Opinion
DOCKET NO. A-1495-12T4
04-21-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Y.R., Defendant-Appellant. IN THE MATTER OF R.C., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.C. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-11-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.C. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief). PER CURIAM
Y.R. appeals from an order entered by the Family Part on July 29, 2011, which found that she abuse or neglected her minor children. Y.R. also appeals from the order entered by the court on September 24, 2012, which terminated this litigation and provided that R.C. shall remain in the custody of the Division of Youth and Family Services (Division). For the reasons that follow, we affirm the court's July 29, 2011 order, and dismiss the appeal from the September 24, 2012 order.
The Division is now known as the Division of Child Protection and Permanency. L. 2012, c.16, eff. June 29, 2012.
I.
We briefly summarize the relevant facts. Y.R. is the mother of R.C., who was born in September 2009; J.M., who was born in October 2007; and L.M., who was born in October 2008. L.C. is R.C.'s father. JO.M. is J.M.'s father. Y.R. asserts that JO.M is also L.M.'s father.
The Division became involved with Y.R. and her family in October 2009, when it received a referral indicating that she had given birth to R.C. prematurely. The Division received another referral on November 8, 2009, with a report that Y.R.'s home was "a mess" and R.C. was sleeping in a dresser drawer. The referral source expressed a concern that Y.R. was leaving the children with her boyfriend, J.J. The referral source said that J.J. had physically abused his son.
The Division investigated the matter and substantiated the report of J.J.'s physical abuse. J.J. also told the investigator that Y.R. left the children with him several times a week. One of the Division's caseworkers spoke with Y.R. and informed her the children could not be left with J.J. She said she understood and signed a Safety Protection Plan (SPP), in which she agreed that the children would not be left with J.J.
On November 11, 2009, the Division received a call, reporting that Y.R. left the children unattended at a motel where she was residing. The caller said she found a baby in the motel's parking lot. The child was later identified as L.M., who was one year old at the time. The caller exited her car, grabbed L.M. and put the child in her car.
The caller noticed that none of the motel doors were open. She called 9-1-1 and, about five to seven minutes later, a woman exited one of the rooms, looking for the baby. The woman was identified as Y.R. The caller refused to return the baby to Y.R. because she wanted to wait for the police. Y.R. telephoned the police.
The caller said that, when she saw the toddler, she was fifteen feet from the motel, several doors away from the room from which Y.R. emerged. The motel also was near a heavily traveled road in Atlantic City. Y.R. stated that she had been getting changed in the room. The police arrived, and they were at the motel when the caller left. The police said they would contact their juvenile unit.
A caseworker later interviewed a person who was staying in a motel room adjacent to Y.R.'s room. Among other things, that individual reported that Y.R.'s children had gotten out of the motel room before. The following day, one of the Division's investigators went to the motel room, and spoke with Y.R.
She told the investigator that L.M. had gotten out of the room because she left the door "cracked" when she left to pay the balance of her rent. She said that, after she returned to the room and realized that L.M. was missing, she began to look for the child. Y.R. located the child in the car of the person who contacted the Division, and the police returned the child to her care. She also admitted that she left the children with J.J. She said she was only gone two minutes. J.J. told the investigator that he was sick. He admitted to dozing off.
On November 12, 2009, Y.R. attended a conference at the Division's office. The investigator told Y.R. that the SPP prohibited her from leaving the children in J.J.'s care. She indicated that she knew she had violated the SPP. Y.R. reported that she was trying to obtain money to rent an apartment. Y.R. denied using illegal drugs. She stated that she suffers from depression. She also suffers from bipolar disorder, for which she takes medication. The Division determined that the allegations of neglect had been substantiated "for inadequate supervision."
In the months that followed, the Division's involvement with the family continued. In March 2010, Y.R. told the Division she was not going to let its workers into the home. In June 2010, Y.R. was scheduled for an intake appointment at the Family Life Center (FLC). She walked out of the appointment at FLC and refused to enroll in the program. In June 2010, the Division learned that Y.R. had been sentenced to two years of probation for prostitution.
On July 2, 2010, the Division filed a verified complaint pursuant to N.J.S.A. 9:6-8.21 to -8.72 and N.J.S.A. 30:4C-12 in the Family Part, seeking care and supervision of Y.R.'s minor children. On that date, Y.R. consented to the entry of an order, which placed the children under the Division's care and supervision, but allowed them to remain in Y.R.'s legal and physical custody. Y.R. was required to show cause why the children should not remain under the Division's care and supervision. She was ordered to participate in a psychological evaluation and comply with any treatment recommendations.
Y.R.'s psychological evaluation took place in September 2010. The psychologist diagnosed cannabis and cocaine abuse, reportedly in remission. The psychologist also diagnosed borderline personality with anti-social and narcissistic personality traits. The psychologist recommended that Y.R. participate in substance abuse treatment and counseling.
On September 21, 2010, the trial court ordered that the children would continue in the Division's care and supervision. On that date, Y.R. tested positive for cocaine, and she was ordered to comply with a substance abuse evaluation and treatment. The court told Y.R. that her failure to comply with the order could result in an action by the Division seeking to terminate her parental rights.
In the months that followed, the Division offered Y.R. an array of services, including a substance abuse evaluation, which recommended that she attend an intensive outpatient, substance abuse treatment program. Y.R. attended the intake for the program but did not attend the treatment. She was discharged from the program in February 2011. In April 2011, Y.R. failed to appear in court for a compliance review hearing.
In May 2011, Y.R. informed the Division that a welfare agency had sanctioned her for failing to comply with a substance abuse "initiative." She asked for the Division's assistance in purchasing food, and the Division provided her with money to purchase groceries. On June 14, 2011, Y.R. failed to attend a scheduled substance abuse re-assessment. On June 28, 2011, she failed to appear in court for a scheduled fact-finding hearing.
On July 11, 2011, the Division received a call from a person who identified herself as Y.R.'s friend. The caller said Y.R. had left R.C. with her at her home the previous night and never returned to pick up the child. The caller stated that Y.R. told her she was going to "make some money." According to the caller, Y.R. was a prostitute and had previously left R.C. in the care of other persons. The caller asked the Division to pick up the child. A Division's supervisor tried to reach Y.R. by phone but was unable to do so. The Division effected an emergency removal of the child, and he was placed in protective custody.
Later, the Division's supervisor and worker went to Y.R.'s home. Y.R. was present and said that she thought she was supposed to pick up R.C. on July 11, 2011, not the previous evening. Y.R. claimed her phone was broken and she could not make or receive calls. She overslept on July 11, 2011, and when she contacted her friend, she learned that the Division had removed the child and he was in the Division's custody.
On July 13, 2011, the Division filed an amended complaint in the Family Part, seeking custody of R.C. Y.R. contested the emergency removal of R.C. The court conducted an evidentiary hearing on the Division's application and heard testimony from the Division's supervisor and worker concerning the Division's involvement with Y.R. and the family. Y.R. testified on her own behalf. She stated that the Division had asked that she find stable housing, secure employment and attend drug treatment.
She admitted that she had tested positive for use of illegal drugs while involved with the Division. She acknowledged that she had difficulty complying with substance abuse treatment. She also admitted that she was on probation after having been charged with prostitution. Y.R. provided the court with her version of the events of July 10, 2011.
The court found that the Division's removal of R.C. was appropriate, based on Y.R.'s history of substance abuse and her failure to comply with the Division's services. The court entered an order dated July 13, 2011, placing R.C. in the Division's custody, care and supervision. J.M. and L.M. remained in the Division's care and supervision.
On July 29, 2011, the court conducted a fact-finding hearing on the Division's allegations of abuse or neglect. The judge found by a preponderance of the evidence that Y.R. had abused or neglected the children by leaving them in J.J.'s care on November 11, 2009. The court entered an order dated July 29, 2011, finding that Y.R. had abused or neglected the children. The order dismissed the other two children, J.M. and L.M., and their father JO.M. from the litigation, because the children had been living with JO.M. in California for six months. On November 29, 2011, the court entered an order continuing R.C. in the Division's custody, care and supervision.
On June 19, 2012, following a hearing, the court entered a permanency order, finding that termination of Y.R.'s parental rights to R.C. was the appropriate plan because Y.R. had not participated in services or visits for much of the time that he was in placement, and she was reportedly incarcerated in Nevada. The court ordered that R.C. remain in the Division's custody, care and supervision, and directed the Division to file a complaint in accordance with the approved permanency plan.
The court entered an order dated September 24, 2012, terminating the litigation because the Division had filed a complaint seeking the termination of Y.R.'s parental rights to R.C. This appeal followed. Y.R. raises the following arguments for our consideration:
POINT I
THE FACT-FINDING DECISION MUST BE REVERSED BECAUSE THE RECORD LACKS SUBSTANTIAL CREDIBLE EVIDENCE TO SUPPORT A FINDING THAT R.C. WAS AN ABUSED OR NEGLECTED CHILD.
POINT II
THE TRIAL COURT ERRED IN FINDING THAT IT WAS NOT SAFE TO RETURN R.C. TO Y.R.'S PHYSICAL CUSTODY.
II.
We turn first to Y.R.'s contention that there was insufficient credible evidence in the record to support the trial court's finding that R.C. was an abused or neglected child.
N.J.S.A. 9:6-8.21(c)(4) provides that a child is "[a]bused or neglected" if he or she is 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, . . . 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; . . . .
The phrase "minimum degree of care" in N.J.S.A. 9:6-8.21(c)(4) "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In addition, "[c]onduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The "difference between merely negligent conduct and wanton and willful misconduct . . . 'takes its meaning from the context and purpose of its use.'" Ibid. (quoting Fielder v. Stonack, 141 N.J. 101, 124 (1995) (citation omitted)).
The concept of "willful and wanton" action as referred to in N.J.S.A. 9:6-8.21(c)(4)(b) "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin, supra, 56 N.J. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960)). The concept "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305).
In addition, "[w]here 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." Ibid. (citing Fielder, supra, 141 N.J. at 123-24). Consequently, "under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Ibid.
In this case, the trial court found that Y.R. had abused or neglected her three minor children. The trial court's findings of fact are binding on appeal when they are supported by sufficient, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We will not disturb the trial court's findings unless they "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). We also accord special deference to findings of the Family Part because of that court's special jurisdiction and expertise in family matters. Id. at 413.
Here, the evidence established that in November 2009, Y.R. left her three minor children in the care of her boyfriend, J.J., in the motel room where she had been living. Y.R. did so even though she had previously signed an SPP, in which she agreed that the children would not be left in his care. The children were two-years old, one-year old, and two-months old at the time.
The evidence also established that Y.R. left the motel room, ostensibly to pay the balance of the rent due. Y.R. admitted that, when she exited the room, she left the door ajar. The door opened onto a parking lot, which was adjacent to a heavily-traveled road in Atlantic City. Y.R. said she did not tell J.J. she was leaving the room.
In addition, the evidence established that while Y.R. was out of the room, L.M. left the room and made her way out into the parking lot, about fifteen feet from the building. L.M. was one-year old at the time. The child was found in the parking lot by a person, who picked her up, placed her in the car and called 9-1-1. Thereafter, Y.R. exited the room and began to look for L.M.
Y.R. argues that there was insufficient credible evidence for the court's findings. However, the essential facts relied upon by the trial court were contained in the Division's investigative report, which was properly admitted into evidence.
N.J.S.A. 9:6-8.46(a)(3) permits the introduction of documents or records made by the Division in the regular course of business as proof of child abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346-47 (2010) (noting that N.J.S.A. 9:6-8.46(a)(3) should be interpreted in accordance with the business-records exception to the hearsay rule). Furthermore, the Division's investigative report contained admissions by Y.R. on key facts pertaining to the children's abuse or neglect. See N.J.R.E. 803(b)(1) (exception to hearsay rule which allows introduction into evidence of statements by a party-opponent).
Y.R. also argues that the evidence does not show that her actions rose to the level of "gross negligence" required for a finding of abuse or neglect. She contends that there is no evidence that the children were harmed or were in imminent danger of harm because of her actions. In support of this argument, Y.R. relies upon N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294 (2011).
In T.B., a parent left her four-year-old son home alone on a Sunday evening, while she went out to dinner, thinking her mother and step-father, with whom she was living, were home. Id. at 296-97. The parent's mother was usually home on Sunday nights, her car was in the driveway, and she had recently been home sick. Id. at 297. The parent did not know that her mother and step-father had taken an impromptu trip to New York. Ibid. The child awoke, found himself alone, and went to a neighbor's residence. Ibid.
The Court held that the parent was negligent in leaving the child alone, but her actions did not amount to gross negligence required for a finding of abuse or neglect. Id. at 310. The Court stated this was not a situation in which a parent "left her four-year-old son at home alone knowing there was no adult supervision." Id. at 309. The Court noted that the parent could reasonably have assumed her mother would be home on a Sunday evening, and what had occurred "on the date in question was totally out of the ordinary." Id. at 310.
In our view, Y.R.'s reliance upon T.B. is misplaced. Here, the evidence shows that Y.R. knowingly left her children in the care of J.J., despite her agreement in the SPP not to place the children in his care. Moreover, on exiting, Y.R. knowingly left the door to the motel ajar. That door provided access to the parking lot, which was adjacent to a heavily-traveled road. L.M. left the room and was found in the parking lot.
Based on these facts, the trial court properly found that Y.R. failed to adequately supervise the children and her actions recklessly placed them at risk of serious injury. We reject Y.R.'s contention that finding is unsustainable because there was no evidence that any of the children were actually harmed. As we have explained, Y.R.'s actions placed the children at substantial risk of serious harm.
Therefore, we affirm the trial court's order of July 29, 2011, finding that Y.R. abused or neglected the children.
III.
Y.R. also appeals from the court's September 24, 2012 order which terminated this litigation and ordered that R.C. shall remain in the Division's custody. Y.R. argues that the trial court erred by finding it was not safe to return R.C. to her physical custody.
Here, the trial court entered the September 24, 2012 order dismissing this action because the Division had filed its Title Thirty complaint seeking termination of Y.R.'s parental rights to R.C. The Division therefore argues that the custody order entered in this action is no longer operative and any challenge to it is moot.
In New Jersey Division of Youth & Family Services v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), the parents appealed from a final order in a Title Nine abuse and neglect proceeding, which terminated the litigation upon the filing of a Title Thirty termination-of-parental rights action. Id. at 257. The Title Nine action was dismissed without any finding of abuse or neglect. Id. at 255.
We stated that a final order entered in a Title Nine action finding that a parent abused or neglected a child may have adverse consequences for the parent, including the child's placement in the Division's custody. Id. at 262. However, an order dismissing the action without an adjudication of abuse or neglect does not have any of the adverse consequences of a final order of disposition based on a finding of abuse and neglect. Id. at 262-63.
We noted in A.P. that the order terminating the litigation provided for the continuation of legal custody of the child with the Division, with the child's paternal grandmother retaining physical custody. Id. at 263. We pointed out that the Title Nine court had probably entered the custody order because the court in the Title Thirty action had not yet exercised jurisdiction in that matter. Ibid. Subsequently, the Title Thirty court entered an order that superseded the parts of the final order in the Title Nine action pertaining to custody. Ibid. Thus, the custody provisions of the Title Nine order no longer had operative effect. Ibid.
We therefore held that the appeal from the final order in the Title Nine action was moot. Id. at 264. We stated that the provisions of the order no longer had any practical effect on the pending Title Thirty action. Id. at 263-64. We added that the parties would be able to contest the charges of abuse or neglect or other harm to the child in the Title Thirty action. Id. at 264.
Here, the trial court determined by a preponderance of evidence that Y.R. abused or neglected her three minor children. Y.R.'s appeal from that determination is not moot because the court's decision may have adverse consequences. The court also ordered that R.C. should remain in the Division's custody, but that order no longer has operative effect because the custody issues have been addressed in orders entered in the Title Thirty action. Therefore, Y.R.'s challenge to the custody determination made in this case is moot.
Accordingly, the trial court's order of July 29, 2011, finding that Y.R. abused or neglected her children is affirmed, and Y.R.'s appeal from the order of September 24, 2012, is dismissed.
Affirmed in part, dismissed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION