                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4635-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.J.,

          Defendant-Appellant,

and

J.M.,

     Defendant-Respondent.
___________________________

IN THE MATTER OF A.J.,

     a Minor.
___________________________

                    Argued April 2, 2019 – Decided April 17, 2019

                    Before Judges Hoffman and Geiger.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Warren County,
            Docket No. FN-21-0146-17.

            Clara S. Licata, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Clara S. Licata, on the briefs).

            Cary L. Winslow, Designated Counsel, argued the
            cause for respondent J.M. (Joseph E. Krakora, Public
            Defender, attorney; Cary L. Winslow, on the brief).

            Amy M. Mc Kinsey, Deputy Attorney General, argued
            the cause for respondent New Jersey Division of Child
            Protection and Permanency (Gurbir S. Grewal,
            Attorney General, attorney; Jason W. Rockwell,
            Assistant Attorney General, of counsel; Amy M. Mc
            Kinsey, on the brief).

            Todd S. Wilson, Designated Counsel, argued the cause
            for minor (Joseph E. Krakora, Public Defender, Law
            Guardian, attorney; Meredith A. Pollock, Deputy
            Public Defender, of counsel; Todd S. Wilson, on the
            brief).

PER CURIAM

      In this appeal, we review an abuse and neglect judgment issued against

defendant J.J. and the subsequent disposition order transferring custody of her

then three-year-old son, A.J. (Adam),1 to J.M. (Joel), his father. J.J. seeks



1
  For ease of reference and to preserve the anonymity of the parties, we refer to
the child, his father, and his maternal grandmother by fictitious names.


                                                                         A-4635-17T4
                                       2
reversal of the judgment, contending the Division of Child Protection and

Permanency (the Division) failed to prove by a preponderance of the evidence

that she placed Adam in imminent danger of impairment or that she acted

recklessly or with gross negligence while caring for him. J.J.'s asserts the trial

court erred when it received testimony concerning her positive drug screen

results collected after the emergency removal of Adam and her failure to

complete two substance abuse programs.         Regarding the disposition order

placing Adam with Joel, J.J. contends the trial court's concerns about her

parental fitness apply equally to Joel.

      Following our review of the record, we conclude J.J.'s argument's lack

substantive merit. The record clearly supports the court's abuse and neglect

judgment premised on J.J.'s gross negligence. We likewise find no harmful error

in the court's receipt of testimony demonstrating J.J.'s positive drug screen

results and her failure to remediate the conditions that endangered Adam,

precipitating his removal. Furthermore, we discern no error in the court's order

placing Adam in the physical custody of Joel, after determining that J.J.'s

ongoing substance abuse issues precluded returning Adam to her physical

custody.




                                                                          A-4635-17T4
                                          3
                                        I.

      The record reveals the following facts relevant to this appeal. In the early

morning hours of January 31, 2017, Washington Township police received a

report of a lost and found child. When the responding officer arrived at the

scene, the caller explained he awoke upon hearing a child running and yelling

in the hallway. Although the caller did not know the child, he took the child

into his apartment to keep him safe, after finding him unsupervised and

shivering in the hallway, wearing only a pair of pants.

      The child identified himself to the officer as Adam. When the officer

asked where he lived, Adam guided the officer to apartment 402 but no one

answered the door. The officer then contacted the building's superintendent and

asked if anyone with Adam's last name lived in the building. The superintendent

escorted the officer and Adam to apartment 102, J.J.'s apartment.

      The officer noted the door to apartment 102 was ajar with a chain lock in

place. He concluded Adam probably left the apartment through the opening

between the door and the frame. After loud knocks and shouts elicited no

response, the officer forced his way in and located J.J. sleeping in the

apartment's bedroom. The officer tried waking J.J. by shouting at her, without

success; after he shook her, J.J. finally awoke.


                                                                          A-4635-17T4
                                        4
      Upon learning what occurred, J.J. started screaming at Adam. When the

officer attempted to calm her down, J.J. explained she was angry because this

was not the first time Adam managed to get out of the apartment undetected.

The officer showed J.J. the damage to the trim around the door he forced open

to enter the apartment. At that point, J.J. admitted the door was previously

forced open during a narcotics raid. A record check revealed fourteen prior

incidents of police involvement with J.J., but no prior convictions. The officer

did not file any charge against J.J.; instead, he left Adam in J.J.'s care, after she

acknowledged she needed to change the lock on her door. Nevertheless, the

officer reported the incident to the Division.2

      The next day, the Division responded to J.J.'s apartment to investigate the

report. The caseworker noted a strong odor of cigarettes and possible marijuana

emanating from the apartment. Adam was with J.J's mother at the time of the

visit. J.J. expressed confusion about the necessity of the visit because "it wasn't



2
    J.J. had been known to the Division since June 2005. The Division
substantiated J.J. for abuse or neglect in 2007 after she tested positive for
marijuana at the time of her child’s birth, missed a number of prenatal visits,
and lacked appropriate housing. In addition, the Division previously removed
three other children from J.J.'s care due to ongoing marijuana use and significant
domestic violence. J.J. surrendered her parental rights to two of the children
and the court involuntarily terminated her parental rights to the third.


                                                                             A-4635-17T4
                                         5
[her] fault that [Adam] got out the other night." She claimed she did not hear

Adam leave the apartment. The caseworker observed a single, shared bedroom

with separate beds.

      J.J. said she last smoked marijuana the previous month, claiming she

restricted her usage to times when Adam was with her mother, L.W. (Lisa).

During the interview, Lisa and Adam returned to the apartment. The caseworker

noted Adam as a bright three-year-old boy. Adam could not recall why he left

the apartment the night before; he merely repeated "the cops came and banged

the door down."

      The caseworker also interviewed Lisa, who advised she was "always

around to keep an eye on [J.J.] and [Adam,] to make sure that she stays on the

right track." Lisa reported regularly caring for Adam. The caseworker noted

Lisa is hard of hearing and relies on lip reading. The caseworker observed

enough food in the home for both J.J. and Adam.         J.J. pointed out the fridge

door was locked when not in use due to Adam's habit of opening doors. At the

end of the visit, the caseworker requested J.J. to come to the local Division office

within an hour for a urine screen. J.J. claimed she did not need a ride when

offered, and said she would stop by after she completed some grocery shopping.




                                                                            A-4635-17T4
                                         6
      Later the same day, the caseworker returned to J.J.'s apartment, after she

failed to appear for the urine screen. J.J. stated she did not go to the office

because she did not "feel like doing things that people want [her] to do . . . unless

it is court ordered." Nevertheless, J.J. did complete the urine screen at the office,

and also submitted to a substance abuse evaluation. At the Division's request,

J.J. also signed an Intake Family Agreement, wherein she agreed "to ensure

appropriate supervision of [Adam,]" to acquire "a more appropriate lock" for her

apartment door, and "to not use [m]arijuana while in a caretaking role of Adam."

      The substance abuse evaluation indicated J.J. needed intensive out-patient

treatment; however, she rejected the recommendation, claiming she did "not

need any help," nor did she want to take any time away from her son. She stated

she would have her prescription for Xanax refilled if her anxiety flared up.

Significantly, she told the evaluator she "last smok[ed] marijuana yesterday,

when she smoked [one] joint."

      Less than a week later, on February 6, the Division received another

referral regarding J.J., this time expressing concerns of drug dealing, based on

people going in and out of J.J.'s apartment. The reporter believed J.J. was under

the influence a few weeks prior, after observing her eyes glazed over and her

demeanor different than normal. On the same date, the Division received the


                                                                             A-4635-17T4
                                         7
results of J.J.'s February 1 urine screen, which tested positive for cocaine and

marijuana.

      In response to these developments, a caseworker – accompanied by local

police – went to J.J.'s home to implement a safety protection plan. Upon arrival,

the caseworker noted J.J.'s eyes appeared glassy and she acted irritated. J.J.

picked up a brown box, placed an ashtray, cigarettes, and other items into it,

then took the box into her bedroom. When the caseworker asked to see the

brown box, J.J. complied. Upon examination, the box contained a device the

police identified as a "weed grinder," with marijuana residue remaining.

Nevertheless, J.J. denied recent marijuana use; instead, she noted she recently

filled a prescription for Xanax. While J.J. did produce a pill bottle for a

prescription filled on February 3, the prescription was for sixty pills, yet only

eight pills remained. J.J. claimed she gave the remaining pills to a friend for

"safe keeping," but refused to identify the friend. The caseworker explained the

Division would initiate removal proceedings if a safety plan was not created.

The caseworker attempted to implement a plan with Lisa supervising J.J.'s

contact with Adam, but J.J. was not cooperative.

      The police placed J.J. under arrest for possession of drug paraphernalia.

After the police arrested J.J., the Division continued its efforts to implement a


                                                                         A-4635-17T4
                                       8
safety protection plan, but eventually ruled out the possibility of Lisa acting as

a supervisor for J.J., based on Lisa's hearing impairment and acquiescent

personality.   Therefore, the caseworker received instructions to conduct an

emergency removal of Adam.3

      Later the same day, the Division contacted Joel, who stated he pays child

support to J.J. for Adam and enjoys regular contact with his son, including

overnight visits in Joel's home. He claimed he was unaware of any substance

abuse problems in J.J.'s home. He advised he was willing and able to care for

Adam. Joel submitted a urine screen that day.

      During a subsequent home inspection, a caseworker discovered a potent

odor of marijuana in Joel's bedroom. Joel indicated he smoked marijuana about

one week prior, but said he never did so when in a caretaking role. Joel agreed

he would not use illicit substances while caring for Adam or his other children.

Joel's February 6 urine screen came back positive for marijuana.

      At the conclusion of its investigation, the Division determined its

investigation established abuse and neglect of Adam by J.J. The day after the



3
  The Division's removal of a child without a court order, commonly called a
"Dodd removal," is authorized by the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Family Servs. v. N.S., 412
N.J. Super. 593, 609 n.2 (App. Div. 2010).
                                                                          A-4635-17T4
                                        9
emergency removal of Adam, the Division filed a verified complaint and order

to show cause in the Family Part, seeking care and supervision of Adam.

Finding the Division made a prima facie showing Adam was abused or

neglected, the court entered the order to show cause, granted the Division care

and supervision of Adam, and granted the Division's application to grant Joel

temporary physical custody, with J.J.'s consent. The court further ordered the

Division to pay J.J.'s February 2017 rent, suspended Joel's child support

obligation, and directed both parents to submit to random drug screenings and

comply with substance abuse evaluation follow-ups.

      J.J. began treatment at the Family Guidance Center of Warren County.

She completed a psychiatric evaluation through the substance abuse program.

J.J. was diagnosed with severe cannabis use disorder, mild cocaine stimulant use

disorder, and mild major depressive disorder, recurrent episode. During this

time period, J.J. provided urine screens positive for marijuana on February 7,

10, and 15; March 13; April 12, 20, and 26; May 4, 8, 23, and 25; and June 7,

15, 20, and 22, 2017. The April 26, 2017 drug screen was also positive for

cocaine. On June 22, 2017, the Family Guidance Center recommended J.J.

undergo higher level intensive care and discharged her.




                                                                        A-4635-17T4
                                      10
      On June 29, 2017, J.J. completed a comprehensive bio-psycho-social

assessment at High Point Program. On the same day, she submitted a urine

screen that returned a positive result for marijuana. J.J. also failed a random

drug screening on October 10, 2017, testing positive for marijuana. She failed

to provide drug screenings in response to Division requests dated October 31,

November 3, 13, and 28, 2017.       J.J. missed a substance abuse evaluation

scheduled for November 30, 2017, and then missed two rescheduled

appointments.

      Joel completed a substance abuse evaluation on February 15, 2017, and

was recommended for Level I outpatient treatment. He provided urine screens

on March 21, April 13, May 23, June 30, August 1 and 21, and December 22,

2017, as well as January 2 and 24, 2018, which all returned negative results for

the presence of marijuana; however, Joel's screens for marijuana tested positive

on December 8, 2017 and January 9 and March 20, 2018.

      On September 5, 2017, the court held a fact-finding hearing.         Two

caseworkers testified for the Division. No other witnesses testified; however,

the Law Guardian supported the Division's claim that J.J. abused or neglected

Adam.




                                                                        A-4635-17T4
                                      11
         The court heard testimony of the caseworker response to the January 31

referral that Adam was found unattended in his apartment building's fourth-floor

hallway. After the court overruled a relevancy objection, the other caseworker

testified to J.J.'s continued involvement with the agency, which included her

positive urine screens for marijuana and her non-compliance with substance

abuse treatment after the February 6 removal date. Additionally, the caseworker

testified J.J. was discharged from two substance abuse treatment programs for

failure to submit a negative urine screen and nonattendance.

         The court found as fact that J.J. slept as Adam escaped the apartment

unattended. The court further found J.J. knew Adam had escaped before, yet

"did not take appropriate action to remediate that, although that would have been

fairly simple."    The court observed "the fact that [Adam] was outside the

apartment at [3 a.m.] certainly presents a risk of harm to the child." The court

also found as fact that J.J. did not wake up until the responding officer shook

her awake. Finally, the court found J.J. admitted using marijuana the night of

Adam's escape, and that the Division found drug paraphernalia during a home

visit.    Based on the totality of the circumstances, the court concluded the

Division proved J.J. abused and neglected Adam by a preponderance of the

evidence, pursuant to N.J.S.A. 9:6-8.21.


                                                                         A-4635-17T4
                                       12
       On October 15, 2017, the court held a dispositional hearing. The court

continued Adam in Joel's custody due to J.J.'s failure to comply with substance

abuse services. The court noted J.J.'s apartment door was now secured with a

latch lock, so the visitation schedule was altered to allow visits in J.J.'s home,

in addition to Lisa's home, but with Lisa's supervision as a necessary condition.

The disposition was slated for mediation and a G.M.4 hearing was scheduled for

January, 2018.

       The G.M. hearing was ultimately held on April 19, 2018, because J.J. did

not appear for the January hearing. A caseworker testified to the support offered

to J.J. by the Division. Specifically, she testified about the substance abuse

evaluations, substance abuse treatment, random drug screens, and the

psychiatric evaluation. She recounted J.J.'s lack of cooperation with treatment,

including her discharge from two separate programs for noncompliance, and her

numerous      missed   scheduled    evaluations,   screenings,   and     treatment

appointments, all while continuing to test positive for marijuana.

       J.J. testified at the G.M. hearing. She acknowledged her marijuana use

interfered with her parental rights as to three other children.        She further



4
    N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009).


                                                                           A-4635-17T4
                                       13
acknowledged she understood she needed to stop using marijuana to have

physical custody of Adam. J.J. did not seek the return of Adam to her custody.

Rather, through counsel, she sought "some sort of equitable order where both

parents have time with [Adam] in the least restrictive environment . . . perhaps

[Adam] would have to, would live day to day with [Joel] but [J.J.] would have

liberal and regular visits and not have to be supervised on those visits." Adam's

Law Guardian indicated Adam would enjoy overnight visits with J.J., but wanted

to live with Joel. The Division argued both parents should share joint legal

custody, but Adam should continue in Joel's sole physical custody.

      The court determined the Division made reasonable efforts to assist J.J. in

remediating the circumstances that precipitated Adam's removal, yet it was not

safe to return Adam to J.J., due to her failure to remediate her substance abuse

problems or demonstrate progress. The court noted Joel's "use of marijuana

appears to be sporadic," with no resulting harm to Adam. Based on reports that

Adam was doing well in his father's custody, including doing well at school, and

"[b]ecause J.J. has not successfully treated her substance abuse addiction,"

making it "not safe to return Adam to her care," the court continued Adam in

Joel's physical custody. The court granted J.J. supervised visitation, including




                                                                         A-4635-17T4
                                      14
overnights, conditioned on the presence of an appropriate supervisor, and then

terminated the litigation. This appeal followed.

                                        II.

      Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We owe substantial deference to Family Part judges'

findings of fact because of their special expertise in family matters, id. at 413,

especially where the evidence is largely testimonial and rests on the judge's

credibility findings. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We will not

"disturb the 'factual findings and legal conclusions of the trial judge unless [we

are] convinced that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the

interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc.

v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

      "Abuse and neglect actions are controlled by the standards set forth in

Title Nine of the New Jersey Statutes." N.J. Div. of Youth and Family Servs. v.

P.W.R., 205 N.J. 17, 31 (2011). An abused or neglected child is defined as

            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, as herein defined, to exercise a
            minimum degree of care . . . (b) in providing the child
            with proper supervision or guardianship, by

                                                                          A-4635-17T4
                                       15
            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)(b).]

Where there is no actual harm alleged, the focus is on the risk of future harm.

Div. of Child Prot. & Permanency v. J.C., 440 N.J. Super. 568, 577 (App. Div.

2015). The "minimum degree of care" standard "refers to conduct that is grossly

or wantonly negligent, but not necessarily intentional." Ibid. (citing G.S. v.

Dep't of Human Servs., 157 N.J. 161, 177-78 (1999)). The 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."

G.S., 157 N.J. at 182. Indeed, "[w]hen a cautionary act by the guardian would

prevent a child from having his or her physical, mental or emotional condition

impaired, that guardian has failed to exercise minimum degree of care as a

matter of law." Ibid.

      After a fact-finding hearing is held pursuant to N.J.S.A. 9:6-8.44, if the

court determines a child has been abused or neglected, a dispositional hearing is

required to determine what order should issue. N.J.S.A. 9:6-8.45; see also N.J.

Div. of Youth and Family Servs. v. J.C., 423 N.J. Super. 259, 266 (App. Div.


                                                                         A-4635-17T4
                                       16
2011) (outlining stages of Title Nine proceedings).           The purpose of a

dispositional hearing is to determine "whether the child may be safely returned

to the custody of the parent from whom the child was removed." N.J. Div. of

Youth and Family Servs. v. N.D., 417 N.J. Super. 96, 107 (App. Div. 2010)

(citing N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 402 (2009)).

N.J.S.A. 9:6-8.51 lists the options for an order of disposition:

             (1) suspending judgment in accord with section 32
             hereof; (2) releasing the child to the custody of his
             parents or guardian in accord with section 33 hereof;
             (3) placing the child in accord with section 34 hereof;
             (4) making an order of protection in accord with section
             35 hereof; (5) placing the respondent on probation in
             accord with section 36 hereof; (6) requiring that an
             individual found to have abused or neglected a child
             accept therapeutic services, and this order may be
             carried out in conjunction with any other order of
             disposition.

             [N.J.S.A. 9:6-8.51(a).]

"[A]n order of disposition placing a child with a person other than the parent

from whose custody the child was removed may be entered pursuant to N.J.S.A.

9:6-8.51 only if there is first a finding of abuse or neglect." N.D., 417 N.J.

Super. at 110.    With these principles in mind we now turn to appellant's

arguments.




                                                                        A-4635-17T4
                                       17
                                       III.

      J.J. argues the Division failed to prove abuse and neglect by a

preponderance of the evidence at the fact-finding hearing. Relatedly, she avers

it was error for the court to consider evidence of failed urine screens collected

after the removal proceedings were initiated because they were irrelevant to the

limited purpose of a fact-finding hearing on abuse and neglect and constituted

hearsay.

      The New Jersey Rules of Evidence define relevant evidence as "evidence

having a tendency in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401. "This determination focuses on 'the

logical connection between the proffered evidence and a fact in issue.'" State v.

Perry, 225 N.J. 222, 237 (2016) (quoting State v. Schnabel, 196 N.J. 116, 130-

31 (2008)). The "logical connection" determination is directed to the court's

discretion.   See Verdicchio v. Ricca, 179 N.J. 1, 33-34 (2004).              Such

determinations are reviewed on appeal for an abuse of discretion. Id. at 34.

      J.J.'s argument fails because it lacks support in the record. While the court

heard testimony regarding J.J.'s positive urine screens collected after the

emergency removal proceedings and admitted records of the screens into




                                                                           A-4635-17T4
                                       18
evidence as business records, the court ultimately did not cite this evidence in

its ruling of abuse and neglect. Rather, the court reasoned:

                   It's unknown how long [Adam] was up by
            himself. It is a blessing that he did not get injured, but
            the fact that he was outside the apartment at 3 o'clock
            in the morning certainly presents a risk of harm to the
            child.

                   The Court finds that the fact that the defendant
            was under the influence, did not wake up when the child
            left the premises, the fact that the defendant did not
            even wake up when the police broke down her door, did
            not wake up when the police yelled at her and shook
            her, finally to wake up:

                  All of these the Court considers under the totality
            of the circumstances. And based upon these findings
            of fact, the Court concludes that the Division has
            proven by a preponderance of the evidence that the
            defendant abused and neglected [Adam] while in her
            care.

Thus, it is clear the court did not consider J.J.'s subsequent failure to remediate

her substance abuse issues as a basis for establishing abuse and neglect.

Therefore, any error regarding the admission of the urine screen results was

harmless. R. 2:10-2.

      We turn now to J.J.'s argument it was error for the trial court to find it

unsafe to return Adam to her care due to her continued substance abuse, without

drawing the same conclusion with regard to Joel's past substance abuse. We are


                                                                           A-4635-17T4
                                       19
unpersuaded by this argument. A comparison of J.J. and Joel's purported or

actual marijuana use is unnecessary for the following reason: there is no showing

of a single incident where Joel's use of marijuana endangered Adam.

      On the other hand, J.J. allowed Adam to escape the apartment undetected

on two occasions. The court determined that at least the January 31 incident

was related to J.J.'s substance abuse. J.J.'s subsequent and sustained failure to

address her substance abuse convinced the court it could not safely return Adam

to J.J.'s physical custody. Any potential error is mitigated by the fact J.J.'s legal

custody has not been terminated, and she continues to have substantial contact

with her son during her supervised visits. We agree with the trial court's finding

that Adam "cannot be returned to J.J. until she has successfully completed a

substance abuse treatment program." We are satisfied with the trial court's

analysis and resultant disposition of the child.

      Any arguments not specifically addressed lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). The abuse and neglect

judgment against J.J. and the subsequent disposition order placing the child with

Joel are affirmed.

      Affirmed.




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                                        20
