Opinion
DOCKET NO. A-4775-13T1
04-06-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.J., Defendant-Appellant. IN THE MATTER OF A.J., a minor.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief). Cameryn J. Hinton, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Hinton, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for minor A.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-254-13. Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief). Cameryn J. Hinton, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Hinton, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for minor A.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief). PER CURIAM
Defendant P.J. (Mother) appeals the trial court's finding that she abused or neglected her three-month-old daughter, A.J. Because Mother put her infant at substantial risk by drinking alcohol and becoming unconscious while leaving an empty pot burning on the stove, we affirm.
I.
The following is based on the testimony and records admitted into evidence at the fact-finding hearing. Mother gave birth to A.J. in December 2012. Mother was A.J.'s primary caretaker.
Mother's neighbor testified as follows. The neighbor personally helped care for A.J., and she and Mother had an open-door policy in terms of entering each other's home. On March 4, 2013, the neighbor observed Mother consuming alcohol. Later that day, the neighbor went to check on A.J. The neighbor knocked on the door, but there was no answer, so she opened the door. The neighbor heard A.J. screaming, and saw Mother laying on a blowup mattress near the door. The neighbor repeatedly "hollered" and shook Mother in an attempt to wake her, but Mother was unresponsive. A.J. was "hanging off [of the] bouncer" and screaming. Upon picking A.J. up, the neighbor discovered that A.J. was "soaking wet." The neighbor loudly asked Mother where the diapers were, but Mother remained unresponsive. The neighbor then found the diapers and changed A.J.
The neighbor kept trying to wake Mother. Eventually, Mother became somewhat conscious and said "hmmm," but Mother still did not respond to the neighbor's question about where A.J.'s bottles were located. The neighbor then went into the kitchen and found "there was a pot on the stove, and it was lit." "[T]here was nothing in [the dry pot] and the pot was burning on the bottom." The pot "was red," "was extremely hot," and the neighbor "couldn't touch it."
The neighbor turned off the stove, grabbed A.J., and told Mother that she was taking A.J. to her home. About ten minutes later, Mother came to the neighbor's house and asked if the neighbor had A.J. When the neighbor responded that A.J. was with her, Mother left and did not take A.J. with her. The neighbor also testified that she was concerned about Mother's ability to care for A.J., due to Mother's consumption of alcohol and pills.
The Division received a referral about this incident. Division Investigator Darrin Hopkins spoke with Mother and the neighbor. Mother admitted that on March 4, 2013, she had fallen asleep when A.J. was in her sole care, but alleged it was because she was experiencing flu-like symptoms. Mother also admitted that she had left a pot of boiling water on the stove, but that a friend was there to watch it and had turned it off before the water boiled away.
A fact-finding hearing was held on October 9, 2013. Mother failed to appear. The neighbor and Investigator Hopkins testified, and the trial court credited their testimony. While documentary evidence was admitted at the fact finding hearing, the court "primarily rel[ied] upon the testimony of the witnesses" in making its finding.
On February 18, 2014, the trial court entered an order finding Mother had abused or neglected A.J. within the meaning of N.J.S.A. 9:6-8.21(c)(4). The court found that Mother "drank alcohol, put a pot of water to boil and fell asleep leaving her three-month old unattended" after she knew her friend had left the apartment. The court also found Mother "failed to exercise a minimum degree of care by not turning off the flame to the pot of water." The court concluded that Mother acted with reckless disregard, and placed A.J. "in imminent risk of substantial harm in that the flame was on long enough for the boiling water to have completely dissipated and the bottom of the pot began to burn."
The abuse and neglect litigation was terminated after the Division filed a complaint for termination of parental rights, and Mother then appealed from the February 18, 2014 fact-finding order.
II.
We must hew to our standard of review. We "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it 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. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Accordingly, a reviewing court will not disturb a family court's abuse or neglect findings as long as they are "supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
III.
Mother claims the trial court failed to adhere to procedural guidelines and violated her rights of due process.
First, Mother alleges she was not provided notice of when the fact-finding hearing would occur. The hearing was originally scheduled for August 14, 2013. However, the trial court was only able to conduct a compliance review on August 14. In Mother's presence, the court stated: "Due to the lateness of the day we are deferring the Fact Finding until October 9, 2013, commencing at 11 a.m." Again in Mother's presence, the court indicated that "a Fact Finding is scheduled for October 9th" and that date would also be listed "as a Compliance Review just in case something comes up, we can deal with it at the Fact Finding date." The court's August 14 order similarly stated that "THIS MATTER SHALL RETURN TO COURT on October 9, 2013, at 11:00 a.m. for" Compliance Review and "Fact-Finding."
Indeed, when Mother failed to appear for the October 9 hearing, Mother's counsel did not represent that Mother was unaware of the fact-finding date. Instead, counsel said Mother failed to attend because she was in Long Island, near the Hamptons, could not secure a ride from family or friends, and could not afford train fare.
Mother's counsel also alleged that Mother requested assistance from the Division, which was unable to provide it. The Division's counsel responded that Mother had not contacted the Division regarding transportation assistance. The Division's counsel noted that Mother had just come to the Division office only the week before, for a visit with A.J. The trial court found that Mother "had the opportunity to appear, and she did not make the appropriate arrangements."
Second Mother alleges the trial court said it would be unjust to hold a fact-finding hearing in her absence. However, Mother mischaracterizes the court's comments. After the Division's counsel expressed "the Division's thoughts" and "belie[f]" that Mother "is pregnant now and that is why she is not here today," the court rejected such "speculation" and said it was "not going to get into a Fact Finding with regard to her non-appearance here." It appears the court was simply indicating that it would not engage in fact-finding regarding the reasons why Mother failed to appear that day.
Given that Mother indisputably had notice of the fact-finding hearing in New Brunswick and instead went to Long Island, her failure to appear did not deprive the trial court of the ability "to proceed with a fact-finding hearing in the defendant's absence." N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 509 (App. Div. 2009) [hereinafter PWR I], rev'd on other grounds, 205 N.J. 17 (2011). "If the parent or guardian is not present, the court may proceed to hear a complaint under this act only if the child is represented by a law guardian," as A.J. was here. N.J.S.A. 9:6-8.42.
N.J.S.A. 9:6-8.42 further provides that "[i]f the parent or guardian thereafter makes a motion to the court that a resulting disposition be vacated and asks for a rehearing, the court shall grant the motion on an affidavit showing such relationship or responsibility unless the court finds that the parent or guardian willfully refused to appear at the hearing in which case the court may deny the motion." Mother did not make such a motion.
In any event, Mother's counsel did not "even ask for an adjournment" or object to proceeding with the fact-finding hearing. PWR I, supra, 410 N.J. Super. at 509. Accordingly, Mother must show plain error. R. 2:10-2. Mother argues her absence denied her the opportunity to present a defense. However, Mother's counsel did not assert that Mother would have testified, or proffer what her testimony would have been. Moreover, Mother's counsel cross-examined both of the Division's witnesses, raised numerous objections to testimony and documentary evidence with some success, and presented a summation. In her summation, Mother's counsel argued that "this case lacks evidence," characterized the evidence as "mostly [] hearsay and innuendo," attempted to undermine the credibility of the neighbor as an eyewitness, and argued that Mother's admitted behavior of falling asleep with the pot on the lit stove was insufficient to satisfy N.J.S.A. 9:6-8.21. Thus, Mother was not prevented from presenting a defense.
Third, Mother argues that neither the verified complaint nor the amended verified complaint provided notice of the specific subsection of N.J.S.A. 9:6-8.21(c) the Division contended she violated until the day of the hearing.
However, the verified complaint alleged the details of the incident, including that Mother drank alcohol, fell into an intoxicated sleep, and "left a pot of water on the stove that burnt out and almost caused a fire." The complaint also alleged that A.J. was abused or neglected because her
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of [her] parent . . . 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[.]This plainly alleged abuse or neglect under N.J.S.A. 9:6-8.21(c)(4). Thus, Mother was provided with "'notice defining the issues and an adequate opportunity to prepare and respond,'" and there was no violation of due process. H.E.S. v. J.S.C., 175 N.J. 309, 321 (2003) (citation omitted); see N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004). This specific factual and statutory notice cannot be ignored merely because the complaint also alleged other incidents and the other subsections of N.J.S.A. 9:6-8.21(c). Moreover, the Division made clear at the beginning of the fact-finding hearing that it was proceeding only under N.J.S.A. 9:6-8.21(c)(4).
The amended verified complaint repeated that allegation, and alleged subsequent incidents.
IV.
Mother raises several evidentiary objections. First, she argues that her statements to Investigator Hopkins were not admissible under the hearsay exception for statements against interest. N.J.R.E. 803(c)(25). Contrary to Mother's arguments, that exception is not restricted to criminal actions or criminal liability, and applies "[w]hether or not the declarant is available as a witness." N.J.R.E. 803(c); see Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(25) (2015). In any event, Mother's statements to Investigator Hopkins were admissible as statements of a party opponent under N.J.R.E. 803(b)(1).
Second, Mother argues that the trial court erred in allowing the neighbor to testify about Mother's alcohol use. However, the neighbor testified: "I knew that particular day [Mother] had been drinking, and I know that for a fact, cause I had been over there earlier that day." Moreover, the neighbor testified that she had family members who were alcoholics and drug addicts, that she "knew the signs" of consumption of such substances, and that Mother was not simply asleep, "she was out of it." The court properly allowed her testimony. "'New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication.'" State v. Amelio, 197 N.J. 207, 214 (2008) (citation omitted), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). In any event, the trial court determined the effect of the alcohol on Mother based primarily on the fact that she was so difficult to rouse, despite the child's screams and the neighbor's repeated hollering and shaking her.
The trial court relied on the neighbor's knowledge of what Mother did that morning, and did not rely on her statements that Mother generally was drinking and taking pills.
Third, Mother complains that Investigator Hopkins' testimony mentioned he had handled earlier referrals regarding Mother, which were deemed unsubstantiated. However, the trial court expressly permitted the testimony "for purposes of Title 30 only, and not for purposes of determining whether or not there [was] abuse and neglect under [Title] 9." The court reiterated that if "prior referrals were deemed unsubstantiated they're not coming in under Title 9." See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011) [hereinafter PWR II]. Moreover, the trial court relied solely on the testimony about the March 4, 2013 incident in finding abuse or neglect.
Though this was adequate, the better practice is to separate the fact-finding testimony regarding abuse or neglect from any additional testimony regarding compliance and services.
"'[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). We find no abuse of discretion here.
V.
Next, Mother challenges the trial court's credibility determinations. "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of DMH, 161 N.J. 365, 382 (1999)). The trial court's findings here had reasonable support.
Mother mistakenly relies on New Jersey Division of Youth & Family Services v. H.P., 424 N.J. Super. 210 (App. Div. 2011). In H.P., we found the evidence was not clear and convincing in a Title 30 proceeding, because the trial court failed to make any credibility determinations, even though two witnesses provided two contradictory versions of events, and the evidence supporting termination was multiple hearsay. Id. at 227-29. Here, the trial court explicitly found the neighbor and Investigator Hopkins credible, the neighbor testified to a single version of events based on her first-hand observation, and defendant's admissions to Investigator Hopkins corroborated the neighbor at least in part. Moreover, the Division need only "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.'" PWR II, supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
VI.
Finally, Mother argues that her acts or omissions on March 4, 2013, do not rise to the level of abuse or neglect under N.J.S.A. 9:6-8.21(c). N.J.S.A. 9:6-8.21(c)(4) provides that a child has been abused or neglected when her
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 corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
Thus, "'a finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm.'" Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (citation omitted). "[C]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (quoting DMH, supra, 161 N.J. at 383).
Here, A.J.'s physical condition was in imminent danger of being impaired and was at substantial risk of harm. By drinking and becoming unconscious while a pot of water was boiling on the stove, Mother left the stove lit, heating the pot until it was empty, extremely hot, red, and burning. This raised substantial risk that fire or smoke would occur and cause harm to the helpless three-month-old infant, placing her in imminent danger. Mother argues that the child was not near the stove, but fire or smoke plainly can spread quickly throughout an apartment. Mother argues that there were smoke detectors in the apartment, but there was a substantial risk that the infant would be harmed before any alarm led to an effective response by Mother, who had long remained unresponsive despite the child screaming and the neighbor's knocking on the door and hollering and shaking Mother. Even after finally saying "hmmm," Mother took ten minutes even to find out that the neighbor had removed the child from the apartment. Thus, we reject Mother's argument that A.J. was not likely to suffer harm.
This is one of those "dangerous conditions that create the foreseeable risk of fire [which] are well known to ordinary people and are a matter of common knowledge." Scully v. Fitzgerald, 179 N.J. 114, 127 (2004). Thus, testimony of a "fire expert" was not necessary. Ibid.
The evidence also showed that Mother failed to exercise a minimum degree of care. "The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 181 (2014). "Whether a parent exercised a minimum degree of care must 'be analyzed in light of the dangers and risks associated with the situation.'" Id. at 184 (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). "[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care'" if that failure "rise[s] to the level of gross negligence." E.D.-O., supra, 223 N.J. at 180 (quoting G.S., supra, 157 N.J. at 182.)
Here, the evidence showed Mother drank alcohol and became unconscious even though the infant was in her sole care. She failed to take the cautionary act of turning off the stove beforehand. She ignored the obvious dangers of leaving the pot and the infant unattended. The trial court properly found Mother acted with reckless disregard.
The dangers and recklessness here are worse than the "close case" where a parent left a child in the home believing that the grandmother was at home, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011), left a child alone in a car during a brief visit to a store, E.D.-O., supra, 223 N.J. at 171. Here, Mother drank alcohol and rendered herself unconscious even though the three-month-old infant was in her sole care, leaving the infant in the apartment with the pot on the lit stove despite the obvious risk of fire and smoke.
This case more resembles N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011), where we ruled that a parent neglected a ten-month-old son left unattended on a twin bed without railings next to an operating radiator. Id. at 543, 545-46. Our Supreme Court has agreed that A.R. "is not" a close case. E.D.-O., supra, 223 N.J. at 185. This case too is not a close case. Here too, "[a]n ordinary reasonable person would understand the perilous situation in which the child was placed, and for that reason, [Mother's] conduct amounted to gross negligence." Ibid. (quoting A.R., 419 N.J. Super. at 546).
Defendant's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION