DCPP VS. M.P. AND J.L. IN THE MATTER OF N.L. (FN-21-0143-19, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

D
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1097-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.P.,

          Defendant-Appellant,

and

J.L.,

     Defendant.
_________________________

IN THE MATTER OF N.L., a
Minor.
_________________________

                   Submitted January 5, 2021 – Decided March 17, 2021

                   Before Judges Moynihan and Gummer.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Warren County,
            Docket No. FN-21-0143-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasy, Deputy Public Defender,
            of counsel; Jennifer M. Kurtz, Designated Counsel, on
            the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Sookie Bae, Assistant Attorney General, of
            counsel; Alexandra N. Vadala, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Dana Citron, Designated
            Counsel, on the brief).

PER CURIAM

      After a fact-finding hearing, the trial court issued an order concluding that

M.P. (Michelle)1 had abused or neglected her newborn daughter N.L. (Nina)

under N.J.S.A. 9:6-8.21(c). Michelle appeals that order. Although the judge

erred in finding Michelle had failed to obtain baby supplies, we find other

credible evidence in the record sufficient to support the judge's decision and

affirm.




1
  We use fictitious names for ease of reading and to protect the identities of the
parties. R. 1:38-3(d)(12).
                                                                             A-1097-19
                                        2
      Pennsylvania Child Protective Services (PCPS) advised the New Jersey

Division of Child Protection and Permanency2 that the Pennsylvania Child

Abuse Hotline had received an email indicating Michelle had been using drugs,

including heroin and cocaine, during her pregnancy with Nina, had not received

any prenatal care, and had given birth the day before to Nina, who was

experiencing withdrawals.

      The Division knew Michelle from cases involving her substance abuse

during her pregnancies with two other children, K.P. (Kyle), who was born about

two years and ten months before Nina, and L.L. (Lisa), who was born about

thirteen months before Nina and has the same biological father as Nina, J.L.

(Jake).

      During her pregnancy with Kyle, the Division received a report from

Family Promise 3 that Michelle had tested positive for THC, opiates,

benzodiazepines, and synthetic marijuana.       She admitted using synthetic

marijuana at the beginning of her pregnancy and a week before his birth. Family


2
  Nina was born in a Pennsylvania hospital; Michelle identified herself as a New
Jersey resident.
3
   Family Promise is an organization whose goal is to provide "sustainable
independence for homeless and low-income families." What We Do, Family
Promise of Warren County, https://www.wcfamilypromise.org/what-we-do (last
visited Mar. 1, 2021).
                                                                          A-1097-19
                                       3
Promise removed Michelle from its program due to her noncompliance. Kyle

was born premature, at thirty-two-weeks gestation, and weighing three pounds

and four ounces. At his birth, Michelle tested positive for methadone, having

participated in a methadone program at Stateline Medical Center. Kyle tested

negative for drugs but experienced withdrawal symptoms, was admitted to the

neonatal intensive care unit, and was administered morphine. A nurse educated

Michelle then about methadone withdrawal and how it could affect a child.

Michelle's probation officer 4 reported to the Division she had not been compliant

with attending substance-abuse treatment when she was first placed on

probation. Michelle stopped attending a methadone program at Stateline due to

an inability to pay for the treatment. She was referred to a family guidance

center but never filled out the pre-registration paperwork.        The Division

removed Kyle from Michelle's custody when she was found to be under the

influence while caring for him. Kyle lives with Michelle's mother in Florida.

       When Michelle was about four-months pregnant with Lisa, a social

worker met with her in response to a request from the Division for an assessment

of whether she presented a risk to Kyle, her parenting skills, and her overall

psychological functioning and to make service recommendations if appropriate.


4
    Michelle was on probation for possession of synthetic marijuana.
                                                                            A-1097-19
                                        4
In the interview Michelle denied allegations she was using drugs during that

pregnancy but admitted she had used heroin in the past. Michelle acknowledged

self-medicating for an anxiety disorder and depression. The social worker noted

Michelle had a "history of episodes of [m]ethadone maintenance, as well as

relapses with heroin and illegally obtained prescription opiates." Michelle told

the social worker the Division required her to attend counseling, obtain stable

housing, and participate in an intensive outpatient program. The social worker

concluded Michelle required intensive outpatient program services with urine-

screen monitoring, long-term aftercare service, and individual psychotherapy. 5

According to the Division caseworker who testified at the fact-finding hearing,

Michelle failed to engage in any of those services as requested by the Division.

      Lisa was born in South Carolina. South Carolina Department of Social

Services investigated Lisa's birth and ongoing concerns about Michelle using

drugs. Lisa was removed from the care of Michelle and resides with a resource

family in South Carolina. South Carolina authorities reported Michelle was non-

compliant with the services offered to her.



5
  We note this report was admitted into evidence not as an expert report but for
the purpose of eliciting testimony regarding services the Division required of
Michelle and for the admission into evidence of any admissions made by
Michelle. We limit our consideration of it accordingly.
                                                                          A-1097-19
                                       5
      While Michelle was pregnant with Nina, the Division received two

referrals about Michelle. According to Division records, "[t]he case was opened

for services but closed [less than three weeks before Nina's birth] due to

[Michelle] refusing further services."

      After the contact from PCPS, a Division caseworker went to the hospital

to see Michelle and Nina. A nurse advised the caseworker Michelle had tested

positive for opiates and methadone three months before Nina's birth and positive

for methadone at Nina's birth. The caseworker met with Michelle and Jake in

Michelle's hospital room. Michelle told the caseworker she had had prenatal

care for six months during her pregnancy but had lost it for unknown reasons.

She told the caseworker that for the last five months she had been in a methadone

program at Stateline, where she received counseling. She admitted to a history

of drug use, including opiates and heroin. She represented that when she found

out she was pregnant, she stopped using drugs and started the methadone

program. She advised the caseworker she recently had rented an apartment.

Jake told the caseworker he "was going to Stateline for detox but he no longer

wants to go there anymore." Michelle was discharged later that day.

      In the afternoon the caseworker went to the apartment address Michelle

had provided. He met two people there: J.P. (Joe) and A.S. (Alice). Michelle


                                                                           A-1097-19
                                         6
was not present. Joe and Alice appeared to be under the influence of drugs.

They were speaking rapidly, sweating profusely, and had a red haze around their

eyes. According to the caseworker, Alice previously had lost custody of her

children because of her drug use.

      Trying to locate Michelle, the caseworker contacted Michelle's husband,

who is not Nina's biological father. He told the caseworker Michelle was on her

way over to the apartment he shared with his mother to "get the stuff for the

baby" and he and Michelle would buy supplies for the baby later that day. He

also told the caseworker if Michelle did not have the apartment, she and Nina

would live with him. The caseworker went to Michelle's husband's apartment

but saw no baby supplies.       Michelle's mother-in-law, who was present,

confirmed Michelle "has nothing for this baby" and had had no prenatal care.

      The caseworker met Michelle at her husband's apartment that evening.

Michelle told the caseworker she did not have any baby supplies but expected

to obtain the supplies with her husband. She indicated in her husband's presence

her husband would be supporting her financially.        She conceded she had

obtained permission to move into the apartment that day after the caseworker

had spoken with Joe, who then asked his mother, the owner of the property, if

Michelle could move into the apartment. According to Michelle, she could have


                                                                          A-1097-19
                                       7
moved in that day. The caseworker told Michelle he wanted to see the apartment

to assess it for safety and appropriateness sometime the next week, giving her

time to move her things into the apartment. She admitted she had used heroin

intravenously during the initial months of her pregnancy but asserted she had

stopped after entering a methadone treatment program four months before Nina

was born. She told the caseworker she was not receiving any mental-health

treatment and initially denied she had a mental illness but conceded she had been

diagnosed with borderline personality disorder. She stated she had attended an

initial appointment for prenatal care but was cut-off from subsequent

appointments due to an insurance lapse. She asked if the caseworker could help

her obtain insurance. He told her he was not able to help her in that way but he

provided her with a pamphlet for the Family Success Center,6 told her he could

provide her with additional agency telephone numbers if she wanted to pursue

mental-health treatment, and directed her to contact social services to look

further into the insurance issue. Michelle's husband represented he would take

her to social services to see if they could straighten out her insurance issues.


6
   Family Success Centers "are 'one-stop' shops that provide wrap-around
resources and supports for families before they find themselves in crisis."
Family Success Centers, State of New Jersey Department of Children and
Families, https://www.nj.gov/dcf/families/support/success (last visited Mar. 1,
2021).
                                                                             A-1097-19
                                         8
      The caseworker spoke with a staff member of Stateline. Contrary to

Michelle's representation that she had not used any drugs outside of the

methadone program once she started the program, the Stateline staff member

told the caseworker Michelle was non-compliant during much of the program.

Michelle had tested positive for other substances, including methamphetamines,

cocaine, and opiates. She had missed seven appointments and methadone doses

in the last month of her pregnancy even though she had been told again that

missing a methadone dose during her pregnancy could be dangerous for the

baby. Staff told Michelle about an anticipated insurance lapse that would

remove her from the program, but Michelle had done nothing to address the

insurance issue and faced discharge from the program.

      A staff member of the medical office where Michelle had attended one

prenatal appointment denied Michelle had been told her insurance would lapse

after the first appointment. Instead, Michelle was given several additional

appointments she could have attended before her insurance would lapse. She

just didn't attend them.

      The caseworker saw Nina in the hospital's neonatal intensive-care unit.

Nina was born one-month premature, weighing 4 pounds and 6.6 ounces. She

was admitted to the unit with "respiratory distress," specifically persistent rapid


                                                                             A-1097-19
                                        9
breathing, "feeding difficulties," "concerns for opiate withdrawal," and

increased Neonatal Abstinence Syndrome 7 scores. The rapid breathing was a

sign of withdrawal. The caseworker saw she had a nasogastric feeding tube and

that her arms were outstretched with shaking hands, a sign of withdrawal. A

nurse told the caseworker Nina was experiencing mild withdrawal symptoms

and did not need morphine treatment. Hospital records showed that Nina's urine

tests were negative for substances except for methadone.      Nina's discharge

summary identified as a "fetal complication" a "concern for methadone

withdrawal."

      After several unsuccessful attempts by the caseworker to arrange with

Michelle8 a time he could see the apartment and baby supplies, the caseworker

contacted Joe. According to Joe, Michelle had been given permission to live in

the apartment and had moved some baby items into the apartment but was not

there currently. Later that day, Michelle told the caseworker he could meet Joe



7
    "Neonatal abstinence syndrome is defined as '[a]ny of the adverse
consequences in the newborn of exposure to addictive or dangerous intoxicants
during fetal development.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 

220
N.J. 165

, 170 n.5 (2014) (quoting Taber's Cyclopedic Med. Dictionary, 1158
(Donald Venes et al. eds., 22d ed. 2013)).
8
   Michelle was unavailable in part because she had to appear in court for
sentencing on a possession-of-synthetic-marijuana charge.
                                                                         A-1097-19
                                     10
at the apartment the following day for an inspection. The caseworker asked

Michelle to be present so he could speak to her and see the apartment and baby

items. She agreed to be present.

      The next day, when the caseworker arrived, only Joe and Alice were

present; Michelle was not. Joe took the caseworker to the rear apartment. Even

though the caseworker had told Michelle he wanted to see the apartment to

assess it for safety and appropriateness and even though she had had twelve days

from when she told the caseworker she could move into the apartment, the

caseworker found the apartment to be "in disarray." The kitchen floor was

"covered with dirt, garbage, and what appeared to be sleeping bags." When the

caseworker asked Joe where the bedroom was, Joe told him a small area he

called the "living space" would be used as the bedroom. The carpet in that area

was "very dirty" with "deep dark stains all over it" and "several wires" on it.

The living space was furnished with a seat from a vehicle and three "very dirty"

couches with missing cushions. Joe told him that he would remove two couches

and a mattress and box spring, which were on the grass by the entrance of the

apartment. The bathroom was "dirty"; the bathtub was filled with shoes. Joe

did not grant the caseworker access to another room, which appeared to be

"extremely cluttered," because Joe used the room for storage. Joe also used a


                                                                          A-1097-19
                                      11
hall closet to store his "airsoft equipment." The caseworker did not see any bed

or baby items, other than a bassinet Michelle's husband had purchased.

      As the caseworker walked to the front of the residence, he saw a vehicle

pull up and witnessed Michelle and Alice unpacking several items from it.

Michelle apologized for being late, explaining that the cab had taken time. She

showed the caseworker that she had with her packages of diapers, packages of

baby wipes, a breast pump, some pacifiers, nail clippers, several baby outfits,

and some other items. She told the caseworker she did not have any formula

because hospital staff had told her not to buy formula yet, she had a car seat for

Nina in her husband's truck, she would be getting a bed, and the couches and

mattress would be removed. The caseworker told her the apartment would have

to be cleaned if she and Nina moved into it. Michelle represented she would

clean and set up the apartment before Nina was discharged. She explained her

arrangement with Joe's mother about renting the apartment.             She again

represented to the caseworker her husband was supporting her financially and

would support her until she obtained employment.

      They discussed Michelle's substance abuse, her discharge from the

methadone program due to insurance issues and an outstanding payment, and

her request for Division assistance in finding another substance-abuse program.


                                                                            A-1097-19
                                       12
Contrary to her prior assertion that she had not taken other drugs once she

entered the methadone program, Michelle admitted that while she was pregnant

with Nina and enrolled in the methadone program, she had tested positive for

cocaine and had taken an unprescribed Xanax and later a Roxicodone to stop her

and the baby from having withdrawal symptoms when she had missed an

appointment at the program. She felt the baby experiencing withdrawal in utero:

"I was scared that I was going to kill her . . . from the withdrawal . . . I could

literally feel her spazzing out in my stomach and shaking from withdrawing so

bad." Instead of going to the emergency room or seeking medical assistance,

she self-administered Roxicodone.

      Later that day the Division filed a complaint seeking custody of Nina,

asserting she had been "abused and/or neglected" in that her condition was

impaired or was in "imminent danger" of becoming impaired as a result of her

parents' failure to "exercise a minimum degree of care" in (1) "supplying [Nina]

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 (2) "providing [Nina] with proper supervision or guardianship, by

unreasonably inflicting or allowing to be inflicted harm, or substantial risk

hereof"; or (3) "by any other acts of a similarly serious nature requiring aid of


                                                                            A-1097-19
                                       13
the court." After a hearing, the court issued an order to show cause, granting

the Division temporary custody of Nina. Eleven days later, Nina was released

from the hospital to the care of a resource family.

      A fact-finding hearing was held focusing on Michelle.9 The Division

presented two witnesses:      its investigative case worker and the current

caseworker. The judge found them to be credible, especially the former, who

testified the Division had sought custody of Nina due to concerns about

substance abuse during each of Michelle's pregnancies, lack of stable housing,

not being in a drug program, and domestic violence between Michelle and Jake.

Michelle did not testify or present any witnesses.

      After the hearing, the judge rendered an oral opinion in which she

concluded the Division had proven "an imminent risk of harm" pursuant to

N.J.S.A. 9:6-8.21(c)(4)(b) to Nina because "there was neglect here not preparing

for the birth of the child." The judge acknowledged that if the case were based

solely on Nina's withdrawal from methadone, she would find the Division had

not met its burden of proof. The judge believed there was more to this case



9
  The caseworker tried to reach Jake directly and through Michelle, but he never
responded. Michelle faults the Division for not making more effort to contact
Jake and for not prosecuting him. That the Division does not prosecute one
parent does not excuse the other parent from abusing or neglecting their child.
                                                                          A-1097-19
                                      14
based on "allegations that this [m]other was entirely unprepared for the birth of

her child." The judge cited as "most important" that "there was not a single baby

item, no crib, no diapers, no wipes, absolutely no preparation."         Finding

Michelle had "a long-time history of drug abuse," the judge also relied on

Michelle's "inconsistent drug treatment" and her admissions that during her

pregnancy she had taken the opiate Roxicodone, unprescribed Xanax, and

synthetic marijuana and had tested positive for cocaine.        The judge also

determined Michelle was not receiving mental health treatment for her

borderline personality disorder, "not attending to her substance abuse, [and] not

attending to the housing needs that she should have anticipated giving birth to a

child." The judge issued an order, finding the Division had established Michelle

had "abused or neglected" Nina pursuant to N.J.S.A. 9:6-8.21(c) "relative to

environmental neglect due to lack of housing and preparation for the child as

well as inattention to [Michelle's] substance abuse treatment and mental health."

      On appeal, Michelle argues the judge "misinterpreted and misapplied"

N.J.S.A. 9:6-8.21(c)(4) and caselaw and made findings unsupported by the

record. Michelle contends Nina was never in her custody and so was never in

"imminent danger" or at "substantial risk" of harm from her as required to be

proved under N.J.S.A. 9:6-8.21(c)(4)(B). She faults the judge for not identifying


                                                                           A-1097-19
                                      15
what the danger or harm was contrary to Rule 1:7-4 and for relying improperly

on Michelle's past drug use.       Michelle argues the judge erred in finding

environmental neglect because she incorrectly found that Michelle had not

obtained baby supplies, any inability to obtain housing or supplies before Nina's

premature birth did not constitute gross negligence or recklessness, and the

Division failed to prove Michelle had the financial ability to provide housing

and supplies. Finally, Michelle contends the judge did not have to find abuse

and neglect and faults her for making that finding because its consequences "will

follow [Michelle] for the rest of her life."

      In response, the Division argues the judge's finding of neglect was "amply

supported by substantial credible evidence" and that under the "totality of the

circumstances," Michelle "failed to provide a minimum degree of care to Nina

placing her at imminent risk of harm."

      At the conclusion of the fact-finding hearing, Nina's law guardian argued

that the judge should find neglect. She faulted Michelle for her "significant non-

compliance" with the methadone program, for having "no appropriate place for

[Nina] to come home to," and for not engaging in services to address her




                                                                            A-1097-19
                                        16
"significant substance abuse issue." On appeal, the law guardian 10 reverses her

position and argues that instead of finding neglect under Title Nine, the judge

should have found under Title Thirty that Michelle needed the Division's

services and assistance.

      The Legislature's intent in enacting Title Nine was "to assure that the lives

of innocent children are immediately safeguarded."           N.J.S.A. 9:6-8.8.    In

deciding Title Nine cases, courts must be mindful that the "safety of the

children" is the paramount concern and the "best interests of the child shall be a

primary consideration."

Ibid. “The focus in

abuse and neglect matters, thus, is

on promptly protecting a child who has suffered harm or faces imminent

danger." N.J. Dep't of Child. & Fams., Div. of Youth & Fam. Servs. v. A.L.,

213 N.J. 1

, 18 (2013). In determining whether a child has been abused or

neglected, a court must consider "the totality of the circumstances." N.J. Div.

of Youth & Fam. Servs. v. V.T., 

423 N.J. Super. 320

, 329 (App. Div. 2011).

      N.J.S.A. 9:6-8.21(c)(4) defines an "abused or neglected child" as one

            whose physical, mental, or emotional condition has
            been impaired or is in imminent danger of becoming
            impaired as the result of the failure of [a] parent . . . to
            exercise a minimum degree of care (a) in supplying the
            child with adequate food, clothing, shelter . . . though

10
   The attorneys who submitted the appellate brief on behalf of the law guardian
did not participate in the fact-finding hearing.
                                                                             A-1097-19
                                       17
              financially able to do so; or (b) in providing the child
              with proper supervision . . . by unreasonably inflicting
              or allowing to be inflicted harm, or substantial risk
              thereof . . .

By the express wording of the statute, a child who has not yet been impaired but

is in imminent danger of being impaired may be an "abused or neglected child"

under the statute. 

A.L., 213 N.J. at 23

(determining that "a finding of abuse and

neglect can be based on proof of imminent danger and substantial risk of harm").

A court "need not wait to act until a child is actually irreparably impaired by

parental inattention or neglect." In re Guardianship of D.M.H., 

161 N.J. 365

,

383 (1999).

      Title Nine encompasses a variety of ways in which a child may be deemed

to be abused or neglected. 

Y.N., 220 N.J. at 179

. Harm does not by itself

establish abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b).

Id. at 181.

The

Division also must prove that in causing the harm, the parent "acted with gross

negligence or recklessness," not mere negligence.

Ibid. “[A] parent fails

to

exercise a minimum degree of care where a parent knows of the dangers inherent

to a particular situation." 

V.T., 423 N.J. Super. at 329

. "[W]here a parent . . .

acts in a grossly negligent or reckless manner, that deviation from the standard

of care may support an inference that the child is subject to future dange r." N.J.



                                                                             A-1097-19
                                        18
Dep't of Child. & Fams., Div. of Youth & Fam. Servs. v. T.B., 

207 N.J. 294

,

307 (2011).

      Our role is limited. We defer to a family judge's factual findings when

supported by substantial, credible evidence in the record because the judge "has

the superior ability to gauge the credibility of the witnesses who testify" and has

"special expertise in matters related to the family." N.J. Div. of Youth & Fam.

Servs. v. F.M., 

211 N.J. 420

, 448 (2012). "We recognize that the cold record,

which we review, can never adequately convey the actual happenings in a

courtroom."

Ibid. We review de

novo a judge's legal conclusions, including

whether a parent was grossly negligent. 

T.B., 207 N.J. at 308

.

      At the fact-finding hearing, Division counsel asked the caseworker to

describe the condition of the apartment when he inspected it. Michelle's counsel

did not cross-examine the caseworker about the supplies Michelle had with her

when she arrived after the caseworker had completed his inspection of the

apartment. He also did not argue in his closing argument that she had obtained

any baby supplies. Based on the testimony and arguments presented during the

hearing, the judge understandably concluded Michelle had not obtained any

baby supplies.




                                                                             A-1097-19
                                       19
      The caseworker's investigative report was admitted into evidence. In one

paragraph of that twenty-five-page report, the caseworker described the supplies

Michelle delivered to the apartment after his inspection. Although Michelle now

relies on that documentary evidence on appeal, she said nothing about it at trial.

In spite of the omission, we consider the information contained in the

caseworker's written report because it was in evidence and conclude the judge's

finding that Michelle had not obtained any baby supplies was incorrect.

      Even taking into consideration that Michelle obtained some baby supplies,

after careful review we are satisfied the remaining evidence fully supports the

judge's conclusion that Nina was abused or neglected within the meaning of

N.J.S.A. 9:6-8.21(c)(4) by not preparing for her birth in a multitude of ways and

that her conduct rose to the level of gross negligence or recklessness.

      Although it is true Michelle had acquired diapers and baby wipes, it is

equally true that the housing Michelle had obtained established she was grossly

negligent or reckless in failing to prepare for Nina's birth. The deplorable

condition of the apartment and its unsuitability for a newborn just released from

the neonatal intensive care unit is undisputed. The apartment was "in disarray";

the kitchen floor was "covered" in dirt and garbage; the living/bedroom area had

carpeting that was "very dirty" with "several wires" on it; the bathroom was


                                                                            A-1097-19
                                       20
"dirty" with a shoe-filled bathtub; and another room and closet were utilized by

an apparent drug user to store his airsoft equipment and other supplies.

      Those observations were not made during a rushed, surprise visit.

Michelle knew when the caseworker would be at the apartment; she chose the

inspection date. She knew why he would be there; he had expressly told her that

he wanted to see the apartment to assess it for safety and appropriateness. She

had time to get the apartment ready; he inspected the apartment twelve days after

she had access to the apartment. The judge reasonably concluded that Michelle's

proffer of this apartment as adequate housing for Nina demonstrated that Nina

was in "imminent danger of becoming impaired as the result of the failure" of

Michelle "to exercise a minimum degree of care," N.J.S.A. 9:6-8.21(c)(4).

      Michelle argues the judge did not require the Division to prove Michelle

had the financial ability to provide for Nina, citing N.J.S.A. 9:6-8.21(c)(4)(a).

In making that argument, Michelle ignores the full language of the statute and

the representations she and her husband made to the caseworker. The Division

can establish abuse and neglect by a parent's failure to supply adequate shelter

"though financially able to do so or though offered financial or other reasonable

means to do so." N.J.S.A. 9:6-8.21(c)(4)(a) (emphasis added). Michelle and

her husband repeatedly represented he would support her financially.


                                                                           A-1097-19
                                      21
      The judge based her decision not on Michelle's past drug use but on her

failure to take steps to address her long-standing addiction issues so that she

would be prepared for Nina's birth and able to care for her. The record contains

more than just one positive drug test result or a single admission of drug use.

See, e.g., 

A.L., 213 N.J. at 27-28

; N.J. Div. of Child Prot. & Permanency v.

R.W., 

438 N.J. Super. 462

, 470 (App. Div. 2014). The record is replete with

evidence, including her admissions, of Michelle's intractable drug addiction.

The "societal concern that no child come under the care of an intoxicated parent

. . . is more pressing [when] the child is an infant." 

R.W., 438 N.J. Super. at

469

. Like the mother in 

Y.N., 220 N.J. at 170

, Michelle was in a methadone

program. Unlike the mother in Y.N., ibid., she was not compliant with the

program, admittedly using and testing positive for other drugs while she was in

the program and missing numerous appointments, even though she had been told

that missing a methadone dose could be dangerous for the baby. The judge

properly focused on "the risk of substantial, imminent harm to the child, not on

the past use of drugs alone." 

A.L., 213 N.J. at 23

.

      The judge also determined Michelle had known since her pregnancy with

Lisa that she needed individual therapy to address mental-health issues but had

not complied with the services recommended for those issues.           Michelle


                                                                          A-1097-19
                                      22
admitted to being diagnosed with a borderline personality disorder and to self-

medicating for an anxiety disorder and depression.            Having declined to

participate in mental-health services, Michelle self-medicated while pregnant

with Nina by taking unprescribed Xanax, cocaine, Roxicodone, and synthetic

marijuana. The judge correctly concluded that evidence regarding Michelle's

mental-health disorders and her refusal to engage in treatment for those

disorders supported a finding of "an imminent risk of harm to the child" and

"neglect here [in] not preparing for the birth of a child."

        We recognize, as we did in V.T., that "[a]ddiction is not easy to

successfully remediate; a failure to successfully defeat drug addiction does n ot

automatically equate to child abuse or 

neglect.” 423 N.J. Super. at 331

. We

acknowledge that similar challenges face those suffering from mental illness.

But, here, Michelle's extensive history of drug abuse and mental illness; multiple

failures to seek treatment or to comply with substance-abuse programs; and

willingness to take actions she knew to be dangerous while she was pregnant

lead us to agree with the trial court that Michelle's failure to prepare for Nina's

birth by not addressing her substance-abuse and mental-health issues was

grossly negligent and reckless and placed Nina in substantial risk of imminent

harm.


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                                       23
      Michelle argues that because she never had custody of Nina, she could not

have abused or neglected her. In making that argument, she disregards the

express language of the statute that encompasses a child in "imminent danger of

becoming impaired," N.J.S.A. 9:6-8.21(c)(4), and case law establishing that

"[c]ourts need not wait until harm occurs before interceding to protect children."

R.W., 438 N.J. Super. at 471

. Michelle represented she would be Nina's primary

caregiver when she was discharged. That the Division sought and obtained

custody of Nina prior to her hospital discharge does not preclude a finding that

Michelle's conduct created an imminent risk of harm to Nina.

      Michelle and the law guardian argue on appeal an abuse-or-neglect

judgment was "not necessary" and the judge instead could have taken other

actions under Title 30, including ordering services. In making that argument,

they ignore Michelle's repeated rejection of and refusal to participate in the

multitude of services offered to her. Given that history, the judge had no reason

to believe the provision of services, despite the Division's best efforts, would

have protected Nina. The judge was appropriately mindful that the Legislature's

"primary concern" in enacting Title Nine was the "safety of the children."

N.J.S.A. 9:6-8.8.




                                                                            A-1097-19
                                       24
      Viewing the totality of the circumstances – "not receiving [mental-health]

treatment, not attending to her substance abuse, not attending to the housing

needs that she should have anticipated giving birth to a child" – the judge

correctly found the Division had proved that Michelle had neglected Nina within

the meaning of N.J.S.A. 9:6-8.21(c)(4).

      Affirmed.




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                                      25

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