Opinion
DOCKET NO. A-1262-13T2
05-05-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.M., Defendant-Appellant, and F.K., Defendant-Respondent. IN THE MATTER OF T.K. and N.K., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant K.M. (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent F.K. (Richard Foster, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.K. and N.K. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-129-11. Joseph E. Krakora, Public Defender, attorney for appellant K.M. (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent F.K. (Richard Foster, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.K. and N.K. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant K.M. (Kara) is the biological mother of T.K. and N.K., born in 1999 and 2001 respectively. She appeals from the Family Part order which granted custody of the children to their father, F.K. (Fred), and limited Kara's contact with the children to supervised visitation. The order also concluded the litigation, which had been initiated by the Division of Child Protection and Permanency (Division), without an evidentiary hearing. We reverse the order and remand for a plenary hearing.
We use fictitious names for the parties for ease of reference.
We discern the following facts from the record. The Division filed a verified complaint for care and supervision pursuant to N.J.S.A. 30:4C-12, in February 2011. The Division alleged Kara repeatedly made unsubstantiated claims that Fred was sexually abusing her and the children. Additionally, the Division alleged Kara was diagnosed with "Major Depressive Disorder with Psychotic Symptoms" and "refused to complete an updated [psychiatric] evaluation or engage in mental health services."
At the hearing before the first judge, the Division caseworker, Robert Blakely, testified that Kara attended a psychological evaluation and was diagnosed with "psychotic symptoms and experienc[ed] paranoid thoughts[.]" No expert testimony was provided.
During the order to show cause hearing, Kara, appearing pro se, acknowledged she completed a psychological evaluation and was recommended to complete a psychiatric evaluation. However, she refused to attend a psychiatric evaluation unless she was subsequently given a copy of the report. The judge advised her this would not be permitted. At the conclusion of the hearing, Kara stated she possessed a tape recording of Fred admitting to the accusations made against him. The judge ordered Kara to provide a relevant portion of the tape to the Division, complete a psychiatric evaluation and an updated psychological evaluation, and to attend recommended services. Additionally, Fred was permitted to have overnight visitation with the children.
Kara and Fred are not married, but they jointly own the home occupied by Kara and the children. At the time, Fred was not living in the home as they were separated.
At the return on the order to show cause, Kara was represented by counsel. She was ordered to complete a psychiatric evaluation and Fred's overnight visits were continued.
A "preliminary fact-finding hearing" was held on July 12, 2011. As the judge described it on the record, Kara waived her right to a trial
on whether the court should be involved and whether the issues are of concern enough that professional help is needed and the court should make sure the Division has to provide it and that you work with it, and dad work with it, and the children get whatever support they need.The judge emphasized "the Division is not going to ask for a hearing to determine whether you did or didn't do anything to put the children at risk of harm." In other words, this was not an abuse or neglect matter. Instead, the Division identified the family as one in need of services pursuant to N.J.S.A. 30:4C-12.
Kara also stipulated to admitting a "package of material" into evidence. However, that evidence is not specifically identified in the record on appeal. At the conclusion of the hearing, Kara was ordered to attend a psychiatric evaluation, comply with any resulting recommendations, and attend counseling with the children. She also agreed to relieve her counsel, given "the Division is not asking for placement and not asking for a fact finding."
At the compliance review conference on September 20, 2011, Kara did not appear and Fred made an oral application for custody of the children. The Division indicated if Kara failed to attend scheduled psychiatric evaluations, it would support Fred receiving custody of the children. Kara thereafter completed a psychiatric evaluation with Dr. Edward Baruch and was recommended certain medication, which she refused to take.
At a January 11, 2012 compliance review hearing, the court heard unsworn testimony from the Division caseworker, "Mr. Felder," who stated the children would be "better off" if Fred moved back into the family home to care for the children along with Kara. The judge therefore permitted Fred to return to the family home. Kara continued refusing to take the medication recommended by Dr. Baruch.
On February 17, 2012, the Division filed a verified amended complaint for custody, care and supervision of the children pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 to -24, alleging that Kara repeatedly stated Fred was sexually assaulting her and the children, without any evidence substantiating those claims. Kara was allegedly diagnosed with paranoid schizophrenia. However, she refused to take antipsychotic medication and did not engage in counseling, despite being court ordered to do so. Additionally, Fred, who had been ordered to move into the family home for the children's safety, had not yet done so, stating he "was not ready to return home."
At the order to show cause hearing on March 29, 2012, the judge preliminarily noted that "the children do well in school, they wish to live with their mom, they[ a]re always happy and enthusiastic to see their dad . . . [t]he house is in good repair, [and] [t]he children are taken care of." The judge found "Mom is diagnosed as schizophrenic and paranoid thought processes." Additionally, the judge found Fred did not move back into the home despite being ordered to do so.
Kara testified that she did not agree with Fred coming back into the house, and she admitted to stating she would remove the kids from the home if Fred returned. Furthermore, Kara insisted that she never harmed the children and again presented a tape recording whereby Fred purportedly admits to abusing the children. The judge's law clerk reviewed the tape, but did not discover any evidence substantiating Kara's claim.
Division caseworker Luann Gaines testified the Division was seeking custody because Kara had failed to take the anti-psychotic medication recommended by "several evaluators" and because Fred did not return to the family home despite being ordered to do so. Additionally, the Division advised the judge it was concerned that if Fred returned home, Kara would either leave with the children or cause some type of confrontation placing the children at risk. Gaines also testified that she went over Dr. Baruch's report and recommendations with Kara, including which medications were recommended.
The judge denied the Division's application for custody, and entered an order granting Fred sole legal and physical custody of the children, ordering Fred to move back into the family home, and prohibiting Kara from leaving the home with the children for more than four hours at a time unless supervised by Fred.
On December 5, 2012, the Division filed a second amended verified complaint for custody, care, and supervision pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 to -24, after conducting an emergency removal of the children. The complaint alleged Fred was not living in the home full-time as required by court order. Additionally, the complaint alleged that Kara withdrew the children from school on November 5, 2012, and took them to an undisclosed location, demanding she would not return to the home until Fred moved out. The whereabouts of the children for that month-long period is unclear from the record. During that time, Kara obtained a temporary restraining order against Fred.
A final restraining order was ultimately not granted.
Division caseworker Marc Bunn testified at the Dodd hearing that Division concern focused on Kara's mental condition, in light of her refusing to take medication despite being diagnosed by Dr. Baruch with paranoid schizophrenia. With respect to Fred, the Division's concern stemmed from him not being present when Kara "took the kids and left the home." Fred also permitted Kara to take the children on a vacation out-of-state for multiple weeks without his supervision, which violated the court order.
A "Dodd hearing" requires the Family Part to review the Division's emergency removal of children under the Dodd Act, N.J.S.A. 9:6-8.21 to 8.82.
Division caseworker Gaines testified the children never showed any signs of abuse or neglect and never complained about fearing their mother. The Division also received no indications from any expert or professional of a concern that the mother would physically harm the children. The Division had no concerns of any specific danger involving Kara taking the children on a vacation. Nonetheless, the judge granted the Division's application for custody, care, and supervision. Following the emergency removal, the children were placed in a foster home.
The return on the order to show cause hearing was held before a different judge on January 7, 2013. The judge continued custody with the Division, ordering physical custody be returned to Fred "after the children have been evaluated by the psychologist and there are no concerns and the Division has assessed and approved dad for the return of the children."
The matter then came before a third judge on June 10, 2013, for a compliance review. Kara's counsel requested a plenary hearing, but the request was denied. The judge explained he did not know how a hearing could change his mind since two medical experts had concluded Kara suffers "from some mental health condition." At the conclusion of that hearing, the judge ordered the return of the children to Fred's custody in the family home, and for Kara to vacate the home. Kara was also restrained from the home pursuant to N.J.S.A. 9:6-8.55.
A hearing was subsequently held on September 30, 2013, before a fourth judge, to terminate the litigation. Kara's appointed counsel, appearing for the first time on the case, stated "I can't say that I will consent to it, I think that that is a logical and reasonable conclusion is to close the litigation under the current circumstances." However, Kara opposed termination of the litigation.
The judge asked, "Is it necessary for the court to take testimony?" Kara's counsel replied, "I don't believe so, Your Honor. I think that the evaluations are part of the record." The court ordered termination of litigation stating he "makes this finding by a preponderance of the evidence based upon the evidence which has been adduced and incorporated in prior [o]rders of the court which included multiple services that were directed to the parties but not attended to." Kara forcefully objected, claiming "I did not do anything. I didn't abuse my children. There is no record in any of these things that I abused my children. I was violated and I reported it."
Kara appeals from the September 30, 2013 order, raising the following issues:
POINT ONE
THE COURT MUST VACATE THE ORDER OF SEPTEMBER 30, 2013, BECAUSE THE DIVISION HAS NOT PROVIDED EVIDENCE THAT THE RELIEF REQUESTED WAS IN THE BEST INTEREST OF THE CHILDREN.
POINT TWO
THE TRIAL COURT'S ORDER DATED SEPTEMBER 30, 201[3], IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE WITHIN THE RECORD BELOW AND TO SUSTAIN THE TRIAL COURT'S ORDER WOULD RESULT IN A GRAVE INJUSTICE.
As an appellate court, our role is to determine whether the Family Part's decision "is supported by 'substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). However, our review of legal determinations is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Following a referral and investigation by the Division which "convinces the Division that the . . . referral was justified . . . . [t]he Division must make an application to the Family Part." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 35, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). If after reviewing the Division's application the court decides the child needs "services to ensure his or her health or safety, the court must conclude that it is in the best interests of the child to award the Division an order of care, supervision, or custody." Ibid. "[T]he court must be satisfied when entering temporary relief under N.J.S.A. 30:4C-12, that the Division has proven by a preponderance of the evidence that it is in the best interests of the child to enter the relief requested." Id. at 38.
In I.S., the Division obtained custody of the children, N.S. and S.S., from I.S. following an emergency removal pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12. I.S., supra, 214 N.J. at 17-18. After determining that no abuse or neglect occurred and that I.S. completed her services, the court returned N.S. to her custody. Id. at 21. However, because S.S. was placed in the custody of the father, E.S., the court ordered a "[c]ustody [h]earing" in accordance with New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). Ibid. At the hearing, the court heard testimony from an expert witness who conducted a bonding evaluation between S.S. and her parents. Ibid. The expert concluded that it was "psychologically unsafe for S.S. to reside with I.S." Id. at 22. Based on "I.S's lack of empathy towards S.S.," the trial court concluded "it [was] not safe to return [S.S.] to [I.S.'s] care." Ibid. (first and second alterations in original).
The Supreme Court affirmed the order awarding custody of S.S. to E.S., stating it had "no difficulty deferring to the factual findings and conclusions the court reached on th[e] record," which included "testimony under oath from the Division's witnesses, experts, E.S. and I.S." Id. at 41, 42 n.6. "[T]hose procedures were sufficient to protect [I.S.'s] constitutional right against 'governmental procedures that tend to operate arbitrarily.'" Id. at 42 n.6 (quoting Doe v. Poritz, 142 N.J. 1, 108 (1995)).
Those same procedures were not followed in this case. At no point in the pendency of this litigation did the court hear testimony from Dr. Baruch or any other expert. Instead, the court's factual findings were based on inadmissible hearsay from Division caseworkers about Kara's mental health as well as court reports and expert reports that were never properly admitted into the record. Although the Division concedes "these documents were not formally admitted into evidence," it asserts "the trial court did not err in relying on them as the court reports, psychological evaluations and other Division consultant reports are specifically admissible in Family Court proceedings under N.J.R.E. 5:12-4 [sic] . . . , N.J.R.E. 803(c)(6) and 801(d) and N.J.S.A. 9:6-8.46(3) [sic]." We disagree.
Rule 5:12-4(d) states, "[t]he [Division] shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." However, N.J.R.E. 803(c)(6), which permits admission of a "statement contained in a writing or other record . . . made in the regular course of business" is itself conditioned upon Rule 808. That rule, which governs expert opinions "included in an admissible hearsay statement," prohibits the admissibility of such an expert opinion "if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion . . . , tend to establish its trustworthiness." N.J.R.E. 808.
Here, the Division never presented testimony from Dr. Baruch or any other expert to opine on Kara's mental health. Nor did the trial court make any specific findings of trustworthiness with respect to the proffered hearsay opinions. The trial judge's reliance on expert opinions not properly admitted into the record regarding Kara's mental health violated her constitutional rights against "governmental procedures that tend to operate arbitrarily." Poritz, supra, 142 N.J. at 108. The court heard no expert testimony regarding how removal from their mother and placement with their father would affect the best interests of the children.
The Division also erroneously relies on N.J.S.A. 9:6-8.46(a)(3) to support the admissibility of expert opinions without subjecting the expert to cross-examination. Although that provision singularly applies to Title Nine hearings, we nonetheless reiterate the Supreme Court's holding that writings or records admitted pursuant to N.J.S.A. 9:6-8.46(a)(3) must "meet[] certain admissibility requirements akin to the business records exception." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). --------
Therefore, we reverse the order terminating the litigation and granting custody to Fred. We remand this matter for a plenary hearing where Kara will be permitted to cross-examine any expert whose opinion is proffered as evidence against her and present her own witnesses on her behalf. The order granting the Division temporary custody shall remain in effect pending the evidentiary hearing which shall be conducted within thirty days.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION