Opinion
DOCKET NO. A-3007-13T2
06-25-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.F., Defendant-Appellant. IN THE MATTER OF M.F. and K.F., minors.
Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief). Victoria Kryzsiak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Kryzsiak, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors M.F. and K.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent, and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-107-13. Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief). Victoria Kryzsiak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Kryzsiak, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors M.F. and K.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief). PER CURIAM
Following a fact-finding hearing, the trial court entered a Title 9 order that defendant, L.F., willfully abandoned her two oldest boys, ages sixteen and seventeen at the time. Defendant appeals on two grounds: the Division of Child Protection and Permanency should have provided services under Title 30 before seeking an adjudication of abuse or neglect under Title 9; and, the trial court relied on inadmissible hearsay evidence to arrive at its decision. We agree that the trial court relied upon hearsay evidence that it said it would not consider. Moreover, the trial court failed to make factual findings on conflicting evidence critical to resolving the question whether defendant had willfully abandoned her children. Accordingly, we reverse and remand for a new hearing.
I.
A.
The Division commenced this action on August 20, 2012, by filing an order to show cause and a verified complaint for custody "pursuant to N.J.S.A. 30:4C-11 et seq., N.J.S.A. 30:4C-12, and [Rule] 4:67-1 et seq. and [Rule] 5:12-1 et seq. for the protection and best interests of [defendant's two oldest boys]." The complaint recounted events involving the boys that had taken place over eighty days, from May 28 through August 16, 2012, and sought an order "granting and/or continuing custody of the children in the Division and/or such relief as is provided by law, specifically, N.J.S.A. 30:4C-11 et seq. and N.J.S.A. 30:4C-12, and is in the best interests of the children." The complaint alleged, among other assertions, that defendant's sons, M.F. and K.F., ages seventeen and sixteen, were in the physical custody of a resource relative "through a plan made by [defendant]" because defendant had kicked them out of their home in April.
The complaint also named the children's father. This appeal does not involve him.
Defendant appeared in court with her attorney on the day the Division filed the verified complaint and order to show cause. The record of that hearing evidences some confusion about its purpose, but the court and counsel ultimately agreed that it was not a "DODD" hearing.
"A '[DODD] removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which . . . is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). When the Division removes a child from a home on an emergent basis, the Superior Court, Chancery Division, Family Part, must "hold a hearing on the next court day, whereby the safety of the child shall be of paramount concern . . . ." N.J.S.A. 9:6-8.31.
Defendant's attorney informed the court that M.F. and K.F. were currently with their aunt and uncle, with whom they had been placed by defendant. Counsel also informed the court that defendant had the boys covered under her medical plan and that defendant had given the boys' school permission to speak with their aunt. Counsel explained that the boys were unruly and did not obey their mother but did obey their aunt and uncle. Lastly, counsel represented that if the Division needed to obtain custody to assist the aunt and uncle with services, defendant had no objection.
When the Deputy Attorney General confirmed there had been no removal of the boys from their mother, the court inquired why they were doing a DODD, and the DAG replied, "It's not a Dodd, Your Honor. It's filing for custody." When the court asked, "why are we doing an abuse and neglect case," the DAG explained that the Division's investigation was still pending; the DAG could not "say . . . whether or not there will be a substantiation, and whether this will be a Title 9 or Title 30." The Division's position, however, was that such determinations were for fact-finding and had "no bearing on today's proceedings." Ultimately, with defendant's consent, the court determined that it was "in the children's best interest that the Division have legal and physical custody of them."
On the return date of the order to show cause, the court continued the children under the custody, care and supervision of the Division; ordered defendant and the children to undergo psychological evaluation; and arranged for visitation. Between the return date of the order to show cause and the fact-finding hearing, the court conducted periodic case management reviews. During one such hearing, which took place the month before the fact-finding hearing, the court ordered M.F. "to be dismissed from this litigation as he has reached the age of majority."
The fact-finding hearing took place during three days in May 2013, and the court delivered its opinion from the bench on the third day, May 9, 2013. Thereafter, the court conducted two compliance review hearings and a permanency hearing. On January 30, 2014, the court entered an order terminating litigation because K.F. had reached the age of majority. Accordingly, defendant appealed from that order as well as the May 9, 2013 order that determined defendant had abused or neglected the two boys.
The Title 9 fact-finding and adjudication took place notwithstanding that the Division had filed its complaint under Title 30 and never amended the complaint to allege a Title 9 action.
B.
During the fact-finding hearing, the Division introduced three exhibits into evidence: the Division's screening summary, the Division's investigation summary, and a police officer's report. At the inception of the hearing, defendant objected to the admission of the exhibits. In response, the court informed the parties that it would not rely upon hearsay statements in the screening summary because the Division was not admitting the document for the truth of the statements contained in it. The court also stated that it would not consider statements contained in the investigation summary of the boys' maternal grandparents, a person from their school, and their aunt. As to the police report, the court said that "if the police officer comes and identifies your report, and is subject to cross-examination I'll consider admitting that report."
Although the court stated explicitly that it would not consider the aunt's hearsay statements, the context of the colloquy in which the court ruled suggests that court intended to exclude the uncle's statements as well.
The Division presented the testimony of five witnesses at the fact-finding hearing: a law enforcement officer, two case workers, a Division investigator, and the children's maternal grandmother. The police officer and the two caseworkers testified, for the most part, to events that occurred on the day of the "referral," May 28, 2012. Those events began when M.F. placed a 911 call and hung up before speaking to a 911 operator.
Lodi police officer Keith Watts testified that on the afternoon of May 28, 2012, in response to a 911 hang-up, he responded to a residence where he found M.F. and K.F. on the porch. M.F. admitted making the 911 call and said he made the call because he was homeless; he had nowhere to stay. In response to further questioning by Officer Watts, M.F. said that a few weeks earlier, his mother had kicked him out of the house. He had been staying with his uncle, but before leaving for vacation his uncle asked him to leave, so he did.
Officer Watts also spoke to K.F., who stated that he had let M.K. into their uncle's house, which was being watched over by their grandmother. Officer Watts then spoke to the grandmother, who said she had asked M.F. to leave the house; he was no longer welcome there due to K.F. sneaking him in. As Officer Watts was speaking with the grandmother, defendant arrived.
Officer Watts explained to defendant her responsibility for her two children. He also told her that M.F. had nowhere to stay. According to Officer Watts, defendant became irate, said she wanted nothing to do with M.F. and K.F., and that "they were both dead to her." She told the officer that she did not care about the children and he should "do what you have to do."
Officer Watts next contacted the children's father by phone. The father, who lived in New York, said he could not take custody or responsibility for the children and then hung up. When Officer Watts tried to telephone the father on numerous occasions thereafter, the father did not answer.
Officer Watts tried one last time to have defendant take responsibility for the children. She repeated that she did not care and he should do whatever he had to do. On cross-examination, however, Officer Watts conceded that defendant explained she would not take her sons back because "they were using CDS in the house; verbal abuse to her; vandalizing her home."
The officer contacted the Division, which dispatched two investigators. When the Division became involved, Officer Watts' involvement ended.
Division caseworker supervisor Jennifer Koegel responded to the officer's call. After speaking with Officer Watts, she interviewed the boys. M.F. said defendant had kicked him out of the house after blaming him for a hole in the wall that K.F. had made. K.F. went to live with his uncle and M.F. had stayed with a couple friends and then went to live with the uncle. When M.F. broke curfew at his uncle's house, his uncle said he should leave. M.F. called 911 because he did not want to be homeless.
M.F. also told Koegel that defendant had remarried and she and her second husband had two other children, one age eleven, the other a newborn. According to M.F., his mother had abused him when he was twelve or thirteen years old. He had done something bad in school and his mother whipped him with a belt several times. He also said his stepfather had punched him with a closed fist.
M.F. admitted abusing alcohol and marijuana. He said if he did go home, he would agree to services and attend a substance abuse program.
K.F. told Koegel that the day defendant kicked M.F. out of the house, he, K.F., was rocking in a chair, hit the wall, and put a hole in it. He felt defendant had alienated him from his brother and his father. When K.F. left his mother's home, he went straight to his uncle's house.
The other caseworker who responded to the call from Lodi police, Julie Blacker, interviewed defendant. According to Blacker, defendant was upset, angry, and defensive. Defendant yelled most of the time Blacker was in her presence. Defendant told Blacker the boys were using drugs and being disrespectful. They had kicked her in the stomach when she was pregnant, said they hoped the new baby would die, and punched holes in the wall. According to Blacker, "she was really not very cooperative in making a plan for them, basically didn't want to have anything to do with them."
The baby was born less than a month before the Division became involved with defendant. --------
Blacker also testified that, though defendant was holding an infant, she refused to give the infant's name, the name of her husband, or the name of her daughter. She would not tell Blacker where her daughter was and insisted that her two younger children had nothing to do with the current case.
Blacker asked defendant if she would help the Division make a plan for the two older boys if defendant would not permit them to come home. Blacker then explained to defendant that she could be arrested for abandonment or neglect if she did not work with the Division. Defendant said she did not care if she was arrested but the Division was not taking her children — meaning her daughter and the infant.
The older boys returned to their uncle's home with their grandmother. Blacker went to the boys' uncle's home where she spoke to them and discussed the importance of following their grandmother's rules for the night. Despite Blacker's admonition, before she left, M.F. started arguing with his grandmother because he really did not want to be where he was not wanted. By the time Blacker left the house, however, the grandmother and the two boys appeared to be calm.
The Division's investigator, Luke Drummond, authenticated the screening and investigation summaries. The court admitted those documents into evidence but repeated its previous ruling: "And I'm going to place P-1 and P-2 into the record. I've already made rulings with respect to any inadmissible hearsay. And the [c]ourt will not rely upon any inadmissible hearsay as set forth in those reports."
Drummond went to K.F.'s school where he learned that K.F. had an attendance and excessive absence problem though it appeared to have resolved within the past month. The investigator next telephoned the Lodi Police Department and learned that in January 2012 police had responded to defendant's home as the result of a dispute between her and one of her sons. After receiving that information, Drummond went to the home where the boys were staying. According to Drummond, the boys were well cared for in their aunt and uncle's home. They had their own living quarters on the ground floor, quarters that included air conditioning and a large screen television. There was always plenty of food in the home. Before completing his investigation, Drummond spoke with both boys, their grandmother, and defendant.
Drummond interviewed K.F., who repeated what he had already reported; that due to behavioral issues at home and conflicts with their mother, she kicked him and M.F. out. They initially stayed with a friend and then moved in with their aunt and uncle. M.F. told the investigator the same thing. Drummond also learned that M.F. had academic difficulties so he was signed out of school — while in the tenth grade - and enrolled in "Job Corp." He obtained his GED but then left the program.
The boys described their relationship with their mother. They said they had been raised primarily by their great grandmother. The investigator sensed "some tension there" about being raised by their great grandmother and now having to live with their mother. The boys also felt slighted that defendant's new husband, though no longer involved, and defendant's children from the new husband, had priority over them. They felt they had been bounced around from place to place and always had only each other. Their biological father was never really involved with them.
Defendant told Drummond what she had already reported; when they lived with her the boys were difficult and disrespectful, smoked marijuana and partied, and were physically violent with her. That is why she asked the boys to leave. The investigator learned, however, "that there was . . . an informal family arrangement with the boys being with the maternal aunt and uncle." Defendant knew where the boys were. They were "right down the street, literally." In other words, according to the investigator, "the way it was presented to [him,] . . . for the last month or so . . . there had been this informal family arrangement of the boys stay[ing] with the aunt and uncle." When pressed about whether defendant made the informal arrangement immediately upon the boys leaving, Drummond testified that there was an incident at defendant's home; M.F. was kicked out and K.F. followed because they were close; and there was no "initial plan right away." The boys stayed with a friend for a couple of days and found their way to the aunt and uncle's home. The boys were close to their aunt and uncle and had previously lived with them. "And then there was contact made between [defendant] and the aunt and uncle. Okay, boys are here. You know, this is what the arrangement is going to be for the time being."
M.F. caused his aunt and uncle some concerns. They suspected that he smoked marijuana because he had come home glassy-eyed, "with the munchies looking to eat." And the first time M.F.'s aunt and uncle trusted him enough to be left alone for several hours, they came home and found a box of condoms.
In any event, when Drummond discussed "the arrangement" with defendant, he explained that she remained the boys' legal guardian and was responsible for them. He discussed with her having "some type of written agreement" defining what the plan for the boys was going to be. She said she could keep the boys on her medical insurance and would support the boys any way she could, but she could not give them financial support. Drummond also stressed that defendant needed to communicate with her brother so that they were both "on the same page" about the plan for the boys.
Approximately one week later, when Drummond next spoke to defendant, she was "now in New York." She explained that she was unable to pay her rent in Lodi so she and her younger two children were staying with family or friends in New York. Her priority was not M.F. and K.F., but rather to find housing and stabilize her situation in New York. Drummond testified that defendant had made no follow-up plans with her brother. Approximately two weeks later, when Drummond contacted defendant again, she still had made no follow-up plans with her brother.
On August 6, Drummond received a call from the boys' aunt who said the boys had to be out by August thirteenth, the informal arrangement had run its course, and she had so notified defendant. Defendant also called Drummond and explained that she could not take the boys; her situation remained unstable. Drummond replied that defendant was still responsible for the boys and she had to come up with a plan before the thirteenth. He also explained that if she didn't make a plan the Division would be forced to take custody of the boys, take her to court, and notify its New York counterpart. She became angry. She saw the situation with her younger children as separate from that of her older children, and she said that the New York agency would never find her children. Notwithstanding those comments, defendant met Drummond at a Division office in New Jersey on August 8.
In the days before the meeting, Drummond looked into independent living placements for the boys. Although he found one, it became unnecessary to send the boys there, because on August 10, the boys' maternal grandmother agreed to take them, provided they agreed to follow rules, comply with their curfew, and go to school. Drummond and the grandmother agreed the boys needed counseling. Thereafter, Drummond spoke with defendant, who confirmed that placing the boys with her mother was now an option. Within a week, however, the boys' maternal grandmother said she could not take them. She said she had felt pressured by defendant to take them.
Defendant refused to come to New Jersey to pick them up and refused to make any other arrangement for them. When Drummond told defendant that the Division would take custody of the boys, take her to court, and notify New York authorities, defendant hung up the phone.
During cross-examination, Drummond disclosed much more about his investigation. When he interviewed K.F., K.F. said that, contrary to what M.F. had told the police and the caseworkers, M.F. had not spent a night on the street and had not slept in any cars. K.F. also said that, contrary to M.F.'s statement that his mother had once hit him with a belt, his mother never hit M.F.; physical discipline was not used.
K.F. said he had told his sister never to act like M.F. K.F. also said that he got along with his mother. In fact, he visited both his mother and his siblings. According to K.F., his mother never threw him out of her home. Rather, when his mother made arrangements to have her brother take M.F., K.F. followed.
The boys' grandmother confirmed that her daughter, defendant, had made arrangements with her brother and sister-in-law to take M.F. Drummond confirmed that the aunt and uncle really cared for the boys, especially the aunt. The aunt and uncle felt the boys were really good boys.
Drummond also interviewed defendant's daughter, who told Drummond M.F. had done the following: told their mom he wished her baby had died; thrown a hot iron and a basketball at their mother; smoked and cursed in the house; and thrown parties. The daughter said M.F.'s friends took things from the house. She was present when M.F. called 911 on May 28. Like K.F., she told Drummond M.F. had lied about what happened.
Drummond also admitted that defendant said she had tried to get help for the boys, but to no avail; though he added that he could not corroborate her statements with the Lodi police. Defendant also told Drummond that she did not feel safe having M.F. in the home. He cursed, yelled profanities at her, and smoked marijuana in the home. He had broken windows in the home and keyed her car. Defendant did not trust M.F. with the younger children because he said they were not his siblings.
Defendant told Drummond that she had made arrangements to have M.F. stay with her brother for a while. She was not transferring custody and she maintained full responsibility for the boys' medical needs and insurance. Defendant also said that she was open to counseling services, but according to Drummond, "[n]othing was set up at that time[,]" even though it was clear that the family was in need of services.
Drummond also explained "what was reported to him" about M.F.'s uncle wanting him out of the house on May 28. M.F. had left to go to a party and stayed out. His aunt and uncle were going on vacation. "And, you know, you better come back before we leave for vacation. And he didn't come back." Even though M.F. was unsure whether he was permitted to return to his uncle's house, and even though it eventually turned out that he was permitted to return, he called the police before confirming that he could return and his call triggered the investigation.
Drummond also clarified some of the other statements he had made during his direct examination. For example, though he had testified during his direct examination that in August defendant told him the boys were not her priority, he clarified during cross-examination that defendant actually said the boys were not her priority because they had a stable place to stay and she was still searching for a place for her and her other children. Defendant never said she was abandoning the boys. As to defendant providing the boys with financial support, Drummond conceded that the aunt and uncle knew "that money was tight for [defendant]," so they were not seeking financial support. Rather, they wanted defendant to visit the children, check on them, and ask about them.
Drummond further testified that after he notified the boys' aunt and uncle on August 15 that the Division would be taking the boys, they changed their mind and said they would keep the boys. "But they needed support. . . . [T]hey wanted support from [defendant]. And they made it very clear that they just felt that she dumped the boys on them; was now in New York; and that was it."
The significant difference between Drummond's direct and cross-examination was not lost on the court. Immediately after defendant answered the last question on cross-examination, the court said: "Mr. Drummond, you just painted two different pictures. One in your direct. And one in your cross." In an attempt to clarify the different pictures, the court asked Drummond whether in August defendant was cooperating with him or not. He responded that defendant had been cooperating until August 15 when the deadline arrived and Drummond told her they had to get the boys out of their uncle's home. When she responded, "do what you got to do[,] . . . I'm not taking them[,]" that is when the Division substantiated her. Yet, on the sixteenth, the boys' aunt and uncle had changed their mind and agreed to keep the boys with the Division's assistance. And on the seventeenth, defendant called Drummond and said that she found a relative - a sister in New York — who might be willing to take the boys. The Division nonetheless filed its complaint on August 20.
Defendant's mother also testified. On the day M.F. called the police, she was babysitting her two youngest grandchildren at her son's — the children's uncle's - house. Her son and his family had gone away for the weekend. She was at "Chuck E Cheese" when her daughter, defendant, called her and told her the police and the Division were involved with the boys. Defendant was hysterical. The grandmother returned to the house where she was told that Division caseworkers were there because her two older grandsons had no place to go. She was asked if she would take the boys back with her and she initially declined to do so, but agreed after "they" threatened to take her other two grandchildren. She made the decision without any input from her daughter.
The boys' grandmother recalled that in August 2012 she spoke for a time with Drummond and agreed to take the boys into her home. She denied asking Drummond for any help. At some point, however, she changed her mind and decided that the boys could not live with her. She told her daughter she had changed her mind about taking the boys and her daughter understood. Her daughter knew the boys were with their aunt and uncle and she was trying to find somewhere for them to go.
C.
Based on the foregoing evidence, the trial court found that defendant had abandoned her children, leaving them to the care of the State. In so finding, the court noted that the evidence was unclear as to whether defendant removed K.F. from her home when he went to live with his uncle, or whether he followed M.F. The court also found the evidence unclear as to whether M.F. "spent two days . . . sleeping in a car in the interim period before he left his mother's house and went to his uncle's house"; and whether M.F. actually "spent a period of time out on the street after his uncle told him to leave." Because the testimony on those issues was unclear, the court focused "more on the fact that the child was not able to live in his mother's home because she removed him." On that issue, the court found Drummond's testimony critical.
The court then explained:
By [L.F.'s] own admission her only concern was the care and the well-being of her two younger children. Her claim that [M.F.] was a difficult child does not absolve her of her parental responsibilities. [M.F. and K.F.] were her sons. They were not pawns to be moved around a chessboard from relative to relative or friend.
While not communicating with a relative who took these children in, or by virtue of the fact that she did not communicate with the uncle who took these children in, this only added to the problem. She did not give these children any emotional or financial support either.
The law does not permit a parent to walk away. And when [L.F.] refused to become a placement, in August; when she failed to communicate with her brother May, June, and July, and August; when she failed to work in good faith with the [Division] to solve this family crisis she abrogated her responsibilities as a parent.
Ultimately the court concluded:
The Division was forced to [do a] DOD[D] removal. It is clear, based upon the record, that [defendant] is culpable of — forsaking her children; failing to care for and keep custody and control of her children. And, in failing to do so, she left their care, maintenance and support to the State of New Jersey at the expense of the public.
The court also found mitigating factors in that the Division went along with the "shaky" arrangement with the uncle, and there was "no evidence in the record that the Division referred this family to services." On the other hand, the court found the following actions weighed more heavily in making a finding of abuse and neglect: L.F.'s words that the children were dead to her and that the Division should do what it needs to do; the fact that L.F. took no active role; L.F.'s lack of communication with her brother; L.F.'s failure to make a more formal agreement with her brother and her failure to give her brother custody of her boys; L.F.'s failure to actively work with the Division; and L.F.'s failure to take the boys back when there were no options left.
The court concluded that "ultimately, the provisions of the statute were met . . . [a]nd [defendant's] act in failing to arrange for the placement of these boys constituted abandonment." The court determined that "[L.F.] abrogated [her] responsibility [as a parent] because of her son's problematic behavior. The [Division] sustained its burden. [M.F. and K.F.] are abandoned children, thus, making them abused and neglected."
II.
In a Title 9 case, the court must decide at the fact-finding hearing the crucial issue of "whether the child is an abused or neglected child[.]" N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)).
We have recognized the fact-finding hearing as "a critical element of the abuse and neglect process and that [t]he judge's determination has a profound impact on the lives of families embroiled in this type of a crisis." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). For that reason, "[t]he judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made. Id. at 265 (citing N.J.S.A. 9:6-8.50).
It bears emphasizing that merely reciting the testimony of witnesses does not constitute fact-finding. This is especially so when two or more witnesses have given contradictory testimony about a fact of consequence to the determination of an issue that the court must decide. We recognize the difficulty of such a task when the only evidence concerning such an issue is documentary evidence of conflicting statements admitted under an exception to N.J.R.E. 802, which provides that "[h]earsay is not admissible except as provided by these rules or by other law." In those instances, it is particularly important for trial courts to articulate the basis for accepting one hearsay account over another; because, in such instances, a trial court has not had the opportunity to assess firsthand the demeanor and credibility of the declarants.
Our standard of review of a court's abuse or neglect determination is limited. When a trial court's fact-finding is based on competent, material and relevant evidence, we ordinarily defer to its findings, because a trial court "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We owe no deference to the trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.H., 202 N.J. 145, 183 (2010). Moreover, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (citations and internal quotation marks omitted).
An "abused or neglected child" is defined in Title 9 as, among other things, "a child who has been willfully abandoned by his parent or guardian, as herein defined[.]" N.J.S.A. 9:6-8.21(c)(5). Abandonment
shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risks without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.
[N.J.S.A. 9:6-1.]
"'The statutory notion of abandonment . . . import[s] any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" Lavigne v. Family & Children's Soc'y of Elizabeth, 11 N.J. 473, 480 (1953) (quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)). "Abandonment requires a finding that parents, although physically and financially able to care for their children, willfully forsook their parental responsibilities [and] . . . entails a willful surrender or intentional abdication of parental rights and duties." In re Guardianship of K.L.F., 129 N.J. 32, 39 (1992) (citations omitted). "A lack of communication or planning that is not the fault of the parent does not equate with parental unfitness, nor does it constitute abandonment for statutory purposes." Ibid. Further, because the statute encourages relationships between biological parents and their children, the Division "must take affirmative steps to avoid the eventuality of abandonment[.]" Id. at 40.
A.
With the foregoing principles in mind, we turn to the record and the trial court's decision. We begin by noting the absence of fact-finding on issues relevant to whether defendant willfully abandoned the children. The threshold factual issue the court had to decide was whether M.F. posed an ongoing threat to the physical well-being and welfare of defendant and her family. There was evidence in the record from several sources that M.F. had committed crimes against his mother by kicking her in the stomach when she was pregnant, throwing an iron and basketball at her, breaking windows in her home, keying her car, and engaging in other threatening behavior.
The court also failed to specifically resolve whether, as some evidence established, defendant arranged to place M.F. with his uncle. The court appeared to disbelieve the hearsay statements of M.F. that he stayed with others before going to his uncle's home. There was certainly evidence to the contrary. If defendant had made the arrangements for M.F. to stay with his uncle due to his violence in her home, defendant can hardly be deemed to have engaged in conduct "which evinces a settled purpose to forego all parental duties and relinquish all claims to the children."
Additionally, the court did not find defendant had evicted K.F. And K.F. said he continued to visit his mother and younger siblings even after leaving to be with M.F.
To be sure, there was evidence defendant would not take the children back. She told a police officer the boys were dead to her and she made it clear to the officer and to the caseworkers who initially responded that she would not take the boys back. But the question is whether in the context of surrounding events her statement and refusal constituted willful abandonment. The answer depends on factual determinations that were never made.
If, as the evidence suggested, defendant's emotionally charged statement and refusal to have the boys return home were the result of M.F. posing a threat of harm to her and her other children, and if as the evidence suggested the boys had a stable home with their uncle — which defendant had arranged — then defendant's conduct was in the best interest of not only defendant and her younger children, but also M.F. and K.F. In that case, defendant's statements and refusal to permit the boys to return would not have constituted a settled purpose to forego all parental duties and relinquish all parental claims to the children.
This is particularly so in light of defendant's statements to Drummond that she could keep the boys on her medical insurance and would support them in any way she could, but she was unable to give them financial support. The court did not resolve these factual issues, but merely recounted the testimony about them.
Moreover, in reaching its decision, the court relied upon the precise hearsay the court said it would disregard. The court relied on hearsay statements from a person from the boys' school, and, more importantly, from their aunt and uncle. The hearsay statements from the boys' aunt and uncle appear to have influenced the court's decision. Because the court, for the most part, reiterated testimony, including hearsay statements from the aunt and uncle, rather than make explicit factual findings, we cannot conclude the court did not rely on the very hearsay it said it would exclude.
The court's failure to find facts, as distinguished from recounting testimony, also implicates whether the court's decision was supported by competent, credible evidence. In explaining its conclusions, the court stated: "by [defendant's] own admission her only concern was the care and the wellbeing of her two younger children." That appears to be a reference to Drummond's testimony under direct examination. However, under cross-examination, Drummond conceded that defendant's statement had a broader context, namely, that under the circumstances — defendant had to leave her New Jersey apartment because she was unable to pay rent, she was staying with relatives in New York, and the two older boys had a stable home with their uncle — her priority was to find housing for her two younger children. The court's general finding that Drummond was credible is of little consequence given that Drummond had painted two different pictures during his direct and cross-examination. The court did not reconcile the differences in Drummond's testimony.
The court also determined that defendant gave M.F. and K.F. no financial or emotional support. Once again, however, that begs the question of whether she was capable of doing either. Insofar as emotional support is concerned, the competent evidence does not support that determination with respect to K.F. As we have explained, the court did not find that defendant had forced K.F. to leave her house and, indeed, there was evidence that K.F. left voluntarily to be with his older brother. Moreover, K.F. told investigator Drummond that he, K.F., visited his mother and his siblings. And the court's conclusion that defendant did not emotionally support the boys appears to be directly related to their aunt's hearsay statements, notwithstanding the court twice saying during trial that it would not consider the aunt's hearsay statements.
Insofar as M.F. is concerned, the court did not explain how defendant could give emotional support to a seventeen-year-old who resented her, had assaulted her three times, had destroyed her property, and had told her he wished her unborn child would die.
With respect to financial support, the evidence was fairly clear that defendant did not have the means to provide financial support to her family. She did not have the financial ability to maintain her residence in Lodi. She told Drummond she was incapable of financially supporting the boys. And, according to Drummond, defendant's brother and sister-in-law did not want financial support from defendant because they recognized she was unable to provide it. The trial court should not have based its decision in part upon defendant's failure to provide financial support to her children without first making factual determinations about whether defendant had the ability to provide the boys with financial support.
The trial court also determined that defendant had not communicated with her brother in May, June, July, and August. That determination appears to be based in part on Drummond's discussions with defendant's brother and sister-in-law. Defendant had the right to rely upon the court's assurances that it would not consider such hearsay statements. By suggesting it would not rely upon those statements, and then relying upon them, the court effectively deprived defendant of the opportunity to present her relatives as witnesses or otherwise refute the hearsay statements.
Significantly, the court based its decision in large part on defendant's refusal to become a placement when her sister-in-law gave a firm date after which the children could no longer reside with her. The court made that determination without first determining whether defendant's taking M.F. back into her home created a danger to her and to her other two children. The court also did not consider that until August 15, 2012, defendant had expected that her mother would take the children; and that by August 17, defendant had provided the Division with another possible placement, namely, her sister. If defendant reasonably believed M.F posed a threat to her and her younger children, then defendant's refusal to become a placement while she sought help from other relatives would not constitute abandonment.
Based on Drummond's testimony, the court also found that the Division was forced to "do a DODD removal." As previously noted, the first hearing was not a DODD hearing and at that hearing the DAG confirmed the boys had not been removed. The hearing was, in effect, a Title 30 hearing that resulted in a judicial finding, made with defendant's consent, and made with the objective of enabling the Division to provide services to the family.
For the foregoing reasons, we reverse the trial court's adjudication and remand for a fact-finding hearing, to be scheduled without undue delay unless the Division determines not to further pursue an abuse or neglect claim.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION