# Dcpp v. L.H. and D.G., in the Matter of F.H.-g.

> New Jersey Superior Court Appellate Division · January 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10783294

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** January 17, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT FOR PUBLICATION WITHOUT THE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-1582-23
A-1583-23

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

L.H. and D.G.,

Defendants-Appellants.

IN THE MATTER OF
F.H.-G., a minor.

Argued November 14, 2024 – Decided January 17, 2025

Before Judges Marczyk and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FN-12-0060-23.

Caitlin A. McLaughlin, Designated Counsel, argued the
cause for appellant L.H. in A-1582-23 (Jennifer Nicole
Sellitti, Public Defender, attorney; Caitlin A.
McLaughlin, on the briefs).

Rebekah E. Heilman, Designated Counsel, argued the
cause for appellant D.G. in A-1583-23 (Jennifer Nicole
Sellitti, Public Defender, attorney; Rebekah E.
Heilman, on the briefs).

Julie B. Colonna, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Julie B. Colonna, on the
brief).

Noel C. Devlin, Assistant Deputy Public Defender,
argued the cause for minor F.H-G. (Jennifer Nicole
Sellitti, Public Defender, Law Guardian, attorney;
Meredith Alexis Pollock, Deputy Public Defender, of
counsel; Noel C. Devlin, of counsel and on the brief).

PER CURIAM

In these consolidated appeals, defendants L.H. 1 (mother/Lori) and D.G.

(father/Don) appeal from the April 19, 2023 Family Part order finding they

abused or neglected their then four-year-old son F.H.-G. (Fred), under N.J.S.A.

9:6-8.21(c)(4)(b). Following our review of the record and the applicable leg al

principles, we affirm.

1
We use initials and pseudonyms to protect the privacy of the family. R. 1:38-
3(d)(12).

A-1582-23
2
I.

We derive the facts from the record and the trial court's fact-finding

hearing, which was conducted over the course of four days in March 2023. The

Division of Child Protection and Permanency (Division) presented caseworker

Marissa Curcio as a witness. No other witnesses testified.

Fred was born in 2017 to Lori and Don and was four years old at the time

of removal. The Division received a referral on October 1, 2022, from the

Sayreville Police Department (SPD). The SPD was contacted by Don's father

who requested that police conduct a welfare check. Don's father expressed

concern because defendants purportedly used heroin, and he had not heard from

Don all day. The SPD responded to the home and spoke with Don who appeared

"disheveled" and was "wearing dirty clothing" with what seemed to be vomit on

it. The officer reported that Fred "appeared to be ok" and that Don stated Fred

was sent home from school a few days ago because he was sick.

Later that evening, a worker from the Division's Special Response Unit

(SPRU) visited the home to investigate. The SPRU worker found Fred asleep

in his bed with no visible injuries. Defendants reported Fred and they were sick

with COVID-19. The SPRU worker observed "no concerns nor threats to safety;

however, the home appeared extremely hoarded with random items" and

A-1582-23
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"smelled of animal." While speaking with Don, the SPRU worker noted that he

"did not nod in and out of consciousness and he did not appear lethargic or

withdrawn," nor did he "slur his speech[,] and he spoke clearly and coherently."

Don "stated that he [was] sober" and undergoing methadone treatment and

denied that Lori had a substance abuse issue.

On October 4, 2022, Division worker Curcio went to the family's home

for a follow-up visit. Throughout her visit, Curcio took several photos of the

home, Lori, and Don. She testified that she knocked on the door, and after a few

minutes, Don answered, appearing very sick and wearing dirty clothes. He

vomited in the entryway and proclaimed everyone in the family was sick with

COVID-19. Don "appeared confused and slurred his speech a bit but regained

his composure after a few minutes." She observed liquid on the floor, which

Don explained was vomit, not urine, and he covered it with a towel.

Curcio testified there was a strong smell of animal urine or waste, which

she could smell through her face mask. The home was cluttered with clothes

piled up; however, there were no fire hazards or blocked walkways. She stated

she was concerned about the unsanitary conditions in the kitchen, including bugs

flying around the overflowing garbage cans and "splatter" on the walls and floor.

The kitchen counters, sink, and tables were all cluttered, and there was no space

A-1582-23
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to prepare or eat food. There was also a rabbit in a cage on the kitchen table.

Curcio explained she was concerned that Fred could get sick from the unsanitary

conditions in the kitchen.

Curcio recounted that Fred appeared cheerful and was free of marks or

bruises. His room appeared clean, unlike the rest of the home. She noted Fred

denied being aware of his parents' drug use.

Curcio testified she received training from the Division regarding how to

recognize someone under the influence of drugs. She stated Lori was sitting on

the couch "nodding off, slurring [her] speech, [heaving,] vomiting and shaking."

Curcio recalled she observed "a large open sore on [Lori's] arm that [was] . . .

about three to four inches, and it appeared [to be]. . . necrotic or dead tissue. It

was very deep and appeared infected." Lori claimed the open sore was the result

of a burn mark that became infected; however, Curcio testified she believed the

injury was the result of drug use. Based on their shaking, vomiting, slurring

words, and visible track marks, Curcio believed that both Don and Lori were

under the influence of illegal substances.

Don disclosed to Curcio that he had an opioid addiction and abused heroin

and fentanyl. Lori insisted that she was not high and continued to deny drug

use. Notably, however, Don stated that Lori was not being truthful , they both

A-1582-23
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use fentanyl four to five times a day, and they had both used drugs earlier in the

day. Don admitted the track marks on his feet were from "shooting up." Curcio

maintained that defendants both appeared under the influence—nodding off,

slurring their speech, vomiting, shaking, and disoriented. Don told Curcio that

he was willing to attend a substance abuse evaluation and treatment. However,

Lori refused to attend inpatient treatment due the impact it would have on her

job and instead stated she was willing to attend a methadone program.

Curcio recounted that Don further acknowledged that he kept fentanyl in

the basement. He took Curcio into the basement. She recalled there was a door

leading to the basement, but she could not recall if the door was locked. Once

in the basement, Curcio observed a pouch containing needles "out in the open"

and a melting spoon on a coffee table. She also noticed a toolbox with latches

on a table approximately four to five feet off the ground, where Don explained

he stored the drugs. Curcio recalled that the toolbox and pouch were a "few feet

from [where] you first entered the basement after going down the stairs." Don

told Curcio that he never brought the drugs upstairs, that Fred could not access

the drugs, and that he and Lori only used them when Fred was not around.

However, Curcio testified that Fred was about the same height as the table

where the toolbox was kept. She stated Don was "struggling and shaking" and

A-1582-23
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could not locate the drugs in the toolbox; however, she testified that she saw "a

bag with something white," but could not be certain whether it was drugs. She

testified she was alone in the basement with Don, and because it was a "tense

situation," she "quickly" took the photos.

Curcio testified that the environment put Fred at imminent risk of harm,

because defendants—who were Fred's sole caretakers—were under the

influence at the time of the visit, had ongoing substance abuse issues, and could

not adequately respond if Fred ran away or needed medical attention. She

further stated that the drugs in the basement placed Fred at imminent risk of

harm, as she believed he had access to the basement where the needles were left

out in the open. She stated that if Fred touched one of the needles with fentanyl

on it, he could "possibly die." She further expressed concern that defendants

could die or become incapacitated from an overdose of heroin or fentanyl and

not be able to care for Fred in the event of an emergency.

The Division conducted an emergency removal of Fred and placed him

with his maternal grandmother. Following its investigation, the Division

substantiated Lori and Don for neglect. It based its findings on Fred's young

age, Curcio's conclusion defendants were under the influence at the time of the

A-1582-23
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visit while caring for Fred, the accessibility of drugs, and the unsanitary

conditions of the home.

Following the hearing, the trial court rendered an oral decision and issued

an order on April 19, 2023, finding by a preponderance of evidence that Lori

and Don had abused or neglected Fred. The court found Curcio to be credible

and noted that she testified consistently with her report and without

exaggerating. The court thus credited her observations and concluded that Lori

and Don were under the influence of fentanyl during Curcio's home visit on

October 4, 2022.

The court determined "that the statements made by [Don and Lori] can be

considered . . . based on the hearsay exception of statements against interest"

under N.J.R.E. 803(c)(25). In doing so, the court relied on New Jersey Division

of Child Protection & Permanency v. N.T., 445 N.J. Super. 478, 498 (App. Div.

2016), where this court found a mother's statements admissible under Rule

803(c)(25), where the mother admitted to the Division that there was domestic

violence in the home, and she was aware this could result in her children being

removed. The trial court further explained that "statements that are not directly

or obviously self-incriminating can still be admissible as statements against

A-1582-23
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interest so long as part of the statement strengthens or bolsters the incriminatory

effect of the declarant's exposure to criminal or civil liability."

The court also found that Don's statements that he and Lori had used

fentanyl earlier that day, and that they abused drugs multiple times a day, were

admissible. It noted that Don's "statements, which concern[ed] he and [Lori's]

drug use[,] bolster[ed] the incriminatory effect of the exposure to criminal or

civil liability," and demonstrated "inherent trustworthiness and reliability"

because "[i]t was clear that the Division was there to protect the child," and Don

knew "neither parent would be able to care for the child, requiring the Division

to take the child." The court also found that Don's statements could be used

against Lori, because he "knew . . . there would be no parent to care for his own

child, and that [the Division] would have . . . no choice . . . other than to remove

the child."

