Opinion
DOCKET NO. A-1364-13T1
11-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.R., Defendant-Appellant, and R.S., Defendant-Respondent. IN THE MATTER OF J.R., M.R. II, K.R., and S.R., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent R.S. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-93-12. Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent R.S. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant M.R. ("Maria") appeals from an order finding that she abused and neglected her four children and a subsequent order transferring custody of one child to that child's biological father. Because the findings of significant risk of harm to the children and the grounds for transferring custody are supported by substantial credible evidence, we affirm.
To protect privacy interests and for ease of reading, we use fictitious names for the mother, the fathers, and the children. See R. 1:138-3(d)(12).
I.
The record establishes the following facts and procedural history. Maria has four children: J.R. ("Joe"), S.R. ("Stewart"), M.R. ("Mary") and K.R. ("Karen"). The biological father of Joe is R.S. ("Robert"), and the biological father of Stewart, Mary, and Karen is M.C. ("Michael").
The Division of Child Protection and Permanency ("Division") received over fifteen referrals concerning Maria and her children between 2007 and 2011. There were three additional referrals in 2011 that led to the fact-findings and change of custody orders that are at issue on this appeal. At the time of the 2011 referrals, Maria was living with Michael and the four children, ranging in ages between one and five years old.
Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. P.L. 2012, c.16.
In August 2011, the Division was involved with Maria and her children because of prior referrals. On August 9, 2011, Maria tested positive for use of cocaine. Maria denied using cocaine, but later admitted to distributing cocaine, claiming that the positive test was a consequence of her touching cocaine while selling some bags as a favor for a friend. Later that month, Maria again tested positive for cocaine. There was also evidence that Maria tampered with her urine in an effort to evade detection.
On September 17, 2011, Maria was arrested in Paterson for dancing in the middle of the street while holding Stewart, her then four-year-old son. The police reported seeing Maria at 11:00 p.m. dancing in the street while holding Stewart and stepping in front of several moving vehicles, causing those vehicles to abruptly stop to avoid hitting Maria and Stewart. After failing to obey several police directives to get out of the street, Maria was arrested and charged with third-degree child endangerment and obstruction of traffic. According to Maria, she had been crossing the street to buy milk and there were many other people in the street participating in a Dominican Day parade. Ultimately, the criminal charges against Maria were dismissed, but the Division substantiated Maria for neglect.
On November 13, 2011, the Division received a referral from a hospital reporting that Maria's son, Joe, had disclosed that he had been inappropriately touched by a man in Maria's home. Joe had been taken to the hospital by his father, Robert. According to the hospital, Joe stated that his mother had been drinking with two men and, later, Joe awoke when he felt one of those men insert his finger into Joe's anus. A medical exam of Joe did not reveal any physical injuries.
A Division investigator spoke with Stewart, the four-year-old son of Maria and the brother of Joe. Stewart told the Division investigator that Joe was not home because "someone put a stick in his butt." Although he did not witness the incident, Stewart told the investigator that his mother had told him what had happened and she had also told him not to tell anyone.
The alleged sexual assault was also reported to the Passaic County Prosecutor's Office and that office interviewed Maria. Thereafter, Joe was evaluated by the Audrey Hepburn Children's House ("AHCH"). Joe reported to a doctor at AHCH that a man had touched him on his back and butt with his hand and fingers. The examination at AHCH did not reveal any physical injuries to Joe and the AHCH reported that it could not confirm or deny the possibility of sexual abuse.
On November 28, 2011, the Division effectuated an emergent removal of all four children from Maria's care. Joe was placed with his father and the other three children were placed in a foster home. The Division then filed a verified complaint against Maria, Michael, and Robert for custody of the children. A court hearing was conducted on November 30, 2011, and a judge (1) found that there were grounds justifying the children's removal, and (2) granted the Division custody of the children. Maria was also ordered to attend substance abuse treatment and to submit to random drug screens.
The Division's authority to take emergent action to remove children from the custody of their parents without a court order is found under N.J.S.A. 9:6-8.21 to -8.82, otherwise known as the "Dodd Act." This landmark legislation was authored by former Senate President Frank J. "Pat" Dodd in 1974. See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)). --------
On March 27, 2012, the Family Part conducted a fact-finding hearing on the alleged abuse or neglect. All three parents attended that hearing and were represented by counsel. The Law Guardian appeared on behalf of the children. The Division called two caseworkers as witnesses and entered a number of exhibits. Defendants (Maria, Michael, and Robert) elected not to testify and called no witnesses. At the conclusion of the hearing, the judge found that Maria had neglected the children in violation of N.J.S.A. 9:6-8.21(c). Specifically, the judge found Maria (1) had placed the minor children at risk of harm through her drug use and her illegal drug distribution activity; (2) had placed her son Stewart at risk of harm by dancing in the street while holding Stewart; and (3) had failed to protect Joe from a sexual assault that took place in Maria's home.
Following the fact-finding hearing, the Family Part conducted a series of case management conferences, continued the Division's custody of the children, and ordered services for Maria. The Family Part also directed that Maria undergo a psychological evaluation.
In 2013, the Division filed a separate action for guardianship of three of the children, Stewart, Mary and Karen. Thus, those three children and their father, Michael, were terminated from the protective service litigation.
Meanwhile, the litigation continued against Maria. The Family Part conducted review hearings in April and July 2013, and continued the Division's custody of Joe, with Joe being placed with his father, Robert. When Maria objected, a dispositional hearing was conducted on September 24, 2013. At that hearing, the Division presented testimony from two Division workers and an expert in psychology, who had evaluated Maria. Maria did not testify and she did not offer any witnesses.
The psychologist testified that Maria had poor insight and a history of engaging in impulsive, aggressive, and self-destructive behavior. The expert opined that Maria's poor judgment posed a safety risk to the children and Maria was incapable of properly parenting her children.
The Division also submitted documents showing that Maria had twice tested positive for cocaine in 2013, and she had been involved in a domestic violence incident where she allegedly stabbed Michael. Both Division workers testified that the Division had monitored Joe's placement with his father for over twenty months and Joe was doing well in the care of his father. The caseworkers did not have any concerns with Joe remaining in the care of his father.
On October 7, 2013, the judge found it was unsafe to return Joe to Maria's care and entered an order transferring custody of Joe to Robert. The abuse or neglect litigation was then terminated.
II.
Maria now appeals the March 27, 2012 fact-finding order and the October 7, 2013 order transferring custody of Joe. In challenging the fact-finding order, Maria contends (1) there was insufficient evidence that her alleged drug use posed an immediate and substantial risk of harm to her children; (2) there was insufficient evidence to support a finding that she put one of her children at risk by dancing in the street; and (3) there was no competent evidence that Joe was sexually abused because that finding was based on the uncorroborated hearsay of the child. With regard to the custody order, Maria argues that there was insufficient evidence to support that order.
Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the health and safety of children. N.J.S.A. 9:6-8.8(a). Abuse or neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when
a child 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 [or her] 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 corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
[N. J.S.A. 9:6-8.21(c)(4)(b).]
The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.44, -8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., supra, 205 N.J. at 32. The trial court determines whether the child is abused or neglected by the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Dep't. of Children & Family Servs. v. A.L., 213 N.J. 1, 23 (2013) (stating that a court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect" (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999))). Instead, a child can be abused or neglected if his or her "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus is to preserve the safety of the child. N.J.S.A. 9:6-8.8(a).
The Supreme Court has held that the abuse or neglect standard is satisfied when the Division demonstrates that a parent has failed to exercise a minimum degree of care. G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 178. Wanton negligence is conduct that was done with the knowledge that injury is likely to result. Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. Id. at 179. Moreover, a parent can be liable for the foreseeable consequences of his or her choices. Ibid.
Our scope of review of a trial court's factual findings is limited. We defer to the judgments of the Family Part if those findings are supported by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision should be reversed or modified on appeal only if the findings were "'so wholly unsupportable as to result in a denial of justice.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014).
III.
Applying this scope of review, we conclude that there is substantial credible evidence in this record to support the finding that Maria neglected her children, and there also is substantial credible evidence supporting the order directing a change in custody of Joe.
Maria seeks to segregate and attack each of the findings of neglect. The determination of whether a child is abused or neglected, however, is made by evaluating the totality of the circumstances. V.T., supra, 423 N.J. Super. at 329. In this case, the family judge considered the relevant circumstances surrounding Maria's drug use and determined that her drug use posed a risk to the children. The judge found that each of the referrals received by the Division involved Maria being under the influence. The judge also noted that Maria had more than one positive drug screen and rejected Maria's explanation that one of those positive results was due to her touching the substance while selling bags as a favor to a friend. Instead, the family judge treated that explanation as an admission of distributing controlled dangerous substances.
The judge also relied on the police report concerning Maria's arrest for dancing in the street. Defendant argues that that police report was inadmissible because it did not have a proper certification. We grant substantial deference to a trial judge's evidentiary rulings. N.J. Div. of Youth & Family Servs. v. N.S., supra, 412 N.J. Super. at 622. At the fact-finding hearing, the Division agreed to submit a certification to support the police report, and the judge admitted the report, noting that he would not base his findings solely on that report. Under the circumstances of this case, we find no abuse of discretion.
Maria also argues that the judge erred in finding that Joe had been sexually abused based on Joe's uncorroborated hearsay statements. A child's previous statements relating to an allegation of abuse or neglect are admissible provided that the statements are corroborated. N.J.S.A. 9:6-8.46(a)(4). If, however, the statement is uncorroborated, it is insufficient to make a fact-finding of abuse or neglect alone. Ibid.; see also P.W.R., supra, 205 N.J. at 33 ("[A] child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect.").
The Division argues that the hearsay of Joe was corroborated by the hearsay of Stewart, Joe's four-year-old brother. We are not persuaded that hearsay from another child is corroboration of a different child's statements reporting allegations of abuse or neglect. Nevertheless, in this case there was sufficient additional credible evidence to support the finding that Maria neglected her children. The judge's decision reflects a consideration of all the evidence and, accordingly, we affirm the fact-findings of neglect.
Finally, Maria argues that the judge erred in ordering a change of custody of Joe to his biological father. Following a finding of abuse or neglect by the former custodial parent, the Family Part must determine at a dispositional hearing whether it is safe to return the child to the parent's care. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 402 (2009). At that hearing, either parent may present evidence and ask that the child or children be returned to one or the other of the parents. Ibid. The focus at a dispositional hearing is the "paramount concern" for the "safety of the child." N.J.S.A. 9:6-8.32. In this case, the judge conducted a dispositional hearing. The judge properly considered the unrebutted expert testimony that it was unsafe to return Joe to his mother's care because of her lack of insight, ongoing drug use, and impulsive and aggressive behavior. The judge also properly considered the testimony of two Division case workers who were involved in unsuccessful efforts of working with Maria to ameliorate the safety issues that led to the children's removal. Those workers also testified that they had monitored Joe's placement with his father and that Joe was doing well in his father's care. In short, there was substantial and credible evidence supporting the decision to change custody of Joe to the care of his father.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION