Opinion
DOCKET NO. A-4295-13T3 DOCKET NO. A-4296-13T3
10-29-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.M. and L.T., Defendants-Appellants. IN THE MATTER OF T.A., A.A. and E.T., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant A.M. (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant L.T. (Evelyn F. Garcia, Designated Counsel, on the brief). John J. Hoffman, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; William T. Harvey, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.A., A.A., and E.T. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-265-13. Joseph E. Krakora, Public Defender, attorney for appellant A.M. (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant L.T. (Evelyn F. Garcia, Designated Counsel, on the brief). John J. Hoffman, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; William T. Harvey, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.A., A.A., and E.T. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants L.T. (Lawrence) and A.M. (Ann) appeal the decision of the Family Part that they abused and neglected their son, Edward, and Ann's son and daughter, Tim and Alice. We affirm substantially for the reasons set forth in the oral decision of Judge Linda G. Baxter. We add the following.
The names assigned to defendants and children are fictitious.
On March 7, 2012, the Division of Child Protection and Permanency (Division) became involved with Lawrence and his family after receiving a referral from the Camden Police Department that Edward, a five-year-old, was left home alone without adult supervision. At approximately 2:14 p.m., police were contacted by a code enforcement officer who was inspecting the defendants' residence. The officer reported that during the property inspection, "a child answered the door to let her inside the residence." A detective from the Camden Police Department arrived at the residence shortly thereafter and confirmed that Edward was without adult supervision. Edward was transported to the school where his sister, Alice, was located. Both children were brought to the Juvenile Bureau for further investigation.
A Division caseworker spoke privately with Edward about what occurred at the residence. Edward said that after Lawrence left, he "watch[ed] cartoons and fell asleep." He then told the caseworker he "woke up and the cops came." When asked if Lawrence had left him home in the past, Edward replied "sometimes . . . not once, more than that."
The Division also spoke with Alice and Tim. Alice stated that "her step[-]dad [Lawrence] has never left [Edward] alone before." Tim, however, said that Lawrence left Edward home in the past without adult supervision. Tim stated he found Edward home alone a "couple weeks ago" and that he "has heard before that [Lawrence] has left [Edward] home alone while he goes to pick up [Ann] from work."
One hour after the police were contacted by the code enforcement officer, Ann went to pick up the children from the police station. At that time, Lawrence had not yet been located. Around 5:40 p.m., a Division caseworker spoke with Lawrence at the residence. Lawrence told the caseworker he left Edward home alone while he went to pick up Ann from work and that when he left, Edward was sleeping on the couch. When asked if he left Edward home alone before, Lawrence responded, "[N]o." He acknowledged that leaving Edward home alone was a "bad idea and won't happen again." Based upon the Division's investigation of the incident, Lawrence was substantiated for abuse and neglect and for improper supervision. A safety plan was implemented and Lawrence and Ann agreed to services.
While the case was open for services, a referral was made to the Division that marijuana plants were being grown in the basement of defendants' residence. When the Division caseworker went to the residence to investigate the allegations, Ann denied the caseworker entry to the basement. Ann stated that her dog recently had puppies, the animals were in the basement and she did not want the animals or the caseworker to be injured. About a week later, the same Division caseworker revisited the residence. Ann again denied the caseworker access to the basement, citing the same reasons as a week earlier.
On September 19, 2012, the Camden Police Department received information from concerned citizens that marijuana plants appeared to be growing in the "rear yard of [defendants' residence]." Sergeant Pike confirmed the complaint after visually observing the marijuana plants. The sergeant then prepared an affidavit for a search warrant, which was issued.
Police executed the search warrant on defendants' residence on September 19, 2012. Upon the officers' arrival, Lawrence, Ann, Alice and Edward were present. While conducting the search, Sergeant Pike observed "marijuana growing openly in the rear yard." In the basement, police discovered a "manufacturing type facility," including heat lamps, fans, watering devices and several marijuana plants. The police estimated there were about twenty marijuana plants in the basement and a total of fifty marijuana plants inside and outside the residence.
When searching the game room, police observed packaging material and a gym bag containing ninety vials of marijuana. Police also discovered a plastic jar containing loose marijuana that was "four or five feet" off the ground. They observed several magazines with articles relating to marijuana and how it is grown, and also located and seized $11,000 in cash in one-hundred dollar bill denominations. In defendants' bedroom, officers found a silver starter pistol and a BB gun. One of the guns was located in a drawer and the other was located in a box on the floor.
Lawrence was arrested and charged with possession of marijuana, possession of a CDS within 500 feet of a park, distribution of a CDS, and operating a CDS manufacturing facility.
On September 25, 2012, the Division received a referral reporting that defendants' residence was searched by police. The Division first sent a caseworker to interview Alice at her school. Alice stated she and Edward were asleep when the police arrived. She reported feeling safe in the residence, and the caseworker noted Alice appeared healthy. The caseworker then spoke with Edward at the family residence. Edward also indicated he felt safe in the residence. Neither child claimed to be aware of the existence of drugs in the residence. When Ann was questioned by the caseworker, she gave conflicting responses regarding the family's whereabouts the night of the police search and denied any knowledge of the existence of illicit drugs in the residence.
The Division conducted an emergency Dodd removal that same day and placed Edward and Alice in the custody of the Division. Lawrence and Ann were substantiated for neglect by the Division due to the presence of drugs in the residence.
N.J.S.A. 9:6-8.29.
By court order, after removal, Edward and Alice were placed with their paternal grandmother. Tim, who was not residing with Lawrence and Ann at the time, was placed with his maternal grandmother. By subsequent court order, Edward and Alice were placed in the custody of Ann, who was granted unsupervised parenting time with Tim. The Division maintained its care and supervision of the children. --------
A fact-finding hearing was held on February 21, 2013, before Judge Baxter. The judge concluded that Lawrence and Ann abused and neglected the children, placing her oral decision on the record.
The judge held:
I find that the marijuana in the American Tourister gym bag was accessible to both children in that the bag was not locked. Children are curious and could certainly have opened that bag.
I also find that the marijuana that was in the clear container five feet up was definitely within the arm reach or within the reach of the older child who was eleven-years old and could have been taken off the shelf; I find also by a five-year-old if he had pulled up a chair.
Children are intensely curious. Certainly leaving that marijuana open and available, visible, and accessible to both children created a substantial risk of imminent harm to the children because they could have ingested the marijuana. I find that leaving the marijuana out in that way constituted an act of abuse and neglect because it created a substantial risk of harm.
I also find as to [Lawrence] that maintaining the CDS in the home presented a substantial risk of harm in a second way. I accept the testimony of Sergeant Pike that when a person has a large quantity of money, in this case $11,000 was found in the home, that doing so creates a risk of a home invasion robbery by other drug dealers. And I[,] therefore[,] find that maintaining the marijuana in the home therefore presented a substantial risk of harm in this second way, namely because it created a risk of a home
invasion robbery. Certainly a home invasion robbery is something that is extremely frightening to a child and the children could be injured [in] such a robbery.
. . . .
I also find that [Lawrence] engaged in conduct constituting abuse and neglect by leaving five-year-old [Edward] home alone on March 7, 2012, while he ostensibly went to Pennsauken to pick up [Ann] at work.
. . . .
I find that she [Ann] knew that there was marijuana in that home . . . . And I also specifically find that she knew that there was marijuana being grown and processed in the basement . . . .
. . . .
And by failing to insist that [Lawrence] remove the marijuana from the home, she permitted the children — her two children to live in that environment thereby creating a substantial risk of imminent harm, and as I said, the imminent harm consists of the possibility that the children could ingest the marijuana or in some other way consume it.
. . . .
This appeal followed.
So, therefore, I find that as to both parents, the Division proved a case of abuse and neglect by a preponderance of the evidence.
On appeal, Lawrence raises the following arguments:
POINT I
THE FINDING OF ABUSE AND NEGLECT MUST BE REVERSED AND THE FACT FINDING ORDER VACATED BECAUSE THE PROOFS DID NOT SUPPORT THE TRIAL COURT'S FINDING WITH A PREPONDERANCE OF THE EVIDENCE.
A. The court's finding improper supervision was not supported by evidence presented.
B. The court's finding susceptibility to theft and children's access to illicit substances was not supported by evidence presented.
Ann raises the following argument:
THE TRIAL COURT'S FINDING AGAINST A.M. IS NOT SUPPORTED BY A PREPONDERANCE OF COMPETENT, MATERIAL, AND RELEVANT EVIDENCE AND MUST BE REVERSED.
Our standard of review is well-settled. We are bound by the trial court's factual findings if supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We accord particular deference to the Family Court's fact-finding because of the court's "special expertise" in family matters, its "feel of the case," and its opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
Under N.J.S.A. 9:6-8.21(c)(4)(b), an abused or neglected child includes:
[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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
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 & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute requires a court to consider harm or risk of harm to the child, as opposed to the intent of the abuser, because "[t]he main goal of Title 9 is to protect children 'from acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (quoting Stave v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991)). Further, the phrase "minimum degree of care," as used in N.J.S.A. 9:6-8.21(c)(4)(b), means conduct that is not "grossly or wantonly negligent." G.S., supra, 157 N.J. Super. at 178. Therefore, to show a failure to exercise a minimum degree of care, negligence is not sufficient, but intentional behavior is not essential. Id. at 178-79.
A court "'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 21 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
In regard to the sufficiency of the proofs, we are satisfied that the evidence presented at the hearing was competent and adequate and supported the finding of abuse and neglect. The testimonial and documentary evidence presented by the Division was essentially unrefuted. Lawrence admitted during his testimony that he left his son Edward home alone. It was also clearly established that Lawrence used his residence as a base of his drug sale operations. Sergeant Pike testified that, in his experience, the residence would have been "prime for home invasion" had other people known or discovered that the residence contained large amounts of CDS and $11,000 in cash.
Premised on the sergeant's testimony, the judge concluded there was a risk that Lawrence's illegal drug activities could intrude into the residence, whether Lawrence intended that to happen or not. See, e.g., State v. Stubbs, 433 N.J. Super. 273, 276-78 (App. Div.) (involving armed home invaders seeking drugs and money of defendant drug dealer, while only his wife and small children were at home), certif. denied, 217 N.J. 293 (2014). If, as a result of a dispute with a customer or competitor, or the effort of one or the other to steal Lawrence's drugs, the children could have been involved in a violent incident. "Violence and danger are intrinsic to the activities of drug dealing, including fights over drug turf, retribution for selling 'bad' drugs, violence to enforce rules within drug-dealing organizations and fighting among users over drugs or drug paraphernalia." Nat'l Center on Addiction and Substance Abuse at Columbia University, No Safe Haven: Children of Substance-Abusing Parents 15 (1999).
In sum, Lawrence's utilization of his residence as the base of operations for his drug activities — and Ann's actual knowledge of those activities — was inconsistent with their parental duty to exercise the "minimum degree of care" required by N.J.S.A. 9:6-8.21(c)(4)(b). When considered with Lawrence leaving Edward home alone, Judge Baxter held, and we agree, defendants' conduct posed a significant risk of harm to the children.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION