Opinion
DOCKET NO. A-2730-13T3
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff—Respondent, v. K.C., Defendant-Appellant, and E.D.A., Defendant. IN THE MATTER OF R.D.C., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.D.C. (Nancy Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0112-13. Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.D.C. (Nancy Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant appeals from an order entered by the Family Part on May 21, 2013, finding that she abused or neglected her minor child, R.D.C. ("Ron"). We affirm.
We use pseudonyms for the children, and initials for their fathers, to protect their privacy and for ease of reference.
I.
The record discloses the following. Defendant is the mother of four children: N.C. ("Nicole"), J.C. ("James"), J.C. ("Jack"), and Ron. E.D.A. is the father of Ron, and J.T. is the father of the James and Jack. Ron is the only child involved in this litigation.
Defendant had a history of domestic violence with J.T. and obtained a restraining order against him in 2009. However, she continued to have contact with J.T. and relocated to Florida with him, where he was incarcerated for domestic violence in May 2010. Florida Child Protective Services ("FCPS") then became involved with defendant, Nicole, and James. The three moved into a shelter. FCPS obtained protective supervision of the two children, and in July 2010, a Florida court permitted defendant to relocate back to New Jersey on the condition that she have no contact with J.T.
In September 2010, defendant moved to a domestic violence shelter in Connecticut with Nicole, James, and Jack, without notifying FCPS or the Division. She then moved to a homeless shelter, still in Connecticut, from October to December 2010, when she and her children moved in with her boyfriend.
In December 2010, FCPS requested Connecticut Department of Families ("CDF") to assess defendant and her children, and a Florida court issued a "take into custody" order for Nicole, James, and Jack, because of defendant's "ongoing issues of domestic violence, failure to cooperate with services and the parents being a flight risk." FCPS requested CDF to follow through with this order, but defendant and the children were unable to be located.
The family was eventually located in January 2011, and Nicole, James, and Jack were taken into custody by CDF and placed into foster care. CDF also substantiated defendant for allegations of physical abuse of Nicole, James, and Jack. Defendant returned to New Jersey, and her children remained in Connecticut, where defendant visited them until October 2012.
Defendant gave birth to Ron in January 2013 in New Jersey. The Division then received a referral from the hospital alleging defendant abused or neglected Ron based on having three children in foster care and having insufficient supplies for the newborn. An emergency DODD removal was executed based on defendant being a flight risk, not completing required services, and having three other children in foster care.
A DODD removal is the emergency removal of a child in the absence of a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
The court conducted a fact-finding hearing on May 21, 2013, with a Division caseworker testifying as the only witness. The Division also presented CDF's records and the Division's investigation summary, which were entered into evidence without objection.
The court placed its decision on the record, finding by a preponderance of the evidence that a "substantial risk of harm" existed because defendant would be "exposing this child at a minimum to possible domestic violence[,] maybe not . . . on the child himself but her relationship with [J.T]." The judge noted that he did not believe that defendant severed contact with J.T., and thus there was "also the risk that this man would appear in her life, appear at her apartment, engage in domestic violence and do so in front of the child."
The judge subsequently issued an order finding that defendant abused or neglected Ron pursuant to N.J.S.A. 9:6-8.21c because she "has lived a transient lifestyle, has demonstrated poor decision making, has been offered services on numerous times and despite having obtained a final restraining order against [J.T.], she has continued contact with him placing her child at risk of being involved in a domestic violence incident with [J.T.]." The judge acknowledged that defendant received "the right prenatal care," but noted that the totality of the circumstances," including defendant's "transient lifestyle" and her "poor judgment," caused this case to amount to abuse or neglect.
On appeal, defendant argues that the trial court erred by finding that the Division proved that she abused or neglected Ron. Defendant asserts that the Division failed to present sufficient credible evidence that demonstrated that she failed to exercise a minimum degree of care, and that the court improperly relied on hearsay evidence.
II.
The scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 9:6-8.21c(4) provides in pertinent part that a child is "[a]bused or neglected" if the child is 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 his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporeal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]The phrase "minimum degree of care" in N.J.S.A. 9:6-8.21c(4) "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In addition, a failure to exercise a minimum degree of care may exist if a parent "is aware of the dangers inherent in a situation and . . . recklessly creates a risk of serious injury to that child." Id. at 181.
[N. J.S.A. 9:6-8.21c(4)(b).]
The trial court must base its finding "on the totality of the circumstances, since '[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329-30 (App. Div. 2011) (alterations in original) (quoting N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011)). Importantly, N.J.S.A. 9:6-8.46a(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child . . . ."
"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." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013) (citing N.J.S.A. 9:6-8.46(b)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Id. at 23. Importantly, 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).
Defendant asserts that the record does not support the court's finding of abuse or neglect, arguing that she took the necessary prenatal precautions with Ron, never exposed Ron to any domestic abuse, severed contact with J.T., and that she is neither a flight risk nor lived a transient lifestyle. We cannot agree.
We are convinced that there is sufficient credible evidence in the record to support the trial court's finding that defendant abused or neglected Ron by failing to exercise a minimum degree of care because of her transient lifestyle and poor decision-making, including her continued contact with J.T. after she obtained a restraining order against him. Defendant's failure to exercise a minimum degree of care placed her son's physical, mental, or emotional condition in imminent danger of becoming impaired.
Although the trial judge acknowledged that defendant sought prenatal care, he found that, considering the totality of the circumstances, defendant abused or neglected Ron. The record shows that defendant obtained a final restraining order against J.T., but then resumed contact with him. Additionally, even though defendant stated she did not respond to a message she received from J.T. on January 8, 2013, the judge was not convinced, finding that there was "something going on there," and that she never completely severed contact. The record also shows defendant's transient lifestyle, as she relocated from New Jersey, to Florida, to Connecticut, and back to New Jersey, and at times failed to notify the necessary state agencies of her moves.
As described by the trial judge, defendant "basically flaunted court orders."
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Where, as here, there is no actual harm to a child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21c(4)(b)). There is sufficient credible evidence in the record to show that, considering the totality of the circumstances, Ron faced a substantial risk of harm from defendant's poor decision making and transient lifestyle, which already caused the placement of defendant's three older children in foster care. We conclude that the trial court did not err by finding that, under the circumstances, defendant abused or neglected Ron.
III.
Defendant also argues that the trial court erred when it relied on information contained in CDF's reports without presenting the CDF investigator as a witness, asserting this was inadmissible hearsay. Defendant did not object to the admission of the CDF reports at the fact-finding hearing. On the contrary, when the Division moved to have the documents entered into evidence, defense counsel stated "[n]o objection." Defendant raises this issue for the first time on appeal. Accordingly, we apply the plain-error rule. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)); see also N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010).
N.J.R.E. 803(c)(6) provides that the following statements are not excluded by the hearsay rule:
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
N.J.R.E. 801(d) defines a "business" as "every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies." We are satisfied that the CDF reports submitted by the Division were properly admitted into evidence pursuant to N.J.R.E. 803(c)(6). The reports and records were made in the ordinary course of business by a state child protection agency, with each page bearing the letterhead of the agency. The Division caseworker provided testimony as to how the records were received and became part of the Division's file. We conclude that the court properly considered these reports as support for its finding that defendant abused or neglected Ron. We perceive no error, much less plain error.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION