Opinion
DOCKET NO. A-1560-14T2
06-23-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.D., Defendant, and W.O., SR., Defendant-Appellant. IN THE MATTER OF W.O., JR., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Punam Panchal Alam, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor W.O., Jr. (Karen Ann Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0243-13. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony N. Barbieri, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Punam Panchal Alam, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor W.O., Jr. (Karen Ann Lodeserto, Designated Counsel, on the brief). PER CURIAM
After a fact-finding hearing, a Family Part judge determined that the Division of Child Protection and Permanency (Division) proved by a preponderance of the evidence that defendant, W.O., Sr., placed his son at risk by having drugs in the home and by selling drugs in the child's presence. On appeal, defendant argues that the finding must be reversed because the trial judge admitted and relied on incompetent evidence. We are unpersuaded by this argument and affirm.
The Division became involved in this matter in March 2013, after a teacher, reviewing essays submitted by her fifth grade class, noticed what one of her students, W.O., Jr. (Wally), chose to write about his father, defendant. Wally wrote: "My dad is a drug dealer, he thinks I don't know but I really do."
We employ pseudonyms to protect the privacy of the child and for readability.
Wally was questioned by his school's guidance counsellor and revealed that he had seen white powder in bags in his home. Wally also related that while he and his father were walking on the street, he observed his dad hand a bag containing a clear pill with powder to his father's friend. Defendant explained to Wally that his friend needed the pill for pain.
The Division was notified, and a caseworker, Jamelin Rosario, reported to the school and questioned Wally. Wally told Rosario that he lives with his father, his step-mother, Y.M. (Yvonne), his two step-sisters, and his step-brother. A few days earlier, when Wally was looking for a toy in a wooden armoire, he saw small bags containing white powder and clear pills with white powder. Wally also related the street encounter, telling Rosario that he and his father were walking down the street when he observed his father hand a bag with a clear pill that was filled with powder to a friend. The friend thanked his father and said he would pay his father back. Wally never saw his father use drugs or appear under the influence, but he observed his step-mother smoke a drug that "looks like grass," when his father was not around.
Rosario contacted the Perth Amboy Police Department (PAPD), and three PAPD officers accompanied her and a co-worker to the residence where Wally indicated the drugs were located. At approximately 5:10 p.m., they arrived at the home and were greeted by Yvonne. Defendant was not present, but Rosario explained the referral to Yvonne, who allowed the workers and police into the home. Yvonne permitted Rosario to look inside the wooden armoire where Wally claimed to have seen drugs. Rosario and the police recovered eleven small bags containing a white powder inside a cigarette box, ten MDMA pills, smoked cigars containing marijuana, money, and paraphernalia. Police confiscated the items.
MDMA, or methylenedioxymethamphetamine, is a controlled dangerous substance commonly known by the street name Ecstasy or Molly.
Yvonne denied knowledge of drugs in the home, but admitted taking cocaine one month earlier. Rosario told Yvonne that the Division would be removing her children because of the drugs. Defendant arrived shortly thereafter, and he and Yvonne were arrested.
Court records indicate that defendant pled guilty to third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(3), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On September 9, 2013, defendant was sentenced to eighteen months in prison, although it appears from the record that the Division and defendant's counsel were not aware that he was incarcerated at the time of the fact-finding hearing.
Defendant's counsel reported to the judge only that his client was "not present in court."
A fact-finding hearing was held on September 24, 2013. The Division called Rosario to testify, and the judge admitted Wally's essay and the Division's investigative report into evidence.
On October 16, 2013, the judge entered an order finding that defendant abused or neglected Wally under N.J.S.A. 9:6-8.21(c). In an oral decision rendered that day, the judge first referenced Wally's essay, in which he stated that he believed his father was a drug dealer. The judge stated that Wally's essay went on to discuss mistreatment by his step-mother and step-siblings, but the judge "didn't give all that much weight" to that testimony or to allegations of domestic violence, which were not "really alleged in the . . . complaint." The judge found Rosario's testimony to be credible.
Relying on the essay, the judge held that there was "clearly . . . a risk of harm, a risk of serious injury to this child" as Wally "knows his father is a drug dealer[, a]nd he indicates why he believes this." The judge noted that Wally was ten years old, in the fifth grade, and actually saw the drugs while looking for a toy, remarking that "he's not like a two year old or a three year old" and the drugs were "easily accessible."
The judge stated that although no lab report was presented, she believed that "based on all of the circumstances here the court can find by a preponderance of evidence that the[] items [found were] cocaine and [] marijuana." The judge noted:
This suggests that the deputy attorney general and defendant's counsel were either unaware of defendant's drug conviction related to this incident, or failed to inform the court of it. --------
the most compelling aspect is when the father takes his son for a walk and then engages in what the son believes, based on his age and what he has seen, that his father distributes drugs. He gives it to somebody. He gives pills to somebody right in front of his child and that person says I'll pay you back.
The judge substantiated defendant for abuse and neglect, finding that he exposed his child to the use and "distribution of drugs to others," and therefore "created an environment of a substantial risk of harm."
Our review of a trial court's finding of abuse or neglect is limited, and we will defer to the court's determination if supported by adequate, substantial, credible evidence. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). However, we will not accord deference if the trial court's findings are so wide of the mark that the judge was clearly mistaken. Ibid. A trial court's legal conclusions are not entitled to deference. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).
N.J.S.A. 9:6-8.21(c)(4) provides that an "abused or neglected child" includes:
[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 . . . 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[.]
A parent or guardian "fails to exercise a minimum degree of care if he or she is aware of the dangers inherent in a situation and fails to adequately supervise the child or recklessly creates a risk of serious injury." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A finding of abuse and neglect must be proven by a preponderance of the competent, material and relevant evidence produced at the fact-finding hearing. N.J.S.A. 9:6-8.46(b). A trial court determines whether a child is abused or neglected by considering the totality of the circumstances because the elements of proof are synergistically related. N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
On appeal, defendant argues that the Division failed to prove that he abused or neglected his son with sufficient competent evidence. He claims that the judge erroneously admitted into evidence his son's school writing assignment and the Division's investigative report because hearsay by his son is embedded in each.
In matters involving the abuse and neglect of a child, the uncorroborated statement "made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect. N.J.S.A. 9:6-8.46(a)(4).
Corroborative evidence need not relate directly to the accused. New Jersey Div. of Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). This list is not exclusive, however, because, by its nature, corroborative evidence need only provide support for the out-of-court statements. Ibid.
Wally's statements in his essay about finding drugs are directly corroborated by the discovery and seizure of drugs, just as he described them and in the precise location where he reported seeing them. Similarly, the discovery of defendant's drug stash, which included pills and money, provides persuasive corroboration of Wally's statement that his father was a drug dealer who sold pills. We are satisfied that Wally's out-of-court statements were adequately corroborated.
We also reject defendant's argument that the Division was required to produce the police officer who seized the drugs or provide proof that the drugs found were actually cocaine, marijuana, and MDMA. Although it would have been preferable for the Division to submit some proof that the seized powder and pills were CDS, which could have been easily obtained, the judge, as fact-finder, was permitted to rely on circumstantial evidence, such as the packaging of the items, the location where they were found, defendant's arrest, and Wally's statements, to conclude that the items were, in fact, CDS.
We also reject defendant's argument that a search warrant was required when the Division entered the home and searched the armoire. First, there is no proof defendant owned or rented the premises. Rather, it appears that he stayed there with Yvonne on occasion with Wally because of his continued relationship with her. Wally confirmed that occasionally he and defendant stayed at a friend's home where defendant rented a room. Moreover, there is no indication that Yvonne's consent to search the home was not knowing and voluntary. See State v. Farmer, 366 N.J. Super. 307, 313 (App. Div. 2004) (noting that consent may be obtained from person whose property is to be searched, from third party who possesses common authority over property, or from third party whom police reasonably believe has authority to consent).
Defendant next argues that the trial judge should have conducted an in camera interview of Wally, and that, because he did not, defendant was denied his right to properly confront and cross-examine the child.
As the Division notes, it does not appear from the record that defendant's trial counsel ever requested an in camera interview, and therefore his arguments seem to be raised for the first time on appeal. "Trial judges have broad discretion in abuse and neglect cases . . . to conduct a private examination of a child." L.A., supra, 357 N.J. Super. at 168. "The purpose of a private interview with the child is to afford the trier of fact the opportunity to assess the credibility of the child, their powers of communication and observation, and their demeanor." Ibid. (remanding when trial judge ignored defendant's objection and "mistakenly exercised her discretion to rely solely on the reports of DYFS workers" by not conducting in camera interview with thirteen-year-old child); see also N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 183-84 (App. Div. 2005) (reversing dismissal of abuse and neglect due, in part, to trial court's refusal to conduct in camera interview). We find no abuse of discretion in the judge's failure to sua sponte conduct an in camera interview of Wally, when none was requested.
Our opinion affirming the October 16, 2013 order should not be read as an approval of the lax manner in which the court and the parties conducted the fact-finding hearing. Defendant was not present at two case management conferences, held on May 6 and July 9, 2013, which preceded the fact-finding hearing, although his counsel had been in contact with him prior to May 6, 2013.
Court records indicate that defendant was incarcerated on September 9, 2013, after he was sentenced on his convictions for endangering the welfare of a child and possession with intent to distribute CDS. Two weeks later, when the fact-finding hearing was held, defendant was still incarcerated, yet there was apparently no effort made to locate him. A perfunctory check with the New Jersey Department of Corrections by the judge, the deputy attorney general, or defendant's counsel would have quickly confirmed defendant's incarceration, and he could have been produced for the hearing. See N.J.A.C. 10A:3-9.6.
Proof of defendant's conviction for possession of the drugs seized on March 7, 2013 was also easily accessible by the Division and would have clearly established that the powder and pills were actually CDS. When Rosario was asked if she obtained a police report on the incident, she responded that she had, but the report was "back in the office."
Once again, we are compelled to note that a fact-finding hearing is a critical stage in a Title Nine proceeding and must be conducted with scrupulous adherence to procedural safeguards. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009). In spite of these lapses, we are satisfied that the Division established that defendant abused or neglected Wally by a preponderance of the credible evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION