adopting the Strickland test in parental termination cases
How later courts described this case
- adopting the Strickland test in parental termination cases
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The 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NOT FOR PUBLICATION WITHOUT THE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-1795-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.P.,
Defendant,
and
R.D.,
Defendant-Appellant.
________________________
IN THE MATTER OF E.D.,
a minor.
________________________
Argued March 1, 2021 – Decided May 11, 2021
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FN-15-0068-19.
Patricia Nichols, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Patricia Nichols, on the
briefs).
Amy Melissa Young, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Amy Melissa Young, on
the brief).
Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy P.
Fratz, of counsel and on the brief).
PER CURIAM
Defendant R.D.1 appeals from the November 22, 2019 Family Part order
terminating litigation following a fact-finding hearing that resulted in a finding
that he abused or neglected his then nine-month-old son, E.D.,2 within the
meaning of N.J.S.A. 9:6-8.21. The finding was based on evidence that E.D.
accidentally ingested an unknown substance on June 29, 2018, while in the care
1
We use initials to protect the child's privacy. R. 1:38-3(d)(12).
2
E.D. was born in September of 2017.
A-1795-19
2
of defendant and his biological mother, S.P., 3 as a result of which E.D. suffered
an overdose, was administered the opioid treatment Narcan, without which he
could have died, and was hospitalized. A urine test conducted on E.D. at the
hospital was positive for opiates, and defendant tested positive for a similar type
of substance both before and after the incident. We affirm.
On October 25, 2018, the Division of Child Protection and Permanency
(Division) filed a verified complaint against defendant seeking a finding of
abuse or neglect under Title 9 and an order placing E.D. in the care and
supervision of the Division under Title 30 in connection with the June 29, 2018
incident. A fact-finding hearing was conducted on April 2, 2019, during which
the Division presented four witnesses and numerous documentary exhibits.
Specifically, Little Egg Harbor police officer Jason Way testified about his
response to the couple's apartment on June 29, 2018, after being dispatched on
a 9-1-1 call regarding an infant in respiratory distress; Division caseworkers
Rachel Clayton and Maria Bravo authenticated the Division's records and
testified about the Division's involvement with the family after receiving the
referral from the Little Egg Harbor Police Department; and Steven Kairys, M.D.,
3
No finding of abuse or neglect was sought or made against S.P.
A-1795-19
3
M.P.H., testified as an expert in the area of child abuse and pediatrics. 4
Defendant neither testified nor presented any witnesses on his own behalf.
At the hearing, Officer Way testified that when he arrived at the apartment
complex on the evening of June 29, he was met outside by S.P., defendant, and
a neighbor. S.P. was "carrying the infant," who "appeared lifeless" and "limp"
with "pinpoint pupils, shallowed breathing, and a rapid pulse." Defendant told
Way "he believe[d] . . . his uncle was counting Percocets . . . where the child
was playing and may have dropped one" that the child then "ingested." Based
on his training, Way recognized that E.D. "was suffering from an overdose of
an opiate." Thus, he promptly "[d]eployed Narcan" on the scene and rode to the
hospital with the infant and S.P. in the ambulance that had been dispatched with
the 9-1-1 call. After "about [fifteen] minutes," E.D. "started coming around a
little bit" and became "more responsive" while en route to the hospital. Another
officer promptly reported the incident to the Division.
As a result of the referral, that night, Caseworker Clayton responded to
Southern Ocean Medical Center (Southern) where E.D. had been transported and
4
Dr. Kairys was qualified as an expert without objection.
A-1795-19
4
spoke to S.P.5 S.P. told Clayton that while she was cleaning the living room in
the apartment, she "noticed" that E.D., who was playing in an adjoining play
area, "was moving his mouth around." She "swiped her finger back and forth"
in his mouth, but he did not appear to be "chewing on anything." However, "a
few moments later, [E.D.] began to act very lethargic [and] limp, [and] his eyes
were rolling in his head." In addition, E.D. "had . . . a bowel movement, which
. . . was concerning" for S.P. "because he had already gone that day and typically
[stuck] to his schedule" of going "once a day." After S.P. consulted with
defendant, who was also "concerned," both she and her neighbor called 9-1-1
and "then went downstairs" to "wait[] outside for the ambulance to come."
