DCPP VS. K.G. AND M.A., IN THE MATTER OF L.A. AND M.A. (FN-09-0127-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 15, 2019
• Docket: A-5298-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5298-17T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.G.,1

Defendant-Appellant,

and

M.A.,

Defendant. _______________________________

IN THE MATTER OF L.A. and M.A.,

Minors. _______________________________

Submitted November 7, 2019 – Decided November 15, 2019

1 We use initials and pseudonyms to protect the parties' confidentiality and privacy interests in accordance with Rule 1:38-3(d)(12). Before Judges Haas and Mayer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0127-17.

Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Jessica Faustin, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.G. appeals from a May 16, 2017 fact-finding order

determining she abused and neglected her minor children, L.A. (Lisa), born

October 21, 2008, and M.A. (Mark), born June 13, 2014. We affirm.

The facts are as follows. On January 10, 2017, the police were called to

defendant's residence because of an incident involving defendant and M.A.

(Matt). Thirty to forty-five minutes later, the police again were dispatched to

defendant's home. Defendant's mother reported defendant was not home and the

police began looking for defendant. The officers found defendant walking with

A-5298-17T3 2 Lisa around 4:30 a.m. on January 10, 2017. 2 Defendant explained she was

going to the hospital, located a few miles away in another town, because Lisa

had a stomach ache. Because the hospital was not within a short walking

distance, the police called for an ambulance to take defendant and Lisa to the

hospital.

The Division of Child Protection and Permanency (Division) received a

telephone call from a hospital staff member regarding defendant. The staff

member reported defendant claimed Matt poisoned her and the children.

Defendant admitted herself to the hospital because she was feeling anxious and

paranoid. The hospital staff member advised the Division that defendant tested

positive for illegal substances.

A Division caseworker went to the hospital to investigate. The

caseworker spoke to defendant, Matt, defendant's mother, and Lisa. Lisa told

the caseworker that she had an upset stomach but was feeling better. Lisa stated

her father had not given her anything that made her feel sick. The child also

denied any members of the family used alcohol or drugs.

2 On the date of the incident, there was a court order precluding defendant from having unsupervised contact with the children. A-5298-17T3 3 When speaking to defendant, the caseworker observed defendant did not

maintain eye contact and made jerking movements while lying on the hospital

bed. Defendant denied using drugs or alcohol. She also claimed she attempted

to find a neighbor to drive her and Lisa to the hospital around 3:30 a.m.

Defendant told the caseworker that Matt attempted to poison her but not Lisa.

The Division executed an emergency removal of the children as a result

of defendant's admission to the hospital. The children were placed with their

paternal great-grandmother.

The Division caseworker again interviewed defendant the day after she

was discharged from the hospital. At that time, defendant was more lucid and

maintained eye contact with the caseworker.

A few days after the hospital incident, the Division filed a complaint for

temporary custody of the children. The trial court held a hearing, and the judge

entered an order maintaining custody of the children with the Division and

allowing defendant liberal, supervised visitation with her children.

During follow-up interviews with the Division's caseworker, defendant

admitted she snorted "mollies" (MDMA or ecstasy) just before she went to the

hospital. Defendant also said Matt had not tried to drug or poison her, and she

attributed her erratic behavior on January 10 to the "mollies."

A-5298-17T3 4 The judge conducted a fact-finding hearing to determine if defendant and

Matt abused or neglected Lisa and Mark. After hearing testimony from a police

officer and a Division employee, and reviewing exhibits introduced as evidence,

Judge Lois Lipton rendered a comprehensive oral decision, finding defendant

abused or neglected Lisa and Mark. Judge Lipton concluded the Division

proved by a preponderance of the evidence that defendant neglected her children

under N.J.S.A. 9:6-8.21(c). She also found the testimony of the police officer

and Division caseworker credible. Judge Lipton stated:

When [defendant] was with them she was exhibiting behavior . . . which was clear by a preponderance of the evidence that she was not capable of properly supervising those children.

[Defendant] was alone with them contrary to a [c]ourt [o]rder. And . . . that's not a per se active abuse and neglect, but when taken with her behavior in the hospital, her admission that she'd used [m]ollies and where she was at what hour, the hospital being far away in the next town, far enough that the police officer rather than driving her took her the two blocks home and called an ambulance. So I do find by a preponderance of the evidence that [defendant] did, by failing to appropriately supervise those children, did abuse or neglect them by placing them at imminent risk of substantial harm.

On appeal, defendant argues the trial court erred in finding she abused or

neglected her children because the Division failed to provide sufficient evidence

A-5298-17T3 5 in support of that finding. Defendant claims the Division failed to show her

behavior constituted more than ordinary negligence and provided no expert

testimony to conclude the drugs she took affected her ability to parent.

We accord deference to family court findings, "recognizing the court's

'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin–

Thieme, 227 N.J. 269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,

413 (1998)). Findings by a family court are binding on appeal "when supported

by adequate, substantial, credible evidence." Id. at 283 (quoting Cesare, 154

N.J. at 411-12).

"Indeed, we defer to family part judges 'unless they are so wide of the

mark that our intervention is required to avert an injustice.'" N.J. Div. of Child

Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017) (quoting N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012)). A trial judge's

findings and credibility determinations receive deference because the trial court

can observe the witnesses and "has a better perspective than a reviewing court

in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33

(1988). A trial court's "legal conclusions are reviewed de novo: when they are

unsupported by competent evidence in the record, they will be reversed." N.J.

A-5298-17T3 6 Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470 (App. Div.

2014) (citing Cesare, 154 N.J. at 412).

Having reviewed the record, and deferring to the judge's well-supported

findings of fact and credibility determinations, we agree the Division proved by

a preponderance of the evidence that defendant's failure to properly supervise

her children exposed them to imminent danger and a substantial risk of harm .

We are satisfied that defendant abused or neglected her children for the rea sons

expressed in Judge Lipton's thorough oral decision. R. 2:11-3(e)(1)(A).

Affirmed.

A-5298-17T3 7