Opinion
DOCKET NO. A-3145-14T4
11-29-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.R., Defendant-Appellant, IN THE MATTER OF J.T., T.T., J.T., T.T., J.T., A.T. and M.R., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian for minors (Cory H. Cassar, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano, Guadagno and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0318-13. Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian for minors (Cory H. Cassar, Designated Counsel, on the brief). PER CURIAM
Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part judge determined defendant, E.R., abused or neglected her eight children because she was "under the influence of PCP" while at home caring for one child and "the seven other children were on their way home from school." He entered a conforming order, from which defendant appeals, arguing the Division of Child Protection and Permanency (the Division) failed to establish her conduct harmed the children or placed them in imminent risk of harm. N.J.S.A. 9:6-8.21(c)(4)(b).
We use initials or pseudonyms to protect the identities of those involved.
"PCP," "Angel Dust" and "Wet" are common street names for Phencyclidine.
Specifically, defendant contends expert testimony was necessary to establish she was intoxicated or impaired at the time, and her use of an illegal substance alone does not establish abuse or neglect under Title Nine. Defendant also argues evidence admitted at the fact-finding hearing by consent — redacted copies of the Division's investigative summary and the in camera testimony of defendant's fifteen-year-old daughter, M.R. (Martha), — was inadmissible, and any other evidence was insufficient. Defendant also contends the judge impermissibly expanded the statutory definition of abuse and neglect, contrary to the Court's holding in G.S. v. Department of Human Services, 157 N.J. 161 (1999).
The Division urges us to affirm, arguing essentially that the evidence was sufficient, expert testimony was not necessary, and any challenge to the admissibility of its investigative summary or Martha's in camera interview is barred by the "doctrine of invited error." See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (holding challenged evidence introduced without objection at a fact-finding hearing was the result of invited error). The children's Law Guardian likewise contends the order must be affirmed.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant also argues the judge erred by considering the evidence solely as it existed at the time of the Division's intervention and ignored subsequent events that occurred by the time of the fact-finding hearing. Since the briefs were filed in this case, the Court has squarely rejected the argument. N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 189 (2015). It lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). --------
I.
The Division submitted its redacted investigative summary without objection at the February 13, 2013 fact-finding hearing before Judge Edward J. McBride, Jr. Defense counsel had earlier consented to its admission, as evidenced by a January 31, 2013 order, which states "[a]ll counsel consent to [the investigative report] as redacted being moved into evidence for purposes of fact finding."
The report revealed that on October 17, 2012, at 2:30 p.m., the Division's caseworker responded to defendant's home and was greeted by defendant, who at the time was alone with her three-year-old son, J.T. (Jeff), who seemed to be "thriving appropriately." Defendant's mother and adult brother arrived at the home shortly thereafter. The home was well-kept, with sufficient food. Although defendant could recall the names of all her children, she grew confused when asked about their birthdates. Defendant grew increasingly agitated by the questioning, causing the caseworker to become concerned for her own safety.
Defendant "appeared to be under the influence, as her eyes were red, she used various voice tones ranging from that of a child to yelling very loudly. She spoke with [the caseworker] very calmly at points and then instantly would switch to being very angry." Defendant denied using PCP, however, she admitted to prior heroin use, claiming she had been sober for fifteen years.
When told she would need to submit a urine sample, defendant became upset and told the caseworker her urine screen would be positive for PCP. Defendant explained she only used the drug occasionally, and her children were never home when she was under the influence. Defendant denied "she [was] currently under the influence[,]" but continued to act erratically.
As the children arrived home from school, the caseworker spoke with each of them. They denied defendant's use of drugs. The caseworker spoke by phone to defendant's estranged husband and Jeff's father, J.Tr., Sr., who denied ever seeing defendant under the influence of PCP. Nevertheless, the Division effectuated an emergency removal of the eight children and subsequently filed a verified complaint seeking their care, custody and supervision.
At a January 17, 2013 pretrial conference, the Law Guardian informed the judge that Martha wished to speak with him alone. There was no objection, and Judge McBride requested all parties submit proposed questions for Martha's interview, which was scheduled for February 1, 2013.
At the fact-finding hearing, the Division introduced the in camera interview of Martha, which took place in the judge's chambers. The Law Guardian was present with Martha in chambers, and all counsel were in the courtroom listening to the interview as it occurred. Martha told the judge she knew what illegal drugs were and had witnessed her mother smoking "illegal drugs" in a "rolled[-]up" cigarette outside the house while most of the children were home. Martha also reported defendant "act[ed] a little weird" when she smoked the rolled-up cigarettes.
After considering oral arguments of counsel, Judge McBride concluded the Division had proven by a preponderance of evidence that defendant had abused or neglected her children. The judge noted Martha's initial statement to the caseworker on the day of her removal was inconsistent with her in camera interview. However, the judge determined Martha was truthful when she told him that she observed her mother smoking PCP, attributing Martha's earlier denial to being "scared and [not] want[ing] to say anything to the Division at the time . . . ." The judge also found significant defendant's admission to the caseworker that she would test positive for PCP in a urine screen. He concluded defendant recklessly placed her children in risk of imminent harm by being under the influence of PCP while her three-year-old son was in her exclusive care and seven other children were about to return home from school.
The judge entered the order under review. Defendant substantially complied with services provided by the Division over the next two years, the children were returned to her custody and the court entered the January 26, 2015 order terminating the litigation. This appeal ensued.
II.
"[A]ppellate courts '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.'" M.C. III, supra, 201 N.J. at 342-43 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998); see also N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010) (recognizing appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge"). However, when the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).
"In general, 'Title [Nine] controls the adjudication of abuse and neglect cases.'" E.D.-O., supra, 223 N.J. at 177 (quoting M.C. III, supra, 201 N.J. at 343). "The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-8.8). "[W]hen there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J. at 178 (citing N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013)). "Under those circumstances, 'the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.'" Ibid. (quoting A.L., supra, 213 N.J. at 23). "Moreover, '[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (alteration in original) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
Title Nine defines an "abused or neglected child" as one under the age of 18 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 . . . ."[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. "Simply stated, the statute requires more than a mere showing of harm to a child. 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).
[N.J.S.A. 9:6-8.21(c)(4)(b).]
We reject defendant's initial argument that expert testimony was required to prove she was under the influence of PCP. New Jersey has long recognized that, pursuant to N.J.R.E. 701, a lay witness may offer an opinion on matters of common knowledge, provided the opinion is rationally based on his or her personal knowledge and obtained through his or her own senses. State v. McLean, 205 N.J. 438, 457 (2011) (collecting cases). These include "signs and behaviors indicative of an individual's intoxication." Ibid. (citations omitted). Judge McBride did not mistakenly exercise his discretion by admitting the caseworker's opinion contained in the investigative report that defendant was under the influence of an intoxicant, and, given defendant's admitted use of PCP, the judge's conclusion was based on a preponderance of credible evidence.
We also agree with the Division and the Law Guardian that defendant's objection to the admission of the report and Martha's in camera interview, raised for the first time on appeal, is barred by application of the invited error doctrine. M.C. III, supra, 201 N.J. at 342. Defense counsel requested certain redactions to the report, which were made, and thereafter defendant never lodged any objection. We recently reaffirmed application of the doctrine of invited error in such circumstances. N.J. Div. of Child Prot. & Permanency v. J.D. Jr., ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 14). Moreover, even if the investigative report included some hearsay, "we apply the principle that hearsay subject to a well-founded objection is generally evidential if no objection is made." Ibid. (citing State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring)).
Defendant now argues for the first time that the interview of Martha failed to comply with N.J.S.A. 2A:84A-32.4, and Rule 5:12-4(b), because Judge McBride failed to make specific findings that justified an in camera hearing, instead of one conducted in court, subject to cross-examination. However, as noted, there was never any objection to the procedure used by the judge, nor did defendant ever assert a substantive objection to the nature or adequacy of the questions posed.
Defendant next argues parental drug use alone is not sufficient to support a finding of abuse or neglect. She cites to A.L., supra, 213 N.J. at 27-28 (evidence of the mother's prenatal drug abuse alone was insufficient to demonstrate harm to her newborn child), New Jersey Division of Child Protection & Permanency v. R.W., 438 N.J. Super. 462, 470 (App. Div. 2014) (the defendant's single admission of marijuana use without proof that it occurred while her child was in her care was insufficient to prove abuse or neglect), and New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011) (the father's marijuana use prior to supervised visitation was insufficient evidence of the risk posed to his child).
However, "[a]buse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." P.W.R., supra, 205 N.J. at 33. The facts in this case are substantially different from those presented by the cases defendant cites. We have made it abundantly clear "[p]arents who use illegal drugs when caring for an infant expose that baby to many dangers due to their impaired judgment." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 385 (App. Div. 2014) (emphasis added) (citing V.T., supra, 423 N.J. Super. at 331). Here, Judge McBride found defendant was intoxicated from having ingested PCP while she was the sole custodian of her three-year-old son, and shortly before her seven other children were due home from school.
Lastly, we reject defendant's claim that Judge McBride expanded the statutory definition of abuse and neglect because, at worst, defendant exercised poor judgment by ingesting PCP while caring for Jeff, and her conduct was neither grossly negligent nor reckless. We disagree.
Defendant's reliance on our decision in New Jersey Division of Youth & Family Services v. S.N.W., 428 N.J. Super. 247 (App. Div. 2012), is misplaced. There, we remanded the matter to the Family Part based on inadequate findings as to whether the defendant ingested more than the prescribed amount of Xanax while caring for her children. Id. at 257-58. We noted that if the defendant took more than the prescribed amount, the judge must also consider whether the defendant's actions were deliberate or accidental, and whether she was able to exercise a minimum degree of care for her child. Id. at 258.
As the Division points out, PCP is an illegal substance, not a prescription drug. By her own admission, defendant had ingested PCP on prior occasions in her home, although she claimed not to have done so while caring for the children. However, there was substantial, credible evidence she had recently ingested PCP while alone and caring for Jeff. During the caseworker's interview, defendant demonstrated erratic behavior, with flashes of anger and periods of incoherence.
In Title Nine cases where the child suffers no actual harm, "[a]n analysis of a parent's conduct must account for the surrounding circumstances." E.D.-O., supra, 223 N.J. at 180 (citing G.S., supra, 157 N.J. at 181-82). Judge McBride concluded, based on all the circumstances, defendant's conduct was reckless, and we agree.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION