Dcpp v. E.S. and A.B., in the Matter of G.S.

• Court: New Jersey Superior Court Appellate Division
• Decided: March 21, 2025
• Docket: A-1274-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1274-23

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.S.,

Defendant-Appellant,

and

A.B.,

Defendant. _______________________

IN THE MATTER OF G.S., a minor. ________________________

Submitted February 27, 2025 – Decided March 21, 2025

Before Judges Walcott-Henderson and Vinci. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-0054-21.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Catherine W. Wilkes, Assistant Deputy Public Defender, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant E.S.,1 mother of minor G.S., appeals from a May 20, 2022

Family Part order finding E.S. had abused or neglected G.S., under N.J.S.A. 9:6-

8.21(c)(3), and a November 14, 2023 final judgment terminating litigation.

Based on this record, we conclude there is substantial credible evidence to

support the court's finding and affirm.

1 In accordance with Rule 1:38-3(d)(12) we use initials to protect records relating to Division of Child Protection and Permanency (the Division) proceedings. A-1274-23 2 I.

We glean the following relevant facts substantially from the fact-finding

and kinship legal guardianship (KLG) hearings. The Division became involved

with E.S. in February 2020 when it received a child welfare services report

stating E.S. had relapsed on heroin while thirty-four weeks pregnant. G.S. was

born to E.S. on March 29, 2020, at which time the Division opened a case. G.S.'s

biological father is unknown, but was previously purported to be A.B., who is

named in the case. E.S. received treatment and continued to engage in support

and services, and the Division closed its case in October 2020 because G.S.

appeared safe in E.S.'s care.

On April 28, 2021, the Rockaway Borough Police Department responded

to an emergency call from E.S. reporting she thought one-year-old G.S. had

ingested Subutex, which she had in her purse.2 E.S. said that she found G.S.

next to her unzipped purse and she appeared "drowsy and sweaty and unable to

shake her head." The 9-1-1 dispatcher advised E.S. to perform cardiopulmonary

resuscitation on G.S., which she did until Emergency Medical Services (EMS)

arrived and administered Narcan to G.S. The Narcan reversed G.S.'s symptoms

2 Subutex is "an opioid medication used to treat opioid addiction." Subutex Uses, Dosage, Side Effects & Warnings, https://www.drugs.com/subutex.html (last visited Mar. 11, 2025). A-1274-23 3 and EMS transported her to Morristown Medical Center where she was tested

for various narcotics, including phencyclidine, benzodiazepines, cocaine,

amphetamines, cannabinoids, opiates, barbiturates, and methadone. G.S. was

not tested for fentanyl. She was hospitalized for one day and then released to

E.S.

During the ensuing Division investigation, E.S. admitted to having used

crack cocaine approximately two months earlier with a friend in New York and

driving with G.S. in the vehicle from New York to New Jersey while under the

influence. E.S. allowed the Division worker to observe her arms which the

worker noted had multiple open sores and reddened areas in different stages of

healing. E.S. agreed to complete a substance abuse evaluation and urine drug

screen. The Division's April 2021 investigation summary, written in response

to the April 28, 2021 incident, confirmed the allegations of "inadequate

supervision" and "risk of harm" to G.S., but found the allegation the "substance

abuse of caregiver threatens child" was not established.

On May 3, 2021, the Division received the results of E.S.'s drug screen

and confirmed she had tested positive for cocaine and opiates, and negative for

Subutex. Based on this information, the Division contacted Detective Robert

Koehler who reported that he would contact Morristown Medical Center for

A-1274-23 4 G.S.'s medical records. On the same day, the Division confirmed G.S.'s April

29, 2021 urine screens were negative for cocaine, benzodiazepines, barbiturates,

methadone, amphetamines, opiates, cannabis, and Subutex.

The Division interviewed E.S. on May 3, 2021, wherein she admitted to

using cocaine approximately two weeks earlier in New York with the person she

suspected was G.S.'s father, although she did not know his last name. The

Division worker next met with A.S., G.S.'s maternal grandmother, privately.

A.S. confirmed E.S. had relapsed in January 2021 but denied knowledge of any

other drug use since January leading to G.S.'s hospitalization.

The Division then implemented a safety protection plan with E.S.'s

consent, which required A.S. to move into the home and supervise all contact

between E.S. and G.S. The court granted the Division care and supervision of

G.S.; required E.S. have only supervised contact with G.S.; and ordered E.S. to

attend a drug and alcohol evaluation and cooperate with random urine screens.

The order also required E.S. stay in contact with the Division on a weekly basis

and notify them of any change of address or telephone number.

The following month, the Division was notified that E.S.'s May 21 and

May 28 urine screens tested positive for fentanyl. In the ensuing weeks, E.S.

tested positive for fentanyl, cocaine, heroin, and her prescribed methadone.

A-1274-23 5 According to the Division's records, E.S. also admitted to a relapse and sought

help in a walk-in detox facility in June 2021. The Division worker advised E.S.

that if she tested positive for fentanyl again, she would be recommended to

complete a higher level of care in a short-term inpatient facility. E.S. denied the

relapse. She eventually agreed to intensive outpatient treatment in July 2021

and later inpatient treatment at a Mommy and Me program.

At an August 11, 2021 scheduled visit, E.S. disclosed using illicit

substances that month to the Division worker. Later that month, the Division

received a medical consultation from Audrey Hepburn Children's Home

(AHCH) noting G.S.'s symptoms and reversal of her symptoms after Narcan

were consistent with an acute opioid ingestion. AHCH recommended E.S. be

referred to a drug treatment center and for a psychological evaluation.

At the end of September 2021, it was confirmed E.S. attended Morris

County Aftercare Center for methadone but was no longer attending the

outpatient program. At this time, E.S.'s urine screens continued to test positive

for methadone, fentanyl, and cocaine. On October 1, 2021, the Division filed

an amended complaint requesting an order granting the Division custody of G.S.

and directing E.S. "to engage in and complete" an inpatient program. The same

day, the court ordered: the Division assist E.S. in finding an inpatient program;

A-1274-23 6 the Division care, custody, and supervision of G.S., who would remain with

A.S.; and E.S. to have only supervised visitation with G.S.

The court held a fact-finding hearing on April 5, 2022. The Division first

called Division caseworker Urmene Remy as custodian of the records. During

the admittance of evidence, E.S. objected to the April 29, 2021 screening

summary as hearsay. The court dismissed the objection stating Rule 5:12-4

permits reports prepared by other Division personnel, under N.J.R.E. 803(c)(6)

and 801(d). The court admitted the summary, noting it "is clearly a business

record pursuant to [N.J.R.E.] 803(c)(6)" and furthermore, was not offered for

the truth of the matter asserted.

E.S. then objected to the portions of the April 29, 2021 investigation

summary referencing any interviews with family members, hospital staff, and

police, or drug tests. The court ruled the conversations were admissible non-

hearsay because they were offered not for the truth of the matter asserted but

"for what action [the Division] took based upon those conversation within [the]

investigation." Likewise, the court concluded references to the drug tests were

admissible for their effect on the Division's subsequent actions. The Division

next called caseworker Vanessa Medrano-Cortez who wrote the investigation

A-1274-23 7 summary. She first recounted the family's history with the Division and her

process conducting the Division investigation.

The Division presented its expert in pediatrics and child abuse or neglect

cases, Pediatric Nurse Practitioner Jennifer Romalin. Romalin recounted her

experience and practice treating pediatric patients. She concluded, according to

the records, G.S. had displayed signs of opioid ingestion, including pinpoint

pupils and decreased respiratory effort and consciousness, but experienced an

immediate reversal of those symptoms after she was administered Narcan.

Romalin concluded G.S. had ingested an opioid because her immediate response

to Narcan was consistent with acute opioid ingestion.

She opined Narcan does not have an effect on individuals who do not have

opioids in their systems. She also noted G.S.'s urine screen was negative for

Subutex, contrary to E.S.'s statement to police that G.S. had ingested Subutex.

Romalin concluded, despite the negative urine screen, G.S. had an acute opioid

ingestion for several reasons. First, "opiates in a urine drug screen only tests for

morphine and codeine, which are . . . naturally derived from opium." And, "[n]ot

every opioid . . . will test positive. [M]aybe it's to be tested separately . . . there

are other opioids that exist that would have to be tested separately." For

instance, fentanyl is a synthetic opioid that would not show positive on a typical

A-1274-23 8 urine screen and would need to be tested separately. Romalin reiterated, "based

on the fact that [G.S.] was administered Narcan, which caused a reversal of her

symptoms, she ingested an opioid. Specifically what opioid she ingested [,] I

cannot say because she was not tested for every opioid. She was . . . only tested

separately for [Subutex]." No other expert testimony was provided.

On May 16, 2022, the court found E.S. abused or neglected G.S. in an oral

opinion. Its determinations were based on the "unrefuted and unrebutted

Division record, including . . . the credible testimony of witnesses and the

evidential exhibits accepted." The court recounted the testimony and concluded

E.S. "failed to secure her medication . . . in a safe, reasonable, and responsible

manner." The court determined E.S. left her medication accessible to G.S., but

found this "single instance" of E.S.'s failure to secure her medication did not rise

to the level of wanton or gross negligence.

Nevertheless, E.S. displayed far more reckless, dangerous, and wanton

behavior when she smoked crack while caring for G.S. and operating a motor

vehicle. The court found "smoking crack while in a caretaking role with your

child is wanton and grossly negligent." The court also relied on E.S.'s positive

cocaine and opiate urine screens conducted two days after G.S.'s hospitalization

and the lack of any Subutex in her system to support its finding E.S. abused or

A-1274-23 9 neglected G.S. by a preponderance of the evidence. More than one year later,

the court terminated the litigation and awarded KLG to A.S.

At the November 14, 2023 KLG hearing, Division worker Tracey Doyle-

Leach testified that in October 2021, G.S. was removed from E.S.'s care. They

reunified briefly on June 10, 2022. However, weeks later, G.S. was removed

from E.S.'s care when E.S. left the inpatient program following an argument

with another resident in violation of the safety protection plan court order. G.S.

was placed in a licensed resource home where she remained.

Doyle-Leach testified although E.S. initially complied with Division

services and completed some drug treatment programs, she continued to test

positive and has not completed treatment. Doyle-Leach further testified that

E.S.'s substance abuse continues to present a risk of harm to G.S. and E.S.

planned to have A.S. become the caregiver through KLG, which the Division

agreed was in the best interest of G.S. Doyle-Leach noted that A.S. had been

the G.S.'s caregiver for "over a year, close to two years." At the conclusion of

her testimony, the court entered exhibits consisting of Division records,

including the KLG assessment, in evidence without objection.

A.S. testified she had been G.S.'s caretaker since October of 2021; she

understood the difference between KLG and adoption; agreed to serve as G.S.'s

A-1274-23 10 KLG, including the commitment to care for and support G.S. until she turns

eighteen, if necessary; she understood that the KLG means that E.S.'s parental

rights remain intact and that E.S. retains the right to visit G.S.; and that E.S.'s

visits must be supervised at all times. A.S. also confirmed she understood

violation of KLG could result in G.S.'s removal from her care.

At the conclusion of the testimony and admission into evidence of the

Division's records, the court made the following findings of fact and conclusions

of law. The court found the KLG assessment required under N.J.S.A. 3B:12A-

5(b) was marked into evidence and reviewed by the court. The court expressed

its agreement with the proposed KLG and stated the underlying purpose behind

the statute, which is "to ensure that youngsters have the ability to have a

connection with their kin, more and more we . . . hope to employ permanency

plans like this and it's really quite a blessing when you have kin . . . who is

willing to take on this role of kinship legal guardianship." The court concluded

the caregiver established over the last twelve months that she is fully capable

and willing to perform these services. E.S. had consented to the application and

the court expressed its satisfaction with the Division's diligent efforts to locate

the putative father, A.B. The court concluded by finding the proposed plan was

in the best interest of G.S. and that all of the requirements of N.J.S.A. 3B:12A-

A-1274-23 11 1 were met. The court entered the order granting A.S., KLG over G.S. This

appeal followed.

II.

"We accord 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 & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012). "[A] trial

court's factual findings 'should not be disturbed unless they are so wholly

unsupportable as to result in a denial of justice.'" N.J. Div. of Youth & Fam.

Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H.,

172 N.J. 440, 472 (2002)). We owe no deference to a judge's legal conclusions

which are reviewed de novo. N.J. Div. of Child Prot. & Permanency v. A.B.,

231 N.J. 354, 369 (2017).

In cases such as this, two parallel statutory schemes balance the competing

interests of "a parent's constitutionally protected right 'to raise a child and

maintain a relationship with that child, without undue interference by the state,'

and 'the State's parens patriae responsibility to protect the welfare of children.'"

N.J. Div. of Child Prot. & Permanency v. A.L., 213 N.J. 1, 17-18 (2013) (first

citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008); then

A-1274-23 12 citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). Title Nine

addresses "acts of abuse [or] neglect against a child." Id. at 18. Title Thirty

governs guardianship proceedings where the Division "seeks to terminate

parental rights." Ibid.

Under Title Nine, an "abused or neglected child" means a child less than

eighteen years of age whose parent or guardian:

(2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 . . . (b) 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 . . . .

[N.J.S.A. 9:6-8.21(c).]

The Division "bears the burden of proof at a fact-finding hearing and must

prove present or future harm to a child by a preponderance of the evidence."

A.L., 213 N.J. at 22 (citing N.J.S.A. 9:6-8.46(b)). Prima facie evidence that a

child has been abused or neglected includes: "proof of injuries sustained by a

A-1274-23 13 child or of the condition of a child of such nature as would ordinarily not be

sustained or exist except by reason of the acts or omissions of the parents or

guardian." N.J.S.A. 9:6-8.46(a)(2). Proofs must be evaluated based on the

totality of the circumstances "because the evidence can be synergistically

related." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011).

In the absence of actual harm, the Division may demonstrate abuse [or] neglect

based on "proof of imminent danger and substantial risk of harm." A.L., 213

N.J. at 23. "A court need not wait to act until a child is actually irreparably

impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161

N.J. 365, 383 (1999).

III.

E.S. argues the court erred in finding she violated N.J.S.A. 9:6-8.21(c)

because providing inadequate supervision of G.S. on April 28, 2021, did not

constitute grossly negligent or wanton conduct; her admissions to prior drug use

were not sufficient to make a finding that G.S. was at risk of harm; and the court

erred in relying on the State's expert's conclusions.

E.S.'s arguments, however, are belied by the record and ignore that the

court's opinion was based on evidence which "revealed far more reckless,

dangerous, and wanton behaviors by [E.S.] relatively soon in time to that

A-1274-23 14 medication event." The court first reasoned that failing to secure her medication

may not, on its own, constitute neglect, however, the medication event coupled

with E.S. driving under the influence while caring for G.S., is neglect. The court

explained "[n]ow this [c]ourt would frown upon looking at events that were

significantly attenuated in time from the situation at the time the Division acted,

but here, such is not the case," and "the occasion of [G.S.'s] exposure to harmful

substances as previously described is closely bracketed in time with [E.S.'s] own

illegal drug use and . . . two months prior to a wanton and grossly negligent act

of smoking crack and driving her child around." The court found, "by a

preponderance of the evidence that the cumulative behaviors of [E.S.] placed or

made [G.S.] a neglected or abused child, as defined in the law."

Having considered the evidence and finding the Division's expert and

witnesses credible, the court found E.S. had failed to secure her medication,

which led to G.S.'s ingestion of a narcotic, combined with E.S.'s admission that

she had smoked crack cocaine and then drove G.S. while under the influence

sufficient to conclude E.S. had abused or neglected G.S. We therefore reject

E.S.'s argument the court based its finding on insufficient evidence.

We further reject E.S.'s second argument the court did not have sufficient

support to determine she placed G.S. at risk of harm when she drove G.S. after

A-1274-23 15 using drugs. We note that admitted relapse and drug use "is not, standing alone,

sufficient to support a finding of abuse of neglect." N.J. Div. of Child Prot. &

Permanency v. S.W., 488 N.J. Super. 180, 190 (App. Div. 2017). However, we

are satisfied the court based its opinion on more than one prior instance of drug

use or relapse. Again, the court conducted a thorough review of the evidence,

including Division records, showing E.S. had repeatedly tested positive for

various narcotics and placed G.S. at risk of harm.

Lastly, we briefly address the court's entry of the November 14, 2023 KLG

order, which granted A.S. KLG.3 We note only that the court entered the order

following a hearing, which included the testimony of Division worker Doyle-

Leach and A.S. The court made its findings and conclusions and noted that the

order was entered with the consent of E.S.

In sum, applying the deferential standard of review accorded to Family

Part matters, we discern no error in the court's findings of fact and conclusions

of law determining E.S. abused or neglected G.S. To the extent that we have

not addressed defendant's remaining arguments, including defendant's

ineffective assistance of counsel claim, we find that they lack insufficient merit

3 We address this issue because E.S. listed the November 14, 2023 order on her notice of appeal. A-1274-23 16 to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1274-23 17