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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4795-14T1 A-4796-14T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.B. and T.L.,
Defendants-Appellants. _____________________________
IN THE MATTER OF T.B.,
Minor. _____________________________
Argued May 17, 2017 – Decided July 13, 2017
Before Judges Alvarez and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-298-13.
Steven E. Miklosey, Designated Counsel, argued the cause for appellant J.B. (Joseph E. Krakora, Public Defender, attorney; Mr. Miklosey, on the brief).
Andrew J. Shaw, Designated Counsel, argued the cause for appellant T.L. (Joseph E. Krakora, Public Defender, attorney; Mr. Shaw, on the brief). 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).
Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minor T.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, on the brief).
PER CURIAM
Defendants T.L. (Tina) and J.B. (Jim)1 appeal from an
October 31, 2013 order of the Family Part, now final, finding
they placed their infant daughter at substantial risk of harm by
regularly abusing drugs while she was in their care in violation
of N.J.S.A. 9:6-8.21c(4)(b).
Although the Law Guardian joined with the Division of Child
Protection and Permanency in urging the trial judge to find
defendants abused and neglected their daughter, a different
assistant deputy public defender serving as Law Guardian on
appeal has altered course and now joins with defendants in
urging us to reverse. Because we agree with the Division that
substantial credible evidence in the record supports the trial
1 We refer to defendant parents by fictitious names in order to protect the privacy of their daughter.
2 A-4795-14T1 judge's finding of neglect, we affirm, substantially for the
reasons expressed by Judge Foti in her clear and concise opinion
from the bench.
Only two witnesses testified at the fact-finding hearing,
the Division employee responsible for investigating the abuse
and neglect allegations and Dr. Hayman Rambaran, M.D., the
Director of the Addiction Treatment Unit of Bergen Regional
Medical Center.
The investigator testified, based on the screening summary
and her investigation report admitted in evidence, that the
Division received a referral on January 30, 2013, alleging
defendants were using heroin and pills on an almost daily basis
while caring for their infant daughter. The referent claimed
Jim was unemployed and had gone to rehab but was using again,
and that Tina had just been fired from her job. According to
the referent, the couple had twice been evicted for failure to
pay rent, were staying with a friend and taking the baby when
they went to buy drugs in Paterson and Newark.
Although the Division made repeated efforts to contact
defendants on the 30th, the investigator did not catch up with
them until the following day. She found them in the emergency
room of Bergen Regional attempting to enter a detox program.
Tina told the investigator they had signed over temporary
3 A-4795-14T1 custody of the baby, then eleven months old, to her sister while
they sought treatment. She also claimed she and Jim had been on
a waiting list for treatment "since last week."
Both Tina and Jim were cooperative with the Division and
freely admitted their drug use. Tina told the investigator she
had been using marijuana, cocaine "and pain killers called Roxy"
a few times a week for the last four to five months. She
claimed she did not use drugs while caring for her daughter, but
admitted they were likely still in her system when she was with
the baby. Tina also told the investigator she and Jim did not
use drugs together. Indeed, she claimed neither was aware of
"how much the other was using until recently," although she
acknowledged both she and Jim "had an idea that the other was
using drugs."
Jim told the investigator he had attended rehab for almost
six weeks in Florida at the end of the summer and had been
"clean" until December. He admitted he had been using Roxy for
two months, but denied daily use or that he was taking any other
drugs. Jim claimed to be responsible for watching the baby
"full time," and, like Tina, denied using drugs when the infant
was in his care. He told the investigator he used drugs when
Tina was with the baby, that the two "rarely use[d] together"
and "tend[ed] to do their own thing." The parties stipulated a
4 A-4795-14T1 Division supervisor would testify that Jim told her he had
attention deficit hyperactivity disorder and had had "a drug
problem for some time." According to the supervisor, Jim told
her he had been "using six to seven pills of Roxy, 30 milligrams
each and every day for the last few months."
The investigator testified she visited the baby and found
her appropriately dressed, playing and smiling and apparently
well cared for. A check with the baby's doctor revealed she had
been seen nine times in her eleven months, only once for a sick
visit, and was up to date with her immunizations.
Dr. Rambaran testified regarding Tina's and Jim's
participation in Bergen Regional's detox program, the drugs they
were using and the effect of those drugs at the level defendants
reported taking. The doctor explained the importance of getting
an accurate account from persons entering the detox program of
the drugs used, "how much they're using, [and] how often" in
order to "decide upon their treatment." He also explained that
people coming into the detox program are "in withdrawal, it
means the . . . drug is getting out of their system, and we're
seeing the signs of the lack of that substance which they are
accustomed to using."
The doctor related that Tina, who was then twenty-six years
old, reported using cocaine, marijuana and "Roxies," which he
5 A-4795-14T1 explained were synthetic opiates branded as Roxicet or
Roxicodone. According to the doctor, Tina reported she had been
taking 100 to 300 milligrams of Roxy a day for two years without
a prescription. He also testified that in addition to testing
positive for opiates and cocaine on admission, Tina also tested
positive for benzodiazepine, which she had not disclosed using.
Dr. Rambaran testified that Jim, then twenty-four, claimed
on entering the program that he had been using cocaine since he
was seventeen years old. He told Dr. Rambaran that he took 300
milligrams of Roxy a day, most recently the day before his
admission, and used two grams of cocaine every day. Jim's blood
test was consistent with that report.
On questioning from the court, Dr. Rambaran explained that
Roxicet or Roxicodone are derivatives of morphine and are
analgesics that cause euphoria. He testified that a person
taking 100 to 300 milligrams of Roxy a day would likely suffer
mental and physical impairment that would affect the
individual's judgment and reflexes. A person's reaction time
would slow and he or she would "get into the range" of risking
overdose, causing a depressing of their respiratory center. The
doctor also noted that combining an opiate, like Roxy, with a
stimulant like cocaine "definitely . . . becomes more complex
because of the receptors in the brain and how these work in
6 A-4795-14T1 different ways." In addition to the risk of overdose, the drugs
react synergistically, making the effect "difficult to
accurately predict." The doctor, however, noted it would
"definitely not [be] conducive to one having, you know, good
judgment and being able to act in a, you know, prudent manner."
After hearing that testimony and accepting the Division's
documents and the medical records in evidence, the court invited
argument. Counsel for each of defendants argued the only thing
the Division had proved was defendants' drug use, which both the
Supreme Court in New Jersey Department of Children & Families v.
A.L., 213 N.J. 7, 23 (2013), and this court in New Jersey
Division of Youth & Family Services v. V.T., 423 N.J. Super.
320, 330-31 (App. Div. 2011), had declared was "not enough" to
establish abuse and neglect. They claimed the Division
presented no proof that either parent was under the influence
while caring for their daughter. Defendants' counsel emphasized
the child was well-cared for, that neither parent ever admitted
using drugs when caring for her and that both parents had
already signed themselves into treatment and arranged for care
of the baby before the Division ever got involved in this
matter.
The Law Guardian argued the case was not about whether Tina
and Jim were "horrible parents," but whether "their actions,
7 A-4795-14T1 before the Division got involved, put their child at a
substantial risk of harm." Noting the doctor's testimony
regarding the danger of using cocaine and opiates, as both
parents admitted doing for, at least, several months prior to
the Division's involvement, the Law Guardian asserted "the risk
of harm was substantial." Focusing on the child, the Law
Guardian argued, "[j]udge, we're talking about an infant who is
not able to care for herself, dealing with the situation where
her parents' judgment is impaired by – based on the level of
drugs that were being used, and the combination of drugs that
are being used." Based on the evidence in the record, the Law
Guardian joined with the Division in asking that the court "make
a finding."
Relying on a then recent unpublished decision of this
court, the Division argued that "an ordinary reasonable person"
would understand the risks posed to an infant by her parents'
regular use of cocaine and opiates. Defendants' disregard of
that risk, and its potential serious consequences for their
child, could only mean they acted with reckless disregard for
her safety. Notwithstanding defendants' voluntary decision to
go into detox at the time of the referral, the Division
contended it had carried its burden to prove "this child was
placed at a substantial risk of harm based on the risks inherent
8 A-4795-14T1 in the parents' drug use for the extended period of time and the
levels that they were taking."
After weighing the evidence and the arguments of counsel,
Judge Foti entered an order finding defendants had neglected
their infant daughter. In a clear and comprehensive decision,
she summarized the critical testimony, identified the pertinent
law and explained its application to the facts as she found
them. Relying on G.S. v. Department of Human Services, 157 N.J.
161, 181-82 (1999), the judge noted "that whether a parent or
guardian has failed to exercise a minimum degree of care is to
be analyzed in light of the dangers and the risks associated
with the acts involved," here, drug use while responsible for
the care of an infant.
The judge distinguished both A.L. and V.T., relied upon by
defendants, on their facts. She deemed A.L. inapplicable
because, while that case involved a newborn, the issue was the
mother's use of cocaine during her pregnancy, not, as here,
while caring for the newborn. See 213 N.J. at 27-28. The judge
similarly found V.T. inapposite because there the father tested
positive for drugs during his supervised visitation of his
eleven-year-old daughter, not while he was alone responsible for
her care. See 423 N.J. Super. at 331. Judge Foti noted,
however, that in addition to the supervised setting, we also
9 A-4795-14T1 found the age of the child significant in V.T., observing that,
"[u]nlike with an infant, [the child] was not vulnerable during
[the supervised] visits to the slightest parental misstep."
Ibid.
Based on defendants' admissions regarding the amount and
type of drugs they had been using, Judge Foti found that at the
time of the referral both were abusing drugs and had been doing
so for a significant period of time. The judge continued:
They were drug addicted such that they entered a five-day detox program. They were abusing drugs at the time they were primary caretakers for an 11-month-old baby, and they admitted as such.
Being under the influence of drugs while acting in a caretaking role placed [their daughter] at substantial risk of harm. The mother and father were impaired. The doctor testified as to the effects of the drugs taken by the parents. There was a risk of overdose while caring for this young child. A person's judgment, movement, and reflexes are impaired. An impaired parent caring . . . for a child, especially in this case, a young child, places this child at risk of harm.
Under the circumstances where an ordinary and reasonable person would understand that the situation poses risks, but nonetheless acts without regard for the potentially serious consequences, that person acts – that parent acts with reckless disregard for the safety of his, her young child.
10 A-4795-14T1 The Division has met its burden. The facts and law support a finding in this matter. The court finds that by virtue of their drug abuse while acting in a caretaking role, this amounted to gross negligence. The parents placed their child at substantial risk of harm, and I will make that finding.
Defendants reprise the arguments they made to the trial
court, now joined by the Law Guardian on appeal, that there was
insufficient evidence to support a finding of abuse and neglect.
We disagree.
Title 9 defines an "abused or neglected child" as including
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 (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, 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. 9:6-8.21c(4).]
In G.S., the Court explained that "a minimum degree of
care" denoted
11 A-4795-14T1 a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton.
[157 N.J. at 178.]
Willful or wanton conduct includes those actions "done with the
knowledge that injury is likely to, or probably will, result."
Ibid. "Essentially, the concept of willful and wanton
misconduct implies that a person has acted with reckless
disregard for the safety of others." Id. at 179. The Court
likewise held that "[b]ecause risks that are recklessly incurred
are not considered unforeseen perils or accidents in the eyes of
the law, actions taken with reckless disregard for the
consequences also may be wanton or willful." Id. at 178.
Although the Court in G.S. noted the difference between
negligence and willful and wanton conduct cannot be clearly
delineated in all cases, it made clear that
[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Thus, under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.
12 A-4795-14T1 [Id. at 179.]
Accordingly, the Court held that
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.]
Having reviewed the record, we find no error in the judge's
finding that defendants' admitted use of cocaine and Roxy, on a
daily basis while they were the sole caretakers of their infant
daughter, was grossly negligent or reckless conduct that put
their child in imminent danger of a substantial risk of harm,
thus constituting neglect under the statute. While it is by now
axiomatic that a parent's drug use, without more, will not
establish abuse or neglect, A.L., supra, 213 N.J. at 24, we
agree with Judge Foti that maxim does not insulate these parents
from a neglect finding.
When our appellate courts have refused to find abuse or
neglect stemming from a parent's drug use, it is because the
Division has failed to establish the extent of the use or its
effect on the parent, thus making it impossible to accurately
assess the risk to the child, see e.g., id. at 27-28; N.J. Div.
of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470
13 A-4795-14T1 (App. Div. 2014), or because the child's age or the presence of
other caretakers made clear the parent's drug use posed no
substantial risk to the child, see V.T., supra, 423 N.J. Super.
at 331-32. In such cases, the Court has admonished trial courts
not to fill in the gaps by assuming all parental drug use puts
all children at risk. See A.L., supra, 213 N.J. at 28 ("Judges
at the trial and appellate level cannot fill in missing
information on their own or take judicial notice of harm.").
We have never held that daily use of opiates and cocaine
while responsible for an infant is not grounds for neglect.
Indeed, we have observed that "[p]arents who use illegal drugs
when caring for an infant expose that baby to many dangers due
to their impaired judgment." N.J. Div. of Child Prot. &
Permanency v. B.O., 438 N.J. Super. 373, 385 (App. Div. 2014).
The trial court did not need to fill any gaps in the proofs
here. Defendants admitted the nature and extent of their daily
drug use, and the physician directing the detox program they
entered voluntarily explained how use at those levels would slow
their reflexes and impair their judgment.2
2 We reject defendants' argument that the court improperly admitted the Division's documents because based on hearsay and Dr. Rambaran's testimony because the Division did not produce a report containing his opinions prior to the fact-finding hearing. Judge Foti admitted the Division's screening summary (continued)
14 A-4795-14T1 Defendants' argument that they only used illegal drugs when
the baby was in the other's care is undercut by Tina's statement
that neither parent was even aware of the extent of the other's
drug use, although both suspected the other was using. A parent
who in order to use illegal drugs, leaves his or her infant in
the care of the other parent, whom the drug abusing parent
suspects is also using drugs, practically defines a failure to
exercise a minimum degree of care. It certainly cannot be
termed a reasonable plan for the safe care of one's eleven-
(continued) and investigative report pursuant to Rule 5:12-4 and rejected defendants' objection to Dr. Rambaran's testimony at an N.J.R.E. 104 hearing. As is clear from the court's opinion, the only statements the judge relied on in the Division's documents and the Bergen Regional medical records, which were admitted without objection, were the properly admitted party admissions of defendants. See N.J.R.E. 803(b) (party admissions) and 803(c)(4) (statements made for purpose of medical diagnosis or treatment). The Division identified Dr. Rambaran as a witness a month before the fact-finding hearing and advised defendants it was seeking a finding pursuant to N.J.S.A. 9:6-8.21, based on "their use of non-prescription drugs while in a caretaking role." The doctor was a fact witness having expertise in the area of drug addiction and treatment. Given the non-technical nature of the opinions he expressed regarding the impairments defendants would suffer while under the influence of the substances they admitted taking, we cannot find the court abused its discretion in admitting the doctor's testimony notwithstanding the Division's failure to provide defendants with a report of his opinions. See Clark v. Fog Contracting Co., 125 N.J. Super. 159, 162 (App. Div.), certif. denied, 64 N.J. 319 (1973). Given the circumstances, we cannot find defendants could have been surprised by the doctor's testimony. See State v. LaBrutto, 114 N.J. 187, 205-06 (1989).
15 A-4795-14T1 month-old baby. We are satisfied based on the properly admitted
evidence in the record that the trial judge did not abuse her
discretion in finding that defendants' daily use of Roxy and
cocaine for many months prior to the Division's involvement
amounted to neglect of their infant.
Although not critical to the outcome here, we cannot close
without commenting on the Law Guardian's new position in this
appeal. As we have noted, the Law Guardian, after having urged
the trial judge to find defendants abused and neglected their
infant daughter, abandoned that position and urged us to reverse
the very finding it urged the trial court to make. This was
done without advising us in its brief of the change in position,
much less explaining why it was deemed necessary.
We addressed the question with the assistant deputy public
defender at oral argument and raised the question of whether we
should not reject the Law Guardian's change of heart as invited
error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 340 (2010) (explaining that "'[t]he 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))). In a letter post-
16 A-4795-14T1 argument, the Law Guardian contends the doctrine is inapplicable
here because it did not appeal. Although there may well be
sound reasons for not applying the doctrine of invited error
against the Law Guardian given its institutional role in abuse
and neglect matters, the one proffered is likely not among them.3
We need not decide the issue. We raise it, however,
precisely because of the Law Guardian's important institutional
role in these cases. See N.J.S.A. 9:6-8.23a; In re Maraziti,
233 N.J. Super. 488, 493, 499-500 (App. Div. 1989). We accept
there may be good reason for the Law Guardian to advocate a
different position on appeal than the one it advocated in the
trial court. But we think it plain that the Law Guardian's
institutional role precludes a switch in position because
appellate counsel for the child views the facts differently from
trial counsel in a close case, for example. If there is not
guidance for when a deputy may alter course on appeal, perhaps
there should be. At a minimum, the court should always be
3 We likewise are not persuaded by the other two reasons proffered by the Law Guardian, candor to the tribunal and Administrative Directive #06-12, "Revision to the Appellate Division's Administrative Protocol for Termination of Parental Rights Appeals" (July 11, 2012), http://www.judiciary.state. nj.us/notices/2012/n120725a.pdf, which addresses the briefing schedule in circumstances where the Law Guardian takes a position different from the co-respondent. Again, we do not address these arguments in light of our disposition of the appeal.
17 A-4795-14T1 alerted and the Law Guardian's reasons for the change in its
position must be fully briefed.
Because there is substantial credible evidence in the
record to support the finding of neglect here, we affirm,
substantially for the reasons expressed by Judge Foti in her
clear and concise opinion from the bench on October 31, 2013.
Defendants' and the Law Guardian's remaining arguments, to the
extent we have not addressed them, lack sufficient merit to
warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E).
Affirmed.
18 A-4795-14T1