DCPP VS. J.J. AND A.C.IN THE MATTER OF J.J. AND N.J.(FN-02-0215-14, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 17, 2017
• Docket: A-0583-15T2/A-0584-15T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0583-15T2 A-0584-15T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.J. and A.C.,

Defendants-Appellants. ___________________________

IN THE MATTER OF J.J. and N.J., minors. ___________________________

Argued October 11, 2017 – Decided November 17, 2017

Before Judges Gilson and Mayer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0215-14.

David A. Gies, Designated Counsel, argued the cause for appellant J.J. (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the brief).

Susan M. Markenstein, Designated Counsel, argued the cause for appellant A.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Markenstein, on the brief). Julie B. Colonna, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Colonna, on the brief).

Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).

PER CURIAM

A mother and father appeal from an August 12, 2014 order

finding that they abused or neglected their two young children by

exposing them to a substantial risk of harm resulting from the

ongoing domestic violence between the parents, the father's

substance abuse, and the parents' violations of a child safety

protection plan and court order. We affirm because the findings

of abuse or neglect were supported by substantial credible

evidence.

I.

A.C. (Alice),1 the mother, and J.J. (James), the father, are

the parents of two children: J.J., Jr. (Jake), born in September

2010, and N.J. (Nora), born in September 2011. The family has an

extensive history with the Division of Child Protection and

Permanency (Division). The abuse or neglect findings in this case

1 To protect privacy interests and for ease of reading, we use initials and fictitious names for the parents and child. See R. 1:38-3(d)(12).

2 A-0583-15T2 focused on the two young children, who were three and two years

old in 2014 when the abuse or neglect occurred.

In January 2014, the Division received a referral regarding

a domestic dispute between Alice and James. Each of the parents

had consumed a forty-ounce container of beer and, thereafter, they

got into an argument, which turned physical. During that

altercation, Alice bit James on both his arms. As a result, Alice

was arrested.

An ensuing investigation revealed that the parents had a

history of domestic violence. At the time of the incident in

January 2014, James was on probation for an aggravated assault of

Alice and he admitted that he had assaulted her on another

occasion. Certified police records revealed ten investigations

of the parents, most of which involved domestic violence. The

children were reportedly present during some of those domestic

violence incidents. Those police reports also revealed that Alice

reported that James repeatedly hit her and punched her in the

face. In January 2014, Alice told a Division worker that she

understood that her children could be harmed by growing up in a

home with domestic violence.

During its investigation, the Division also learned that

James had a history of crack cocaine abuse. Alice acknowledged

that she was aware of James's substance abuse. Nevertheless, she

3 A-0583-15T2 informed the Division that she left James as the sole caretaker

of the children when she went to work.

In February 2014, James tested positive for cocaine and

ultimately admitted to using cocaine. Thereafter, the Division

implemented a safety protection plan under which James's contact

with the children was to be supervised by his grandmother. Both

Alice and James signed the safety plan.

After the safety plan was put in place, the Family court

entered an order enforcing the plan. The court order also

prohibited James and Alice from being in the same place at the

same time with the children, and provided that James could not be

in Alice's home with the children except when Alice is not present

and James's grandmother was present.

Alice and James were found to be in violation of the safety

plan and court order twice. On February 27, 2014, the owner and

manager of a bar below Alice's apartment reported that he found

James in the apartment with Alice and the children. A responding

police officer reported that there was only one bed in the

apartment, and the officer believed that the parents had been

sleeping in the same bed with the children.

Alice and James violated the safety plan and order again on

March 6, 2014. Alice admitted that James had been in her home

where the children reside without supervision by his grandmother.

4 A-0583-15T2 Simultaneous with these incidents, James reported to the

Division that he was in full relapse, had been discharged from his

treatment program, and could not control his substance abuse.

James was, thereafter, admitted into an inpatient treatment

program for several weeks. While in treatment, James was diagnosed

with cocaine and alcohol dependency, depressive disorder, and

hypertension. James's attending physician from the program

testified that James had a high probability of relapsing because

he lacked coping skills and he was in a poor environment for

recovery.

In May 2014, after James completed the inpatient program, a

police officer responded to a report of a man wandering in the

middle of an intersection. The officer identified the man as

James and testified that he appeared to be highly intoxicated and

could not explain why or what he was doing in the middle of the

street.

In response to the parents' violations of the safety plan and

court order, and James's continued substance abuse, in late March

2014, the Division removed the children from their parents' care

and applied for custody of the children. The court granted that

application after finding that the parents had violated the safety

plan and order. The court also directed both parents to attend

substance abuse evaluations and domestic violence counseling.

5 A-0583-15T2 A fact-finding hearing was conducted on June 10, 2014. The

Division presented testimony from six witnesses and entered a

number of documents into evidence. Neither Alice nor James

testified at the hearing, and they did not present any witnesses

on their own behalf. Following the hearing, the Family judge

issued an order and written decision on August 12, 2014, finding

that the Division had proven by a preponderance of the evidence

that both parents had abused or neglected the two children.

The judge found the witnesses who testified on behalf of the

Division to be credible. Relying on the testimony of the witnesses

and the facts established in the documents submitted into evidence,

the judge found that the parents had a history of "severe domestic

violence, including a number of physical assaults causing injury."

The judge also found that the children were present during some

of the domestic violence incidents.

In addition, the Family judge found that James had a

significant and ongoing substance abuse problem. The court also

found that Alice was aware of James's substance abuse problems,

but left him as the primary caregiver of their two young children

on a regular basis. The judge then found that James's role as

primary caretaker, while he was suffering from ongoing substance

abuse problems, created a substantial risk of harm to the young

children.

6 A-0583-15T2 Turning to the issue of whether the children were exposed to

a risk of harm, the judge found that the extensive domestic

violence between the parents, James's substance abuse, and the

violations of the safety plan and court order placed the children

at a substantial risk of harm. In that regard, the trial court

found that both parents knowingly and willfully violated the safety

plan and court order.

After finding that the parents abused or neglected their

children, the court held several compliance hearings. In July

2015, the court entered an order approving the Division's

permanency plan of termination of parental rights. Accordingly,

the Title 9 action was terminated, and the Division filed a Title

30 action for guardianship and termination of parental rights. At

oral argument, counsel informed us that, thereafter, the Division

returned custody of the two children to Alice.

II.

Both parents now appeal from the order finding that they

abused or neglected their two children. The appeals were

consolidated. Alice argues that she did not abuse or neglect her

children and she contends that James's substance abuse did not

support a finding of abuse or neglect. Alice also argues that

there was insufficient evidence for the court to find that the

7 A-0583-15T2 domestic violence between the parties placed the children in

imminent danger or created a substantial risk of harm.

James presents two arguments for our consideration. First,

he contends that the court erred when it found that the burden of

persuasion shifted to the parents to show that they did not abuse

or neglect the children. Second, he argues that the trial court

erred when it found that the children were in imminent danger of

harm due to his substance abuse when there was no expert testimony

supporting such a conclusion. Having reviewed these arguments in

light of the record, we affirm the August 12, 2014 order finding

that both parents abused or neglected their two young children.

The scope of our review in an appeal from an order finding

abuse or neglect is limited. N.J. Div. of Child Prot. & Permanency

v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold

the trial judge's factual findings and credibility determinations

if they are supported by adequate, substantial, and credible

evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 605 (2007). Accordingly, we will only overturn the judge's

findings if they "went so wide of the mark that the judge was

clearly mistaken." Ibid.

We do not, however, give "special deference" to the trial

court's interpretation of the law. D.W. v. R.W., 212 N.J. 232,

245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202

8 A-0583-15T2 N.J. 145, 183 (2010)). Consequently, we apply a de novo standard

of review to legal issues. D.W., supra, 212 N.J. at 245-46.

The adjudication of abuse or neglect is governed by Title 9,

which is designed to protect children. N.J.S.A. 9:6-8.21 to -

8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or

neglected if:

[a] parent or guardian . . . 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 disfigurement, or protracted loss or impairment of the function of any bodily organ . . . 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 . . . to exercise a minimum degree of care . . . 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)(2) and (c)(4)(b).]

The statute does not require that the child experience actual

harm. N.J.S.A. 9:6-8.21(c)(4)(b). A child is abused or neglected

if his or her physical, mental, or emotional condition has been

impaired or is in imminent danger of becoming impaired. N.J.S.A.

9:6-8.21(c)(4)(b). In cases where there is an absence of actual

harm, but there exists a substantial risk of harm or imminent

danger, the court must consider whether the parent exercised a

9 A-0583-15T2 minimum degree of care under the circumstances. G.S. v. Dep't of

Human Servs., 157 N.J. 161, 171 (1999).

In G.S., the New Jersey Supreme Court explained that failure

to exercise a "minimum degree of care" refers to "conduct that is

grossly or wantonly negligent, but not necessarily intentional."

Id. at 178. "Conduct is considered willful or wanton if done with

the knowledge that injury is likely to, or probably will, result."

Ibid. A parent fails to exercise a minimum degree of care if,

despite being "aware of the dangers inherent in a situation," the

parent "fails adequately to supervise the child or recklessly

creates a risk of serious injury to that child." Id. at 181.

The Division must prove by a preponderance of competent,

material, and relevant evidence that a child is abused or

neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires

the Division to demonstrate a probability of present or future

harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.

13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

Title 9 cases are fact-sensitive, and the court should base its

findings on the totality of circumstances. N.J. Div. of Youth &

Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).

The issues raised by Alice and James on appeal can be

distilled into two arguments. First, they both allege that there

was not enough evidence to support a finding of abuse or neglect.

10 A-0583-15T2 In particular, Alice and James contend that James's substance

abuse did not pose a risk of harm to the children. They also

argue that there was no evidence to support the trial court's

finding that their ongoing domestic violence exposed the children

to a substantial risk or imminent danger.

Second, James challenges the trial court's application of a

burden-shifting analysis to find abuse or neglect. He argues that

the trial court erred as a matter of law when it shifted the burden

of persuasion to him and Alice to rebut the presumption of abuse

or neglect.

We are not persuaded by either of these arguments. We will

analyze them in turn.

A. The Substantial Evidence

Alice and James argue that the trial court erred in finding

that there was sufficient evidence to show that their ongoing

domestic violence, James's substance abuse, and their violations

of the safety plan and order actually exposed their children to a

substantial risk of harm or imminent danger.

The trial court found that there was a lengthy history of

domestic violence between James and Alice. The court also found

that the children were present during some of those domestic

violence incidents. Finally, the court found that both parents

were aware that exposing their children to domestic violence

11 A-0583-15T2 created a substantial risk of harm to the children. Alice

acknowledged that potential harm to the Division in January 2014.

Alice and James also both signed the safety plan, which

demonstrates that they were aware that there was a risk to the

children. All of those findings are supported by substantial

credible evidence in the record.

The trial court also found that James had a substantial and

ongoing substance abuse problem. Alice acknowledged that James

had that problem. The court then found that despite both parents'

knowledge of the potential for harm, James was often left as the

primary caregiver to the children. Here again, the court relied

on the safety plan and court order. The safety plan and order do

not in and of themselves establish the harm to the children.

Instead, they establish that the parents were aware that leaving

James with the children posed a substantial risk of harm. Again,

all of those findings by the court were supported by substantial

credible evidence.

B. The Burden Shifting

As already noted, James contends that the trial court erred

by shifting the burden of persuasion to the parents to rebut a

presumption of abuse or neglect. We reject this argument for two

reasons. First, we do not read the trial court's decision as

shifting the burden of persuasion to the parents. Instead, as

12 A-0583-15T2 already analyzed, the trial court found that the Division had

established by a preponderance of the evidence that the children

were exposed to a substantial risk of imminent harm due to the

parents' ongoing domestic violence, James's substance abuse, and

their violation of the safety plan and order. Those findings were

made without shifting any burden.

Second, while the court made reference to shifting the burden,

read in context, it is clear that the court was discussing the

parents' decision not to present any evidence at the fact-finding

hearing. At oral argument before us, all counsel agreed that the

burden should not shift in this case. We agree with that

conclusion. Thus, while the trial court's discussion of burden

shifting may arguably have created some confusion, the trial

court's decision was based on findings supported by substantial

credible evidence presented by the Division.

The trial court's decision was also supported by well-

established law. In that regard, our Supreme Court has held: "A

parent fails to exercise a minimum degree of care if he [or she]

is aware of the danger inherent in a situation and fails to

adequately supervise the child or recklessly creates a risk of

serious injury to that child." G.S., supra, 157 N.J. at 181. See

also Dep't of Children & Families, Div. of Youth & Family Servs.

v. T.B., 207 N.J. 294, 306-07 (2011) ("Indeed, where a parent or

13 A-0583-15T2 guardian acts in a grossly negligent or reckless manner, that

deviation from the standard of care may support an inference that

the child is subject to future danger.").

Here, as we have noted, the children faced two dangers: (1)

exposure to ongoing domestic violence between their parents, and

(2) being left in the care of James who had a substance abuse

problem with substantial risk of relapse. The record supports the

trial court's finding that both parents were aware that James

needed supervision when he was with the children. Both parents

were also aware that allowing James to care for the children

without supervision exposed the children to a substantial risk of

harm. Accordingly, the burden of persuasion did not shift to the

parents. Instead, both parents recognized the domestic violence

and substance abuse problems, and their knowledge of the risk of

harm posed to the children was reflected in the safety plan, as

well as the court order. Thereafter, despite knowing of the risks,

the parents allowed James to be present with the children

unsupervised.

Affirmed.

14 A-0583-15T2