Opinion
DOCKET NO. A-3009-13T4
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.W., Defendant-Appellant. IN THE MATTER OF J.J.W., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-134-13. Joseph E. Krakora, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kathryn A. Kolodziej, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant L.W. (Laura) appeals the Family Part's June 18, 2013 order finding that she neglected her son J.J.W. (Jason). We affirm.
We refer to appellant and members of her family by pseudonyms for the sake of convenience and confidentiality.
I.
We discern the following facts and procedural history from the record on appeal.
Jason, Laura's ninth child, was born February 25, 2013. At the time plaintiff New Jersey Division of Child Protection and Permanency (Division) filed its complaint for care, custody, and supervision in March 2013, none of Laura's eight other children were living with her. According to the complaint, the family had been involved with the Florida Department of Children and Families (Florida Department) since December 1994. Between then and February 2010, the Florida Department investigated thirteen referrals involving Laura and her biological mother. Several of the allegations were substantiated. Those interventions resulted in the placement of seven of Laura's children outside of her home by the Florida Department.
Laura gave birth to her tenth child in May 2014.
The Division's first encounter with Laura was on October 7, 2011, when it received a referral that Laura and five-month-old Walter, her eighth child, moved to New Jersey from Florida to live with Laura's mother. The referral alleged neglect of the newborn child. Although the Division determined that the allegations were unfounded, the file remained open so the Division could provide services.
In January 2012, following a substance abuse evaluation, the Division referred Laura to Options Counseling Center (Options) for treatment. Although initially recommended for outpatient services once a week, her sessions were subsequently increased to five days a week.
In May, the Division received a referral that Laura, who had previously been doing well at Options, was again using alcohol and that an April 24 urine screen was positive for alcohol and cocaine. The allegation of neglect was substantiated, based on the positive urine screen, Laura's extensive history of alcohol abuse, her then current drug use, and related concerns for Walter's wellbeing.
The Division performed an emergency removal on May 11. On August 20, following a hearing in the Family Part that resulted in a finding of abuse or neglect, Walter was placed in his father's physical and legal custody. He remained under the Division's care and supervision.
A Division worker learned from Laura's counselor that she was pregnant again in September. The Division initially referred Laura to Options, but she was instead admitted to an intensive outpatient program at Integrity House on November 26. Laura tested positive for alcohol on December 18 and 26. She left the program on December 31.
According to Anna Cebula, a Division worker who met with Laura in early January, Laura requested a referral to a different program because her difficulty in getting to Integrity House was "overwhelming" her. Cebula told Laura that she was not inclined to refer her to another program because of her history of failure in completing programs. However, Cebula told Laura that if Substance Abuse Initiative (SAI) determined that she could begin a different program, the Division might make a new referral. Cebula also discussed with Laura the possibility that she would lose custody of her unborn child if she did not complete the program. After SAI instructed her to return, Laura went back to Integrity House on January 11, 2013.
Laura was expected to attend Integrity House's outpatient program from 9 a.m. to 3 p.m., five days a week, until she gave birth. She was then to attend an inpatient program with her newborn. Laura complied with those recommendations until February 18, when she again left the program for a prenatal appointment and did not return until February 20.
On February 27, the Division received a referral that Laura, who had given birth to Jason two days earlier, had tested positive for alcohol while she was pregnant. The referral was upgraded to a child protective service referral when the Division learned that Laura had been noncompliant with her substance abuse treatment at Integrity House, which informed the Division that, unless Laura received residential treatment, she would be terminated from the program.
The Division performed an emergency removal of Jason on February 28. On March 4, it filed its verified complaint for custody, care, and supervision. Laura and Jason's father were named as defendants in that complaint. On March 19, the judge continued custody, care, and supervision with the Division.
The fact-finding hearing took place on June 18. Cebula outlined the Division's involvement with Laura concerning Walter and Jason, as well as the placements of her seven other children by the Florida Department. Cebula testified that the Division had offered Laura the following services: (1) anger management at WR Creative Counseling Center; (2) anger management, a substance abuse program, and parenting classes at Options; (3) a substance abuse program at Integrity House; and (4) psychological evaluations and visitation at O'Neill House.
The Division successfully sought admission of its investigative summary, which detailed Laura's history with the Florida Department and the Division. Laura did not object. Laura did not testify or present any witnesses at the hearing.
The judge placed an oral decision on the record, finding that
the Division met its burden. There was a substantial history here . . . . We have seven removals in Florida, substantiations. We have a substantiation here in New Jersey. They're based on alcohol. Now the fact that [Jason] . . . was born . . . while she was undergoing services for [Walter] only . . . makes this case more egregious on her part because now she's involved in services for the one child that's already born. She . . . is pregnant now with [Jason], and she knows it, and the she still has two positive alcohol tests. She's in and out of Integrity House. She's in and out of programs. She was given a number of services, which she didn't fully comply with.
I will also find that with respect to alcohol . . . after a couple of days at best [it] is gone. So we don't know if she had been drinking right up until the time that the baby was born.
But I'm not going to guess and say that she was because I cannot find that. The fact that . . . she was not positive for alcohol on the day that the baby was born and the baby wasn't born with any alcohol, fetal alcohol syndrome doesn't mean that —
only means that she may not have been drinking a couple of days before. But it's the lack of compliance, and the history, and the positive tests here that make me conclude that the Division has met its burden by a preponderance of the evidence.
The judge entered the implementing order the same day, ordering that Jason remain in the custody of the Division. The order provided that Laura had neglected Jason because she "failed to remediate her substance abuse issues[.] She has a substantial history with seven substantiations in Florida and one in New Jersey with alcohol involved, 2 positive urine screens for alcohol while pregnant and a breakdown in compliance with services, placing [Jason] at substantial risk of harm." On January 28, 2014 the Title Nine litigation was terminated because the Division had filed a complaint for termination of parental rights under Title Thirty. This appeal followed.
N.J.S.A. 9:6-8.21 to -8.106.
N.J.S.A. 30:4C-11 to -24.
II.
On appeal, Laura argues that the trial judge's finding of neglect is not supported by the facts in the record or the governing law. She also argues that the judge erred in admitting Division records and allowing testimony containing information derived from the Florida Department's interactions with Laura and her children.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'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." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial judge's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.8(a).]
Title Nine provides that an abused or neglected child includes 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, as herein defined, 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.Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
[N.J.S.A. 9:6-8.21(c)(4).]
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 2 07 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
B.
As a preliminary matter we reject Laura's contention that the judge should not have considered the information derived from the Florida Department. Much of that information was contained in the Division's investigation summary, which was admitted into evidence without objection. The rest was from Cebula's testimony, which was based on her personal involvement and her knowledge of the Division's records. Defense counsel's objections during the hearing was to testimony about Laura's conduct as a minor and with regard to her other children. The judge agreed not to consider that evidence.
Rule 5:12-4(d) permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." Under N.J.R.E. 803(c)(6), the business records exception:
[A] party seeking to admit a hearsay statement pursuant to this rule must demonstrate that "the writing [was] made in the regular course of business," the writing was "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence."
[M.C. III, supra, 201 N.J. at 347 (second alteration in original) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]The Family Part is authorized to rely on information the Division obtained from another child protection agency. N.J. Div. of Youth & Family Servs. v. J.T. 354 N.J. Super. 407, 413-14 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003). Although there was no foundation that these were business records and they were not authenticated, defense counsel deprived the Division of the opportunity of laying the foundation or authenticating them by agreeing to their admission.
Issues not preserved for appeal will be analyzed under the "plain error standard" which states, "[a]ny error shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; Bradford v. Kupper Assocs., 283 N.J. Super. 556 (App. Div. 1995) ("The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion."), certif. denied, 144 N.J. 586 (1996). We find no basis to conclude that the evidence now complained of, which was not refuted by Laura who chose to offer no evidence of her own, was of "such a nature as to have been clearly capable of producing an unjust result."
With respect to the merits, having reviewed the evidence in light of the applicable law, we conclude that the trial judge's decision was fully supported by both. No extended written discussion is necessary. R. 2:11-3(e)(1)(E). Laura had a history of substance abuse and an inability to complete remedial programs successfully, as most recently demonstrated by her experiences at Options and Integrity House. She also had a history of inability to care for her children, as demonstrated by the removal of Walter. See Div. of Child Protection & Permanency v. L.W., A-0624-13 (App. Div. Apr. 29, 2015) (affirming the Family Part's finding of neglect as to Walter). As we held in A.L., supra, 213 N.J. at 23, even when there has been no actual harm, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." We conclude that the facts of this case warranted such a finding. Neither the Division nor the trial judge were required to wait for actual harm to befall Jason before acting to protect him. S.S., supra, 372 N.J. Super. at 24.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION