NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.S.
DOCKET NO. A-1274-23
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Decided March 21, 2025
Before Judges Walcott-Henderson and Vinci.
RECORD IMPOUNDED; NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION; Submitted February 27, 2025
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IN THE MATTER OF G.S., a minor.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Catherine W. Wilkes, Assistant Deputy Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant E.S.,1 mother of minor G.S., appeals from a May 20, 2022 Family Part order finding E.S. had abused or neglected G.S., under
We glean the following relevant facts substantially from the fact-finding and kinship legal guardianship (KLG) hearings. The Division became involved with E.S. in February 2020 when it received a child welfare services report stating E.S. had relapsed on heroin while thirty-four weeks pregnant. G.S. was born to E.S. on March 29, 2020, at which time the Division opened a case. G.S.‘s biological father is unknown, but was previously purported to be A.B., who is named in the case. E.S. received treatment and continued to engage in support and services, and the Division closed its case in October 2020 because G.S. appeared safe in E.S.‘s care.
On April 28, 2021, the Rockaway Borough Police Department responded to an emergency call from E.S. reporting she thought one-year-old G.S. had ingested Subutex, which she had in her purse.2 E.S. said that she found G.S. next to her unzipped purse and she appeared “drowsy and sweaty and unable to shake her head.” The 9-1-1 dispatcher advised E.S. to perform cardiopulmonary resuscitation on G.S., which she did until Emergency Medical Services (EMS) arrived and administered Narcan to G.S. The Narcan reversed G.S.‘s symptoms
During the ensuing Division investigation, E.S. admitted to having used crack cocaine approximately two months earlier with a friend in New York and driving with G.S. in the vehicle from New York to New Jersey while under the influence. E.S. allowed the Division worker to observe her arms which the worker noted had multiple open sores and reddened areas in different stages of healing. E.S. agreed to complete a substance abuse evaluation and urine drug screen. The Division‘s April 2021 investigation summary, written in response to the April 28, 2021 incident, confirmed the allegations of “inadequate supervision” and “risk of harm” to G.S., but found the allegation the “substance abuse of caregiver threatens child” was not established.
On May 3, 2021, the Division received the results of E.S.‘s drug screen and confirmed she had tested positive for cocaine and opiates, and negative for Subutex. Based on this information, the Division contacted Detective Robert Koehler who reported that he would contact Morristown Medical Center for
The Division interviewed E.S. on May 3, 2021, wherein she admitted to using cocaine approximately two weeks earlier in New York with the person she suspected was G.S.‘s father, although she did not know his last name. The Division worker next met with A.S., G.S.‘s maternal grandmother, privately. A.S. confirmed E.S. had relapsed in January 2021 but denied knowledge of any other drug use since January leading to G.S.‘s hospitalization.
The Division then implemented a safety protection plan with E.S.‘s consent, which required A.S. to move into the home and supervise all contact between E.S. and G.S. The court granted the Division care and supervision of G.S.; required E.S. have only supervised contact with G.S.; and ordered E.S. to attend a drug and alcohol evaluation and cooperate with random urine screens. The order also required E.S. stay in contact with the Division on a weekly basis and notify them of any change of address or telephone number.
The following month, the Division was notified that E.S.‘s May 21 and May 28 urine screens tested positive for fentanyl. In the ensuing weeks, E.S. tested positive for fentanyl, cocaine, heroin, and her prescribed methadone.
At an August 11, 2021 scheduled visit, E.S. disclosed using illicit substances that month to the Division worker. Later that month, the Division received a medical consultation from Audrey Hepburn Children‘s Home (AHCH) noting G.S.‘s symptoms and reversal of her symptoms after Narcan were consistent with an acute opioid ingestion. AHCH recommended E.S. be referred to a drug treatment center and for a psychological evaluation.
At the end of September 2021, it was confirmed E.S. attended Morris County Aftercare Center for methadone but was no longer attending the outpatient program. At this time, E.S.‘s urine screens continued to test positive for methadone, fentanyl, and cocaine. On October 1, 2021, the Division filed an amended complaint requesting an order granting the Division custody of G.S. and directing E.S. “to engage in and complete” an inpatient program. The same day, the court ordered: the Division assist E.S. in finding an inpatient program;
The court held a fact-finding hearing on April 5, 2022. The Division first called Division caseworker Urmene Remy as custodian of the records. During the admittance of evidence, E.S. objected to the April 29, 2021 screening summary as hearsay. The court dismissed the objection stating
E.S. then objected to the portions of the April 29, 2021 investigation summary referencing any interviews with family members, hospital staff, and police, or drug tests. The court ruled the conversations were admissible non-hearsay because they were offered not for the truth of the matter asserted but “for what action [the Division] took based upon those conversation within [the] investigation.” Likewise, the court concluded references to the drug tests were admissible for their effect on the Division‘s subsequent actions. The Division next called caseworker Vanessa Medrano-Cortez who wrote the investigation
The Division presented its expert in pediatrics and child abuse or neglect cases, Pediatric Nurse Practitioner Jennifer Romalin. Romalin recounted her experience and practice treating pediatric patients. She concluded, according to the records, G.S. had displayed signs of opioid ingestion, including pinpoint pupils and decreased respiratory effort and consciousness, but experienced an immediate reversal of those symptoms after she was administered Narcan. Romalin concluded G.S. had ingested an opioid because her immediate response to Narcan was consistent with acute opioid ingestion.
She opined Narcan does not have an effect on individuals who do not have opioids in their systems. She also noted G.S.‘s urine screen was negative for Subutex, contrary to E.S.‘s statement to police that G.S. had ingested Subutex. Romalin concluded, despite the negative urine screen, G.S. had an acute opioid ingestion for several reasons. First, “opiates in a urine drug screen only tests for morphine and codeine, which are . . . naturally derived from opium.” And, “[n]ot every opioid . . . will test positive. [M]aybe it‘s to be tested separately . . . there are other opioids that exist that would have to be tested separately.” For instance, fentanyl is a synthetic opioid that would not show positive on a typical
On May 16, 2022, the court found E.S. abused or neglected G.S. in an oral opinion. Its determinations were based on the “unrefuted and unrebutted Division record, including . . . the credible testimony of witnesses and the evidential exhibits accepted.” The court recounted the testimony and concluded E.S. “failed to secure her medication . . . in a safe, reasonable, and responsible manner.” The court determined E.S. left her medication accessible to G.S., but found this “single instance” of E.S.‘s failure to secure her medication did not rise to the level of wanton or gross negligence.
Nevertheless, E.S. displayed far more reckless, dangerous, and wanton behavior when she smoked crack while caring for G.S. and operating a motor vehicle. The court found “smoking crack while in a caretaking role with your child is wanton and grossly negligent.” The court also relied on E.S.‘s positive cocaine and opiate urine screens conducted two days after G.S.‘s hospitalization and the lack of any Subutex in her system to support its finding E.S. abused or
At the November 14, 2023 KLG hearing, Division worker Tracey Doyle-Leach testified that in October 2021, G.S. was removed from E.S.‘s care. They reunified briefly on June 10, 2022. However, weeks later, G.S. was removed from E.S.‘s care when E.S. left the inpatient program following an argument with another resident in violation of the safety protection plan court order. G.S. was placed in a licensed resource home where she remained.
Doyle-Leach testified although E.S. initially complied with Division services and completed some drug treatment programs, she continued to test positive and has not completed treatment. Doyle-Leach further testified that E.S.‘s substance abuse continues to present a risk of harm to G.S. and E.S. planned to have A.S. become the caregiver through KLG, which the Division agreed was in the best interest of G.S. Doyle-Leach noted that A.S. had been the G.S.‘s caregiver for “over a year, close to two years.” At the conclusion of her testimony, the court entered exhibits consisting of Division records, including the KLG assessment, in evidence without objection.
A.S. testified she had been G.S.‘s caretaker since October of 2021; she understood the difference between KLG and adoption; agreed to serve as G.S.‘s
At the conclusion of the testimony and admission into evidence of the Division‘s records, the court made the following findings of fact and conclusions of law. The court found the KLG assessment required under
II.
“We accord deference to fact findings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family.” N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012). “[A] trial court‘s factual findings ‘should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.‘” N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We owe no deference to a judge‘s legal conclusions which are reviewed de novo. N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017).
In cases such as this, two parallel statutory schemes balance the competing interests of “a parent‘s constitutionally protected right ‘to raise a child and maintain a relationship with that child, without undue interference by the state,’ and ‘the State‘s parens patriae responsibility to protect the welfare of children.‘” N.J. Div. of Child Prot. & Permanency v. A.L., 213 N.J. 1, 17-18 (2013) (first citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008); then
Under Title Nine, an “abused or neglected child” means a child less than eighteen years of age whose parent or guardian:
(2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 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 . . . .
[
The Division “bears the burden of proof at a fact-finding hearing and must prove present or future harm to a child by a preponderance of the evidence.” A.L., 213 N.J. at 22 (citing
III.
E.S. argues the court erred in finding she violated
E.S.‘s arguments, however, are belied by the record and ignore that the court‘s opinion was based on evidence which “revealed far more reckless, dangerous, and wanton behaviors by [E.S.] relatively soon in time to that
Having considered the evidence and finding the Division‘s expert and witnesses credible, the court found E.S. had failed to secure her medication, which led to G.S.‘s ingestion of a narcotic, combined with E.S.‘s admission that she had smoked crack cocaine and then drove G.S. while under the influence sufficient to conclude E.S. had abused or neglected G.S. We therefore reject E.S.‘s argument the court based its finding on insufficient evidence.
We further reject E.S.‘s second argument the court did not have sufficient support to determine she placed G.S. at risk of harm when she drove G.S. after
Lastly, we briefly address the court‘s entry of the November 14, 2023 KLG order, which granted A.S. KLG.3 We note only that the court entered the order following a hearing, which included the testimony of Division worker Doyle-Leach and A.S. The court made its findings and conclusions and noted that the order was entered with the consent of E.S.
In sum, applying the deferential standard of review accorded to Family Part matters, we discern no error in the court‘s findings of fact and conclusions of law determining E.S. abused or neglected G.S. To the extent that we have not addressed defendant‘s remaining arguments, including defendant‘s ineffective assistance of counsel claim, we find that they lack insufficient merit
Affirmed.
M.C. Hanley
Clerk of the Appellate Division