risk of harm making
them abused and neglected as defined in . . .
N.J.S.A. 9:6-8.21(c).
In making those findings, the judge credited the testimony of the
Division's witnesses. She also relied on H.B.'s medical records
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which she found reflected his "history of withdrawal syndrome
secondary to intrauterine drug exposure. That he was addicted to
heroin and went through withdrawal." The judge reasoned that
caring for "very young children" while actively using heroin posed
significant risks to the children, including the risk that the
parents "might overdose while caring for their children," and that
the heroin use might impair the parents' judgment and make them
"unable to properly respond in the event of an emergency." The
judge also concluded that H.B.'s suffering withdrawal symptoms,
due to intrauterine drug addiction, constituted actual harm.
On this appeal, we owe particular deference to the trial
judge's credibility determinations, and we will not disturb her
factual findings so long as they are supported by substantial
credible evidence. See N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 552 (2014). We review the judge's evidentiary
rulings for abuse of discretion. N.J. Div. of Child Prot. & Perm.
v. B.O., 438 N.J. Super. 373, 385-86 (App. Div. 2014). We engage
in de novo review of the trial judge's legal interpretations.
R.G., supra, 217 N.J. at 552.
After reviewing the record of the September 4, 2014 fact
finding hearing, we conclude that there is substantial credible
evidence to support the trial judge's finding, by a preponderance,
that defendants were under the influence of heroin while acting
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as their young children's primary caretakers. We have previously
recognized that "[p]arents who use illegal drugs when caring for
an infant expose that baby to many dangers due to their impaired
judgment." B.O., supra, 438 N.J. Super. at 385. Likewise, there
was medical evidence that the baby suffered from withdrawal
symptoms, due to intrauterine drug exposure. That evidence in
turn was sufficient to support the finding that L.P. caused H.B.
harm by ingesting heroin while she was pregnant. See N.J. Dep't
of Children & Families v. A.L., 213 N.J. 1, 22-23 (2013).
Contrary to L.P.'s argument, the children's medical records
were properly authenticated by a certification and a delegation
of authority, in compliance with N.J.S.A. 9:6-8.46(a)(3).
Although the trial court held a thorough pre-trial evidence
conference just prior to the hearing, defendants did not raise any
other objection to the admission of the records in evidence. In
particular, they made no timely objection to the court's
consideration of included diagnoses. See N.J.R.E. 808.2 Instead,
they waited until after the hearing was over and the attorneys
were giving their closing arguments before raising the issue. We
conclude the issue was not properly preserved for purposes of
2
The Division put defendants on notice, more than a month before
the hearing, that it intended to rely on the documents to support
the diagnosis of withdrawal syndrome.
6 A-3781-14T2
appeal. See N.J. Div. of Youth & Family Servs. v. M.C., III, 201
N.J. 328, 339-42 (2010). However, even if we consider the issue,
we find no abuse of the trial judge's discretion in admitting the
evidence.
Defendants' remaining appellate contentions are without
sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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