Given the allegation that E.D. may have ingested some type of opiate,
Clayton asked S.P. if there was drug use in the home. S.P. responded that
defendant had "a history of [h]eroin abuse, but . . . to the best of her knowledge,
he had been clean for the last two years and was being treated by a [m]ethadone
program." Speculating about the possible source of the substance E.D. had
ingested, S.P. told Clayton that defendant's uncle "who ha[d] a prescription for
Percocets . . . had walked through the home earlier in the day" and may have
5
Clayton testified that when she arrived at the hospital, S.P. and E.D. "were
both covered in charcoal because . . . [E.D.] had been given charcoal to help
empty his stomach."
A-1795-19
5
"dropped a Percocet." S.P. further surmised that "the neighbor who[m] she
believe[d] receive[d] a prescription for narcotic pain medication" may have
"dropped something as well."
Upon learning from S.P. that defendant was at the couple's apartment,
Clayton traveled there to interview him. When questioned about his drug use,
defendant told Clayton that, contrary to S.P.'s belief, "he had only been clean
for the last two months." When defendant was asked to sign a release for records
from his methadone program at John Brooks Recovery Center (John Brooks),
"he indicated that it would return a positive . . . [drug] screen . . . as early as two
months [prior]." However, he "adamantly [denied] current [drug] use or that
there [were] any drugs . . . on his person at that time that could [have] fallen on
the floor" of the apartment. Based on his drug use history, defendant confirmed
that the symptoms E.D. exhibited were consistent with an opiate overdose and
also "identified his uncle and the neighbor" to Clayton as possible sources of the
substance E.D. ingested.
E.D. was transferred from Southern to Jersey Shore University Medical
Center (Jersey Shore) at approximately 10:45 p.m. that night for further
monitoring. He was discharged from Jersey Shore the following day. Prior to
E.D.'s discharge, a safety protection plan was implemented in the home
A-1795-19
6
requiring that both parents be supervised by designated relatives while the
investigation was ongoing.
On July 2, 2018, Caseworker Bravo met with S.P. and administered a urine
screen which was negative for illicit drugs.6 Bravo arranged for defendant to
come to the office on July 6, 2018, for drug screening, but defendant failed to
report. As a result, on July 10, 2018, Bravo made an unannounced visit to the
apartment and spoke to defendant. Once again, defendant "denied . . . kn[owing]
. . . how [E.D.] got the . . . substance," indicated that he had started drug
treatment seven months prior, and reiterated that he had one positive drug screen
for opiates approximately two months prior.
Bravo arranged for defendant to undergo drug screening on two other
occasions, July 12 and 19, 2018, but, again, defendant failed to appear. Bravo
was also informed by defendant's counselor at John Brooks that defendant tested
positive for opiates on July 10 and 23, and August 2, 2018. Due to defendant's
record of ongoing drug use and continuous failure to undergo drug screening as
requested by the Division, on August 3, 2018, the Division revised the safety
protection plan, requiring defendant to move out of the couple's home and have
6
S.P. continued to test negative for illicit drugs throughout the investigation.
A-1795-19
7
supervised visitation with E.D. in a public setting while the investigation
continued.
On August 7, 2018, Bravo spoke to defendant again to obtain contact
information for the uncle who had been identified by both defendant and S.P. as
a possible source of the substance E.D. ingested. However, during that
conversation, contrary to his prior statement, defendant told Bravo "that the
uncle didn't bring anything because he was not in the house." 7 Defendant also
reiterated that he did not know "how [E.D.] got the substance."
After rescheduling defendant for a substance abuse evaluation three times,
on August 9, 2018, defendant finally underwent a comprehensive substance
abuse evaluation as requested by the Division. During the evaluation, defendant
"reported being clean for [two-and-one-half] years up until [his] recent relapse"
"at the end of October 2017," which prompted him to leave John Brooks in
November 2017. Defendant also disclosed an extensive history of substance
abuse involving the use of illicit substances as well as prescription medications.
7
During Bravo's July 2, 2018 meeting with S.P., S.P. had also retracted her
prior statement about defendant's uncle and told Bravo that he was not in the
house on the date of the incident.
A-1795-19
8
Specifically, defendant "admitted to using pills[,] . . . heroin," 8 and "cocaine."
He told the evaluator that he "last use[d] . . . cocaine [two] weeks ago" and
"heroin [one] week ago." 9 He "stated that he grew up with drug addicted
parents" and "witness[ed] his father overdose [three] times as a child." He
explained that he was "working with his father" and would "smok[e] crack
cocaine with him" "after work." He stated he was "hiding [his] drug use from
[his] paramour[]," S.P., who was not using drugs and had no "history of drug
abuse." Defendant told the evaluator that after "using with [his] parents after
work," he would "stay[] in Atlantic City until he no longer was high and then
return[] home to [his] paramour and infant." He said that he had "overdosed [on
heroin] in December 2017 but no one knew except for his parents," who "were
using with him," and "his sister" who "picked him up" from the hospital.
Defendant further reported returning to John Brooks around April 2018
and resuming his methadone dosing but "failing [several] urine screens . . . for
opiates." Specifically, defendant "tested positive for cocaine, opiates, and
8
Defendant explained that after "building up a tolerance to pills," he "began
us[ing] . . . heroin via nasal inhalation," and then "progress[ed] to intravenous
use."
9
Defendant "reported recent daily use of heroin" in conjunction with his
methadone dosing.
A-1795-19
9
prescribed [m]ethadone" on March 16, April 9, April 25, June 19, July 10, July
23, and August 2, 2018. He also tested positive for fentanyl on April 9 and 25,
2018. A urine drug screen collected during his evaluation on August 9, 2018,
was also "positive for cocaine and [prescribed m]ethadone."
Regarding the June 29 incident, defendant told the evaluator that he never
brought drugs into the couple's home. Although he speculated that E.D. "must
have found a Percocet under the couch" and denied knowing the source of the
pill, defendant reported that S.P. "was prescribed Percocet . . . following her gall
bladder surgery, [the] maternal grandmother [was] prescribed Percocet . . . for
back pain, and [the] neighbor," who was "helping [S.P.] with [the] baby [on a
daily basis] following her surgery" was "also prescribed Percocet . . . for pain
relief." Following the evaluation, defendant was diagnosed with severe opioid
use disorder and moderate cocaine use disorder and recommended for intensive
outpatient drug treatment.
Bravo interviewed the maternal grandmother and confirmed that she was
prescribed Tramadol and Percocet. However, she denied ever bringing the
medications to the couple's home. Bravo also interviewed the neighbor who
confirmed that she was prescribed "Oxycodone . . . and Hydro morphine for
back pain and . . . cysts" but denied taking her medications to the couple's home.
A-1795-19
10
At the Division's request, Dr. Kairys conducted a medical evaluation of
E.D. on July 5, 2018, and issued a report dated July 9, 2018, and an addendum
dated August 20, 2018. Kairys testified that during the evaluation, defendant
explained to him the circumstances surrounding E.D.'s admission to the hospital,
informed him about his methadone treatment, and speculated about the
"possibility" of E.D. obtaining "Oxycontin" from "somebody [who] had visited
the house." Kairys reviewed the lab results of the urine sample taken from E.D.
at Jersey Shore which "was positive for opiates" and "negative for aspirin or for
Tylenol." He also reviewed "[t]he blood test" which "was negative for
acetaminophen."
Kairys opined that based on the level of acetaminophen reported, "it [was]
unlikely" that E.D. ingested "Tramadol" which "is an acetaminophen
combination," or "Percocet." Kairys testified that ingestion of Percocet would
normally result in a finding of acetaminophen in the urine. He testified further
that
being positive for opiates generally indicates that the
child had to ingest either [c]odeine, [m]orphine, or . . .
some form of [h]eroin. All those are the ones that are
positive for opiates. All the synthetic narcotics, like
Oxycontin or Vicodin, . . . or [f]entanyl, even
methadone do not test positive for just opiates unless
there [is] a huge amount taken for the Oxycontin. So,
in general, [the lab results] narrow[] down what could
A-1795-19
11
[have been] taken to either [c]odeine, narcotic of some
sort, a [m]orphine narcotic or [h]eroin.[10]
Kairys explained that based on the information provided to him by
defendant during the initial evaluation, "[he] was perplexed" and "at a loss" as
to "what actually did occur" because neither defendant's methadone nor a
dropped Oxycontin pill would have been "a likely cause" for E.D.'s reaction.
Kairys explained that while one Oxycontin pill "could [have] caused [E.D.'s]
symptoms," it would not result in a "positive" urine screen. However, when
Kairys subsequently learned from the Division that "[defendant] had tested
positive . . . for [c]ocaine, [m]ethadone, [c]odeine, and [f]entanyl," then he
concluded that "one of those was a much more likely source for the narcotic that
[E.D.] ingested." As a result, Kairys amended his opinion to conclude that "the
accidental ingestion . . . occurred from something [defendant] had probably
dropped on the floor."
Kairys defined "accidental" as E.D. "pick[ing] . . . up" the narcotic
"because it had dropped on the floor," and "put[ting] it in his mouth," as opposed
to "somebody actually giving it to him." Kairys also explained that although
10
According to Kairys, "[c]odeine is a pill" and "[m]orphine could be a pill."
Kairys was unaware whether "[h]eroin comes in a pill form."
A-1795-19
12
E.D. "had no symptoms" when he evaluated him, depending on the quantity of
ingestion,11 and without the administration of Narcan, E.D. could have gone into
respiratory depression and developed major complications that "could [have]
been life threatening." Defendant presented no competing expert testimony at
the hearing to counter Dr. Kairys' findings.
At the conclusion of the investigation, the Division substantiated the
allegations of abuse or neglect against defendant based on the fact that
defendant's ongoing drug use created a condition requiring E.D. to be
hospitalized. See N.J.A.C. 3A:10-7.3(c)(1) (providing for an administrative
finding that an allegation of abuse or neglect is substantiated "if the
preponderance of the evidence indicates that a child is an 'abused or neglected
child' as defined in N.J.S.A. 9:6-8.21 and either the investigation indicates the
existence of any of the circumstances in N.J.A.C. 3A:10-7.4 or . . . the
aggravating and mitigating factors listed in N.J.A.C. 3A:10-7.5"); see also
N.J.A.C. 3A:10-7.4(a)(3) (requiring a substantiated finding when the
11
Kairys testified that "[t]he urine test [was] a screening test" that did not report
"quantity" but only reported "that there was some . . . of that narcotic in [E.D.'s]
urine." Therefore, it was impossible for Kairys to quantify what E.D. had
ingested. Additionally, according to Kairys, "in general," opiates are effective
for "four to eight hours" and "opiates usually last in the urine for a number of
hours and then disappear."
A-1795-19
13
investigation indicates "[t]he infliction of injury or creation of a condition
requiring a child to be hospitalized or to receive significant medical attention") .
Following the fact-finding hearing, in an oral opinion, the judge found
that the Division met its burden "by a preponderance of the evidence" that
defendant "abused or neglected" E.D. within the meaning of N.J.S.A. 9:6-
8.21(c)(4)(b). Based on the testimony of the four witnesses, the judge
determined "[t]here [was] no doubt that on June 29th of 2018, [E.D.], who [was]
less than one[-]year[-]old, ingested some type of illicit substance that caused
him to suffer pinpoint pupils, . . . rapid pulse, [and] shallowed breathing. He
was lethargic and actually limp in his mother's arm[s]." The judge conti nued
that E.D. "had to be administered Narcan, and was subsequently hospitalized."
After he was administered Narcan, "it took a good [fifteen] minutes for [E.D.]
to come back to some semblance of normalcy," and E.D.'s urine test at the
hospital "was positive for opiates." The judge found further that at the time of
the incident, "[defendant] was in a caretaking role and was testing positive both
before and after the incident . . . for a . . . similar type of substance."
The judge acknowledged that "no one has said that . . . [defendant] at any
time . . . intentionally gave his son some type of substance that caused these
symptoms." The judge explained:
A-1795-19
14
What happened was an accidental ingestion by
[E.D.] However, the circumstances surrounding that
accidental ingestion is where this [c]ourt finds that
[defendant] did indeed display gross negligence. It
does not [make] sense, especially in light of the
testimony that only [defendant] and [S.P.] were home
with the child when he had this reaction, that somebody
walking through the home, accidentally dropped a pill
out of their pocket or that they were counting pills . . .
and one could have possibly fallen on the ground,
especially in light of Dr. Kairys's testimony that
Tramadol or Vicodin or none of those types of
substances could have caused the positive urine result
for opiates. Most likely, according to Dr. Kairys's
unopposed testimony[, it] would be [caused by]
[c]odeine or [m]orphine.
After scrutinizing the witnesses' testimony, defendant's August 9, 2018
substance abuse evaluation, and defendant's admissions to the evaluator, the
judge concluded:
It is very clear from the testimony of the workers,
as well as from the substance abuse evaluation and also
the fact that [defendant] was not consistent with what
he had initially told the worker that the uncle dropped
a pill, . . . . that the evidence is more likely than not
that whatever substance [E.D.] ingested was a result of
. . . the current drug use by . . . [defendant].
It was an accidental ingestion by [E.D.], but it
was grossly negligent on . . . [the part] of [defendant]
because he was using drugs at the time and [E.D.] was
able, somehow, nobody knows how, to ingest
something that was left there by [defendant], not by
somebody passing through the home at any time.
A-1795-19
15
[Defendant] also refused to come in for several urine
tests in July.
The judge entered a memorializing order and this appeal followed.
On appeal, defendant raises the following arguments for our
consideration:
THE TRIAL COURT'S JUDGMENT FAILS TO
SATISFY R. 1:7-4, AS IT DOES NOT IDENTIFY
THE STATUTORY ELEMENTS ANALYZED BY
THE COURT OR CONTAIN CORRECT LEGAL
CONCLUSIONS; IN LIGHT OF THESE ERRORS
AND THE INEFFECTIVENESS OF TRIAL
COUNSEL, THE JUDGMENT MUST BE
REVERSED. (NOT RAISED BELOW).
A. The Court Issued a Judgment on a
Cause of Action Completely Different
From That Pled in the Complaint.
B. The Evidence Adduced at the Fact[-
] Finding Trial Did Not Support any Title
9 Cause of Action.
C. [Defendant] Did Not Receive
Effective Assistance of Counsel in
Challenging the State's Case.
D. The Trial Judge Failed To Recognize
That the Proof at Trial Did Not Sustain the
Complaint and Failed to Tether the Facts
[S]he Did Find to Any Title 9 Cause of
Action.
The Law Guardian joins with the Division in opposing the appeal.
A-1795-19
16
I.
"[B]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343
(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Moreover,
appellate courts '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.'" Id. at 342-43 (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). Thus, "[f]indings by the trial judge are
considered binding on appeal when supported by adequate, substantial and
credible evidence." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (alteration in
original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)).
"Although we defer to the trial court's findings of fact, especially when
credibility determinations are involved, we do not defer on questions of law."
N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div.
2011) (citing N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
88-89 (App. Div. 2006)). Nonetheless, "[t]he judgment of a trial court in a
A-1795-19
17
family-related matter 'should not be overthrown except upon the basis of a
carefully reasoned and factually supported . . . determination, after canvassing
the record and weighing the evidence, that the continued viability of the
judgment would constitute a manifest denial of justice.'" N.J. Div. of Youth &
Family Servs. v. N.S., 412 N.J. Super. 593, 616-17 (App. Div. 2010) (alteration
in original) (quoting In re Adoption of a Child by P.F.R., 308 N.J. Super. 250,
255 (App.Div.1998)).
Pertinent to this appeal, "[a]buse and neglect actions are controlled by the
standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth
& Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). 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. "[T]he safety of the child shall be of paramount concern
. . . ." N.J.S.A. 9:6-8.28(a), -8.31(a), -8.32. "If the facts are sufficient to sustain
the complaint, the court will enter an order finding that the child is an abused or
neglected child and set forth the ground for such finding." N.S., 412 N.J. Super.
at 615 (citing N.J.S.A. 9:6-8.50(a)). In making a finding of abuse or neglect, a
court considers "the totality of the circumstances, since '[i]n child abuse and
neglect cases the elements of proof are synergistically related.'" V.T., 423 N.J.
A-1795-19
18
Super. at 329 (quoting N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J.
Super. 472, 481 (App. Div. 2010)).
Regarding "the quantum of proof required in a fact-finding hearing
brought under Title Nine, it is well established that [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.'"
P.W.R., 205 N.J. at 32 (citation omitted) (quoting N.J.S.A. 9:6-8.46(b)). "Under
the preponderance standard, 'a litigant must establish that a desired inference is
more probable than not. If the evidence is in equipoise, the burden has not been
met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5(a) on N.J.R.E.
101(b)(1) (2005)). "The evidence must demonstrate that the offered hypothesis
is a rational inference, that it permits the trier[] of fact to arrive at a conclusion
in a preponderance of probabilities to common experience." N.S., 412 N.J.
Super. at 615 (alteration in original) (quoting In re Estate of Reininger, 388 N.J.
Super. 289, 298 (Ch. Div. 2006)).
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 . . . to
exercise a minimum degree of care . . . in providing the
A-1795-19
19
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)(b).]
"It is difficult to marshal direct evidence of parental abuse and neglect
because of the closed environment in which the abuse most often occurs and the
limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth
& Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994).
Consequently, in a fact-finding hearing under Title 9,
proof of injuries sustained by a child or of the condition
of a child of such a nature as would ordinarily not be
sustained or exist except by reason of the acts or
omissions of the parent or guardian shall be prima facie
evidence that a child of, or who is the responsibility of
such person is an abused or neglected child.
[N.J.S.A. 9:6-8.46(a)(2).]
"[N]on-intentional conduct is sufficient to warrant a finding of abuse if
the injury to the child is demonstrated." N.J. Div. of Youth & Family Servs. v.
S.S., 372 N.J. Super. 13, 24 (2004) (citing G.S. v. Dep't of Human Servs., 157
N.J. 161, 175-82 (1999)). Because intent is not required to find abuse under
Title 9, the trial court must determine "[w]hether a parent . . . has failed to
exercise a minimum degree of care . . . in light of the dangers and risks
A-1795-19
20
associated with the situation." G.S., 157 N.J. at 181-82. To that end, 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." Id. at 181. "When a
cautionary act by the [parent] would prevent a child from having his or her
physical, mental or emotional condition impaired, that [parent] has failed to
exercise a minimum degree of care as a matter of law." Id. at 182.
Significantly, "minimum degree of care" refers to conduct that is "grossly
or wantonly, negligent, but not necessarily intentional." Id. at 178. "Conduct is
considered willful or wanton if done with the knowledge that injury is likely to,
or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J.
288, 305 (1970)). "Because risks that are recklessly incurred are not considered
unforeseen perils or accidents in the eyes of the law, actions taken with reckless
disregard for the consequences also may be wanton or willful." Ibid. "Where
an ordinary reasonable person would understand that a situation poses dangerous
risks and acts without regard for the potentially serious consequences, the law
holds him responsible for the injuries he causes" and "[k]nowledge will be
imputed to the actor." Id. at 178-79.
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"Thus, under a wanton and willful negligence standard, a person is liable
for the foreseeable consequences of [his] actions, regardless of whether []he
actually intended to cause injury." Id. at 179. "[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." Id.
at 182. If a parent's act or omission does not meet the "minimum degree of care"
required by law, the substantiated finding must stand. Ibid.; see also N.J. Div.
of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-09 (2011) (reaffirming the
G.S. test).
Applying these principles, we agree with the judge that defendant abused
or neglected E.B. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) and reject
defendant's contentions that the judge's "findings [were] unsupported by either
evidence or statutory elements." Instead, the preponderance of the evidence
demonstrated that E.B. was injured by ingesting opiates he found on the floor of
the couple's home while under their care. Unbeknownst to S.P., defendant, who
had a drug history, had relapsed and tested positive for opiates on June 19 and
July 10, approximately ten days before and ten days after the June 29 incident.
Despite his denials about bringing drugs into the home, which denials were
undermined by his false claims to S.P. and Division caseworkers about the onset
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of his relapse, the evidence supported the conclusion that based on his
documented drug use, it was more probable than not that defendant was the
source of the opiates E.B. ingested. Indeed, rather than relying "solely on
supposition and speculation" as defendant asserts, the judge properly applied the
governing "preponderance standard" in determining that the "desired inference
[was] more probable than not." N.S., 412 N.J. Super. at 615.
It was undisputed that the child's ingestion was accidental. However,
intent was not required to support a finding of abuse or neglect on the part of
defendant. "Even an isolated unintentional injury may form the basis for a
finding of neglect where the intrinsic danger of the situation is obvious." G.S.,
157 N.J. at 180. As the judge found, defendant's failure to exercise a minimum
degree of care resulted in him recklessly causing injury to E.B. by his active
drug use and constituted grossly negligent conduct. In that regard, we reject
defendant's contention that "the judge did not tether her factual or legal
conclusions to any specific Title 9 cause of action." On the contrary, the judge's
factual findings, to which we owe deference, are supported by substantial,
credible evidence adduced at the hearing, and the judge's legal conclusion that
defendant's acts did not meet the "minimum degree of care" required by N.J.S.A.
9:6-8.21(c)(4)(b) was sound. "When a cautionary act by the [parent] would
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prevent a child from having his . . . physical . . . condition impaired, that [parent]
has failed to exercise a minimum degree of care as a matter of law." G.S., 157
N.J. at 182.
Defendant argues that "the State failed at trial to resolve th[e] basic
dispute" regarding the source and type of substance and suggests that this failure
was fatal to the State's case. We emphatically reject this argument for several
reasons.
First, the danger that an infant may be seriously injured by having access
to an opiate, regardless of the specific type, is readily apparent. That danger
was realized when E.B. ingested an opiate that resulted in an overdose with the
ensuing administration of Narcan and hospitalization. Second, although
defendant and S.P. speculated that the substance may have been accidentally
dropped by others who had access to the home — specifically, the neighbor,
defendant's uncle, and the maternal grandmother — all three were ruled out by
Dr. Kairys' uncontroverted expert testimony, defendant's and S.P.'s subsequent
exoneration of the uncle, and caseworker interviews during which the neighbor
and the maternal grandmother both denied bringing any substances into the
couple's home. Further, because defendant's credibility regarding his drug use
was undermined by his positive drug tests at John Brooks, his claim that he never
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brought drugs into the home was rendered suspect and unreliable to refute the
Division's proofs.
Defendant also raises procedural challenges, arguing for the first time on
appeal that "no statutory provision of Title 9 had been pled." According to
defendant, "[t]here was a surprise substitution of a Title 9 trial and judgment
from a Title 30 complaint without any pleading of any of the nine Title 9 causes
of action." We disagree.
Procedurally, "[f]ollowing an investigation, the Division initiates the civil
action seeking an adjudication of abuse or neglect by filing a complaint in the
Family Part, pursuant to N.J.S.A. 9:6-8.33." N.J. Div. of Youth & Family Servs.
v. P.C., 439 N.J. Super. 404, 413 (App. Div. 2015). "The complaint must
adequately notify a defendant of all charges." Ibid.; see also P.W.R., 205 N.J.
at 36-37 (2011). Because "[t]he fact-finding hearing is a critical element of the
abuse and neglect process," it "must be conducted 'with scrupulous adherence to
procedural safeguards.'" P.C., 439 N.J. Super. at 413 (quoting N.J. Div. of
Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009)). To that end, "[a]t a
minimum, 'due process requires that a parent charged with abuse or neglect have
adequate notice and opportunity to prepare and respond.'" Id. at 412 (quoting
N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 213
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25
(App.Div.2013)); see also N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J.
Super. 118, 126-27 (App.Div.2010) (noting that a defendant must be apprised
by such notice of the matters at issue and be afforded an "adequate opportunity"
to respond and prepare for trial).
Here, all procedural safeguards were scrupulously followed. The
complaint specified that the "action [was] brought by the Division pursuant to
[N.J.S.A.] 9:6-8.21 et seq. and [N.J.S.A.] 30:4C-12 and [Rule] 5:12-1 et seq. for
the protection and best interests of [E.D.]" Further, the complaint was filed as
a result of defendant "fail[ing] to ensure the health and safety of [E.D.]" and
"endangering the welfare of [E.D.]" Additionally, the allegations in the
complaint delineated the circumstances surrounding E.D.'s ingestion of opiates
on June 29 as well as the Division's investigation and ensuing involvement with
the family, including "requiring [defendant] to remain out of the home" due to
his documented record of ongoing drug use and non-compliance with services.
Finally, in the prayer for relief, "the Division request[ed] an order placing . . .
[E.D.] in the care and supervision of the Division and, or, such other relief as
. . . provided by law, specifically [N.J.S.A.] 9:6-8.21 et seq. and [N.J.S.A.]
30:4C-12, and . . . in the best interest of the child."
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"A complaint . . . is not required to spell out the legal theory upon which
it is based." Farese v. McGarry, 237 N.J. Super. 385, 390 (App. Div. 1989).
"Its necessary contents are only 'a statement of the facts on which the claim is
based, showing that the pleader is entitled to relief, and a demand for judgment
for the relief to which he deems himself entitled.'" Ibid. (quoting R. 4:5-2). We
are satisfied that the Division's complaint, which included allegations of conduct
amounting to abuse or neglect against defendant within the meaning of N.J.S.A.
9:6-8.21, provided defendant with adequate notice and his contention to the
contrary is belied by the record. 12
Defendant seems to also suggest without support that the earlier
administrative finding of abuse or neglect pursuant to N.J.A.C. 3A:10-7.3(c)(1),
following the Division's investigation, precluded a later adjudication by the
court that E.D. was an abused or neglected child or rendered it unnecessary.
However, N.J.A.C. 3A:10-7.3(g) expressly provides that "[p]ursuant to N.J.S.A.
9:6-1 et seq., the Superior Court, Chancery Division, has jurisdiction to
12
Notably, at the show cause hearing conducted on October 29, 2018, following
the filing of the complaint, the judge determined "that the Division having care
and supervision of [E.D. was] necessary to avoid an ongoing risk to [his] life,
safety or health" because defendant was "actively using illicit substances; [E.D.]
allegedly found a pill and ingested heroin or morphine; [E.D.] had to be treated
with Narcan and [was] hospitalized."
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27
adjudicate determinations that a child is an abused or neglected child" in
conjunction with any administrative finding by the agency. See N.J.A.C. 3A:10-
7.3(h)(1) (providing that the agency retains "the administrative authority" to
"[d]etermine whether an allegation . . . determined to be abuse or neglect by the
Superior Court, Chancery Division, is established or substantiated"). Moreover,
litigation was not terminated until November 22, 2019, when the judge
determined based on defendant's compliance with drug treatment services that
reunification of the family was appropriate and termination of the litigation was
"in the child's best interest." Thus, we discern no deficiency in the pleading or
the proceedings.
We next address defendant's claim that his attorney was ineffective for
failing "to move to dismiss the Title 30 complaint for failure to state a cause of
action," failing "to object to the admission of Dr. Kairys's ultimate issue opinion
of neglect," failing "to highlight to the court that the State failed to prove where
the pill came from or even what the pill was," and failing "to move for
reconsideration or to vacate the judgment" after the judgment was issued.
"[A] defendant has a right to [the effective assistance of] counsel when a
complaint is filed against him or her charging abuse and neglect and threatening
the individual's parental rights." N.J. Div. of Youth & Family Servs. v. B.H.,
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391 N.J. Super. 322, 345 (App. Div. 2007) (citing N.J.S.A. 9:6-8.43(a)). In
determining whether that right has been violated, we apply the test "as set forth
. . . in Strickland [v. Washington, 466 U.S. 668 (1984)]." Id. at 346; see N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting
the Strickland test in parental termination cases).
Specifically,
(1) counsel's performance must be objectively deficient
i.e., it must fall outside the broad range of
professionally acceptable performance; and (2)
counsel's deficient performance must prejudice the
defense i.e., there must be "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
[B.R., 192 N.J. at 307 (quoting Strickland, 466 U.S. at 694).]
The Strickland standard is "highly deferential," and "a court must indulge
a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" B.R., 192 N.J. at 307-08 (quoting Strickland,
466 U.S. at 689). To establish the elements of an ineffective-assistance-of-
counsel claim, "appellate counsel must provide a detailed exposition of how the
trial lawyer fell short and a statement regarding why the result would have been
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29
different had the lawyer's performance not been deficient. That will include the
requirement of an evidentiary proffer in appropriate cases." Id. at 311.
Applying this standard, we reject each of defendant's ineffective
assistance of counsel (IAC) claims in turn. First, because we discern no
deficiency in the pleading or the proceedings, a motion to dismiss the complaint
would have failed. Similarly, given our conclusion that the judgment was
supported by the evidence and the law, defendant would not have prevailed on
a motion for reconsideration or a motion to vacate the judgment. "[I]t is not
ineffective assistance of counsel for defense counsel not to file a meritless
motion. . . ." State v. O'Neal, 190 N.J. 601, 635 (2007) (citation omitted).
Further, in summations, defense counsel forcefully argued to the judge:
the issue with this case is unfortunately . . . there was
an accident where the child ingested something. The
issue is, though, you don't know exactly what . . . and I
think most problematic is Dr. Kairys's report where he
essentially changes his position based upon additional
information the Division obtains from John Brooks
regarding my client's substance abuse history. I think
there has to be something more as far as the Division's
proof.
We don't know what the child took. There were
other people in the home . . . but I think there has to be
something more in these types of cases.
....
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Dr. Kairys was not able to . . . indicate how long the
half-life of any substances is and I think it's . . . purely
within the realm of possibility that a child can get into
something that was left or . . . fell from someone's
pocket that doesn't have any bearing on . . . what my
client did and any type of grossly negligent manner.
Clearly, defendant's assertion that defense counsel was ineffective for failing "to
highlight to the court that the State failed to prove where the pill came from or
even what the pill was" is belied by the record.
Finally, we consider defendant's claim that defense counsel was
ineffective for failing "to object to the admission of Dr. Kairys'[s] ultimate issue
opinion of neglect." Under N.J.R.E. 702, expert testimony "in the form of an
opinion" is admissible "[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue. . . ." Under N.J.R.E. 704, such testimony "is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact." Indeed, "experts
can offer reliable opinion testimony about the ultimate issue at trial." Jacober
v. St. Peter's Med. Ctr., 128 N.J. 475, 497 (1992). This is common in Title 9
and Title 30 cases, in which the Division, Law Guardian, and defendants
frequently seek experts who offer opinions as to the satisfaction or non -
satisfaction of the pertinent statutory criteria.
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Here, Dr. Kairys' opinion was neither objectionable nor inadmissible.
Thus, defendant has failed to establish the elements required to prevail on any
of his IAC claims.
Defendant's remaining arguments lack sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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