1. Art and Diseño

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0240-13T1
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,1
Plaintiff-Respondent,
v.
K.S.,
Defendant-Appellant,
and
M.S. and V.S.,
Defendants.
_______________________________________
IN THE MATTER OF M.A.S., a minor.
________________________________________
Submitted January 12, 2015 – Decided February 3, 2015
Before Judges Simonelli and Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FN-16-35-13.
1
Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency (Division). L. 2012, c. 16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele C. Buckley,
Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Amy McKinsey, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor M.A.S. (Lisa M.
Black, Designated Counsel, on the brief).
PER CURIAM
K.S. (Katrina)2 appeals from the Family Part's February 19,
2013 order entered following a fact-finding hearing, determining
she3 abused or neglected her son, M.A.S. (Mark).
We affirm.
I.
Mark was born in 2006.
The Division's involvement with the
family began in 2007 when it received a referral that Katrina
had neglected Mark.
The Division requested that Katrina submit
to a drug and alcohol assessment.
Although she completed an
initial assessment, she failed to complete an extended
assessment.
Ultimately, the allegation was deemed unfounded.
2
We employ pseudonyms to preserve the privacy of the minor and
for ease of reference.
3
The court also entered a finding of abuse or neglect against
co-defendant M.S. (Matthew), Mark's biological father, who has
not appealed.
2
A-0240-13T1
A second referral was received by the Division in August
2008, alleging drug abuse by Katrina and Matthew.
Both parents
admitted to drug use, and Mark was removed by the Division.
Services were offered to both parents; Matthew took advantage of
them, but Katrina did not.
Matthew's custody.
In June 2009, Mark was returned to
At the time, Matthew was residing with his
mother, V.S. (Vanessa); Katrina was not living with them.
The incident that gave rise to this litigation occurred on
August 23, 2012.
Officers from the Wanaque Police Department
responded to a report of domestic violence and learned that
Matthew threw a can at Vanessa, which hit her head and caused a
laceration.
Katrina and Mark were present during this incident.
While in the home investigating the incident, the police
observed empty glassine bags in a bedroom.
Because of possible
drug activity and the domestic violence, the police notified the
Division.
Caseworkers Grace Barrientos and Paula Melo responded and
investigated the incident.
At the fact-finding hearing,
Barrientos described the condition of the home:
[T]here [were] a lot of cats in the home.
The floor was stained.
There [were] feces
in the cat litter in the kitchen area.
There [were] garbage piles in the home.
Upstairs on the second floor there was
broken glass, the door was off the hinge.
. . . .
3
A-0240-13T1
There [were] silver spoons on top of the
dresser
[in
the
second
floor
bedroom]
because there [were] also allegations that
there were six to eight empty glassine
heroin bags, so I asked [Vanessa] to show me
where they were.
When she opened the
dresser I noticed that there [were] the
silver spoons on top of the dresser.
. . . .
There was chicken on a plate and prior to us
going into the house, [Mark] was eating the
chicken on the plate in the living room
area.
We
went
upstairs.
We
came
downstairs.
The cat was now eating the
chicken . . . in the living room area.
Mark, who was five years old, told Melo that he saw his
father hit his grandmother in the head.
When asked about drug
use in the home, Mark told the caseworker that his mother uses
needles in a bedroom downstairs.
Mark then told Melo that he
sleeps in the same bed with his parents and showed her the room.
The caseworker confirmed that this was the same bedroom where
the police had earlier observed six to eight empty glassine
heroin bags on the dresser.
Melo confirmed the testimony of Barrientos as to the
condition of the home:
I had observed the home to be very dirty.
It
was
cluttered
with
clothes,
with
paperwork, trash.
It smelled of cat urine.
There were many animals in the home running
around.
There were dirty stains, black
dirty stain on the carpet. There was trash
around the garbage can, inside the trash
4
A-0240-13T1
can, on the kitchen counter tops, and there
was like a foul odor in the home.
There
[were] food containers that were in his
bedroom . . . that [Mark] stated that he
shared with his mother and his father.
There were dirty, crusty plates in the sink.
There were flies in the home.
At the conclusion of the hearing, the judge found that the
Division had established abuse or neglect by a preponderance of
the evidence.
While the judge referenced the domestic violence
incident between Matthew and Vanessa, he made extensive findings
as to the drug use in the home and how it affected Mark:
Both parties have a history of drug abuse,
certainly arrests.
[Katrina] didn't finish
any . . . substance
abuse
treatment
programs.
The young boy said his mother
uses needles . . . .
No child should make
that observation of his parent or one of his
parents. There were spoons and empty heroin
bags found in the bedroom. Now, I'll accept
that . . . the officer does not believe that
[Katrina] was high on heroin at the time.
However, she allowed her son to be in a home
where she admitted that there were drugs in
the home.
When you have alleged empty
heroin bags, dirty spoons, I don't think
somebody was eating cereal up there.
I
mean, you know, my kids have left a spoon in
the family room and in my bedroom, but under
these
circumstances
I
find
that
[it
was] . . . not
a
child . . . eating
something in the bedroom.
I find that the
spoons were being used to heat up heroin to
be injected.
The judge also discussed the condition of the home:
There were numerous cats in the house.
And, again, numerous cats is not a violation
of the law nor is it neglect or abuse.
5
A-0240-13T1
However, when there are numerous cats that
are prying into couches and living in and
out of a couch, a litter of cats upstairs,
cat litter that is . . . just strewn with
fecal matter, the house smells of fecal
matter, the house smells of cats, the house
smells of urine, the house has a foul odor,
the garbage isn't being taken out, broken
glass on the floor, his grandmother drinking
while DYFS is there—I mean, have I said
enough?
I think adding all of that together,
it's clear that that there is abuse and
neglect here and I find that the Division
has met its burden by a preponderance of the
evidence.
Oh.
And then there's . . . also the
flies in the house too.
Just everything
adds up to one big deplorable mess and no
child should be living in those kinds of
conditions.
While I'm not finding that it
may have affected his leukemia,[4] there's no
medical testimony in that regard, but still,
whether you have leukemia or not, no child
should live that way and I find the Division
has met its burden.
On appeal, Katrina presents the following arguments:
POINT I
THE
DIVISION
OF
CHILD
PROTECTION
AND
PERMANENCY
FAILED
TO
PROVE
BY
A
PREPONDERANCE OF THE EVIDENCE THAT [MARK]
WAS ABUSED OR NEGLECTED BY [KATRINA].
POINT II
[KATRINA]
WAS
AMENDMENT RIGHT
COURT PERMITTED
4
DENIED
HER
FOURTEENTH
TO DUE PROCESS WHEN THE
THE DIVISION TO PRESENT
In January 2010, Mark was diagnosed with leukemia.
6
A-0240-13T1
EVIDENCE OF ALLEGATIONS WITHOUT PRIOR NOTICE
OF THE ALLEGATIONS.
II.
Our review of a trial court's factual findings is limited.
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,
342-43 (2010).
These factual findings are binding on appeal if
supported by adequate, substantial, and credible evidence.
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Particular deference is afforded to family court fact-finding
because of the family courts' special jurisdiction and expertise
in family matters.
Id. at 413.
A trial court's legal
conclusions, however, are not entitled to deference.
Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
A.
Katrina's first argument is that the trial court erred in
finding that she abused or neglected Mark because there were no
charges substantiated against her, there was no evidence that
she possessed or used drugs, and she was attempting to remove
Mark from the home.
We disagree.
Under Title Nine, an "abused or neglected child" is
defined, in pertinent part, as
a child whose physical, mental, or emotional
condition has been impaired or is in
7
A-0240-13T1
imminent danger of becoming impaired as the
result of the failure of his parent . . . to
exercise a minimum degree of care (a) in
supplying the child with adequate food,
clothing, shelter, education, medical or
surgical care though financially able to do
so or though offered financial or other
reasonable means to do so, or (b) in
providing the child with proper supervision
or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or
substantial risk thereof, including the
infliction of excessive corporal punishment;
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).]
Findings of abuse and neglect must be proved by a
preponderance of the evidence at a fact-finding hearing.
N.J.S.A. 9:6-8.46(b).
The trial court determines whether the
child is abused or neglected by considering the totality of the
circumstances because "the elements of proof are synergistically
related."
N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J.
Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188
(2011).
"One act [of neglect] may be substantial or the sum of
many acts may be substantial."
N.J. Div. of Youth & Family
Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011)
(quoting C.H., supra, 414 N.J. Super. at 481).
The proper focus of a Title Nine inquiry is on the harm to
the child regardless of the caregiver's intent.
of Human Servs., 157 N.J. 161, 180 (1999).
8
G.S. v. Dep't
Where there is no
A-0240-13T1
evidence of actual harm to the child, however, "the statute
requires a showing of 'imminent danger' or a 'substantial risk
of harm' before a parent or guardian can be found to have abused
or neglected a child."
N.J. Dep't of Children & Families v.
A.L., 213 N.J. 1, 8 (2013) (quoting N.J.S.A. 9:6-8.21(c)).
Imminence of danger and risk of harm are determined by looking
to whether the parent exercised a minimum degree of care under
the circumstances.
Id. at 22.
Minimum degree of care "refers
to conduct that is grossly or wantonly negligent, but not
necessarily intentional."
G.S., supra, 157 N.J. at 178.
As the trial judge explained, the condition of the home was
deplorable.
There was broken glass on the floor, garbage
throughout the home, and a foul smell of cat urine.
In the
bedroom shared by the parents and Mark, there was drug
paraphernalia, specifically empty glassine heroin bags and
spoons.
Katrina lived in this home with Matthew and exposed
Mark to these conditions.
By her actions, she failed to provide
a minimum degree of care and placed him at an imminent risk of
harm.
See N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J.
546, 551-53, 562 (1994) (affirming a finding of abuse or neglect
based, in part, on deplorable living conditions.)
Katrina argues that "there was no evidence that she
possessed or used drugs."
We note that the trial judge did not
9
A-0240-13T1
rely exclusively on the drug evidence, and conceded that each of
the allegations standing alone would probably not be sufficient.
But when all of the evidence was considered in the totality of
the circumstances, it was adequate to establish abuse or
neglect.
It was not necessary for the Division to prove that
Katrina actually possessed the drugs or the paraphernalia for
Mark to have been harmed by its presence in the home.
Moreover,
the court's findings, that (1) Katrina failed to complete any of
the substance abuse treatment programs and (2) Mark observed
Katrina using needles, find ample support in the record, which
includes the police observation of empty heroin bags in the
bedroom.
Katrina also argues that she was attempting to leave the
home, thus it was improper to substantiate her for abuse and
neglect.
Other than Katrina's statements to the police officers
who responded to the domestic violence incident, the record is
devoid of any evidence to support this claim.
B.
Katrina next argues that she was denied her right to due
process when the court allowed the Division to present evidence
of abuse and neglect allegations without prior notice.
Caseworker Barrientos testified that the Division received
a referral on June 20, 2012, and thereafter offered services to
10
A-0240-13T1
Katrina.
When Mark was removed after the August 23, 2012
referral, Barrientos testified that she explained to Vanessa
that one of the reasons was the failure of Katrina and Matthew
to comply with a drug and alcohol assessment.
Katrina's trial
counsel objected to the line of questioning, claiming that he
had not received notice or discovery relating to any contact
between the Division and Katrina from June 20 to August 23.
Katrina now argues that this testimony violated her right to due
process.
Under the Fourteenth Amendment to the U.S. Constitution, no
state shall "deprive any person of life, liberty, or property,
without due process of law."
U.S. Const. amend XIV, § 1.
Procedural due process requires notice and an opportunity to be
heard.
Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992).
Despite counsel's assertion to the contrary, there was
notice in the complaint about Katrina's noncompliance with the
Division's services and how that noncompliance was one of the
reasons for Mark's removal.
The complaint states:
At 2:56 p.m., the worker spoke to
[Katrina] over the phone to explain why the
Division needed to remove her child.
The
worker stated that the Division took [Mark]
due to the conditions of the home, empty
heroin bags in the home, domestic violence
in the home, allegations of drugs and
alcohol in the home and [noncompliance] with
recent drug and alcohol assessments.
11
A-0240-13T1
Furthermore, the record contains an August 23, 2012
investigation summary noting that Katrina failed to show up for
her drug and alcohol assessment.
That same report noted that a
Division worker was going to refer Katrina to complete a drug
and alcohol assessment and that Katrina "missed all to date
appointments."
Finally, the report notes, "On 6/20/12,
[Katrina], [Vanessa], and [Matthew] agreed to complete a drug
and alcohol assessment and to date have not complied."
We are satisfied that there is sufficient notice in the
record that the Division offered Katrina services following the
June 20, 2012 referral and that Katrina failed to comply.
The trial court's finding that Katrina abused or neglected
Mark was supported by ample evidence in the record.
We find no
support for Katrina's claim that she was denied her Fourteenth
Amendment right to due process.
Affirmed.
12
A-0240-13T1