The court found that "even if you . . . take away any statement [Don] made

regarding [Lori], . . . a preponderance of evidence proves abuse or neglect

regarding" Lori because "there [were] separate and distinct [findings] that would

be considered regarding" Lori. Specifically, the court relied on Curcio's

observations that Lori appeared to be vomiting, that she could not put a sentence

together, was slurring her words, she appeared to be under the influence of an

A-1582-23
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illegal substance, the conditions of the home, and the paraphernalia observed by

Curcio. The court also noted that neither Don nor Lori provided Curcio with

any evidence that they were sick with COVID-19.

The court also considered Lori's own statements that she declined

inpatient treatment but agreed to methadone treatment. The court pondered

"[w]hy would somebody say I'd go to methadone treatment if they weren't

somebody who was using drugs?" The court concluded Lori's "statement

[agreeing to methadone treatment could] be used . . . separate and apart [from

Don's statements] along with [Curcio's] observations . . . against" Lori. Thus,

the court found that even without Don's statements, the "totality of the

circumstances show that [Lori], too, was under the influence[,]" while a primary

caretaker of Fred.

In finding that defendants failed to exercise a minimum degree of care that

placed Fred at substantial risk of harm, the court considered the totality of the

circumstances. It noted, "both parents were under the influence" when Curcio

spoke with them, and "[t]hey were the primary . . . . [and] only caregivers in that

home, using [f]entanyl on a daily basis." It noted the parents could not

"necessarily deal with an emergency." Moreover, the accessibility of drug

paraphernalia in the basement "clearly" put Fred "at a risk of harm." The court

A-1582-23
10
also noted the "deplorable" condition of the home and that defendants failed to

"maintain a healthy and safe environment" for Fred.

II.

In the ensuing appeal, Lori raises the following points for our

consideration:

POINT I

THE TRIAL COURT'S DECISION THAT [LORI]
ABUSED AND NEGLECTED HER CHILD BASED
SOLELY ON THE CASEWORKER'S ALLEGATION
OF SUBSTANCE USE ON THE DAY OF HER VISIT
AND THE HOUSE WAS MESSY, WITHOUT ANY
SHOWING THAT THE CHILD WAS HARMED OR
PLACED AT SUBSTANTIAL RISK OF HARM
BECAUSE OF THESE ISSUES, MUST BE
REVERSED.

A. THE TRIAL COURT DID NOT BASE ITS
DECISION UPON COMPETENT, MATERIAL, AND
RELEVANT EVIDENCE PURSUANT TO N.J.S.A.
9:6-8.46 (b)(1) AND THEREFORE THE DECISION
MUST BE REVERSED AS TO [LORI].

B. THE TRIAL COURT ERRED TO CONCLUDE
THAT [THE DIVISION] PROVED THAT [LORI]
FAILED TO EXERCISE A MINIMUM DEGREE OF
CARE.

A-1582-23
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Don raises the following points on appeal:

POINT I:

THE APPELLATE DIVISION SHOULD REVERSE
THE TRIAL COURT'S FINDINGS OF ABUSE AND
NEGLECT AGAINST [DON] BECAUSE THEY ARE
NOT SUPPORTED BY A PREPONDERANCE OF
COMPETENT, MATERIAL AND RELEVANT
EVIDENCE AS REQUIRED BY N.J.S.A. 9:6-8.46(b).

A. THE APPELLATE DIVISION SHOULD
REVERSE THE INADEQUATE SUPERVISION
FINDINGS BECAUSE [DON] WAS NOT GROSSLY
NEGLIGENT AND THE TRIAL COURT FAILED TO
ACKNOWLEDGE THAT [DON] EXERCISED A
MINIMUM DEGREE OF CARE BY TAKING
"CAUTIONARY ACTS" TO MINIMIZE RISK OF
SUBSTANTIAL INJURY TO [FRED].

POINT II:

THE APPELLATE DIVISION SHOULD REVERSE
THE TRIAL COURT'S FINDINGS OF ABUSE AND
NEGLECT AGAINST [DON] BECAUSE THEY ARE
NOT SUPPORTED BY A PREPONDERANCE OF
COMPETENT, MATERIAL AND RELEVANT
EVIDENCE AS REQUIRED BY N.J.S.A. 9:6-8.46(b).

A. THE APPELLATE DIVISION SHOULD
REVERSE THE TRIAL COURT'S FINDING THAT
[FRED] WAS AT SUBSTANTIAL RISK OF HARM
DUE TO THE CONDITION OF THE HOME
BECAUSE IT IS CONTRARY TO THE WEIGHT OF
THE EVIDENCE; IS BASED ON THE OPINION OF
AN UNQUALIFIED WITNESS; AND IS FOUNDED
ON SPECULATIVE HARM.

A-1582-23
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B. THE APPELLATE DIVISION SHOULD
REVERSE THE TRIAL COURT'S INADEQUATE
SUPERVISION FINDINGS BECAUSE THEY ARE
CATEGORICAL FINDINGS BASED ON
INSUFFICIENT EVIDENCE AND A
PREPONDERANCE OF THE EVIDENCE PROVES
THAT [FRED] DID NOT HAVE ACCESS TO DRUGS
AND THAT [DON] WAS ABLE TO CARE FOR
[FRED].

C. THE TRIAL COURT'S FINDING THAT [DON]
WAS "UNDER THE INFLUENCE" AND UNABLE
TO CARE FOR [FRED] MUST BE REVERSED AS IT
IS BASED ON INSUFFICIENT EVIDENCE AND
THERE IS NO EVIDENCE THAT [DON'S]
CONDITION CREATED AN IMMINENT DANGER
AND SUBSTANTIAL RISK OF HARM.

The scope of our review of 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) (citing N.J. Div. of Youth & Fam. Servs. v.

I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). We will uphold the family

court's factual findings and credibility determinations if they are supported by

"adequate, substantial, and credible evidence." N.J. Div. of Youth & Fam.

Servs. v. G.L., 191 N.J. 596, 605 (2007). Accordingly, an appellate court will

only overturn the court'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 family court's interpretation of the law. D.W. v. R.W., 212

A-1582-23
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N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J.

145, 183 (2010)). Consequently, we apply a de novo standard of review to legal

issues. Id. at 245-46.

To succeed in a Title Nine, N.J.S.A. 9:6-1 to 9:8-114, fact-finding

proceeding, the Division must prove "that the child is 'abused or neglected' by a

preponderance of the evidence, and only through the admission of 'competent,

material and relevant evidence.'" N.J. Div. of Youth & Fam. Servs. v. P.W.R.,

205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). An "[a]bused or

neglected child" is, in relevant part, a child under eighteen:

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)(4)(b).]

A parent's failure to exercise a minimum degree of care "refers to conduct

that is grossly or wantonly negligent, but not necessarily intentional." Dep't of

Children & Fam. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of

Hum. Servs., 157 N.J. 161, 178 (1999)). Willful or wanton negligence "implies

that a person has acted with reckless disregard for the safety of others." G.S.,

A-1582-23
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157 N.J. at 179. It is "done with the knowledge that injury is likely to, or

probably will, result," and "can apply to situations ranging from 'slight

inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting

McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). "However, if the

act or omission is intentionally done, 'whether the actor actually recognizes the

highly dangerous character of [the] conduct is irrelevant,' and '[k]nowledge will

be imputed to the actor.'" N.J. Div. of Child Prot. & Permanency v. S.G., 448

N.J. Super. 135, 144 (App. Div. 2016) (second alteration in original) (quoting

G.S., 157 N.J. at 178).

"Because the primary focus is the protection of children, 'the culpability

of parental conduct' is not relevant." N.J. Div. of Youth & Fam. Servs. v. M.C.

III, 201 N.J. 328, 344 (2010) (quoting G.S., 157 N.J. at 177).

"Whether a parent or guardian has failed to exercise a
minimum degree of care is to be analyzed in light of the
dangers and risks associated with the situation." G.S.,
157 N.J. at 181-82. "When a cautionary act by the
guardian would prevent a child from having his or her
physical, mental or emotional condition impaired, that
guardian has failed to exercise a minimum degree of
care as a matter of law." Id. at 182. The mere lack of
actual harm to the child is irrelevant, as "[c]ourts need
not wait to act until a child is actually irreparably
impaired by parental inattention or neglect." In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999)
(citation omitted).

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[S.G., 448 N.J. Super. at 144-45 (alteration in original)
(emphasis added).]

A.

Lori asserts she did not put her child in imminent danger and did not fail

to exercise a minimum degree of care required under the statute. She argues the

court "relied on evidence which did not rise to the level of preponderance and

lacked relevant expert testimony concerning the substance abuse concerns and

their potential impact on the child" because the decision "was based solely upon"

Curcio's testimony "without any expert testimony concerning [Lori's] alleged

substance abuse issues." She reiterates that she never admitted to using drugs.

Lori argues the court never discussed whether Lori was sick with COVID-

19 as an explanation for her condition, but instead relied on the testimony of

Curcio, who "lacked expertise in determining whether [Lori] had ingested drugs

and whether the sore on her arm was the result of injecting drugs versus a burn."

Moreover, she claims the Division failed to provide expert evidence that Lori

posed a risk to the child by virtue of her alleged drug use and Fred's possible

access to drug paraphernalia. She contends there is no evidence she was using

drugs on October 4, 2022, because she was never tested. She further maintains,

relying on A.L., 213 N.J. at 24, that even if she had used drugs on the day in

question, evidence of drug use alone is not enough to show harm. Lori also

A-1582-23
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relies on New Jersey Division of Youth & Family Services v. V.T., 423 N.J.

Super. 320, 332 (App. Div. 2011), for the proposition that "not all instances of

drug ingestion by a parent will serve to substantiate a finding of abuse or

neglect."

Lori also relies on Department of Children & Families v. E.D.-O., 223

N.J. 166, 193 (2015), for the proposition that "whether a person is . . . grossly

negligent is to be based on the circumstances and facts surrounding the child,

rejecting a 'categorical rule' on how a parent must act, and instead focusing on

the condition of the child." She asserts that the trial court "fill[ed in] . . . the

gaps of [the Division's] evidence with an improper inference of harm" as

prohibited by our Supreme Court in A.L., 213 N.J. at 28.

Finally, Lori argues that the picture of her arm and Curcio's testimony that

she believed the wound to be from drug use was insufficient to prove she used

illegal substances. She contends that an expert was needed to make such an

assertion.

Don similarly argues that the evidence shows he was sick with COVID-

19, not under the influence of narcotics. He asserts "[t]he only evidence

supporting the court's finding that [he] was under the influence is the unreliable

opinion offered by [Curcio], who is not a medical expert or trained clinician."

A-1582-23
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He contends Curcio was not competent to offer an opinion regarding his

intoxication because she was not a qualified expert such as a treatment counselor

or licensed clinician with expertise in addiction.

Don also argues that even if he was intoxicated, "there is insufficient

evidence to show that his intoxication exposed Fred to peril or imminent danger

and substantial risk of harm." He also relies on V.T., 423 N.J. Super. at 331, for

the proposition that "Title [Nine] is not intended to extend to all parents who

imbibe illegal substances at any time." He cites New Jersey Division of Youth

& Family Services v. S.N.W., 428 N.J. Super. 247, 252-53, 257-58 (App. Div.

2012), for the proposition that a parent's intoxication should not result in a

finding of abuse and neglect unless the Division proves their condition is the

result of gross negligence or that the parent failed to exercise the minimum

degree of care in his condition.

The Division and the Law Guardian both cite to State v. Bealor, 187 N.J.

574, 577 (2006), for the assertion that Curcio's lay opinion was appropriately

considered by the court in determining whether defendants were intoxicated

during the home visit. The Division asserts that "Curcio properly testified

regarding her . . . training to recognize signs of intoxication, and her

A-1582-23
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observations of [defendants] assisted the court in determining whether they were

under the influence of drugs, which comports with N.J.R.E. 701."

The Law Guardian argues that "Bealor allows observations by laypersons

[regarding] the way in which a person is presenting themselves to prove narcotic

intoxication, so long as it is corroborated." The Law Guardian asserts that

Curcio's testimony regarding Don and Lori's intoxication was "sufficiently

corroborated" by Don revealing the needles and toolbox which he conceded

contained drugs, his statement that he and Lori used drugs earlier in the day,

Lori's statement that she would undergo methadone treatment, and the track

marks Curcio observed on both Don and Lori. The Law Guardian concludes

that such "considerations corroborate . . . Curcio's observations of the parent[s']

demeanor and appearance [and] allowed the court to conclude that it was more

likely than not that they were under the influence of illicit substances, especially

under the lower preponderance of the evidence standard used in Title Nine

matters."

We are unpersuaded by defendants' arguments. The court here did not

conclude defendants abused or neglected Fred merely because they abused

drugs. Rather, the court's findings were based on its conclusion defendants were

A-1582-23
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under the influence of narcotics while actually caring for Fred when they were

his sole caregivers.

This matter is not analogous to V.T., in which the defendant-parent

admitted to "using cocaine and marijuana two days prior" to a supervised visit

with his child, yet the Division "reported that [he] behaved appropriately at both

visits and demonstrated no indicia of impairment" at the visits. 423 N.J. Super.

at 326, 331. The defendant in V.T. was allowed supervised visits with his child

and tested positive for drugs on two separate occasions, which did not come to

light until after each visit. Id. at 325. The Division, which had already filed a

complaint for care and supervision under Title Nine for other reasons,

subsequently amended its complaint to include allegations that the defendant

was under the influence during the visits. Id. at 324-25. The trial court found

that the defendant exposed the child to a substantial risk of harm based on the

defendant's refusal to attend substance abuse treatment and the positive drug

tests. Id. at 327.

On appeal, the defendant argued that the "record lack[ed] evidence to

support a finding that the defendant was under the influence of illegal controlled

substance when he visited his daughter." Id. at 328. This court acknowledged

the two positive drug tests, yet "disagree[d] that such behavior inherently

A-1582-23
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created a substantial risk of harm." Id. at 330. We found that the defendant

"testified he ingested the drugs two days prior to each visit. There [was] no

evidence to contradict this testimony" and "use of illegal drugs days prior to a

supervised visit does not as a matter of law constitute neglect." Id. at 331. We

also noted that the child was not an infant, but a nine-year-old who "was not

vulnerable during these visits to the slightest parental misstep." Ibid. We

concluded the Division was unable to demonstrate the defendant was "impaired

to the point of posing a risk" to his child in a "supervised setting." Id. at 331.

Importantly however, this court recognized that a parent should not visit their

child while impaired by illegal substances. Ibid.

The trial court's decision here was not based simply on a positive drug

test. Rather, unlike in V.T., the court found that Don and Lori used drugs the

day Curcio visited, not two days prior. The court further determined defendants

used fentanyl four to five times a day when caring for Fred. Curcio testified at

length about her observations that defendants were under the influence, and Don

himself admitted that he and Lori had used drugs earlier that day.

Furthermore, the court appropriately considered Curcio's testimony

regarding defendants being under the influence. In Bealor, the Supreme Court

held that "competent lay observations of the fact of intoxication, coupled with

A-1582-23
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additional independent proofs tending to demonstrate [a] defendant's

consumption of narcotic . . . as of the time of the defendant's arrest, constitute

proofs sufficient to allow the fact-finder to conclude, without more, that the

defendant was intoxicated beyond a reasonable doubt." 187 N.J. at 577.

The Court further found the trial court was correct to rely "on the

aggregate of factual observations of [the] defendant's demeanor and physical

appearance together with expert proofs that confirmed the presence of"

marijuana in the "defendant's system at the time of his arrest." Id. at 588.

Importantly, the Court held that this court's holding "that the nexus between the

facts of intoxication and the cause of intoxication can only be proved by expert

opinion—impermissibly impinges on the traditional role of the fact-finder and

is explicitly disavowed." Id. at 591.

Here, Curcio's testimony regarding her observations of defendants'

intoxication was "coupled with additional independent proofs," id. at 577, such

as Don's admission to using drugs, Lori's agreement to attend methadone

treatment, and Don showing Curcio where he kept the drugs and needles.

Furthermore, this case employs a mere preponderance of the evidence standard,

not the beyond-a-reasonable-doubt-standard utilized in criminal cases like

Bealor, further justifying the court's reliance on Curcio's testimony.

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S.N.W. is also distinguishable. There, the defendant admitted to taking

Xanax while caring for her child; however, she argued that she did not take more

than was prescribed to her. 428 N.J. Super. at 251. The trial court held that

whether the defendant had taken more than the prescribed amount was irrelevant

to a determination that she was intoxicated, because she was visibly intoxicated.

Id. at 252. The trial court also held that "the cause of [the] defendant's condition

was irrelevant." Id. at 256.

We found that the trial court's oral decision did not "suggest whether the

judge found [the] defendant was merely negligent, grossly negligent or

reckless." Id. at 257. This court also determined that the judge's finding "that

the cause of [the] defendant's condition was irrelevant – was erroneous." Id. at

258. In remanding the case, we stated that a finding that the defendant "ingested

only a prescribed amount of Xanax and . . . abused no other substances . . . would

preclude a finding of abuse or neglect." Ibid. Here, there is no dispute that

fentanyl was not prescribed to Don and Lori. Furthermore, the trial court here

gave detailed reasons for its determination that defendants were grossly

negligent.

Lori asserts an expert was needed to show her arm injury was the result of

drug use. Even if she is correct, such an error is harmless given the other

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substantial evidence showing she was under the influence on the day in question

and that Fred had access to fentanyl. See R. 2:10-2 ("Any error or omission

shall be disregarded by the appellate court unless it is of such a nature as to have

been clearly capable of producing an unjust result . . . .").

B.

Lori asserts there is no evidence that she used drugs on the day of the

October 4, 2022 visit. She argues that Don's statements that she also used drugs

the day of the visit was improperly admitted as statements against interest under

Rule 803(c)(25) because she "made no such statement and [Don's] statements

did not refer to [Lori]." Lori also contends the court erred in relying on the fact

that she agreed to go to a methadone clinic as an admission that she was abusing

drugs.

In reviewing evidentiary rulings, "we afford '[c]onsiderable latitude . . .

[to a] trial court in determining whether to admit evidence, and that

determination will be reversed only if it constitutes an abuse of discretion.'" N.J.

Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513, 521 (App. Div.

2017) (alterations in original) (quoting N.T., 445 N.J. Super. at 492). "An abuse

of discretion 'arises when a decision is made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

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basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)

(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Rule 803(c)(25) is a hearsay exception and permits the admissibility of a

statement which was at the time of its making so far
contrary to the declarant's pecuniary, proprietary, or
social interest, or so far tended to subject declarant to
civil or criminal liability, or to render invalid
declarant's claim against another, that a reasonable
person in declarant's position would not have made the
statement unless the person believed it to be true.

"The statement-against-interest exception is based on the theory that, by human

nature, individuals will neither assert, concede, nor admit to facts that would

affect them unfavorably. . . . Consequently, statements that so disserve the

declarant are deemed inherently trustworthy and reliable." State v. White, 158

N.J. 230, 238 (1999).

Further, pursuant to N.J.R.E. 803(b)(1), a "[d]efendant's own statements

are admissible as statements of a party-opponent" if the statements are offered

against him in the action. N.J. Div. of Child Prot. & Permanency v. J.D., 447

N.J. Super. 337, 348 (App. Div. 2016) (citing N.J.R.E. 803(b)(1)).

Here, the trial court correctly admitted Don's statements regarding

defendants' use of drugs earlier that day against Don because they were clearly

against his interest, and the court found them to be reliable because Don knew

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such statements—raising concerns about both parents' condition—could result

in the Division removing Fred from the home. The trial court has broad

discretion in deciding whether to admit evidence, and we discern no misuse of

discretion.

Lori cites no case law for the proposition that once Don's statements were

admitted into evidence against him, they could not be used against her as well.

Moreover, we previously found a trial court did not abuse its discretion in

considering statements against interest made by a mother against her husband in

the context of a Title Nine abuse and neglect case under Rule 803(c)(25). See

N.T., 445 N.J. Super. at 487, 500. As such, the trial court did not err in relying

on Don's statements as against Lori.

Lastly, we find no error in the trial court's use of Lori's testimony that she

would agree to obtain methadone treatment. The court appropriately considered

the statements under Rule 803(b)(1) as statements by a party-opponent and

under Rule 803(c)(25) as statements against interest. Lori was free to argue that

she had an ulterior motive in agreeing to undergo methadone treatment, but the

court was within its discretion to consider the statement as an admission

suggesting she was in fact abusing narcotics.

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C.

Don and Lori both argue that the trial court's finding that the conditions

of the home placed Fred at risk of harm was not based on competent, material,

and relevant evidence. Don asserts such a finding was "not supported by

documentary evidence in the record," and instead "was based solely on" Curcio's

testimony. Specifically, Don points to Curcio's testimony that she feared Fred

could become sick from the home's condition. He asserts these are speculative

harms and are not permitted in finding abuse and neglect. Don cites to New

Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13, 26 (App.

Div. 2004), where this court refused to "assume . . . that . . . witnessing domestic

abuse had a present or potential negative effect on the child sufficient to warrant

a finding of abuse." Lori in turn points to the fact that Curcio testified she did

not think the conditions of the home, considered alone, presented a risk of harm

to Fred. Lori highlights that Fred's room was very clean and that the kitchen

was stocked with food.

The Division counters that "Curcio testified that the conditions of the

home were unsanitary, with a strong odor of animal waste . . . , bugs around

overflowing garbage cans, and clutter throughout the kitchen such that there was

no space to prepare food." The Division cites to New Jersey Division of Youth

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& Family Services v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2012), a case

involving the termination of parental rights, where we determined "[t]his was

not a case where . . . the court viewed drug use in isolation as harming the child.

The risk of harm was proven by the entrenched severity of the parents' drug

addiction, the negative effect it had on their lives, and the instability of the

child's home."

The Division asserts that the home "conditions were demonstrative of the

severity of . . . [defendant]s' substance abuse and their inability to provide Fred

with a safe environment." It claims that "the court properly concluded that the

unsanitary home conditions placed Fred at risk of harm." It contends that even

if we do not deem the home conditions placed Fred at risk of harm, "that error

is harmless at best and does not undermine the court's finding of abuse and

neglect based upon [defendant]s' substance abuse while caring for Fred."

The Law Guardian asserts that "[t]he condition of the home, while not

supporting a finding of abuse or neglect independently, was properly considered

by the court as an additional factor in evaluating the totality of the circumstances

presented."

We conclude the trial court did not view the conditions of the home in

isolation. Rather, the conditions of the home were considered in evaluating "the

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totality of the circumstances." This included the court's determination that

Curcio's testimony demonstrated Fred could possibly access the drugs in the

basement. Furthermore, even if we were to determine that the conditions of the

home were not appropriately considered by the trial court, "[a]ny error or

omission shall be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result." R. 2:10-2. Even

removing from consideration the court's determination that the home conditions

were "deplorable," other compelling evidence sufficiently showed Fred was at a

substantial risk of harm.

D.

Don and Lori argue that the trial court's determination that they failed to

exercise a "minimum degree of care" was improper. Don argues that he

"exercised a minimum degree of care using and storing drugs in the home and

was not grossly negligent." He claims he stored the drugs in the basement in a

latched box at a height of "at least three to five feet" off the ground. He also

notes he only used drugs "at night" when Fred was not in the "specific area of

the basement designed" for such drug use. He asserts that "[t]he court ignored

[his] cautionary acts and did not analyze whether [his] use of a lock box to secure

drugs was an exercise of a minimum degree of care." He argues that "[w]here

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there is no actual injury to a child, the legality of the dangerous substance

present in a home should not be a factor in evaluating if a parent has been grossly

negligent." Don further contends that he "chose a deliberate course of action to

minimize any substantial risk of harm to Fred." Thus, he asserts that a

"preponderance of competent, material and relevant evidence shows that [he]

was not grossly negligent because he exercised a minimum degree of care,

through several 'cautionary acts.'"

Lori argues that the trial court improperly relied on Curcio's testimony

that Fred could access the drugs in the basement when the details surrounding

the alleged drugs in the basement did not support a finding that Lori placed Fred

at a risk of harm. She asserts "it would have been extremely difficult for this

toddler to gain access to the basement, go down the stairs alone and then find

the toolbox with the drugs in it. In addition, the closed toolbox had latches on

it." She argues that even if her actions are deemed negligent, "they certainly did

not rise to the level of grossly or wantonly negligent on the night of the incident.

[She] did not act willfully or wantonly when the caseworker visited the home

and there is no evidence that she was not properly caring for [Fred]." She further

asserts the entire "family was sick and the house was a mess as a result," and

cites Doe v. G.D., for the proposition that the messy conditions of the house "do

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not establish child neglect or abuse." 146 N.J. Super. 419, 431 (App. Div. 1976).

She contends "[t]here is no evidence as to [her] alleged drug use that would

allow it to form the basis of a legal conclusion that she acted willfully and

wantonly." She asserts "there is no evidence that [Fred's] physical, mental or

emotional condition was in 'imminent danger of becoming impaired,' nor that

[she] had acted wantonly or recklessly" as required by N.J.S.A. 9:6-8.21(c)(4).

The Supreme Court of New Jersey articulated the circumstances in which

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. . . .

Whether a parent . . . has failed to exercise a
minimum degree of care is to be analyzed in light of the
dangers and risks associated with the situation. . . .
[T]he inquiry should focus on the harm to the child and
whether that harm could have been prevented had the
guardian performed some act to remedy the situation or
remove the danger. When a cautionary act by the
guardian would prevent a child from having his or her
physical, mental or emotional condition impaired, that
guardian has failed to exercise a minimum degree of
care as a matter of law.

[G.S., 157 N.J. at 181-82.]

"[E]very failure to perform a cautionary act is not abuse or neglect. When

the failure to perform a cautionary act is merely negligent, it does not trigger

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[N.J.S.A. 9:6-8.21(c)(4)(b)]." T.B., 207 N.J. at 306-07. "[W]here a parent . . .

acts in a grossly negligent or reckless manner, that . . . may support an inference

that the child is subject to future danger. To the contrary, where a parent is

merely negligent there is no warrant to infer that the child will be at future risk."

Id. at 307.

We affirm substantially for the reasons set forth in the trial court's

comprehensive opinion. The court appropriately determined that defendants

failed to exercise a minimum degree of care for Fred. The court found that both

defendants used drugs daily—including earlier that day—and were under the

influence when Curcio visited. The court also found Curcio's testimony reliable

to find that Fred had access to the drugs in the basement. The court determined

the toolbox was not out of Fred's reach, and the pouch of needles was unsecure

and out in the open.

The court properly considered the totality of the circumstances and made

particularized findings to hold that defendants failed to exercise a minimum

degree of care and that Don's purported cautionary acts were not enough to

shield Fred from a substantial risk of harm. Don downplays his admission to

using drugs earlier that day and his impaired condition. Moreover, his

suggestion he takes heavier doses at night in the basement (while Fred is

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presumably asleep upstairs) does not answer how he would be able to adequately

respond should Fred have some emergency in the evening.

The record amply supported the court's conclusion defendants failed to

exercise the minimum degree of care under N.J.S.A. 9:6-8.21(c)(4)(b) based on

their using fentanyl multiple times a day when serving as Fred's only caregivers.

Furthermore, they exposed Fred to a substantial risk of harm and imminent

danger by the presence of drug paraphernalia to which Fred had access.

Defendants were the primary and sole caregivers to a four-year-old boy entirely

dependent upon them for his care and safety. The evidence revealed both

defendants were actively using fentanyl while caring for Fred, thereby placing

him at significant risk.

Finally, to the extent we have not otherwise addressed any of defendants'

other arguments, we determine they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10783294. Public record. Not legal advice.