Opinion
DOCKET NO. A-1157-11T4
03-27-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.D., Defendant-Appellant, and R.D., Defendant. IN THE MATTER OF L.D., E.D, and M.D., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa A. Nitti, Designated Counsel, on the brief). Jeffrey S. Chiesa, 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 minors (Katherine J. Bierwas, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Hayden.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County, Docket No. FN-01-132-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa A. Nitti, Designated Counsel, on the brief).
Jeffrey S. Chiesa, 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 minors (Katherine J. Bierwas, Designated Counsel, on the brief). PER CURIAM
This is an appeal from a Title Nine protective services proceeding. Defendant, L.D. (Lisa or defendant), appeals the September 6, 2011 Family Part order finding, pursuant to N.J.S.A. 9:6-8.21(c)(4), that she had neglected her son L.D. (Larry) by intentionally keeping him from attending school and terminating the proceeding with a restraint against her in place. For the reasons that follow, we affirm.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms for the parents and child to protect their privacy.
I.
We glean the following facts from the record. In 2010, Lisa lived with her husband, R.D. (Robert), and her three minor children, M.D. (Mary), E.D. (Elaine), and Larry, who was eleven years old at the time. On October 7, 2010, Robert contacted the Division of Youth and Family Services (the Division) and reported that Lisa refused to send Larry to school even though Larry's doctors did not recommend that he stay home. On October 14, 2010, the caseworker asked Lisa to supply medical documentation supporting her claim that Larry could not attend school due to his allergies and asthma. Lisa told the caseworker that it had been a six-year battle trying to get the school system to understand that Larry did not belong in school. She stated that her only remaining option was to move to Pennsylvania where she believed Larry would not have to attend school. Lisa also reported that Larry played soccer and socialized with the team.
Robert was a non-offending parent who was joined in the complaint for dispositional purposes only and is not participating in this appeal.
Later that day, the caseworker went to Larry's school to investigate the referral the school made to the Division. A school administrator reported that Larry had not attended school for three weeks and a truancy complaint had been filed against the parents. School personnel provided the caseworker with information about Larry's absences.
The caseworker next went to the family home and again spoke to Lisa. Lisa told the caseworker that "they" were trying to kill her son but refused to disclose any names. Defendant also confirmed that she had to go to the local truancy court due to Larry's poor attendance. On the basis of the investigation to date, the Division formally opened a case to provide services to the family.
Over the next several weeks the caseworker interviewed all the household members, the school personnel, and Larry's doctors. Larry told the caseworker that he wanted to go to school but his mother would not allow him. No one provided any medical verification that Larry could not attend school. One of Larry's doctors wrote a letter to the school requesting that the school provide home instruction for him for sixty days, not due to the severity of Larry's medical condition but to establish some continuity in his instructions. The school complied with the recommendation.
In December 2010, the Division caseworker met with the family and informed them that Larry must attend school since no medical reason for his absences had been provided. Robert and Larry signed an agreement that Larry would attend but Lisa refused to agree. She wrote a list of requirements that the school would have to meet for her to consider allowing Larry to attend school again. When discussing these demands with the caseworker, Lisa stated that, even if the school provided all the requested services, she would not allow him to attend school. On December 6, 2010, the Division determined based upon its investigation that the allegation of educational neglect against Lisa was substantiated.
In January 2011, Larry returned to school but began being absent again. On January 31, 2011, the Division filed a Title Nine complaint for care and supervision of Larry, Elaine and Mary. At the hearing that day, the trial judge signed an order prohibiting Lisa from signing Larry out from school. Lisa had agreed before the hearing that she would attend a psychiatric evaluation. The order contained a provision directing her to schedule an evaluation as soon as possible and sign a release to enable the Division to communicate with the evaluator.
At the next hearing, on February 16, 2011, Lisa asked for a week to decide whether she was going to find her own evaluating psychiatrist or use one chosen by the Division. The judge ordered Lisa to obtain the psychiatric evaluation and provide the report by March 30, 2011. Based upon the Division's report that Lisa had continued to remove Larry from school to take him to numerous doctors' appointments, the judge entered an order restraining Lisa from continuing to take Larry to physicians, except in a case involving a genuine need for immediate medical attention. The judge also ordered that the family participate in counseling.
At the April 19, 2011 compliance hearing, Lisa had not yet submitted a psychiatric report. Her attorney represented to the court that she had been evaluated by Dr. Glass, who would provide the report within one week.
The record does not contain Dr. Glass's first name.
--------
The next hearing on June 28, 2011 had been scheduled for a fact-finding. A new attorney appeared for Lisa and requested an adjournment to prepare, which the judge granted. The Division reported that Lisa had refused to turn over her psychiatric evaluation and that she had been preventing the caseworker from visiting the home to see the children. The family therapist also provided a report to the Division that the children complained of the mother's continued abusive behavior. The judge told Lisa that she must call Dr. Glass to turn over the psychiatric evaluation immediately. Lisa responded that she would not contact the doctor. When the judge informed Lisa that she would have to stay out of her house until she provided the report, Lisa said, "I will." The judge entered an order requiring Lisa to immediately provide Dr. Glass's report and restraining her from the family home until she complied. Lisa did not provide the report nor move to be relieved of the requirement to do so.
At the fact-finding hearing on September 6, 2011, Lisa did not appear and failed to contact her attorney or the judge to explain her absence. Her attorney reported that Lisa had sent her letters from Florida and, most recently, from Pennsylvania. Defense counsel asked for an adjournment to find out why Lisa was absent. She also wanted to obtain from her client the medical records Lisa claimed contradicted the Division's evidence that Larry should be in school. The judge decided that the fact-finding hearing should proceed as a "proof hearing" since Lisa had received ample notice of the hearing and provided no explanation for her absence. Lisa'a attorney was allowed to fully participate in the hearing.
At the hearing, the Division sought to introduce its Investigative Summary of the investigation that led to the substantiation of educational neglect. Lauren Roddy, a paralegal from the Division's local office, testified that the Investigative Summary was made in the ordinary course of the Division's business at or near the time that events occurred. The judge determined that the Investigative Summary satisfied the business record hearsay exception under N.J.R.E. 803(c)(6). Lisa's attorney objected to the report being entered into evidence because Ms. Roddy was not its author and the report included hearsay of the caseworker's interviews with Robert, the minor children, the school, and Larry's treating physicians. The judge acknowledged that the report included hearsay but stated the report was admissible and the fact that it included hearsay would go to the weight she gave the conclusions.
The judge determined, based upon the information in the report and her knowledge of the case since its inception, that Lisa had made an affirmative decision to keep her son from attending school "for no reason but her own fantasy that something was wrong with him." After discussing the evidence, the judge found educational neglect because "without just cause this mother has denied the child going to school and has affirmatively kept this child out of school when she had the opportunity to have him engage in educational activities." Consequently, the judge found that Larry was an abused and neglected child under N.J.S.A. 9:6-8.21(c)(4)(a).
At the hearing, the Division and the Law Guardian reported that the family was doing well, Larry was going to school and healthy, and the family occasionally received phone calls from Lisa. At the request of the Division, the judge terminated the litigation. She kept the restraint against Lisa from entering the home until Lisa complied with the recommendations of the psychiatric evaluation. The order provided that at any time Lisa could apply to the court, on notice to all parties, to have the restraints lifted. This appeal followed.
II.
On appeal, defendant raises the following contentions: (1) defendant's due process rights were violated, particularly because the fact-finding hearing was conducted in spite of her absence and without the Division's investigating caseworker testifying; (2) the judge committed "harmful error" in requiring defendant to submit to a psychiatric evaluation prior to a fact-finding hearing and barring her from her home until she produced the evaluation; (3) insufficient evidence supported the finding of abuse and neglect; (4) defendant received ineffective assistance of counsel; and (5) in the event of a remand, a new trial judge must be assigned.
We first address defendant's due process claims. Due process is essential in this case because a parent's right to raise her child is entitled to constitutional protection. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004); Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 466 (App. Div.) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1390, 71 L. Ed. 2d 599, 606 (1982)) ("The fundamental liberty interest of parents in the care, custody, and management of their children is protected by the Fourteenth Amendment."), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).
In general, due process requires "adequate notice and a meaningful opportunity to be heard." A.R.G., supra, 179 N.J. at 286. When considering a due process issue, "[t]he question to be answered is not whether particular procedures were used, but rather whether those procedures which were employed were appropriate and adequate to protect the interests at stake." M.Y.J.P., supra, 360 N.J. Super. at 467-68.
In a Title Nine proceeding, even if a parent is not present at the fact-finding hearing, the court may proceed so long as "the child is represented by a law guardian." N.J.S.A. 9:6-8.42. See N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 509 (App. Div. 2009) (recognizing that "[p]roceeding in a party's absence is not the same as entering default"), rev'd on other grounds, 205 N.J. 17 (2011). To be sure, however, where good cause can be shown, the court may adjourn a fact-finding hearing. N.J.S.A. 9:6-8.48.
Here, the court provided defendant with adequate notice of the proceeding and defendant's attorney did not supply the court with a basis for Lisa's absence. Additionally, the case had already been adjourned once before. "Title Nine embodies clear legislative commands requiring that Title Nine proceedings be commenced, conducted and concluded with extreme dispatch, if not with considered and deliberate haste." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110 (2011). While the court provided appellant with adequate and appropriate means to protect her interests, appellant chose not to employ these means. See M.Y.J.P., supra, 360 N.J. Super. at 467-68. Accordingly, we find no abuse of discretion with the trial judge's refusal to grant a second adjournment and in proceeding in her absence.
Defendant also argues that due process required the Division's investigating caseworker to testify at the fact-finding hearing instead of her report being admitted. A fact-finding hearing is "a hearing to determine whether the child is an abused or neglected child . . . ." N.J.S.A. 9:6-8.44. In Title Nine proceedings, the fact-finding hearing is considered to be a critical stage of the litigation. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009). The hearing "must be conducted 'with scrupulous adherence to procedural safeguards.'" Ibid. (quoting A.R.G., supra, 179 N.J. at 286). In a fact-finding hearing, the Division bears the burden of establishing by a preponderance of the evidence that the child at issue was "abused or neglected and 'only competent, material and relevant evidence may be admitted.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting N.J.S.A. 9:6-8.46(b)).
Nonetheless, N.J.S.A. 9:6-8.46(a) declares admissible as prima facie evidence of its content
any writing . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any . . . public or private institution or agency . . . in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of . . . [the] institution or agency . . . .Additionally, Rule 5:12-4(d) permits the submission into evidence of reports prepared by the Division's staff. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010). The conclusions contained in the Division's staff reports are "treated as prima facie evidence" of abuse and neglect, "subject to rebuttal." R. 5:12-4(d).
Here while not challenging the judge's finding that the Investigative Summary was a business record, defendant maintains that the Division was nevertheless obligated to have the caseworker testify. We disagree. The judge correctly found, based upon the paralegal's testimony, that the records were made in the ordinary course of Division business close to the time of the event and there was no suggestion in the record that the report was untrustworthy. See N.J.R.E. 803(c)(6). Rule 5:12-4 and N.J.S.A. 9:6-8.46 recognize that the content of the Division's authenticated documentary reports need not be repeated by a witness to be admissible as prime facie evidence of abuse and neglect. See M.C. III, supra, 201 N.J. at 346 (noting that DYFS reports are admissible under the same criteria as other business records). Cf. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996) ("[N.J.R.E. 803(c)(6)] does not require the testifying witness to have personally participated in the creation of the document or to know who actually recorded the information.").
Nevertheless, Lisa was permitted to rebut the evidence. It has long been established that a "parent remains free to offer evidence contradicting any statements present in such reports and, of course, the trier of the facts may in his discretion call for live testimony at any point." In re Guardianship of Cope, 106 N.J. Super. 344 (App. Div. 1969). In this case, there were no surprises or credibility issues in the report. During the litigation Lisa never seriously denied that she kept Larry from attending school; rather she insisted that he should not attend school due to his health issues. Lisa chose to not appear, call any witnesses or provide any rebuttal evidence. We are convinced that the judge acted within her discretion in not requiring live testimony from the caseworker. See M.Y.J.P., supra, 360 N.J. Super. at 467-68.
III.
Next, defendant argues that the judge committed "harmful error" in requiring her to obtain a psychiatric evaluation prior to conducting a fact-finding hearing. Lisa contends that in Title Nine actions, a court may order psychiatric evaluations only where an individual has been "found to have" abused and neglected a child. N.J.S.A. 9:6-8.51(a), -8.58. Accordingly, appellant argues, as court-ordered psychiatric evaluations cannot be required prior to a fact-finding hearing, she was "unreasonably restrained from her home" for not complying with an unlawful order.
However, defendant's argument fails to acknowledge that at any point during a Title Nine action "the court may order examinations and investigations pursuant to R. 5:3-3." R. 5:12-4(c). Rule 5:3-3(a) provides in pertinent part:
Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer . . .See In re Guardianship of J.C., 245 N.J. Super. 373, 375 (App. Div. 1991) (recognizing that Rule 5:12-4(c) empowers the court in a Division-initiated proceeding to order psychological evaluations), rev'd on other grounds, 129 N.J. 1 (1992).
their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it.
We concur that the judge was authorized under Rule 5:12-4(c) to require defendant to participate in a psychiatric evaluation. We note that Lisa initially agreed to be evaluated and to share the evaluation with the court and the parties, which resulted in the first order requiring the evaluation. Her counsel never requested that the order be vacated. During the course of the proceedings, Lisa was barred from the children's school and two of Larry's doctors' offices due to her unruly behavior. We infer from the judge's frequent expressions of concern about Lisa's failure to provide the report that the judge reasonably determined her psychiatric evaluation would assist the court in resolving the dispute.
Moreover, under the circumstances here, the order restraining Lisa from the home until she complied with the long-standing order was appropriate. In a Title Nine action, a court is authorized, where good cause is shown, to issue a preliminary order of protection "in assistance or as a condition of any other order made." N.J.S.A. 9:6-8.55, -8.31(c). For example, in furtherance of another order, a court may require an individual "[t]o stay away from the home, the other spouse or the child." N.J.S.A. 9:6-8.55.
In this case, the restraint from the home was a proper means of enforcing the court's prior orders in reference to Lisa's psychiatric evaluation. Moreover, when issued, the order was intended only as a means of compelling Lisa to produce Dr. Glass's report. The trial court did not err by keeping the restraint active after the termination of the litigation in light of defendant's ability to apply at any time to the court to lift the restraint.
IV.
Further, defendant contends that the Division did not present sufficient evidence to prove that she was guilty of educational abuse or neglect. An "abused or neglected" child is defined as one who is less than eighteen years of age and
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 (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 the proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
[N.J.S.A. 9:6-8.21(c)(4).]
An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999). In G.S., the Court explained that "[t]he phrase 'minimum degree of care' denotes . . . . something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citations omitted).
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These 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). Moreover, "because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). 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).
In this State, parents are required to ensure that their children either regularly attend the public schools of the district in which they reside or receive instruction equivalent to that provided in the public schools. N.J.S.A. 18A:38-25. Attendance is compulsory. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 641 (2003). A parent who fails to comply with the attendance requirements "shall be deemed a disorderly person." N.J.S.A. 18A:38-31.
Defendant argues that the evidence supporting the trial judge's finding was insufficient because no attendance records or testimony were offered into evidence to establish the length of time that her child was absent from school. Even though the Division's Investigation Summary does not detail the precise number of days that Lisa kept Larry home from school, or signed him out after Robert brought him there, the court found that the document did show defendant affirmatively kept her child out of school. We agree with the trial judge that Lisa's statements to the caseworker alone — which as statements of a party-opponent are a hearsay exception, N.J.R.E. 803(b)(1) — established that she consistently refused to permit her son to attend school, regardless of the child's ability to do so or the accommodations offered by the school. The record supports the trial court's finding that Lisa's actions were in reckless disregard of Larry's welfare.
In addition, we reject defendant's argument that the judge erred in finding abuse and neglect because the evidence did not show that Larry was behind in school. Here, the court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect" before it can act. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)). Suffice it to say, the harm in an educational abuse and neglect case is the failure to provide the child with the required public school education or its equivalent when able.
In short, we conclude that the trial judge's finding under N.J.S.A. 9:6-8.21(c)(4)(a) that appellant educationally abused and neglected her son was sufficiently supported by a preponderance of the evidence.
V.
Lisa also argued that she did not receive effective assistance of counsel during the protective services proceedings. Here, Lisa contends that counsel was ineffective because she failed to object to the restraint being entered against Lisa or prevent the fact-finding going forward, did not move for a contested fact-finding at a later date, and did not offer any defense.
In order to establish that a defendant in a Title Nine case has been denied effective assistance of counsel, defendant must show that counsel's performance was "objectively deficient," meaning that it fell "outside the broad range of professionally acceptable performance." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007); see also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 346-47 (App. Div. 2007) (recognizing the right to effective assistance of counsel in Title Nine proceedings). Additionally, it must be shown that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." B.R., supra, 192 N.J. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)). A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).
Applying these standards, Lisa has not demonstrated that any of her counsel's alleged deficiencies fell below the reasonable range of professional assistance. Even if she were able to establish a defective performance, Lisa has failed to establish that, but for counsel's poor performance, there was a reasonable probability that the results of the hearing would have been different. While Lisa argues that she wanted a contested fact-finding and would have put on a defense, not one piece of evidence supporting that defense is proffered here. Accordingly, we conclude that defendant did not establish her ineffective assistance of counsel claim.
Plaintiff's remaining contentions are without sufficient merit to warrant discussion in this opinion. 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