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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1 Plaintiff–Respondent, v. O.C., Defendant–Appellant, M.M. and V.O., Defendants. IN RE: B.C., J.C., AND J.O., Minors.

DOCKET NO. A–2124–12T2

    Decided: April 24, 2014

Before Judges Parrillo and Guadagno.Joseph E. Krakora, Public Defender, attorney for appellant (Leviston N. Brisolla, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Christian A. Arnold, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors B.C., J.C., and J.O. (Todd Wilson, Designated Counsel, on the brief).

Defendant O.C. (Oscar) 2 appeals from the October 28, 2011 order entered by the Family Part finding that he abused or neglected his children.   Because we find that the record lacks substantial credible evidence that Oscar recklessly created a substantial risk to the health and safety of his children, we reverse.

Oscar and M.M. (Maria) are the parents of B.C. (Bill), born on June 1, 2004, and J.C. (Joseph), born on January 29, 2006.   Maria had a third child, J.O. (Jacob), in 2009 with a different father.

In October 2007, the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency, received a referral from Maria's mother, I.M. (Idina) who reported that Maria left the home two months earlier and had not returned.   The allegations of neglect were substantiated against Maria, but the Division closed its case later that year after Maria agreed to transfer custody of Bill and Joseph to Idina.

On April 24, 2011, the Division received a referral from Maria alleging that Oscar had left Bill alone for two hours on April 23 during his parenting time, that Joseph had a swollen red rash on his butt area, and that Oscar was “super high” on marijuana when he returned the children to Maria.

Later that day, a Division caseworker responded to the family's home and interviewed Maria and the children.   Maria told the worker that Oscar “is always high on marijuana” and that she would like to terminate his parenting time.   Maria told the worker that Oscar touched Joseph's buttocks inappropriately but, when questioned privately, Joseph denied the allegation.   Maria then asked the worker to examine the rash on Joseph's buttocks, but the worker could see no marks on him.

Bill told the worker that Oscar and Joseph had left him home alone but that he was not at all scared and he had a cell phone to call his father if he needed anything.   Bill denied ever seeing his father smoke anything.

On April 25, 2011, Division caseworker Melissa Idrovo met with Oscar.   Oscar explained that he only left Bill for a short period of time while picking up his third son, and later he left both Bill and Joseph for a short period to buy milk down the street.   After first denying marijuana use, Oscar admitted that he would test positive for marijuana and reported that he smokes it twice a week.   Oscar also alleged that Maria smokes marijuana and Idina smokes crack cocaine.   Both Maria and Idina denied Oscar's allegations but urine samples were collected from all three;  Maria and Oscar tested positive for marijuana and Idina tested positive for cocaine.

Based on the positive urine screens, the Division conducted an emergency removal of Bill, Joseph, and Jacob.   The Family Part found the removal appropriate but returned the children to Maria on the conditions that she enroll in substance abuse treatment, participate in services offered by the Division, and that Idina did not reside in the apartment.   Oscar was also ordered to complete substance abuse treatment and granted weekly parenting time for two hours, supervised by the Division.

Oscar submitted to a substance abuse evaluation.   He admitted to smoking marijuana “twice a week” and was referred to a level one outpatient treatment program.

On October 19, 2011, Oscar's treatment program reported that he was in “total compliance” and that at “the present his prognosis for stable drug free life style is good.”   He had tested negative for drugs on nine occasions from July 5 to October 10 and was scheduled to be released from the program in November 2011.

On October 28, 2011, the court conducted a fact-finding hearing.   Caseworker Idrovo testified that when she questioned Oscar about leaving the children alone, he explained that he had gone no farther than the front porch of the house to meet his other son who was being dropped off.   On another occasion, Oscar admitted he left the children alone briefly to walk to a store “down the block” to buy milk for them.   Oscar told Idrovo that he videotapes the children when he is not there to “monitor how they behave when he's not in the home [.]”  Oscar then showed Idrovo a video of the children on his cell phone.

Oscar testified that before the Division's involvement, he saw Bill and Joseph every other weekend from noon until 4:00 p.m. He denied ever smoking marijuana in front of the children but admitted that occasionally he smoked two or three hours before picking them up.   Although sometimes he felt the effects of marijuana when with the children, he denied that it ever interfered with his ability to care for the children.

The court found that Oscar was “very candid” in his testimony, but based on his admission that on one occasion he felt the effects of marijuana when he was caring for the children, the court concluded that Oscar “did place his children at risk of harm since they were of such a tender age.”   The court further found that “children at that age require constant vigilant supervision to prevent them from being harmed.”   The court found that “the fact that [Oscar] admitted he smoked marijuana two or three hours prior to picking up the children would certainly place the two boys at risk of imminent danger.   These were very young children.”

The court concluded that Oscar abused or neglected Bill and Joseph by placing them “at imminent risk of harm due to [his] drug use.”   The court specifically noted that the risk of harm was “due to the children's young age[.]”

The court permitted Oscar to resume his prior unsupervised visitation schedule and ordered him to attend a parenting skills class and substance abuse treatment.   Oscar successfully completed both.

On appeal, Oscar argues that the trial court erred in finding that he failed to exercise a minimum degree of care required by N.J.S.A. 9:6–8.21(c)(4)(b).

Actions initiated by the Division charging abuse and neglect of children are governed by N.J.S.A. 9:6–8.21 to –8.73. The burden is on the Division to prove abuse or neglect by a preponderance of the “competent, material and relevant evidence[.]”  N.J.S.A. 9:6–8.46(b).  “The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made” and clearly identify all documentary exhibits relied upon in reaching his or her decision.  N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App.Div.2002).   A child is abused or neglected when the child's

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 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).]

Where there is no evidence of actual harm to the child, “a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm.”  N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6–8.21(c)(4)(b)).  N.J.S.A. 9:6–8.21(c)(4) requires a finding that a child's “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 [.]”  As used in the statute, “the phrase ‘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. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

The issue here is whether Oscar's use of marijuana constitutes a failure to exercise a minimum degree of care by recklessly creating “harm, or [the] substantial risk thereof[.]”  N.J.S.A. 9:6–8.21(c)(4)(b).  Whether a particular event should be classified as merely negligent, as opposed to gross or wanton negligence, can be difficult to determine.  Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011).

The Division bore the burden of proving that Oscar's use of marijuana was reckless or unreasonable, see N.J.S.A. 9:6–8.46(b), but no evidence was presented, direct or circumstantial, that even suggested that the children were ever placed in danger.   Although the Division need not wait for harm to occur, A.L., supra, 213 N.J. at 23, the record does not contain competent evidence that Oscar acted with gross or wanton negligence, knowing that injury was likely, and recklessly disregarding the possibility.   See G.S., supra, 157 N.J. at 178.

Oscar relies on the Supreme Court's decision in A.L., and our decision in N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super.   320 (App.Div.2011), to argue that his drug use alone is insufficient proof of actual or imminent harm.   In A.L., the Court found that

[p]roof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to that issue.   But 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.

[A.L., supra, 213 N.J. at 23.]

Instead, the Court required evidence of “the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child.”  Id. at 27.

In V.T., a father was substantiated for abuse or neglect of his (then) nine-year-old child based on his refusal to attend substance abuse treatment and two positive drug tests for cocaine and marijuana during supervised parenting time.  V.T., supra, 423 N.J.Super. at 325–27.   During trial, the Division presented no evidence of actual harm and no expert evidence that the father posed a risk of harm during the parenting time and acknowledged that the child behaved appropriately during the visits and demonstrated no indicia of impairment.  Id. at 331.   We recognized

that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired.   However, Title 9 is not intended to extend to all parents who imbibe illegal substances at any time.


We noted that it is “important to make clear that not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect.”  Id. at 332.

Oscar claims there is a “fundamental lack of evidence showing that [he] was impaired to the point of placing the children in risk of imminent danger [and] [t]he record contains no information showing that [he] acted with reckless disregard for the safety of his children.”   We agree.

Here, as in V.T., the issue is whether there is sufficient evidence of abuse or neglect where a father has admitted to drug use prior to parenting time with a child.   In V.T., the father admitted using cocaine and marijuana two days prior to both visits and “acknowledged that cocaine stays in one's system for three days and marijuana for thirty days, [but] he denied being impaired, as he indicated he ‘had a high tolerance level’ for drugs and the ‘high’ had passed when he went to the supervised visits.”  Id. at 326.   We determined:

Absent expert evidence, the State is unable to demonstrate whether or not [the father] was impaired to the point of posing a risk to [the child] in a supervised setting.   The level of drugs in his system is not explained and, as the trial judge acknowledged, absent expert testimony the meaning of the reported levels is unclear.

[The father] testified he ingested the drugs two days prior to each visit.   There is no evidence to contradict this testimony.   Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.   The State was unable to demonstrate any risk, let alone one of a substantial nature, to [the] eleven-year-old [child] in such a circumstance.   Unlike with an infant, [the child] was not vulnerable during these visits to the slightest parental misstep.   Moreover, the Division reported that [the father] behaved appropriately at both visits and demonstrated no indicia of impairment.

[Id. at 331.]

Here, Oscar admitted that he used marijuana two to three hours prior to meeting with the children and “once maybe ․ was still feeling the effects of it while [with] the children.”   However, he maintained that it did not affect “at all” his ability to care for them.   At trial, Oscar's testimony was the only evidence regarding the level of his impairment.   The Division worker conceded that “there's no way of telling whether [Oscar was] still under the influence or not.”

Oscar's actions in smoking marijuana prior to caring for young children are certainly careless and perhaps even negligent.   However, proof of mere negligence does not satisfy the requirements of the statute.  T.B., supra, 207 N.J. at 306–7.   There must be willful, wanton, or reckless conduct.   G.S., supra, 151 N.J. at 178–79.   The Division presented no evidence to establish that injury to the children “is likely to, or probably will, result.”  Id. at 178.   The proof adduced at the fact-finding hearing is insufficient to meet the minimum degree of care standard.

As we find insufficient evidence to support the finding of abuse or neglect, we need not address Oscar's argument that the court's findings are insufficient pursuant to Rule 1:7–4.

The finding of abuse and neglect is reversed.   The Division will remove Oscar's name from the Central Child Abuse Registry within thirty days of the date of this opinion.



FN2. We employ fictitious names to protect the privacy of the minor children and for ease of reference..  FN2. We employ fictitious names to protect the privacy of the minor children and for ease of reference.


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