Opinion
DOCKET NO. A-5076-12T1
12-24-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. O.F., Defendant-Appellant, and A.R. and J.D., Defendants. IN THE MATTER OF D.M.D., A.T.R., and K.L.R., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan J. Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.M.D., A.T.R., and K.L.R. (Janet L. Fayter, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-147-12. Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan J. Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.M.D., A.T.R., and K.L.R. (Janet L. Fayter, Designated Counsel, on the brief). PER CURIAM
Defendant O.F. appeals from an October 24, 2012 fact-finding order concluding that she abused or neglected her three children, pursuant to N.J.S.A. 9:6-8.21c(4)(b), by exposing them to a loaded shotgun and allowing their home to be used as a place where illegal drugs were manufactured. We affirm.
The children were born 1994, 2006, and 2010.
Defendant lived in the home with A.R. and the three children. The police suspected that A.R. was engaged in drug-related activity, stopped him outside the house, and searched him pursuant to a search warrant. They found he was in possession of cocaine, arrested him, and then executed another search warrant for the home.
A.R. is the biological father of A.T.R. and K.L.R. J.D. is the biological father of D.M.D. A.R. and J.D. are not involved in this appeal.
After a grand jury indicted A.R., he pled guilty to various charges, and the court sentenced him to prison.
The police seized cocaine, heroin, marijuana plants, potting soil, special lights for growing the marijuana plants, police scanners, digital scales, and handcuffs from the basement of the home. In the kitchen, they located large amounts of cash and food containers with false compartments. The police found a loaded shotgun on top of a fish tank in the living room, and in an unlocked closet, they obtained a box of shotgun ammunition and hollow point bullets. The police also seized surveillance cameras and monitors trained on areas in and around the home.
In a detached garage, the police found bulletproof vests, hollow-point bullets, rifle rounds, and other types of ammunition for firearms.
Defendant turned herself in to the prosecutor, who charged her with committing various offenses. A detective made a referral to the Division of Child Protection and Permanency (the "Division"). By this time, the children had been staying with a maternal grandmother.
Until June 2012, the Division was known as the Division of Youth and Family Services. L. 2012, c. 16.
After the Division filed its complaint, the court awarded the Division care, custody, and supervision of the children. The judge later conducted a fact-finding hearing for two days. She took testimony from Detective Carla Espinal, who prepared the search warrants and visited the home after the search occurred; Detective Walt Turkowsky, who photographed, inventoried, and documented the items seized from the home during the search; and a Division caseworker. The judge also admitted into evidence various documents. Defendant did not testify, call witnesses, or produce evidence. The judge issued an oral opinion finding that
The documents included search warrants, police reports, and Division reports which referenced, among other things, statements from the children.
[the] house was being used to manufacture drugs.
. . . .
There were also scales and other types of [drug] paraphernalia that [are] commonly used when . . . people are packaging drugs.
[W]e not only have two small children [living in the house, but] there was also a [seventeen]-year-old that lived in that house [too.] And certainly . . . [the children] [c]ould have easily had access to that material.
The gun situation is frightening. . . . [The] gun was in fact placed on [a fish] tank loaded. . . . [The house] was set up unbelievably to protect [both] the drugs and [defendant and A.R.] without one thought . . . about the children.
. . . .
[The] gun could have been utilized by anybody in [the] house, the way it was set up.
. . . .
These children lived in that home. They saw [daily] what went on in that home.The judge concluded that defendant abused and neglected the children and entered the order under review.
On appeal, defendant contends that (1) the Division produced insufficient evidence to show that the shotgun was accessible to the children; and (2) the Division failed to demonstrate that defendant disregarded or wantonly ignored a known risk in the house.
We accord substantial deference to the Family Part's fact-finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Against this standard and after careful consideration of the record, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by the judge. We add the following remarks.
I.
We reject defendant's contention that "none of the witnesses" testified from personal observations. Defendant focuses primarily on the evidence that the Division produced from the detectives showing that the loaded shotgun was accessible to the children.
Detective Turkowsky testified that he photographed and inventoried the items that the police seized on the day of the search. He testified that he saw the shotgun in plain view sitting on top of a lid of the fish tank, which he estimated was approximately three or four feet from the ground. The detective testified that the shotgun was accessible to anyone who walked by it.
Detective Espinal testified that she prepared a supplemental investigation report reflecting the items seized from the house. The detective testified that she went to the house within five hours after the police conducted the search. In her report, she indicated that the loaded shotgun was located on top of the fish tank in plain view. Her testimony corroborated the first-hand observations made by Detective Turkowsky.
Defendant's contention that "none of the witnesses" testified from personal observations is therefore belied by the testimony from these detectives. They documented their observations in various reports, which the judge properly admitted into evidence pursuant to two well-recognized exceptions to the hearsay rule: N.J.R.E. 803(c)(6) (the business records exception), and N.J.R.E. 803(c)(8) (the public records exception).
II.
Defendant argues that the Division produced insufficient evidence demonstrating that she ignored a known risk. As a result, defendant contends that the Division was unable to prove that she abused or neglected the children.
Pursuant to N.J.S.A. 9:6-8.21c(4)(b), an "abused or neglected child" means an individual under the age of eighteen years
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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.Our Supreme Court has defined "minimum degree of care" to proscribe "grossly or wantonly negligent" conduct that need not be intentional for the actor to be held liable. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). A parent "fails to exercise a minimum degree of care when [the parent] is aware of the dangers inherent in a situation," but "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.
[(Emphasis added).]
The record here contains sufficient credible evidence demonstrating that defendant ignored the dangers of subjecting the children to living in an environment where they had access to a loaded shotgun and a home that was being used to manufacture drugs. The entire house was set up with surveillance cameras trained on areas inside and outside the premises, to avoid detection of or interference with the ongoing illegal activity inside the home. The caseworker testified that she interviewed the children and defendant a day after defendant turned herself in to the prosecutor's office. One child told the caseworker that she saw a "little" gun on the television set and a "big gun" in the living room, where the fish tank is located.
Thus, the child referenced an additional gun that existed in the house.
--------
The caseworker learned from her interviews with the children that they were not supposed to touch the "big gun." The child's statement about the "big gun" in the living room is corroborated by Detective Turkowsky's personal observations. The child, who was five years old, told the caseworker that the big gun was used to kill people. The caseworker also learned that the children were not supposed to go into the basement where the drugs were located, because that was where A.R. kept his "tools."
We therefore conclude that the record contains sufficient credible testimony demonstrating that, pursuant to N.J.S.A. 9:6-8.21c(4)(b), defendant abused or neglected her children.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION