N.J. Div. Child Prot. & Permanency v. A.K. (In re Guardianship A.T.)

• Decision Date: 28 May 2019
• Docket Number: DOCKET NO. A-5985-17T2
• Parties: NEW JERSEY DIVISION CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.K., Defendant-Appellant, and J.T., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.T. and M.T., Minors.
• Court: New Jersey Superior Court — Appellate Division

NEW JERSEY DIVISION CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.K., Defendant-Appellant,andJ.T., Defendant.IN THE MATTER OF THE GUARDIANSHIP OF A.T. and M.T., Minors.

DOCKET NO. A-5985-17T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted May 8, 2019

May 28, 2019

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0070-17.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy M. Young, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

A.K.¹ appeals from a June 20, 2017 order following a fact finding hearing, which determined she committed an act of neglect. We affirm.

We take the following facts from the record. A.K. and J.T. are the parents of A.T. and M.T., who were two and six years old, respectively, at the time of the underlying incident. Both parents have had a drug addiction and a history of involvement with the Division of Child Protection and Permanency (Division). The Division's first contact with the parents occurred in 2015, when it received a referral alleging heroin use and drug-related activity by both parentsin the presence of their children. A.K. submitted to urine screens and tested positive for opiates and Sertraline, an anti-depressant. A.K. failed to complete two additional urine screenings and a substance abuse evaluation. J.T. admitted to heroin use, but he was not a caretaker of the children at the time. Therefore, after it provided services, the Division closed its case in July 2016, and concluded the abuse allegations were not established.

In September 2016, the Division received a second referral alleging heroin use by both parents. A.K.'s drug screens were negative and J.T. tested positive for heroin. As a result, on September 30, 2016, the Division implemented a safety protection plan, which required the maternal grandparents to supervise visitation between J.T. and the children. Because of her history of drug use, the Division did not designate A.K. as an approved supervisor. A.K. reportedly became irate when she learned she was not an approved supervisor.

On October 4, 2016, the Division received a third referral alleging J.T. had overdosed on heroin in the presence of A.K. and M.T. The night before, Officer Emanuel Mercado of the Vineland Police Department responded to a 9-1-1 call regarding an overdose taking place in the parking lot of a supermarket. Mercado observed J.T. was unconscious in the front driver's seat of his vehicle as A.K. and M.T. stood outside of the vehicle. Emergency medical servicesarrived and administered Narcan to revive J.T. before transporting him to the hospital.

A.K. gave Mercado fifteen wax paper folds and told him J.T had overdosed. Mercado testified he understood the wax paper folds were used to hold heroin. A.K. told Mercado she had driven separately with the children to the supermarket, met J.T., and observed him "walking funny" on the way back to his car, where he then passed out. Mercado surmised from A.K.'s statements that the couple had met to shop together.

Division caseworker Eric Muhalix interviewed M.T. The child stated he was going grocery shopping with A.T., his mother, and father. M.T. reported his grandparents were not present. According to Muhalix's testimony, M.T. heard A.K. state J.T. had overdosed. M.T. also described the overdose. Although he did not enter his father's car, he told Muhalix he was inside his car and "not waking up."

Muhalix interviewed A.K. She admitted she was aware a safety protection plan was in place at the time the incident occurred. She stated J.T. was at her home earlier in the day and had dinner with the family. A.K. denied having an agreement to meet J.T. at the supermarket. She claimed she knew J.T. had to go to the supermarket, based on conversations with him earlier in the day, butdenied any knowledge he was still there when she and her children arrived. A.K. informed Muhalix that her friend, D.A., was present during the incident in the supermarket parking lot.

According to Muhalix's report, A.K. claimed she realized J.T. was at the supermarket when she encountered him in the parking lot. She noticed J.T.'s car and felt "something was not right" when she noticed him stumbling around in the parking lot. When J.T. returned to his car, A.K. claimed she noticed the wax paper folds of heroin in his passenger seat. A.K. then called 9-1-1 when it appeared J.T. was overdosing. As a result of its investigation, the Division implemented a new safety protection plan, which required A.K. to be supervised when she was with the children.

