DCPP VS. A.W., IN THE MATTER OF E.H. (FN-21-0153-18, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2491-18T4

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

A.W.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF E.H.,

a Minor.

_____________________________

Submitted December 17, 2019 – Decided January 22, 2020

Before Judges Accurso and Gilson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Warren County,

Docket No. FN-21-0153-18.

Joseph E. Krakora, Public Defender, attorney for

appellant (Robyn A. Veasey, Deputy Public Defender,

of counsel; Laura M. Kalik, Designated Counsel, on the

briefs).

Gurbir S. Grewal, Attorney General, attorney for

respondent (Melissa H. Raksa, Assistant Attorney

General, of counsel; Sara M. Gregory, Deputy Attorney

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor (Danielle Ruiz, Designated Counsel,

on the brief).

PER CURIAM

A mother appeals from an order finding that she abused or neglected her

infant daughter by using illicit drugs while and after she was pregnant with the

child. At birth, the child had amphetamines and methadone in her urine, and she

was diagnosed with mild neonatal abstinence syndrome (NAS). We affirm.

I.

A.W. (Allison) is the biological mother of three children: J.B. (Jon), born

in February 2007; S.W. (Sam), born in June 2014; and E.H. (Ella), born in

December 2017.1 Jon and Sam are in the custody of their great-grandmother

and only Ella is the subject of this appeal.

Allison has a long history of drug abuse. In the past, she has admitted to

using heroin, crystal methamphetamine, and marijuana. In 2014, when Sam was

born, he had drugs in his system and suffered from withdrawal symptoms. Since

1

We use initials and fictitious names to protect privacy interests and the

confidentiality of the record. R. 1:38-3(d)(12).

A-2491-18T4

2

2013, Allison has started, but failed to successfully complete numerous

substance abuse treatment programs. She also admitted to various relapses and

use of drugs between 2014 and 2017.

While pregnant with Ella in 2017, Allison started a methadone treatment

program. In August 2017, four months before the birth of Ella, Allison was

discharged from that program for lack of compliance. She had missed fifteen

days of dosing with methadone, did not attend any group counseling sessions,

and only attended one individual session. Thereafter, Allison declined the offers

of the Division of Child Protection and Permanency (Division) to help her

maintain sobriety.

In December 2017, Allison, then thirty-nine weeks pregnant with Ella,

went to a hospital in Pennsylvania. She tested positive for amphetamines and

marijuana but signed herself out of the hospital against medical advice. Shortly

thereafter, Allison went to another hospital, St. Luke's Hospital in Pennsylvania,

where she gave birth to Ella. At St. Luke's, Allison tested positive for

amphetamines and methadone. She was also found to have an electronic

cigarette or vaping pen, and she threatened hospital staff when they confiscated

that device.

A-2491-18T4

3

At birth, Ella tested positive for amphetamines, methamphetamines and

methadone. Medical records from St. Luke's also showed that Ella's umbilical

cord contained amphetamines, marijuana, methadone, opioids, and morphine.

The child was diagnosed with mild NAS and the hospital monitored Ella for five

days before releasing her. Fortunately, Ella did not experience any withdrawal

symptoms.

A Division worker went to St. Luke's and met with Allison. Allison

acknowledged that both she and Ella had tested positive for amphetamines, but

she denied using that drug. She did admit to smoking marijuana a week before

Ella's birth, and she suggested that the marijuana may have been laced with

methamphetamines.

With regard to the methadone, Allison claimed that she was attending a

methadone treatment program. When the Division followed up with that

treatment program, however, it learned, as noted earlier, that Allison had been

discharged from the program in August 2017 for non-compliance.

B.H. was initially identified as the father of Ella. A subsequent test,

however, revealed that he was not Ella's father. No father had been confirmed

by the time of the fact-finding hearing.

A-2491-18T4

4

When the Division was unable to implement a safety plan to protect Ella,

it removed Ella and placed her in a resource home. Thereafter, the family court

granted the Division custody of Ella. The court also ordered Allison to comply

with substance abuse evaluations and treatment.

After Ella's birth, Allison tested positive for various drugs on December

19, 2017, January 23, 2018, and February 6, 2018. Those drugs included

amphetamines, marijuana, methamphetamines, methadone, and opioids.

The family court conducted a fact-finding hearing on May 10, 2018. One

witness testified: a Division worker. The Division also introduced into evidence

a number of documents, including medical records concerning Ella's birth.

Allison did not attend the hearing and her counsel presented no evidence.

At the conclusion of the evidentiary hearing, the court issued an oral

decision on the record. The court found that Allison had used unprescribed

drugs both during and after Ella's birth. Relying on the medical records, the

court found that Allison had obtained very little prenatal care and Ella was born

with opioids, oxycodone, amphetamines and methadone in her system. The

court also found that Ella had been diagnosed with mild NAS, but she had

suffered no withdrawal symptoms.

A-2491-18T4

5

Based on those findings, the court concluded that the Division had proven

Allison had abused or neglected Ella. In that regard, the court found that Allison

had both exposed Ella to a significant risk of harm and had actually harmed Ella.

In making those findings, the court seemed to accept Allison's claim that she

was in a methadone treatment program while pregnant, but also found that Ella

had been exposed to other drugs. In addition, the family court found that Allison

posed a risk of substantial harm to Ella by continuing to use illicit drugs after

Ella's birth.

Following the fact-finding hearing and several compliance reviews, the

family court approved the Division's plan to seek the termination of Allison's

parental rights so that Ella could be adopted. Accordingly, the court closed the

Title 9 action and the Division filed a Title 30 action.

II.

Allison now appeals from the May 10, 2018 order finding that she abused

or neglected Ella. She argues that the family court erred because (1) there was

insufficient evidence to establish that Ella was abused or neglected, and (2) it

relied on incompetent, hearsay evidence contained in the hospital records. In

making those arguments, Allison contends that the court improperly focused on

her past behavior, erred in finding actual harm or future risk to Ella without

A-2491-18T4

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expert testimony, and there was no evidence establishing that Allison failed to

exercise a minimum degree of care for Ella. The substantial credible evidence

at the fact-finding hearing, coupled with the law, rebut all of those arguments.

A.

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 & Family Servs. v.

I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). 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) (first citing In re Guardianship of J.T.,

269 N.J. Super. 172, 188 (App. Div. 1993); then citing Cesare v. Cesare, 154

N.J. 394, 411-13 (1998)). Accordingly, we will only overturn the judge's

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

Ibid. (citing J.T., 269 N.J. Super. at 188-89). 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 N.J. 145,

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

issues. Id. at 245-46.

A-2491-18T4

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

designed to protect children. N.J.S.A. 9:6-1 to -8.114. 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).]

Thus, abuse or neglect can be based on either (1) actual harm or (2)

substantial risk of harm. The protection of the abuse and neglect statute "is

limited to the condition of a child after birth." N.J. Dep't of Children & Families

v. A.L., 213 N.J. 1, 22 (2013) (citing N.J. Div. of Youth and Family Servs. v.

L.V., 382 N.J. Super. 582, 590 (Ch. Div. 2005)).

[Therefore,] the primary question under Title 9 is

whether [the child], as a newborn, "ha[s] been

impaired" or was in "imminent danger of becoming

impaired" as a result of his [or her] mother's failure to

exercise a minimum degree of care by unreasonably

A-2491-18T4

8

inflicting harm or allowing a "substantial risk" of harm

to be inflicted.

[Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).]

"If an expectant mother's drug use causes actual harm to the physical, mental,

or emotional condition of a newborn child, a finding of abuse or neglect is

appropriate." Id. at 8.

Nevertheless, "not every instance of drug use by a parent during

pregnancy, standing alone, will substantiate a finding of abuse and neglect in

light of the specific language of the statute." Id. at 23; see also id. at 23 n.3

(noting that New Jersey has not joined those states whose laws treat prenatal

drug use as per se child abuse); N.J. Div. of Youth & Family Servs. v. N.D., 435

N.J. Super. 488, 494 (App. Div. 2014) (same). Actual harm under the statute

can be established by offering proof that a child suffered drug "withdrawal

symptoms at birth" or by "showing evidence of respiratory distress,

cardiovascular or central nervous system complications, low gestational age at

birth, low birth weight, poor feeding patterns, weight loss through an extended

hospital stay, lethargy, convulsions, or tremors." A.L., 213 N.J. at 22-23 (citing

In re Guardianship of K.H.O., 161 N.J. 337, 349-50 (1999)). Proof of actual

harm "may come from any number of competent sources including medical and

A-2491-18T4

9

hospital records, health care providers, caregivers, or qualified experts." Id. at

23.

Our Supreme Court has clarified that, under certain circumstances, proof

of prenatal drug use coupled with the fact that a newborn suffered withdrawal

symptoms may not be sufficient to establish abuse and neglect. See N.J. Div. of

Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014). Those

circumstances require proof that the mother was (1) participating in a bona fide

treatment program, (2) prescribed methadone by a licensed healthcare

professional, (3) after full disclosure to that professional. Ibid. In that regard,

the Court held,

[A]bsent exceptional circumstances, a finding of abuse

or neglect cannot be sustained based solely on a

newborn's enduring methadone withdrawal following a

mother's timely participation in a bona fide treatment

program prescribed by a licensed healthcare

professional to whom she has made full disclosure. In

this case, a finding of abuse or neglect under N.J.S.A.

9:6-8.21(c)(4)(b) required proof that [the mother]

unreasonably inflicted harm on her newborn and did so,

at least, by acting with gross negligence or

recklessness.

[Id. at 168-69.]

We agree that there is insufficient credible evidence to show that Ella

suffered actual harm. The evidence does, however, establish that Allison failed

A-2491-18T4

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to exercise a minimum degree of care and exposed Ella to a substantial risk of

harm.

The failure to exercise a "minimum degree of care" refers to "conduct that

is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't

of Human Servs., 157 N.J. 161, 178 (1999). "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.

After birth, Ella tested positive for amphetamines and methadone. Her

umbilical cord also contained amphetamines, marijuana, methadone, opioids ,

and morphine. She was diagnosed with mild NAS. She suffered no withdrawal

symptoms, but the hospital monitored her for five days. That evidence

establishes that Ella was exposed to a substantial risk of harm from Allison's

drug use. Moreover, Allison was well-aware of the substantial risk of harm.

Her prior drug use had resulted in her second child, Sam, being born with drugs

in his system and Sam had suffered from drug withdrawal.

A-2491-18T4

11

The family court also found that Allison's continued use of unprescribed

drugs after Ella's birth posed a substantial risk of harm to Ella. That finding is

also supported by substantial credible evidence. Allison was not capable of

providing unsupervised care to Ella after her birth. She was referred to

treatment, but she failed to comply with that treatment. She tested positive for

amphetamines, methamphetamines, opioids, and marijuana three times in

January and February 2018. As a consequence, Allison could not act as a

caregiver to Ella because her continued drug use posed a substantial risk of harm

to Ella. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320,

331 (App. Div. 2011) (holding that infants are "vulnerable to the slightest

parental misstep" and noting that the risk of parental drug use varies with the

age of the child).

B.

Neither the credible facts nor the law support any of Allison's arguments.

As already summarized, there was substantial credible evidence that Allison

failed to provide a minimum degree of care to Ella and exposed her to a

substantial risk of harm. Allison argues that under Y.N. and V.T. the finding of

abuse and neglect should be reversed. We disagree.

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Allison's reliance on Y.N. is misplaced. In Y.N., the sole drug identified

as causing the withdrawal symptoms was methadone. Id. at 170. The court

accepted Y.N.'s testimony that she was taking methadone as part of a treatment

program she entered prior to giving birth. Id. at 169-70. Here, in contrast, there

was no evidence in the record that Allison was prescribed methadone in

conjunction with a bona fide treatment program or that her use of methadone

during her pregnancy was authorized by a qualified professional after full

disclosure. The only evidence concerning a methadone treatment program was

a claim that Allison made to a Division worker. Allison herself did not testify.

Her unsubstantiated claim is insufficient to establish that she was in a qualified

methadone treatment program.

Allison's reliance on V.T. is also misplaced. In that case, we held that

V.T.'s use of illegal drugs approximately two days prior to two supervised visits

with an eleven-year-old child did not constitute neglect as a matter of law. V.T.

was not visibly impaired and behaved appropriately at those visits. V.T., 423

N.J. Super. at 331. In that regard, we observed that conduct that did not pose a

substantial risk to an eleven-year-old might pose a substantial risk to an infant.

Ibid. Here, Ella is "vulnerable to the slightest parental misstep." Ibid.

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Therefore, we discern no error in the family court's determination that Allison's

repeated use of drugs after Ella's birth posed a substantial risk of harm to Ella.

We also reject Allison's argument that expert testimony was necessary to

establish a substantial risk of harm to Ella. We grant substantial deference to a

trial judge's evidentiary rulings. N.J. Div. of Youth & Family Servs. v. N.S.,

412 N.J. Super. 593, 622 (App. Div. 2010). Rule 5:12–4(d) permits the Division

to introduce "reports by staff personnel or professional consultants" into

evidence provided the documents satisfy the requirements of the business

records exception and are trustworthy. N.J.R.E. 803(c)(6) and 801(d); N.J. Div.

of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-30 (App. Div.

2010).

Drug testing does not entail "the exercise of subjective judgement" rather,

it is a "straightforward, simple diagnosis based upon objective criteria." N.J.

Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174-75 (App. Div.

2012). The family court did not abuse its discretion by admitting the medical

records into evidence under Rule 803(c)(6). As already noted, expert testimony

was also not required to determine whether the level of drugs in Allison's system

was sufficient to expose Ella to a substantial risk of harm. See V.T., 423 N.J.

Super. at 331.

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Affirmed.

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