DCPP VS. C.S. AND W.S., IN THE MATTER OF I.S. (FN-12-0234-15, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 4, 2019
• Docket: A-2185-17T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2185-17T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.S.

Defendant-Appellant/ Cross-Respondent,

and

W.S.,

Defendant-Respondent/ Cross-Appellant. ____________________________

IN THE MATTER OF I.S.,

a Minor. ____________________________

Submitted March 6, 2019 – Decided April 4, 2019

Before Judges Koblitz, Currier and Mayer. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FN-12-0234-15.

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Kevin G. Byrnes, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Arthur D. Malkin, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christina A. Duclos, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David B. Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.S.1 appeals from a March 22, 2016 order, finding her guilty

of child abuse or neglect, N.J.S.A. 9:6-8.21(c), after a six-day plenary hearing.

The family court's finding stemmed from an incident where C.S.'s then-six-year-

old daughter, I.S., ate a tube of maximum strength Orajel, a toothache pain

reliever, which has the active ingredient benzocaine, and went into cardiac

arrest. C.S. performed Cardiopulmonary Resuscitation (CPR) while her adult

1 We use initials to maintain confidentiality. R. 1:38-3(d)(12). A-2185-17T1 2 daughter called 9-1-1. The child was not able to breathe on her own until she

reached the hospital. After reviewing the record in light of the contentions

advanced on appeal, we affirm.

C.S. argues that because she did not intentionally cause I.S. to eat the

Orajel, she did not abuse or neglect I.S. The family court found that C.S. failed

to exercise a minimum degree of care, based on the condition of C.S.'s home,

her prior awareness that I.S. ate non-food items, and her decision to keep Xanax

and Orajel in a cabinet accessible to I.S. C.S. also recklessly disregarded I.S.'s

safety by allowing her home to fall into a deplorable condition. Division of

Child Protection and Permanency (Division) caseworkers testified that the home

smelled of body odor, urine, and cigarette smoke. Clutter was everywhere,

stacked five-feet high; dirty dishes were in the sink; the floors were sticky;

stagnant dark water had filled the bathtub and toilet; cigarette butts were found

in a child's playhouse; and flies were everywhere. An empty maximum-strength

tube of Orajel was found by I.S.'s bed.

I.S.'s father, defendant W.S., appeals from the family court's December 6,

2017 order terminating the abuse or neglect litigation and returning I.S. to the

legal custody of both parents and primary physical custody of her mother, at the

request of the Division. We affirm.

A-2185-17T1 3 The Division, the law guardian, and C.S. all agreed to terminate the

litigation because I.S. had been safely returned to her mother's custody. W.S.

argues that the family court erred in dismissing the matter without considering

his pro se motions for parenting time and custody. At the termination hearing,

the family court spoke extensively with W.S., explaining that in the future W.S.

could bring motions for visitation and custody under the domestic violence

docket number.

At the beginning of this litigation, W.S. had not been in contact with then-

six-year-old I.S. for the preceding three years. He contested paternity, and I.S.

did not know he was her father. W.S. stated on the record that he was filing

motions "to punish" C.S. The family court initially told W.S. he could not have

visitation with I.S. until he took a paternity test. W.S. refused to take the

paternity test for over one year. W.S. also resisted a psychological evaluation.

After W.S. was determined to be I.S.'s father, the family court granted W.S.

supervised parenting time, even when I.S. later stated she did not want to see

W.S.

As a result of deplorable conditions in the home, the Division first

removed I.S. in 2010, returned the child to her mother in 2011, removed her

again later in 2011, and returned her in 2012. When the Division filed its

A-2185-17T1 4 complaint for custody of I.S. on March 22, 2015, a final restraining order was

in place between C.S. and W.S.

During the early hours of March 22, 2015, Division caseworker Rita Pardo

reported to the Robert Wood Johnson Hospital where I.S. was in the Pedi atric

Intensive Care Unit. C.S. told Pardo that she and I.S. usually slept in separate

beds in one room. That night, I.S. had asked C.S. if she could sleep with her

because she was cold. C.S. woke to I.S. vomiting in the bed. When C.S. saw

that I.S. was struggling to breathe, she told her adult daughter to call 9-1-1 while

C.S. administered CPR. Emergency Medical Technicians spent approximately

thirty minutes stabilizing I.S. The child began breathing on her own when she

arrived at the hospital. I.S. was ultimately diagnosed with respiratory failure

and severe methemoglobinemia 2 due to Orajel ingestion.

C.S. reported that toiletries were kept in a hall cabinet that was accessible

to I.S. C.S. believed I.S. took the Orajel after C.S. and her adult daughter fell

asleep. C.S. also reported that I.S. was "mischievous" and a "handful." She

stated that I.S. "wander[ed] the house" and, in the past, had clogged the bathtub

2 The Division's expert, Dr. Gladibel Medina, testified that this condition affects the body's ability to access oxygen, akin "to not breathing at all." The child required intubation. A-2185-17T1 5 and sprayed shaving cream in the bathroom after C.S. fell asleep. C.S. also

acknowledged that I.S. had previously tried to eat toothpaste.

I.S. was treated in the hospital with medication and blood transfusions.

C.S. told hospital staff that I.S. had a history of exploring the house and chewing

or eating objects like erasers and crayons, though there was never a formal

diagnosis of pica, the ingestion of non-food items. During her hospital stay,

"foreign bodies" were found in I.S.'s stool, which C.S. attributed to I.S.'s habit

of chewing on "whatever she [could] find."

Pardo conducted a home inspection, finding "deplorable" conditions.3

The Division took custody of I.S., who said she "swallowed the stuff that numbs

your teeth while her mom was sleeping," the house was messy, the flies used to

be her friends, and she did not bathe often.

Dr. Medina testified as the Division's expert in pediatrics and child abuse

pediatrics. Dr. Medina testified that I.S.'s ingestion of benzocaine, the active

ingredient in Orajel, would have been lethal without medical intervention, and

this injury to the child was preventable. Dr. Medina's opinion was based on the

following: (1) C.S. knew I.S. wandered around the house when C.S. fell asleep;

3 Photographs from the home inspection were admitted into evidence and considered by the family court. A-2185-17T1 6 (2) C.S. described I.S. as mischievous and a handful; (3) C.S. told hospital staff

that I.S. ate non-food items like erasers and pencils; and (4) in Dr. Medina's

opinion, potentially dangerous items should not have been within six-year-old

I.S.'s reach.

Dr. Zhongxue Hua testified as C.S.'s expert in pathology and toxicology.

Dr. Hua opined that the incident was an accident, and he did not agree that it

was preventable. The family court ultimately found Dr. Hua less credible and

persuasive than Dr. Medina because Dr. Medina appeared more familiar with

the case records.

The family court noted the facts were not in dispute because C.S. did not

testify. The family court found the Division proved, by a preponderance of the

evidence, that C.S. failed to exercise a minimum degree of care in two respects:

by creating an unhealthy living environment and providing inadequate

supervision. The court found that "[I.S.] suffered harm as the result of [C.S.'s]

failure to exercise a minimum degree of care. Her conduct was grossly negligent

in allowing this home to get to the point that this [c]ourt finds is unsanitary and

deplorable and unsafe."

On December 6, 2017, the Division moved to terminate the litigation

because "no child safety concerns" remained. C.S. had custody before the abuse

A-2185-17T1 7 or neglect case began and custody was returned to her. The Division noted that

although I.S. stated she did not wish to see her father, the Division would

"administratively" establish "some type of family counseling" and supervised

visitation would continue. The law guardian and C.S. both agreed to termination

of the litigation.

I. Fact-finding

We defer to the family court's factual findings in an abuse or neglect

proceeding because the family court "has the opportunity to make first -hand

credibility judgments about the witnesses who appear on the stand; it 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. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

We must also defer to the family court's credibility determinations.

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We generally defer to a family

court's decision unless it "went so wide of the mark that a mistake must have

made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)

(quoting C.B. Snyder Realty, Inc. v. BMW of North America, Inc., 233 N.J.

Super. 65, 69 (1989)).

A child under eighteen years old is abused or neglected if that child's

A-2185-17T1 8 physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm ....

[N.J.S.A. 9:6-8.21(c)(4).]

In an abuse or neglect proceeding, the question of "[w]hether a parent exercised

a minimum degree of care must 'be analyzed in light of the dangers and risks

associated with the situation.'" N.J. Div. of Child Prot. & Permanency v. Y.N.,

220 N.J. 165, 184 (2014) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161,

181-82 (1999)).

Our Supreme Court has found that the minimum degree of care standard

"refers to conduct that is grossly or wantonly negligent, but not necessarily

intentional." G.S., 157 N.J. at 178. A parent 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." Ibid. at 181. We defer to the family court's detailed findings, well-

supported by the record, substantiating neglect.

A-2185-17T1 9 C.S. argues that an expert opinion as to whether the harm to the child was

foreseeable, and therefore preventable, exceeds the scope of the witness's

expertise. The court listened to opposing experts on this topic. C.S. presented

her defense expert's opinion that the harm was not foreseeable, and therefore not

preventable. Her belated objection, for the first time on appeal, after her expert

lost the credibility contest between the opposing experts, constitutes invited

error. M.C. III, 201 N.J. at 340 ("The doctrine of invited error operates to bar a

disappointed litigant from arguing on appeal that an adverse decision below was

the product of error, when that party urged the lower court to adopt the

proposition now alleged to be error.") (quoting Brett v. Great Am. Recreation,

144 N.J. 479, 503 (1996)).

II. Dismissal of Litigation.

We review a family court's legal conclusions in an abuse or neglect case

de novo. N.J. Div. of Child Prot. & Permanency v. A.D., 455 N.J. Super. 144,

156 (App. Div. 2018). After the family court concludes that a child is abused

or neglected, it must hold a dispositional hearing. N.J. Div. of Youth & Family

Servs. v. T.S., 426 N.J. Super. 54, 63 (App. Div. 2012). During the abuse or

neglect fact-finding hearing, "only competent, material and relevant evidence

may be admitted." N.J.S.A. 9:6-8.46(b)(2). During the dispositional hearing,

A-2185-17T1 10 however, "material and relevant evidence may be admitted," even if not

competent. N.J.S.A. 9:6-8.46(c).

Our Supreme Court has held that "the statutory framework of Title Nine

provides that upon a finding of abuse and neglect, the offending parent or

guardian is entitled to a dispositional hearing to determine whether the children

may safely return to his or her custody, and if not, what the proper disposition

should be." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88

(2009). "At the dispositional hearing, both sides may present material and

relevant evidence for the court to determine whether the children may safely be

released to the custody of their mother, who was responsible for their care at the

time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6 –

8.51, some other disposition is appropriate." Id. at 402. Here, I.S. was returned

to her caretaker.

The family court sufficiently addressed W.S.'s motions. W.S. delayed

more than a year before taking the ordered paternity test. His psychological

evaluation found significant concerns concerning his impulse control and

violent behavior. He had only recently begun to engage in therapy. The court

returned joint legal custody to both parents and continued W.S.'s supervised

parenting time. W.S. chose to litigate without an attorney for most of this

A-2185-17T1 11 matter. He may continue to do so and present his motions in the domestic

violence docket.

The family court addressed this family's issues in a fact-based and

sensitive manner. The court's findings were thorough and based on substantial

evidence in the record. It rendered a detailed oral opinion finding abuse or

neglect. Similarly, the family court detailed on the record why it was

terminating the litigation despite W.S.'s objection. We affirm substantially for

the reasons expressed by the family court.

Affirmed.

A-2185-17T1 12