Mercado and Muhalix testified on behalf of the Division at the fact finding hearing consistent with their reports. Mercado testified M.T. appeared scared when he arrived at the scene. Muhalix testified M.T. stated he was scared having seen his father overdose.

D.A. and A.K. also testified. D.A. stated A.K., M.T., and A.T. were at her house during the day of the incident. There, D.A. heard A.K. speaking on the phone with J.T. and telling him she was going to the supermarket, but did not indicate when she would be going. Approximately fifteen to thirty minutesafter the call, D.A. drove A.K. and the children to the supermarket. When they arrived in the parking lot, A.K. noticed a car resembling J.T.'s and then attempted to call him. According to D.A., after J.T. failed to answer, A.K. grew worried and ran over to J.T.'s car, opened the driver-side door, and then ran around to enter through the passenger-side door. D.A. testified M.T. ran over to the car, despite her attempts to stop him, while she remained in the car with A.T. She stated she saw A.K. attempt CPR on J.T. before police arrived.

A.K.'s testimony contradicted her initial statements to Muhalix. Despite her original claim she and her family had J.T. over for dinner on the night of the incident, A.K. testified J.T. was at her home earlier in the day visiting A.T., but left to visit his friend. She claimed after J.T. left, D.A. drove her and A.T. to D.A.'s house. A.K. admitted she had a telephone conversation with J.T. when she was at D.A.'s house and told him she planned to go to the supermarket, but denied telling him to meet her there.

When they arrived at the supermarket, A.K. stated she saw a car resembling J.T.'s and admitted she attempted to call him several times. Contrary to her statements to Muhalix that J.T. had exited his car and was "stumbling around[,]" A.K. stated she approached J.T.'s vehicle and saw him "slumped over the steering wheel." A.K.'s testimony also contradicted her statement toMercado in which she claimed she was walking with J.T. when she noticed he began walking strangely back to his vehicle, and then passed out.

A.K. testified that after seeing J.T. slumped over the wheel of his car, she entered the vehicle and noticed he was unable to speak. She screamed his name, attempted to resuscitate him, and shouted "I need to call 9-1-1." A.K. stated it was at this time that M.T. ran over to J.T.'s vehicle.

A.K. denied speaking to Mercado and claimed she spoke with an unidentified female police officer at the scene. She also denied giving Mercado the wax paper folds from J.T.'s car. She claimed she was "unaware" J.T. had a drug problem, but then conceded she knew he previously tested positive for opiates and that a safety protection plan was implemented as a result.

The trial judge concluded both A.K. and J.T. had committed abuse or neglect of M.T. pursuant to N.J.S.A. 9:6-8.21(c)(4). The judge found Mercado had "testified in a[n] honest and direct manner," and was "impressed with his credibility" in recalling the details of his response to the incident. The judge also found Muhalix and D.A. credible.

The judge reached a different conclusion regarding A.K.'s testimony. He found her assertion the incident was the result of a chance meeting with J.T. was not credible. The judge made the following detailed findings:

[A.K.] had been calling and had a conversation with [J.T.] within [thirty] minutes of getting to the [supermarket]. She denies, however, that they were going to meet there. There was no statement to the police officer at any time in her testimony that . . . it was a coincidence that he was [t]here. [Nor did she say she] didn't plan on meeting [him] [t]here[,] but [she] kn[e]w him and [she] recognized him. None of that was stated to the officer. She didn't say it in her testimony that [she] told the officer all of that. She denied, however, that she had planned to meet him there. I cannot find her testimony at all credible. She certainly planned on meeting him there. There was no question to that.

She had called him throughout the day. That was her habit. She had arrived on the scene. She handed over the heroin to the officer. She told . . . Muhalix that. That's contained in the report. She got up on the stand and refuted that and she lied in this court. She did not tell the truth. She told multiple stories. The [c]ourt does not find that [A.K.] is a credible witness on that point.

. . . [S]he did not attempt to correct [Muhalix's] report. She did not attempt to provide any indication that there was inaccuracy in her statements that there was heroin. . . .

. . . I find those to be the credible statement[s][,] not that the officer gets up here and invents these things that [

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