Opinion
DOCKET NO. A-3138-14T4
09-21-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.W., Defendant-Appellant. IN THE MATTER OF A.C. and C.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-126-14. Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
T.W. appeals from an order entered by the Family Part on March 25, 2014, finding that she abused or neglected her two minor children, A.C. and C.W. T.W. also appeals from an order entered by the trial court on August 12, 2014, denying her motion to set aside the finding of abuse or neglect. We affirm.
I.
We briefly summarize the relevant facts. T.W. had been living in North Carolina with K.C., A.C.'s father, but she returned to New Jersey in January 2012, allegedly because of domestic abuse by K.C. A.C. was two years old at the time. In January 2013, T.W. gave birth to C.W. She identified R.D. as this child's father.
In October 2013, the Division of Child Protection and Permanency (Division) learned that T.W. was at risk of losing her housing. Rebecca LaBarre, one of the Division's caseworkers, spoke with T.W. concerning her housing situation. Among other things, LaBarre learned that A.C. and C.W. were non-verbal, and A.C. had special needs.
While LaBarre was speaking with T.W., R.S. arrived at T.W.'s residence. LaBarre knew of R.S.'s prior involvement with the Division. It appears that R.S. and his former girlfriend, A.H., had been charged with the physical abuse of their child, C.S., who was six months old at the time. As a result of these charges, R.S. spent some time in jail, and he lost custody of C.S.
LaBarre asked T.W. to prohibit R.S. from having contact with her children while the Division reviewed the matter. She refused. The Division's workers then prepared a written safety protection plan, which barred R.S. from having any contact with T.W.'s children. T.W. signed the plan, but informed the Division's workers she did not agree with it. The day after T.W. agreed to the safety plan, the Division's workers found R.S. with T.W. and the children.
The Division's workers thereupon conducted an emergency removal of A.C. and C.W. from T.W.'s custody, and filed a verified complaint in the Family Part seeking custody, care and supervision of the children. The court found that the emergency removal of the children had been required due to the imminent danger to their life, safety or health. The court placed the children in the Division's custody, care and supervision.
In March 2014, the court conducted a fact-finding hearing to determine if T.W. abused or neglected the children. At the hearing, LaBarre testified concerning the Division's involvement with T.W. and the removal of the children. She noted that the Division had implemented a safety plan that prohibited R.S. from having contact with T.W.'s children, and T.W. was told that the children would be removed if she did not comply with the plan.
LaBarre testified that because T.W. was being evicted from her apartment and had no place to stay, the Division found temporary shelter for her and the children in a motel. The following day, the Division again informed T.W. of its concerns about R.S. having contact with the children. One of the Division's workers transported T.W. to a social services agency to arrange for housing assistance. At around 3:00 p.m., the worker brought T.W. back to the motel.
About an hour later, the Division's workers returned to the motel to perform a "welfare check." They observed R.S. in the motel's parking lot. The workers contacted the local police. Around 5:00 p.m., the workers entered T.W.'s motel room with a police officer. They saw T.W. and the children.
The door to the bathroom was closed, and the Division's workers asked T.W. to open the door. R.S. exited the bathroom. He was wearing shorts, but he was not wearing shoes or a shirt. The workers removed the children from T.W.'s custody because T.W. violated the safety plan.
The judge admitted various exhibits presented by the Division. These exhibits included the safety plan, and R.S.'s stipulation that he had abused or neglected C.S. by leaving her with A.H. when she was intoxicated. The exhibits also included the Division's investigative summary concerning the abuse allegations against R.S., which indicated that C.S. had sustained a fractured arm and bruises to her head and face.
The Division's summary also included a discussion of R.S.'s psychological evaluation. During that evaluation, R.S. had conceded that he had been convicted of aggravated assault. R.S. also had denied harming his child but admitted to committing acts of domestic violence against A.H.
At the fact-finding hearing, T.W. testified that she was aware of R.S.'s history with the Division, but she did not believe R.S. physically harmed C.S. She acknowledged that R.S. committed an aggravated assault when he was seventeen years old. She also knew that R.S. had been tried as an adult and convicted of that offense, and that R.S. was incarcerated for a period of time as a result of that conviction.
T.W. further testified that she knew A.H. had obtained a domestic violence restraining order against R.S., and R.S. had violated the restraining order. In addition, T.W. said she was present when R.S. struck A.H., who was holding C.S. at the time. T.W. asserted, however, that R.S. did not strike A.H. T.W. claimed that A.H. injured herself and C.S. when she opened a door.
T.W. also acknowledged that the Division's caseworker had reviewed the safety plan with her, and the plan precluded R.S. from having any contact with T.W.'s children. T.W. admitted that soon after she agreed to the safety plan, R.S. was found with her in the motel room where she and the children were staying.
After the attorneys provided their summations, the judge placed an oral decision on the record. The judge reviewed the evidence of the Division's involvement with T.W. and R.S. The judge noted that due to its concerns about R.S., the Division had implemented a safety plan which precluded R.S. from having any contact with T.W.'s children.
The judge found that T.W. understood the terms of the safety plan. The judge noted that T.W. was aware of R.S.'s prior involvement with the Division. She knew that R.S. previously had been convicted of aggravated assault and spent time in jail as a result of that conviction. T.W. also was aware of the domestic violence restraining order that A.H. had obtained against R.S. The judge noted that R.S. had violated the order.
The judge found that T.W. was aware of R.S.'s violent history, and the Division's concerns about the allegations that R.S. and A.H. physically abused C.S. The judge pointed out that C.S. had sustained non-accidental injuries, specifically a broken arm and facial bruising. The judge found that T.W. was not a credible witness, noting that T.W. gave conflicting testimony on several key issues, including R.S.'s conviction for aggravated assault, his history of domestic violence, and the restraining order that A.H. had obtained against him.
The judge determined that T.W. had knowingly and willfully placed A.C. and C.W. at substantial risk of harm by permitting R.S. to have contact with them. The judge memorialized her determination in an order dated March 25, 2014.
Thereafter, the judge conducted a dispositional hearing. At the hearing, the Division reported that A.C. had been placed with his father K.C. in North Carolina, and C.W. had been placed in a resource home. The judge found that K.C. would have legal and physical custody of A.C. In addition, the judge determined that C.W. could not be returned to T.W. at that time.
The judge stated that T.W. could have a relationship with R.S. if he participates in a psychological evaluation, complies with recommended services, and demonstrates to the court that it is safe for children to be around him. The judge entered an order which provided that C.W. would remain in the Division's custody, care and supervision, and A.C. would remain with K.C.
In May 2014, a Warren County grand jury declined to indict R.S. for child abuse in connection with the alleged physical abuse of C.S. In June 2014, T.W. filed a motion in this case, seeking to set aside the previous finding of abuse or neglect against T.W., and to supplement the record with evidence memorializing the grand jury's decision regarding R.S. The judge issued an oral decision on July 31, 2014, and concluded that the motion should be denied. The judge entered an order dated August 12, 2014, memorializing her decision.
In the order, the judge wrote that the grand jury's decision not to indict R.S. for child abuse was binding on whether R.S. physically abused C.S. The judge noted, however, that the previous finding that T.W. abused or neglected her children had been based on R.S.'s history of violent behavior, which included his action in striking A.H. in T.W.'s presence; and his action in leaving C.S. alone with A.H. while she was intoxicated, which he stipulated was abuse or neglect.
On September 24, 2014, another judge conducted a permanency hearing. The judge approved the Division's permanency plan, which provided that the Division would file a complaint seeking to terminate T.W.'s parental rights to C.W., and T.W. and K.C. would share joint legal custody of A.C. The judge stated that the circumstances that led to the children's removal from T.W.'s custody had not been corrected, and T.W. was continuing to see R.S.
The judge pointed out that T.W. and R.S. had not been consistent in complying with services provided by the Division, and that T.W. and R.S. did not appear to have gained any insights into how to eliminate the harms that led to the children's removal. The judge entered an order, which memorialized her findings and dismissed K.C., A.C., and R.D. from the litigation. R.D. later surrendered his parental rights to C.W.
On January 14, 2015, another judge conducted a compliance review hearing. The Division asked the judge to terminate the litigation because it had filed a guardianship complaint seeking termination of T.W.'s parental rights to C.W. The judge entered an order terminating the litigation, and this appeal followed.
On appeal, T.W. argues: (1) there was insufficient evidence to support the trial court's finding of abuse or neglect; (2) the court erred by denying the motion to vacate the previous finding of abuse or neglect in light of the evidence that the grand jury had refused to indict R.S. for the physical abuse of C.S.; (3) the court committed reversible error by relying upon inadmissible evidence to find that T.W. abused or neglected her children; (4) the court erred by relying upon R.S.'s prior offense and other bad acts to support a finding of abuse or neglect; and (5) the doctrine of invited error does not preclude T.W. from raising the aforementioned issues and seeking reversal of the finding of abuse or neglect for those reasons.
II.
As noted, T.W. first argues that there is insufficient evidence to support the trial court's finding that she abused or neglected A.C. and C.W.
We note initially that decisions of the Family Part are entitled to substantial deference on appeal. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). A Family Part decision should not be disturbed, "provided that the record contains substantial and credible evidence to support the decision." Ibid.
Abuse or neglect cases are governed by Title Nine, which is codified at N.J.S.A. 9:1-1 to 25-11. N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child as:
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 parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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 . . . .
A parent "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. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citation omitted). "Minimum degree of care" has been defined as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178 (citation omitted).
"Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds [that person] responsible for the injuries he [or she] causes." Id. at 179. Even if there is no evidence that a child has been physically harmed, the court may make a finding of abuse or neglect "based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Family Servs. v. A.L., 213 N.J. 1, 23 (2013).
On appeal, T.W. argues that there is insufficient evidence of either gross negligence or reckless conduct on her part to support the trial court's finding of abuse or neglect. T.W. argues that there was no evidence that R.S. had physically abused A.C. and C.W., or that she placed the children in substantial risk of harm by allowing R.S. to have contact with them. We disagree.
The evidence presented at the fact-finding hearing established that T.W. knew of R.S.'s violent history, which included a conviction for aggravated assault and acts of domestic violence against A.H., his former girlfriend. T.W. also knew that C.S. had suffered physical injuries while the child was in R.S. and A.H.'s custody. Although R.S. denied that he physically harmed C.S., he stipulated in the Division's previous action that he abused or neglected C.S. because he left the child with A.H., who was intoxicated at the time.
Furthermore, based on its prior involvement with R.S., the Division asked T.W. to agree to the safety plan, which provided that R.S. would not have contact with the children. It is undisputed that T.W. agreed to the plan, but failed to comply with it. R.S. was found in the motel room where T.W. was staying with the children.
We are therefore convinced that there is sufficient credible evidence in the record to support the trial court's finding that T.W. placed her children at substantial risk of harm by allowing R.S. to have contact with them. We conclude that there is sufficient credible evidence in the record for the court's finding that T.W. abused or neglected A.C. and C.W.
T.W. argues, however, that the trial court erred by relying upon inadmissible evidence as support for its decision. She contends the court erred by admitting the Division's investigative summary regarding R.S. She argues that the summary should not have been admitted without the testimony by the caseworker who prepared it, and testimony by the professional who performed R.S.'s psychological evaluation, which is discussed in the summary. These arguments are without merit.
Rule 5:12-4(d) permits a court to admit reports prepared by the Division's staff or professional consultants if "the documents satisfy the requirements of the business records exception [to the hearsay rule], N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012). The Division's investigative summary indicates that it had been prepared in the ordinary course of the Division's business. Therefore, testimony by the caseworker who prepared the summary was not required for its admission.
Moreover, testimony by the professional who performed R.S.'s psychological evaluation was not required. The court relied upon certain facts drawn from that evaluation, which were based upon statements that R.S. made. The court refused to admit any complex diagnoses by the person who conducted the evaluation.
Furthermore, despite T.W.'s arguments to the contrary, there is no indication that the relevant statements in the Division's investigative summary were not trustworthy. Indeed, in her testimony at the fact-finding hearing, T.W. confirmed many of the key facts in the summary upon which the trial court relied in its decision, including R.S.'s conviction of aggravated assault and his prior acts of domestic violence. We conclude the trial court did not err by admitting the Division's investigative summary into evidence.
T.W. further argues that the trial court erred by relying upon R.S.'s prior crimes and bad acts in assessing whether he would pose a substantial risk of harm to T.W.'s children if allowed to have contact with them. Again, we disagree. N.J.R.E. 404(b) provides that
[e]xcept as otherwise provided by [N.J.R.E.] 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In this case, the Division did not claim that R.S. physically abused T.W.'s children, and the evidence of R.S.'s prior crime and other bad acts were not admitted to show that he "acted in conformity" with those acts. In addition, the evidence of R.S.'s prior criminal offense and bad acts was admissible to show that T.W.'s children would be at substantial risk of harm if R.S. were allowed to have contact with them. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010) (noting that "in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child."). Thus, evidence of R.S.'s criminal offense and other bad acts was admissible in determining whether T.W. abused or neglected her children.
Accordingly, we affirm the trial court's finding that T.W. abused or neglected her children.
III.
T.W. also argues that the trial court erred by denying her motion to set aside the finding of abuse or neglect. As we stated previously, after the trial court found that T.W. abused or neglected her children, a grand jury decided that it would not charge R.S. with the physical abuse of his infant child C.S. According to T.W., evidence regarding the grand jury's decision, "settled the material issue" of whether R.S. physically abused C.S. T.W. contends that the trial court erred by refusing to set aside the finding of abuse or neglect pursuant to Rule 4:50-1, because this newly-discovered evidence purportedly negated the basis upon which that finding was focused. We do not agree.
Under Rule 4:50-1(b), a court may grant relief from a prior judgment in light of "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49." We give substantial deference to a trial court's determination under Rule 4:50-1, and we will not reverse such a decision absent "a clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citations omitted).
We are convinced that the trial court's denial of T.W.'s motion to set aside the prior finding of abuse or neglect was not a mistaken exercise of discretion. As the trial court determined, evidence that the grand jury decided not to charge R.S. with child abuse would not have altered the findings memorialized in the court's prior order. R. 4:50-1(b). The court's determination that T.W. abused or neglected her children did not turn upon whether R.S. physically abused C.S. The court's finding was based on other evidence, including R.S.'s stipulation that he abused or neglected C.S. by leaving her in the care of A.H. when A.H. was intoxicated. The finding also was based on evidence that R.S. had been convicted of aggravated assault, and engaged in acts of domestic violence against A.H. We therefore conclude that the trial court did not err by denying T.W.'s motion to set aside the finding of abuse or neglect.
In view of our decision, we need not address T.W.'s contention that the doctrine of invited error does not preclude her from raising the aforementioned issues as grounds for reversal of the trial court's order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION