DCPP VS. S.A. AND F.W.C., IN THE MATTER OF F.E.C. AND D.J.C. (FN-19-0070-17, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 18, 2019
• Docket: A-4903-17T3/A-4904-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4903-17T3 A-4904-17T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A. and F.W.C.,

Defendants-Appellants. ——————————————— IN THE MATTER OF F.E.C. and D.J.C.,

Minors. ——————————————— Argued June 5, 2019 – Decided June 18, 2019

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-0070-17.

Beth Anne Hahn, Designated Counsel, argued the cause for appellant S.A. (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; Beth Anne Hahn, on the briefs).

Adrienne Marie Kalosieh, Assistant Deputy Public Defender, argued the cause for appellant F.W.C. (Joseph E. Krakora, Public Defender, attorney; Adrienne Marie Kalosieh, on the briefs).

Victoria Almeida Galinski, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason Wade Rockwell, Assistant Attorney General, of counsel; Julie Beth Colonna, Deputy Attorney General, on the brief).

Sara A. Friedman, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Sara A. Friedman, on the brief).

PER CURIAM

In these back-to-back appeals, which we have consolidated for purposes

of this opinion, S.A. (Stella1) and F.W.C. (Floyd), challenge a May 18, 2018

order entered following a fact finding hearing concluding they committed abuse

or neglect of their children F.E.C. (Flynn) and D.J.C. (Dylan). We affirm.

We take the following facts from the record of the fact finding hearing.

The underlying incident occurred on the evening of May 17, 2017. At the time,

Flynn and Dylan were less than eight and two years of age, respectively.

1 We use fictitious names to protect the privacy of the children. R. 1:38- 3(d)(12). A-4903-17T3 2 The parties have had a history with the Division of Child Protection and

Permanency (Division). According to the testimony of Division caseworker

Jasmin Gould, beginning in 2000, the Division received fourteen referrals

related to Stella's substance abuse, which resulted in the removal of her five

older children. Stella was substantiated for child neglect on seven occasions and

Floyd has been substantiated twice.

In November 2016, Stella was admitted to the hospital after she suffered

a seizure, which was determined to be the result of ingesting illicit drugs. As a

result, the Division implemented a safety protection plan, which required Floyd

to supervise Stella's parenting time with Flynn and Dylan. Between November

2016 and May 2017, the Division's records reflected Stella refused to submit to

drug testing on multiple occasions. However, because Floyd was cooperative

and demonstrated an ability to care for and maintain a home for the children, the

Division had no concerns for the children's safety.

At approximately 10:00 p.m. on May 17, 2017, New Jersey State Trooper

Shamik Songui responded with a fellow officer to the parties' residence

regarding a domestic violence complaint. When they arrived, Songui observed

a man inside the home, wearing a black t-shirt with a red graphic on it, look at

him from a window and then walk away. The troopers knocked on the front

A-4903-17T3 3 door, but no one answered and it was locked. Approximately ten to fifteen

minutes later, a man approached in a hooded sweatshirt. Songui stopped the

man and asked him to lift his sweatshirt. The man, later identified as Floyd, was

wearing the same shirt underneath as the man Songui had earlier observed at the

window. Floyd denied he was in the house earlier, but admitted it was his house

and permitted the troopers to enter through an unlocked back door. When the

troopers told Floyd they were responding to a domestic violence complaint, he

stated there was "nobody" in the home.

Once inside the residence, Songui testified there was a bloody towel in the

kitchen and blood spots all over the floor throughout the residence. Troopers

heard noises coming from the hall and discovered Dylan crying alone in a crib.

The child was found in a dark room with an inoperable light switch and had a

bottle containing spoiled milk. Flynn was visiting with his paternal grandmother

at the time.

While Songui was speaking with Floyd, he noticed his pupils were

constricted and his answers to questions were incoherent. Songui observed drug

paraphernalia, including a pipe, plastic baggies, copper wire, and empty wax

folds, strewn around the master bedroom, which Songui believed was evidence

of heroin use. When Songui questioned Floyd about a broken window and blood

A-4903-17T3 4 spots on the floor in the bedroom, he explained Stella had kicked the window

during an earlier fight. Songui discovered three hypodermic needles in plain

view inside Flynn's bedroom. The troopers arrested Floyd for drug possession,

child endangerment, and assault.

At this time, Stella entered the residence. Songui observed she had a cut

and dried blood on her face, and smelled of alcohol. She informed Songui she

had been drinking, Floyd struck her, and the blood throughout the house was

hers.2 She stated she was in the wooded area behind the home when police

arrived. Songui deduced the parties fled the house as soon as they saw police

arrive. Stella was also arrested for obstructing an investigation and endangering

the welfare of a child.

A Division Special Response Unit (SPRU) caseworker responded to the

State Police barracks to interview the parties. Stella told the worker Floyd had

head butted her after they got into an argument about their pending eviction.

She then hid from him in the woods behind their home. Although she denied

being drunk or using drugs, the caseworker noted Stella still smelled of alcohol

several hours after the incident. When the SPRU caseworker attempted to

2 In addition to the kitchen and master bedroom, there was blood on the hallway floor, on the bathroom door, and in the bathroom. A-4903-17T3 5 interview Floyd and question him about the alleged drug use, he responded "well

I'm being charged with it. So it must be." He then began to cry because he

claimed he was "going to lose [his] kids anyway."

The following day, Division caseworker Jasmin Gould interviewed Floyd

in the barracks. He confirmed he and Stella had been in a physical altercation

over their pending eviction and that he was under the influence of heroin at the

time. When Gould inquired about the scratches on his body, he claimed Stella

attacked him with a knife. He would not comment about leaving Dylan alone in

the home.

The same day Gould interviewed Stella, who had been released from

custody and returned to the parties' residence. Gould observed Stella's eyes were

"pinpoint" and that she had bruises and lacerations on her face. Stella also had

track marks on her arm consistent with drug use.

Stella repeated her earlier account of the physical violence the night

before and her escape into the woods. She added that Floyd attempted to choke

her and she scratched his face in self-defense. Stella also stated she left Dylan

in the residence because she feared for her life and did not want to violate the

safety protection plan.

A-4903-17T3 6 The trial judge set forth his decision in a forty-three page oral opinion.

The judge found Gould and Songui testified credibly. There were no other

witnesses at trial. The judge stated "this case is about a continuum of events

that placed [the children] at a substantial risk of imminent harm[.]" He found

Stella and Floyd's drug and alcohol abuse, respectively, had created the

conditions leading to the events the night of the incident and posed a risk of

harm to the children. He concluded:

It is the totality of the circumstances in this case that convinces the [c]ourt [Stella] committed an act of child abuse [or] neglect. She engaged in a violent confrontation with [Floyd.] She was intoxicated through the use of alcohol and was still demonstrating signs of that alcohol use three hours later when interviewed by the SPRU workers and she left a defenseless infant behind with . . . another adult, who was also under the influence of drugs, to care for the child when she fled the premises for an extended period of time.

The sum of . . . the surrounding circumstances are synergistically related. Even if [Stella]'s conduct was viewed as merely being a slight inadvertence . . . her actions still constitute abuse and neglect. The foreseeable consequences of what she did created the substantial risk of imminent harm by leaving a child to be cared for by another adult who was also intoxicated and under the influence of illicit substances.

The analysis and results of [Floyd]'s conduct are even more compelling. . . .

A-4903-17T3 7 ....

Accordingly, the [c]ourt is more than satisfied from the totality of these circumstances that [Floyd] was under the influence of an illegal and illicit substance, probably heroin, while he was in a caretaking role for [Dylan] on the night of May 17, 2017. He was supposed to be supervising [Stella] . . . , but instead engaged in a significant confrontation wherein both parties ended up being injured resulting in [Stella], who was also readily intoxicated, determined to leave the premises, thereby [leaving Floyd] . . . alone under the influence to care for a [sixteen]-month-old child.

[Floyd] then exacerbated these circumstances once he observed through the window the trooper car pull up to the front of the house. [Floyd] then departs the premises through the back sliding glass door, leaving the door wide open and leaving [Dylan] alone in the house.

....

. . . A responsible caretaking adult simply cannot be under the influence of drugs, and then leave the residence leaving a [sixteen]-month-old behind. Even if the child is asleep in a secure crib, an individual under those circumstances, which are the circumstances [Floyd] created, exposes the child to imminent danger and a substantial risk of harm.

Although Flynn was not present during the incident, the judge concluded the

parties' conduct posed a risk of harm to both children.

A-4903-17T3 8 The judge signed the May 18, 2018 order memorializing his

determination. These appeals followed.

In A-4903-17 Stella raises the following point:

POINT I - THE TRIAL COURT ERRED IN FINDING THAT [STELLA] ABUSED AND NEGLECTED [FLYNN] and [DYLAN].

B. There Was No Adequate, Substantial, Credible Evidence That [Floyd]'s Assault Upon [Stella] Exposed The Children To An Imminent Risk of Substantial Harm.

C. There Was No Adequate, Substantial, Credible Evidence That [Stella] Was Under The Influence While In A Caretaking Role Or If Her Alleged Alcohol Consumption Exposed The Children To An Imminent Risk Of Substantial Harm.

D. There Was No Adequate, Substantial, Credible Evidence That [Stella] Inadequately Supervised The Children Thereby Exposing Them To An Imminent Risk Of Substantial Harm.

In A-4904-17, Floyd the following points:

POINT I - THE DETERMINATION THAT [FLOYD] VIOLATED N.J.S.A. 9:6-8.21(c) WAS NOT BASED ON EVIDENCE TO SUPPORT A CONCLUSION THAT HE FAILED TO MEET A MINIMUM DEGREE OF CARE AND PLACED THE BOYS AT SUBSTANTIAL RISK OF IMMINENT DANGER

A-4903-17T3 9 WHERE DCPP PRESENTED NO EVIDENCE THAT [DYLAN] WAS NOT SAFE AND WHERE [FLYNN] WAS NOT HOME.

A. THE COURT ERRED IN CONCLUDING THAT [FLOYD]’S BEING LESS THAN TWENTY FEET AWAY FROM THE HOUSE AND ALLEGED TO HAVE USED SUBSTANCES AT SOME UNKNOWN TIME FAILED TO PROVIDE LESS THAN "SCANT CARE" OR DISREGARDED A PERILOUS SITUATION TO CONSTITUTE GROSS NEGLIGENCE REQUIRED FOR TITLE 9 LIABILITY.

1. Failure to meet the minimum standard of care requires evidence of gross negligence, defined as less than "scant" or "slight" care that is "likely to, or probably will" result in injury, here absent.

2. Not only must there be evidence of gross negligence to violate Title 9, absent actual injury, the record must establish "substantial risk" of "imminent" harm, which is not shown by a mere potential for harm or an "anything could have happened" analysis.

3. Suspected ingestion of substances, without more, does not abrogate the Family Part's responsibility to evaluate whether a child was placed at a substantial risk of imminent harm that a parent created or should have known was likely to result.

A-4903-17T3 10 POINT II - REVERSAL OF THE CONCLUSION THAT [FLOYD] VIOLATED N.J.S.A. 8:6-8.21(c)(4) AS TO [FLYNN] IS REQUIRED AS A MATTER OF LAW.

I.

"[W]e generally defer to the factual findings of the trial court because it

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. R.D., 207

N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198

N.J. 382, 396 (2009)). "Because of the Family Part's special jurisdiction and

expertise in family matters, we accord particular deference to a Family Part

judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J.

Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413

(1998)).

We must examine "whether there was sufficient credible evidence to

support the trial court's findings." N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 342 (2010). "We will not overturn a family court's factfindings

unless they are so 'wide of the mark' that our intervention is necessary to correct

an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

A-4903-17T3 11 (2012) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)).

II.

The purpose of a fact-finding hearing is "to determine whether the child

is . . . abused or neglected[.]" N.J.S.A. 9:6-8.44. An "[a]bused or neglected

child" includes a minor 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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . 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)(4) (emphasis added).]

"Courts need not wait to act until a child is actually irreparably impaired

by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365,

383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,

616 n.14 (1986)). "[W]hen there is no evidence of actual harm, the focus shifts

to whether there is a threat of harm." N.J. Div. of Child Prot. & Permanency v.

E.D.-O., 223 N.J. 166, 178 (2015). "[T]he standard is not whether some

potential for harm exists[,]" rather, "[a] parent fails to exercise a minimum

A-4903-17T3 12 degree of care when 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

the child.'" Id. at 183-84 (quoting N.J. Dep't of Youth & Family Servs. v. J.L.,

410 N.J. Super. 159, 168-69 (App. Div. 2009)). "[A] finding of abuse and

neglect can be based on proof of imminent danger and a substantial risk of

harm." Id. at 178 (citation omitted).

"Whether the parent has exercised the requisite degree of care is to be

analyzed in light of the dangers and risks associated with the particular situation

at issue." J.L., 410 N.J. Super. at 168 (citing G.S. v. Dep't of Human Servs.,

157 N.J. 161, 181-82 (1999)). The trial judge must consider "the totality of the

circumstances, since '[i]n child abuse and neglect cases the elements of proof

are synergistically related. Each proven act of neglect has some effect on the

[child]. One act may be "substantial" or the sum of many acts may be

"substantial."'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.

320, 329-30 (App. Div. 2011) (alterations in original) (quoting N.J. Div. of

Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).

We have repeatedly "reiterated the societal concern that no child come

under the care of an intoxicated parent." N.J. Div. of Child Prot. & Permanency

v. R.W., 438 N.J. Super. 462, 469 (App. Div. 2014) (citing V.T., 423 N.J. Super.

A-4903-17T3 13 at 331). However, "not all instances of drug ingestion by a parent will serve to

substantiate a finding of abuse or neglect." V.T., 423 N.J. Super. at 332.

We have stated "parental inaction in addressing past conditions pos[es] a

danger to a child [and] is a circumstance pertinent to a finding of abuse or

neglect" when a drug-abusing parent is involved. N.J. Div. of Child Prot. &

Permanency v. M.C., 435 N.J. Super. 405, 419 (App. Div. 2014), abrogated on

other grounds by E.D.-O., 223 N.J. at 189. See N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 281-83 (2007) (finding abuse or neglect where the

father refused to provide care to his child separate from the child's mother who

posed a serious risk to the child due to her substance abuse problems); see also

N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 425-26, 435-

36 (App. Div. 2009) (finding abuse or neglect based on the violation of an order

prohibiting the father from the home while known to have been actively using

drugs).

Having considered the parties' arguments in light of the aforementioned

standards, we affirm for the reasons expressed in the trial judge's decision. The

totality of the circumstances did indeed demonstrate that both parties were

intoxicated during their altercation, which—given their history of

substantiations for neglect—posed an unacceptable imminent risk of a

A-4903-17T3 14 substantial harm to the children. Finally, that Flynn was not present for the

incident is irrelevant as proof of abuse or neglect regarding one child is

admissible as evidence of the abuse or neglect of another as a matter of law.

N.J.S.A. 9:6-8.46(a)(1); N.J. Div. of Youth & Family Servs. v. Robert M., 347

N.J. Super. 44, 68 (App. Div. 2002).

Affirmed.

A-4903-17T3 15