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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3340-21
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.J.,
Defendant-Appellant,
and
D.P.,
Defendant.
IN THE MATTER OF H.P., a minor.
Submitted October 12, 2023 – Decided December 12, 2023
Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0117-21.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Melissa Young, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Cory H. Cassar, Designated Counsel, on the brief).
PER CURIAM
Defendant A.J.1 (Althea) appeals from the October 13, 2021 order finding
she abused and neglected her daughter H.P. (Hazel) under N.J.S.A. 9:6-
8.21(c)(4)(b). Because the court did not make particularized findings that
Althea's actions were grossly negligent or posed a substantial risk of harm to
Hazel to support its conclusion of abuse and neglect, we vacate the order and
remand to the trial court to make the required statutory findings.
1 We use initials and fictitious names to protect the parties' privacy. R. 1:38- 3(d)(12).
A-3340-21 2 I.
Hazel, born in March 2021, is the daughter of Althea and defendant D.P.
(Derrick).2 The Division of Child Protection and Permanency (the Division)
first became involved with Althea in 2019 when concerns arose regarding her
older son, Z.S. (Zander). At that time, Althea was admitted into a rehabilitation
facility to treat her substance abuse issues. Zander's father obtained full custody
of Zander; at the time of the hearing in this matter, Althea had supervised
visitation with Zander once a week.
While pregnant with Hazel, Althea tested positive for opiates in August
2020 and positive for fentanyl following a hair follicle test in January 2021, "but
it was not segmented." 3 After Hazel was born prematurely in March 2021,
Althea tested positive for prescribed methadone. Hazel also tested "positive for
methadone but did not experience withdrawal."
2 As there were no findings of abuse and neglect against Derrick, he is not a party to this appeal. 3 According to the laboratory that processed the hair follicle test, hair specimens taken from the head "can be segmented by 0.5 inch or 1.5 inch sections to show approximate usage trends over time." The average person's hair grows approximately 0.5 inch per month; a 1.5 inch segment would show roughly three months of usage history. A-3340-21 3 During the Division's visit to the hospital following Hazel's birth, Althea
told caseworkers "she had been substance free for over a year . . . and that she
had taken an old prescription for tooth pain while she was pregnant" that
accounted for the positive opiate test result.
On April 9, 2021, Althea was involved in a motor vehicle accident while
Hazel was in the car. She reported she was struck in the rear of her car and
pushed forward into the car ahead of her. Law enforcement contacted the
Division, informing it that Althea "appeared to be intoxicated and was arrested
and charged with" driving while intoxicated (DWI), N.J.S.A. 39:4-50. The
officers stated Hazel was "properly secured in her car seat." Neither Althea nor
Hazel were injured. Althea was not at fault for the accident.
Later that night, Division caseworkers spoke with Althea and Derrick at
their home. Althea reported that she was on her way home from shopping when
she was involved in a minor car accident. She stated that when the police
arrived, they "thought that she was on something and she . . . shared with them
that she was prescribed [m]ethadone and she had her dose that" morning. Althea
reported the officers conducted a field sobriety test, which she passed, but the
officers were convinced Althea was under the influence. Althea said she
A-3340-21 4 "refused the breathalyzer" and drug test because "she felt like the officers were
harassing her."
The Division workers also spoke with Derrick. He stated that when Althea
left the home that day, he thought she was going to a urine screen 4 and then to
the grocery store. Derrick stated Althea called him later to tell him she was in
a car accident. Althea's sister was going to meet her at the scene of the accident.
Derrick stated Althea did not appear to be under the influence before
leaving the home nor when he saw her later. He did not think she was using any
illegal substances.
The caseworkers also spoke with Althea's sister, Alice, who reported she
was concerned that Althea was under the influence because she was "nodding
off" after being in the accident and "being very difficult" with the police officers
both at the scene and later at the police station. Alice said Althea locked herself
in the bathroom after the accident where she tried to "cleanse" her system
because she knew the Division would require her to complete a urine screen.
The Division implemented a Safety Protection Plan establishing Derrick
as Althea's supervisor while with Hazel. However, a new plan was needed after
4 The Division caseworker testified there was no urine screen scheduled for that day. A-3340-21 5 Derrick returned to work several days later. The Division could not find another
supervisor and they had concerns with Derrick because of the contradictory
information he provided regarding Althea and Alice's statements. Thereafter,
the Division conducted a removal of Hazel on April 12, 2021. The child was
placed with Althea's mother, and different relatives cared for her during the day
while the grandmother was at work. Althea's mother supervised visitation
between Althea and Hazel.
Although Althea initially resisted submitting to a hair follicle and drug
screening, she later agreed to undergo the testing. A caseworker later learned
that Althea did not appear on video chat with the Center for Family Services
(CFS) for her substance abuse assessment scheduled for April 9, 2021. The CFS
worker said she called Althea, "but her phone kept going to voicemail."
However, later that day, Althea contacted the CFS worker, stating "her phone
was shut off and she had to go pay the bill." The CFS worker "found it very
concerning that [Althea]'s phone was shut off conveniently around the time of
her substance abuse evaluation."
On April 13, 2021, Althea and Derrick completed hair follicle tests and
Derrick underwent a random urine screening. His test results were negative.
Althea's urine screen on April 12 was diluted and tested positive for her
A-3340-21 6 prescribed methadone. Althea's hair follicle results, which assessed the last
ninety days, were positive for fentanyl, norfentanyl, and methadone.
On April 21, 2021, the Division received a phone call from Althea's
methadone clinic, informing it that Althea had "consented to releasing
information but did not want her screening results and progress shared with [the
Division]." The clinic worker could not opine as to Althea's progress because
treatment had only started on April 1, but the worker stated Althea "ha[d] a long
road ahead of her because she [wa]s actively trying to hide information from
[the Division]." The clinic worker disclosed that Althea was prescribed one
hundred milligrams of "methadone five days weekly," and was not permitted to
take home vials of the medication. She was also participating in one individual
counseling session per month and three group sessions per month.
Based on all of the denoted information, the Division substantiated the
allegations of abuse and neglect of Hazel by Althea. The Division found Hazel
was only three weeks old on the day Althea was charged with DWI. The child
was "hysterically crying" after the accident and "needed [Althea's] full attention.
[Althea] was nodding off while attempting to feed [Hazel] and was unable to
tend to [Hazel's] needs properly due to being under the influence of what was
A-3340-21 7 suspected to be illicit substances." The Division further found that Hazel's
"safety require[d] a separation of the child from" Althea.
II.
On October 12, 2021, the court conducted a fact-finding hearing during
which Officer John Freitag of the Washington Township Police Department
testified. Freitag responded to the motor vehicle accident involving Althea at
approximately 4:30 p.m. As he spoke with Althea, Freitag noted "her speech
was slow and slurred," and "[h]er eyes appeared glassy and bloodshot." The
officer asked if she had taken any medication, and Althea responded she was
prescribed and had taken methadone at 9:00 that morning.
Freitag saw Hazel in the backseat in a rear-facing child seat and requested
Althea contact a family member to come and take the baby. He stated Hazel
was crying and he asked Althea if the baby was hungry and whether she should
feed her. He noticed that while Althea was feeding the baby, "[Althea] was
nodding off with her head down and chin in her chest," and her hand holding the
bottle was "limp," so Hazel was unable to drink the liquid in the bottle. Freitag
woke Althea up and told her to properly adjust the bottle.
Due to his observations, Freitag decided to conduct field sobriety tests, to
determine whether Althea was under the influence. According to Freitag, during
A-3340-21 8 the "walk-and-turn" test, Althea "moved her right foot . . . in front of her left
foot twice . . . which is an indicator"; and "stumbled to her right," then "stumbled
to her left" several times. While performing the "one-leg-stand" test, Althea
"swayed from side-to-side and waved her arms to aid her balance." She
stumbled and continued to sway throughout the test.
Freitag stated he charged Althea with DWI, refusal to submit a breath
sample, N.J.S.A. 39:4-50.4a, and other motor vehicle summonses and then
arrested her because he "was confident that she was under the influence and
unable to operate a motor vehicle safely." Althea was transported to the police
station where she refused to undergo a breathalyzer test.
The Division caseworker also testified, describing her interactions with
Althea on the day of the accident and thereafter and the results of the drug
testing. Althea's counsel did not object to the admission of the hair follicle
results into evidence but objected to the court's consideration of the test results
because they spanned ninety days prior to taking the test, which was before the
motor vehicle accident and before Hazel was born. Counsel argued the court
could not consider the testing as evidence that Althea "was under the influence
at the time of the accident." The court agreed and declined to consider the
positive hair follicle test in its "overall decision" because it showed "that she did
A-3340-21 9 have [substances] in her system but whether or not it was on that particular day
at the time of the accident" was unknown.
On October 13, 2021, the judge issued an oral decision concluding Althea
was under the influence at the time of the accident and finding the Division had
proved abuse and neglect under N.J.S.A. 9:6-8.21(c)(4). The judge "f[ou]nd
Officer Freitag to be a credible witness" because "[Freitag] made good eye
contact throughout his examination" and "answered all questions both on direct
and on cross-examination without equivocation." The judge stated Freitag "was
in command of his recollection as to what occurred on th[e day of the accident]."
The judge also found the Division caseworker "answered all of the questions on
direct and on cross-examination with[out] equivocation" and "made good eye
contact and . . . was in command of the facts as they were purported in her
testimony as well as her report."
The judge concluded "[Althea] was the sole caretaker of [Hazel] who was
. . . in the vehicle at the time of the accident." Relying on Freitag's testimony
regarding his observations and the field sobriety tests, and the officer's
conclusion that Althea was under the influence at the time of the accident, the
judge found Althea abused and neglected Hazel.
A-3340-21 10 III.
On appeal, Althea contends: the judge did not make any particularized
findings that she was grossly negligent; this court should not defer to the judge's
factual findings regarding the field sobriety tests or his credibility determination
regarding Freitag; and the Division did not prove Althea posed a substantial risk
of harm to Hazel. The Division and the Law Guardian dispute these arguments
and request this court affirm the order.
We defer to the family court's factual findings "when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998). Deference is accorded because of the family courts' "specialized
knowledge and experience in matters involving parental relationships and the
best interests of children." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 427 (2012).
However, our review of the determination that Althea abused or neglected
Hazel under Title Nine is de novo. N.J. Div. of Child Prot. & Permanency v.
Y.N., 220 N.J. 165, 177 (2014) (quoting Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012)).
A-3340-21 11 A.
We begin in addressing Althea's contention that the trial court did not
explain how her behavior amounted to gross negligence, as required for a
statutory finding of abuse and neglect. Althea asserts the evidence did not
demonstrate she overmedicated on her prescribed methadone treatment, and
under New Jersey case law, the use of prescribed medication alone cannot
establish abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b).
"Title [Nine] controls the adjudication of abuse and neglect cases." N.J.
Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing
N.J.S.A. 9:6-8.21 to -8.73). It was enacted "to protect children 'from acts or
conditions which threaten their welfare.'" G.S. v. Dep't of Hum. Servs., 157 N.J.
161, 176 (1999) (quoting State v. Demarest, 252 N.J. Super. 323, 330 (App. Div.
1991)). An abused or neglected child is defined under the statute as
a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
A-3340-21 12 "[U]nder Title [Nine], whether the [parent or] guardian intended to harm
the child is irrelevant. If a parent or guardian commits an intentional act that
has unintended consequences," the statute applies. G.S., 157 N.J. at 176. Our
Supreme Court has found "that N.J.S.A. 9:6-8.21(c)(4) can apply to some
accidentally-caused injuries." Id. at 177.
The G.S. Court interpreted the phrase "failure to exercise a minimum
degree of care," under N.J.S.A. 9:6-8.21(c)(4)(b), to mean that the parent or
guardian has committed "conduct that is grossly or wantonly negligent, but not
necessarily intentional," which is conduct that is "done with the knowledge that
injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin v.
Rova Farms, Inc., 56 N.J. 288, 305 (1970)). In other words, "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. Wanton or willful
conduct may also consist of "actions taken with reckless disregard for the
consequences." Id. at 178. In sum, the Court reasoned that if the action is
committed intentionally, "whether the actor actually recognizes the highly
dangerous character of her conduct is irrelevant." Ibid.
A-3340-21 13 The Court instructed the Division and courts to examine the harm to the
child and whether the parent or guardian could have avoided that harm by acting
"to remedy the situation or remove the danger." Id. at 182. "When a cautionary
act by the guardian would prevent a child from having his or her physical, mental
or emotional condition impaired, that guardian has failed to exercise a minimum
degree of care as a matter of law." Ibid. This standard, the Court reasoned,
"allows the State to intervene to protect children without unduly infringing on
parents['] rights to raise and discipline their children." Id. at 180.
Following its decision in G.S., the Court has acknowledged that "the
question of whether a particular event is to be classified as merely negligent,
grossly negligent, or reckless can be a difficult one." Dep't of Child. & Fams.,
v. T.B., 207 N.J. 294, 309 (2011). The determination "is quite frequently 'fact
sensitive.'" N.J. Div. of Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 544
(App. Div. 2011) (quoting N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J.
17, 33 (2011)). In T.B., the Court clarified that "every failure to perform a
cautionary act is not abuse or neglect. When the failure to perform a cautionary
act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or
neglect statute." 207 N.J. at 306-07. "[W]here a parent is merely negligent there
is no warrant to infer that the child will be at future risk." Id. at 307.
A-3340-21 14 We are further guided by the Court's decision in Y.N., 220 N.J. at 169.
There, the defendant learned she was four months pregnant on a visit to the
hospital for an unrelated injury. Ibid. She told hospital staff she was taking
Percocet prescribed for pain following injuries she sustained in a car accident.
Ibid. The defendant was instructed not to suddenly stop taking Percocet as the
withdrawal could risk her pregnancy. Ibid. She enrolled in a methadone
maintenance treatment program. Id. at 169-70. When the defendant gave birth,
the child showed withdrawal symptoms from methadone. Id. at 170.
After an incident of domestic violence between the defendant and the
child's father, the police informed the Division. Id. at 171. Several weeks later,
the child's father reported to the Division that the defendant was "high on drugs."
Ibid. The defendant was told she had to submit to a random urine sample. Ibid.
When the defendant left before the test was completed, the facility categorized
the failure to undergo the test "the equivalent of a positive test result." Ibid.
The Division thereafter filed a complaint for the custody, care, and
supervision of the child and alleged abuse and neglect. Ibid. The following day,
the defendant passed a drug test, and the court granted her custody of the child.
Id. at 172. At the abuse and neglect hearing, the court found the Division had
established abuse and neglect. Ibid. This court affirmed, "solely on the basis
A-3340-21 15 that [the defendant] caused her child to suffer withdrawal symptoms from the
methadone she took as part of a prescribed, bona fide medical treatment plan."
Id. at 168.
The Supreme Court reversed. Id. at 186. The Court "reject[ed] the
Appellate Division's conclusion that '[w]here there is evidence of actual
impairment, it is immaterial whether the drugs taken were from a legal or illicit
source.'" Id. at 184 (alteration in original) (quoting N.J. Div. of Youth & Fam.
Servs. v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013)), rev'd, 220 N.J. 165
(2014). The Court reasoned that the Appellate Division's decision would have
"create[d] a perverse disincentive for a pregnant woman to seek medical help
and enter a bona fide detoxification treatment program that w[ould] address her
and her baby's health needs." Ibid. The Court found that the greater potential
harm to the child would be the defendant deciding not to seek proper prenatal
treatment, and not "timely entering a medically approved detoxification program
that w[ould] improve the outcome for her newborn." Ibid.
The Court recognized the effectiveness of methadone treatment according
to the Centers for Disease Control and Prevention, and that the United States
Department of Health and Human Services has concluded that "methadone
maintenance treatment can save the life of a baby born to an addicted mother
A-3340-21 16 and that a newborn experiencing methadone withdrawal is far better off than a
newborn addicted to heroin." Id. at 184-85. We have since described the
defendant's actions as a "prudent, medically sound course of action." N.J. Div.
of Child Prot. & Permanency v. K.M., 444 N.J. Super. 325, 333 (App. Div.
2016).
It is clear from Y.N. that the use of prescribed medication without
evidence of other illegal use cannot sustain a finding of abuse or neglect under
Title Nine. Here, the trial court did not find the use of methadone constituted
abuse and neglect. Rather, the court found Althea was impaired and under the
influence while she was driving with Hazel, and that impairment established
abuse and neglect. The court's decision was grounded solely on Freitag's
observations of Althea following the accident.
The court did not make particularized findings, and did not classify the
incident as merely negligent, grossly negligent, or reckless as required under
T.B. There was no evidence Hazel was harmed. There was no indication
whether Althea's use of methadone earlier that day caused the fatigue, slurred
speech or glassy eyes observed by Freitag or whether Althea was aware of the
effects the methadone had on her.
A-3340-21 17 Because the court did not make any findings as to Althea's culpability, if
any, we cannot properly review the abuse and neglect finding. There was no
suggestion in the court's opinion as to whether Althea was merely negligent,
grossly negligent, or reckless. As we have stated, if a defendant "ingested only
a prescribed amount of [a medication] and it [was] found that she abused no
other substances in connection therewith, the legal standard contained in the
statute, as described in T.B., would preclude a finding of abuse or neglect." N.J.
Div. of Youth & Fam. Servs. v. S.N.W., 428 N.J. Super. 247, 258 (App. Div.
2012).
Here, there was no evidence elicited at the fact-finding hearing that
Althea's impairment at the time of the accident was the result of any other
substance other than her prescribed methadone. The April 12, 2021 urine sample
only showed positive results for methadone, and the April 13, 2021 hair follicle
test did not reveal any admissible positive results to demonstrate Althea was
under the influence of any other substances at the time of the accident.
If the trial court based its finding of abuse and neglect on facts other than
Althea appeared intoxicated because she was taking prescribed methadone, it
must articulate those particularized findings. Without those findings, it was
improper for the court to support its decision solely on Freitag's perception and
A-3340-21 18 conclusion that Althea was impaired by her prescribed methadone. There was
no evidence, one way or another, that Althea exceeded her prescribed dosage of
methadone. Nor was there evidence that she was not permitted to drive while
taking the prescribed amount of methadone. To the contrary, Althea could only
obtain the methadone at the clinic, and she drove herself there for the treatment.
In addition, Hazel was properly secured in her car seat and Althea was not at
fault for the accident. To find abuse and neglect, the court had to make more
specific findings and a determination of Althea's culpability for her condition.
As we stated in S.N.W., "[t]he Division was required to prove that defendant's
condition, as described by the judge in his findings, was produced by a grossly
negligent or reckless act." 428 N.J. at 257.
We are constrained to vacate the order and remand for the court to make
those factual findings. These facts might include whether Althea "ingested only
a prescribed amount of [methadone]" and whether "she abused no other
substances in connection therewith," to provide the basis for whether that
amounted to gross negligence or recklessness and whether that prohibited Althea
from exercising the minimum degree of care. See id. at 258.
A-3340-21 19 B.
We briefly address Althea's argument regarding the judge's consideration
of Freitag's testimony, specifically that the judge erred in accepting Freitag's
opinion regarding Althea's performance on the field sobriety tests.
As stated, we defer to the trial court's factual findings and credibility
determinations when supported by credible evidence, Cesare, 154 N.J. at 411-
12, "unless the trial court's findings 'went so wide of the mark that a mistake
must have been made.'" N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.
261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233
N.J. Super. 65, 69 (App. Div. 1989)). We discern no reason to disturb the trial
judge's findings regarding Freitag. The court observed Freitag, had the
opportunity to assess his demeanor and testimony and found the officer credible.
Based on Freitag's training and experience, the court found Freitag was credible
in his description of Althea's performance on the sobriety tests.
In addition, defense counsel did not object to any procedural aspect of the
hearing or to the court permitting Freitag to review his report to refresh his
recollection. A review of the record reveals no plain error. R. 2:10-2. The court
properly permitted Freitag to refresh his recollection using his report. Thus, the
A-3340-21 20 trial court's factual findings regarding the field sobriety tests were supported by
substantial credible evidence in the record.
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
A-3340-21 21