Opinion
DOCKET NO. A-2877-12T2
06-24-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.L., Defendant-Appellant. IN THE MATTER OF J.V.L., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen B. Howell, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eric Meehan, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-117-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen B. Howell, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eric Meehan, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant S.L. appeals from the January 9, 2013 order of the Family Part, entered after a fact-finding hearing, determining that she neglected her sister, Janet, over whom she had legal custody. We remand for further proceedings.
We use a fictitious name for the child in order to protect her confidentiality and for ease of reference.
The following facts were adduced at the hearing. Defendant was born in 1987 and Janet was born in 1995. Their mother is P.L.P. The Division of Child Protection and Permanency (the Division) has been involved in providing services to P.L.P. and her children since 1996.
P.L.P. has four other children, who are now adults and not involved in the present case.
In 2008, the Division received a report from Janet, then age twelve, that P.L.P. had not been at home and Janet intended "to hang out on the streets until she found her mother." At some later point, the Division "urg[ed]" defendant "to take custody of" Janet. On November 25, 2009, defendant, then twenty-two years old and living in New Jersey with one of her other siblings and a niece, agreed to assume legal custody of Janet with P.L.P.'s consent, and the Family Part entered an order to this effect.
In February 2010, the Division received a referral that defendant "was being evicted and had nowhere else to go with her two minor siblings and niece." The Division's records indicate that defendant and Janet then went "missing."
Canice Ngobidi, a Division supervisor, was the only witness at the hearing. Ngobidi testified he supervised the caseworker assigned to defendant's case, consulted with her on her findings, and reviewed and approved her written reports. Ngobidi's testimony was based upon his review of the Division's records that were introduced in evidence. Because Ngobidi was not the caseworker assigned to this family, however, he was not aware whether defendant had contacted the Division during the period between February 2010 and September 2012.
On September 5, 2012, Janet reached out to the Boys Town National Hotline for assistance. Janet spoke to the caseworker and reported that she and defendant moved to Virginia in 2010. Janet stated she did not attend school and that defendant "kicked her out" of her home sometime in 2010. Thus, Janet had not lived with defendant for two years.
Janet stated she lived with an adult brother for about four months and then returned to New Jersey, where she lived with P.L.P. and P.L.P's boyfriend. After P.L.P. and the boyfriend separated, P.L.P. moved out without making any arrangements for Janet. The child eventually moved into her boyfriend's family's home, where she stayed for about a year. In September 2012, the family told Janet she could no longer live with them and this prompted the child's call for assistance. Ngobidi testified that defendant had not provided Janet with any "essentials[,]" including food, clothes, money, and shelter during the last two years.
The caseworker interviewed defendant, who was now living in New Jersey. Defendant acknowledged she still had legal custody of Janet. Defendant told the caseworker that she sent Janet to live with P.L.P. because the child was "skipping school [and] being disrespectful [and she] wanted to teach her a lesson." Defendant stated she was unwilling to take Janet back into her home.
Based on defendant's failure to care for Janet during the time she had legal custody of her, Ngobidi testified "[t]he allegations were substantiated for abandonment." The Division took custody of the child and, on September 7, 2012, it instituted this Title Nine action against defendant.
N.J.S.A. 9:6-8.21 to -8.73.
The Division also named P.L.P. as a defendant. However, Ngobidi testified that P.L.P. was not "substantiated for anything concerning this case" and the judge made no adverse finding against her at the conclusion of the hearing.
At the beginning of the hearing, defendant's attorney stated he was contemplating calling defendant and Janet as witnesses. However, after the Division rested, counsel stated he would call "no witnesses." In a brief closing argument, defendant's attorney asserted "that the Division has failed to carry its burden by a preponderance of the evidence that [defendant] abused or neglected" Janet.
Counsel for defendant and P.L.P. then made numerous objections to the factual allegations made by the Division's attorney and the Law Guardian in their summations. During the course of those arguments, defendant asked the judge if she "could . . . say something." The judge told her, "Not now . . . you have a lawyer for that."
As the Division's attorney was continuing her summation, defendant's attorney asked for a sidebar and stated that defendant was "really totally against what they have been saying, Judge. This has not been substantiated and she would like to testify, Judge." The judge did not ask counsel to make a proffer as to the nature of defendant's proposed testimony. Instead, the judge denied defendant's request to testify, stating, "Sorry, that's not the way this works, you know that. She had an opportunity if she wanted to testify, but the evidence is closed. We're on summations here. It doesn't work that way."
Later in the Division's summation, P.L.P. interrupted to dispute the Division's allegations.
At the conclusion of argument, the judge rendered an oral decision finding that the Division met its burden of proving defendant neglected Janet by failing "to provide adequate food, shelter, clothing or education to her for approximately [two] years[,]" even though defendant "had the legal responsibility to ensure that [Janet] was cared for[.]" As he made his ruling, the judge addressed defendant and asked her whether she had custody of Janet when she moved to Virginia and how old she was at that time. After defendant replied, the judge told her "[t]hat's an awful lot of responsibility for a 22 year old to take on a younger sibling who, let's say by all accounts probably was . . . difficult." The judge noted that defendant was Janet's "legal guardian" and, therefore, "the one person who was legally responsible for her. Just because she left you and then went to stay with her brother, and then your mom, or her boyfriend, all that time you were the one that was responsible for her. If anything happened to her it's on you."
In part, the judge based his conclusion that defendant abandoned Janet on his finding that defendant failed to contact the Division for assistance when it became difficult for her to care for the child. The following colloquy occurred between the judge and defendant:
THE COURT: And I'm not saying it's easy, okay. I have no doubt that you tried your very best to do what you could. But the one thing that you had a legal responsibility to do, as far as this Court is concerned, if you . . . were no longer able to . . . care for your sister, if you weren't able to do it, the one thing that you needed to [do] as a responsible guardian was to pick up the phone and call [the Division] - -
THE DEFENDANT: I did.
THE COURT: - - and let them know at that time, as soon as she left - - as soon as she left you and went to stay with her brother for four months, whatever, you as the legal guardian needed to - -
THE DEFENDANT: She didn't go - -
THE COURT: - - pick up the phone - -
THE DEFENDANT: - - she didn't go stay with the brother from me.
THE COURT: Well, as soon as she left you, put it that way, wherever she went you needed at that point to call [the Division] - -
THE DEFENDANT: I did.
THE COURT: - - or even down in Virginia - -
THE DEFENDANT: I did, and they - -
THE COURT: - - whoever the equivalent.
THE DEFENDANT: - - and they (indiscernible at my mom's house.
THE COURT: Well - -
THE DEFENDANT: They knew she was there.
THE COURT: - - actually, let me talk because there's no other evidence in - - I mean, I'm going to let you speak when we get past this part of the hearing. But as far as this Court is concerned, you needed to - - and you needed to show that you called [the Division] and said, look, I can no longer care for my sister, she's out of control. I don't have any ability to control her. You need to come and take responsibility, or - - put her somewhere.
And if you had done that then we wouldn't - - as far as I'm concerned, we wouldn't be here today. But there's no evidence that that is what you did.
In a January 9, 2013 dispositional order, the judge granted legal custody of Janet to the Division, with P.L.P. having physical custody. Defendant now appeals from the judge's finding that she neglected Janet by failing to provide for her care during the two-year period prior to September 5, 2012.
On appeal, defendant argues the judge incorrectly denied her request to reopen the hearing in order to permit her to testify. Based upon the unusual factual situation presented in this case, we agree that a remand for additional proceedings is warranted.
Defendant primarily relies on State v. Cullen, 428 N.J. Super. 107 (App. Div. 2012), to support her argument that the judge abused his discretion in denying her application to reopen the record for her testimony. In Cullen, a criminal defendant sought to reopen the record after the defense rested, but before closing arguments. Id. at 110. We held that the trial court abused its discretion in its refusal to reopen the record because "the judge erroneously gave greater weight to expedience and the brief delay that would result than he gave to defendant's constitutional right to testify" in a criminal trial. Id. at 112.
Of course, this is not a criminal case and there is nothing in this record to indicate the judge denied defendant's request to reopen the matter due to a concern over the length of time the matter was taking to complete. However, the factual setting here was unique. The caseworker assigned to the case, who had interviewed both defendant and Janet, was not available to testify. While we perceive no error in permitting Ngobidi to testify about the contents of his subordinate's reports, he was unable to state whether defendant contacted the Division to seek assistance when she decided she could no longer care for Janet. This was a critical issue in the resolution of the case, especially in view of the judge's later statement that "we wouldn't be here today[,]" if defendant had reached out to the Division when she encountered problems with Janet in 2010.
See In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969); N.J.R.E. 803(c)(6); R. 5:12-4(d).
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Although we cannot be sure as to the nature of the testimony defendant proposed to give, because her attorney did not make, and the judge did not request, a proffer of what defendant would say, we note that the request to reopen came in the midst of the Division's closing argument concerning defendant and her mother's failure to contact the Division for assistance. Thus, defendant may have had relevant information to provide on this important issue.
Under these circumstances, we believe the judge should have asked defendant's attorney for a proffer as to what defendant intended to add to the record. Had that occurred, the judge would have been able to evaluate the proposed testimony and make appropriate findings of fact and conclusions of law supporting any decision made on the motion to reopen. We do not perceive that this procedure would have caused any disruption in the proceedings. If the proffer was insufficient to warrant reopening the record, summations could have continued. However, if the motion had been granted, and defendant testified, it is likely that her testimony would have been completed that day and a decision still rendered in a timely manner.
Accordingly, we remand this matter to the trial court to permit the judge to take a proffer from defendant as to what she intended to say in her testimony and to then make a determination of whether that proffer would affect the judge's decision to deny defendant's motion to reopen. If so, then the judge should reopen the hearing, permit the testimony, and render a new decision on the merits. If not, the judge should explain why defendant's proposed testimony would not change the finding of neglect through abandonment and make detailed findings supporting his decision.
Finally, if defendant declines to make a proffer on the remand, or defendant does not testify, the judge may simply confirm his prior decision that defendant neglected Janet by abandoning her in 2010. Absent any additional pertinent, credible testimony, there is ample evidence in the record to support the judge's finding that defendant abandoned Janet when she "kicked her out" of her home in Virginia to essentially fend for herself at a time when defendant had sole legal custody of the child. See N.J.S.A. 9:6-1 (defining "abandonment of a child" as "willfully forsaking a child;" or "failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection").
Remanded for further proceedings consistent with this opinion. 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