Opinion
DOCKET NO. A-0819-13T4
02-25-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.T., Defendant-Appellant. IN THE MATTER OF S.T., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy Kriegsman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacobine K. Dru, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.T. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0089-13. Joseph E. Krakora, Public Defender, attorney for appellant (Amy Kriegsman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacobine K. Dru, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.T. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.T. (Samuel) appeals from the court's September 5, 2013, final order, following a fact-finding hearing, determining that he abused or neglected his ten-month-old son, S.T. (Sammy). The finding of abuse or neglect was based on the court's conclusion that on March 9, 2013, defendant placed his son at "substantial risk of harm," because he "was using marijuana while a caretaker of his son"; he possessed cocaine, marijuana and a gun; and he "may well have been" selling drugs as well.
For ease of reading, we will use pseudonyms instead of initials to refer to defendant, his son, and his son's mother.
Following the search of his home pursuant to a warrant on March 9, defendant was arrested and charged with drug and gun-related offenses, and child endangerment. He later pleaded guilty to second-degree possession of a weapon while committing a CDS crime, N.J.S.A. 2C:39-4.1(a), N.J.S.A. 2C:35-5(b)(3); and third-degree manufacture, distribution, or possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1), -5(b)(3).
The case presented by the Division of Child Protection and Permanency (Division) consisted solely of two documents: (1) its Investigation Summary (Summary), introduced without defense counsel's objection after he made various redactions; and (2) defendant's judgment of conviction (JOC). Neither the Division nor defendant called any witnesses.
On appeal, defendant challenges the court's reliance on embedded hearsay in the documentary evidence, and asserts that the record did not support a finding that he placed his son at a substantial risk of harm. He presents the following points on appeal:
POINT I.Having reviewed defendant's arguments in light of the record and the applicable principles of law, we affirm.
THE ORDER FINDING THE FATHER RESPONSIBLE FOR ABUSE/NEGLECT SHOULD BE REVERSED BECAUSE THE EVIDENCE PROFFERED WAS NOT COMPETENT.
POINT II.
THE ORDER FINDING S.T. RESPONSIBLE FOR ABUSE/NEGLECT DUE TO THE POSSESSION OF A CDS SHOULD BE REVERSED AS THERE IS NO COMPET[E]NT AND RELIABLE EVIDENCE THAT THE POSSESSION PLACED SAMMY AT RISK OF HARM.
POINT III.
THE ORDER FINDING S.T. RESPONSIBLE FOR ABUSE/NEGLECT DUE TO THE SALE OF A CDS AND POSSESSION OF A GUN SHOULD BE REVERSED AS THERE IS NO COMPET[E]NT OR RELIABLE EVIDENCE THAT THE SALE OR POSSESSION PLACED SAMMY AT RISK OF HARM.
POINT IV.
S.T.'S NAME SHOULD BE REMOVED FROM THE CENTRAL REGISTRY.
Our standard of review is well-settled. We are bound by the trial court's factual findings if supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We accord particular deference to the Family Court's fact-finding because of the court's "special expertise" in family matters, its "feel of the case," and opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
However, "our review is less constricted when the 'focus is not [on] credibility but alleged error in the trial judge's evaluation of the underlying facts and the implication[s] to be drawn therefrom.'" N.J. Div. of Youth & Family Servs. v. S.H., ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 10) (quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004)). We also owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Division alleged abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b), which states 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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
[Ibid.]
The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute requires a court to consider harm or risk of harm to the child, as opposed to the intent of the abuser, because "[t]he main goal of Title 9 is to protect children." G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). The phrase "minimum degree of care" as used in N.J.S.A. 9:6-8.21(c)(4)(b) means conduct that is not "grossly or wantonly negligent." Id. at 178. To show a failure to exercise a minimum degree of care, negligence is not sufficient, but intentional behavior is not essential. Id. at 178-79.
A court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
We turn first to defendant's evidentiary argument. Defendant contends that while Division reports are admissible, citing Rule 5:12-4(d) and In re Cope, 106 N.J. Super. 336, 344 (App. Div. 1969), embedded hearsay is not. Thus, he argues, the court erred in relying on hearsay and double-hearsay embedded in the Summary, including the referral conveyed to the primary Division worker handling the case, and statements by police officers to the Division workers. The Summary also contained Division workers' reports of statements made by defendant, and Sammy's mother, Y.G. (Yolanda), with whom he lived. In some cases, Yolanda's reported statements included the hearsay statements of other declarants, including defendant and police.
The referral quoted in the Summary attributed statements of a "reporter" regarding observations made after entering the home to execute the warrant. We therefore infer the reporter was a police officer.
We are unpersuaded by defendant's argument. This case is unlike New Jersey Division of Youth & Family Services v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), where the court in an abuse or neglect fact-finding hearing relied on the attorneys' factual representations outside their personal knowledge, heard from unsworn witnesses not subject to cross-examination, and relied on vague and unsupported stipulations of the parties. Nor is this a case where the court considered inadmissible hearsay over a party's objection, or considered hearsay for the truth of the matter asserted when it was admitted for a more limited purpose. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89-91 (App. Div. 2008).
Rather, defendant expressly consented to the introduction into evidence of the Summary, after making extensive redactions to it. He certainly could have interposed a well-founded objection to some of the embedded hearsay in the Summary. However, he did not.
Hearsay, even if subject to a well-founded objection, is evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 225 n.1 (1981) (Schreiber, J., concurring); In re Petagno, 24 N.J. Misc. 279, 283-84 (Ch. 1946) ("When hearsay evidence is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible." (citing Diaz v. United States, 223 U.S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500, 503 (1912))); J.A. Bock, Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890 (2014) (stating that "overwhelming weight of authority" supports the rule that inadmissible hearsay may be considered evidential when it enters the record without objection, and it "should be given its natural and logical probative effect"). The probative effect of objectionable hearsay, admitted without objection, depends upon those facts and circumstances surrounding the making of the statement that would affect its trustworthiness.
For example, it is apparent that some of the double-hearsay statements of the reporter — conveyed by the Division's screener to the worker who recorded them in the Summary — were not reliable. The reporter supposedly asserted that upon entering the home to execute the search warrant, "weed was everywhere" and both parents were under the influence of drugs. However, the Division's own worker on the scene reported that Yolanda did not appear to be under the influence; and the Summary reported that a drug test to which she submitted was negative. It is unclear whether the reporter was mistaken, or his or her statements were misconstrued or erroneously reported.
Defendant consented to the admission of the documents into evidence, and what amounted to a trial upon the papers. The court expressly inquired whether defendant's counsel objected to the admission of the documents. She waived any objection to the hearsay embedded in the documents. Moreover, defendant is estopped from arguing that the court relied on inadmissible hearsay, because the Division obviously relied on his counsel's consent to the admission into evidence of the documents. Had she taken a contrary position, the Division would have been able to call live witnesses. See N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 340-41 (2010) (applying invited error doctrine and holding that defendant's failure to object "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling").
We consider next the sufficiency of these proofs. We recognize the limited nature of the Division's proofs. For whatever reason, the State declined to call any police witnesses; and did not offer other potentially probative documents, such as transcripts of defendant's statements at his plea and sentencing hearings. Nonetheless, we conclude that the proofs are barely sufficient to support a finding of abuse or neglect.
According to the Summary, defendant possessed cocaine, marijuana, cash, and the gun in the home. We need not find that the child had direct access or exposure to the drugs, the gun, or the sale of drugs. The gun was kept in the sofa of the game room. The Summary does not address whether the gun was loaded. Although it was found "in the sofa," the evidence does not establish that the child was mobile, or could otherwise reach the gun. The drugs and money were kept in a shoebox. There was no evidence that the child could access it. Defendant admitted to using marijuana in the home, which Yolanda confirmed; but both denied that he did so in the child's presence. Rather, they both insisted that the child was in the mother's care when defendant used marijuana.
There also was insufficient evidence to support a finding that defendant sold drugs within the house, or had the child with him when he sold drugs outside the house. Defendant insisted, as indicated by the Summary, that he sold drugs outside the house without the child. The Division worker recounted Yolanda's statement that a police officer was mistaken in asserting that defendant held the baby while selling to an undercover officer; Yolanda asserted that the defendant was actually talking to the father of her daughter.
The Division's complaint alleged, "The officers observed [defendant], with the child in his arms, walk across the street and sell drugs to an undercover police officer." The complaint alleged that the source of this information was a Vineland Police sergeant. However, the sergeant was not called as a witness, and his observations are not recorded in the summary. Rather, the Division worker recorded that she told Yolanda that the police "have reason to believe that [defendant] did make a sell [sic] of drugs to the gentleman that the officers saw him talking to with the baby in his arms."
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Nonetheless, the evidence established that defendant used his home as a base of his operations to sell drugs. He possessed a handgun while in the course of committing drug offenses. As reflected in his JOC, he pleaded guilty to third-degree manufacture, distribution, or possession of CDS with intent to distribute, and second-degree possession of a weapon while committing a CDS offense. The JOC reflects the date of the offenses as March 9, the day of the search. As the plea was accepted and the judgment entered, the JOC is evidential of "any fact essential to sustain the judgment." N.J.R.E. 803(c)(22). Thus, we presume a sufficient factual basis was presented to establish the essential "temporal and spatial link between the possession of the firearm and the drugs that defendant intended to distribute." State v. Spivey, 179 N.J. 229, 239 (2004) (discussing elements of offense under N.J.S.A. 2C:39-4.1(a)). To satisfy the statute, the gun must be possessed with the intent to further the drug offense; if not actually possessed during the drug offense, it must be "accessible for use in the commission of the crime." Ibid.
The convictions arising out of defendant's offenses on March 9, 2013, as set forth in the JOC in the record, were not defendant's only recent drug and gun-related convictions. According to the Summary, the reporter stated that police found a gun and a large quantity of drugs in a search six months earlier. Yolanda acknowledged that the police had searched her home previously; the Division worker noted the police seized drugs at that point. Yolanda stated she was at work at the time. Since both Yolanda and defendant stated that he cared for the child at home while Yolanda worked, we may infer that the child was present during the earlier search. Defendant's acquisition of another gun, and his resumption of drug-related activities after the earlier search, support the inference that his drug-related operations were neither occasional nor sporadic.
The sentence imposed in the JOC in the record was made concurrent to a sentence arising out of convictions to two counts in a March 2013 indictment, which obviously contained charges for offenses that preceded the March 9 incident. One of the two counts was a Graves Act offense involving the use of a gun. We infer that the March 2013 indictment arose out of the police search of the home six months earlier.
The risk of harm to the child existed, even if we assume that defendant conducted the actual sale of drugs outside the home. As the Court noted in Spivey, supra, "'[f]irearms have become ubiquitous in the world of illegal drug activity. Dealers are armed to protect themselves from law enforcement officers, from other dealers and from their customers.'" 179 N.J. at 240 (quoting Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987 (Dec. 9, 1996)). There was a risk that defendant's illegal activities could intrude into the home, whether defendant intended that to happen or not. See, e.g. State v. Stubbs, 433 N.J. Super. 273, 276-78 (App. Div. 2013) (involving armed home invaders seeking drugs and money of defendant drug dealer, while only his wife and small children were at home), certif. denied, 217 N.J. 293 (2014). As a result of a dispute with a customer or competitor, or the effort of one or the other to steal defendant's drugs or gun, the child could have been involved in a violent incident. "Violence and danger are intrinsic to the activities of drug dealing, including fights over drug turf, retribution for selling 'bad' drugs, violence to enforce rules within drug-dealing organizations and fighting among users over drugs or drug paraphernalia." Nat'l Center on Addiction and Substance Abuse at Columbia University, No Safe Haven: Children of Substance-Abusing Parents 15 (1999).
Furthermore, both parents indicated defendant used marijuana on a fairly regular basis. A parent's involvement with illegal drugs does not invariably lead to a finding of abuse or neglect. See N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014) (stating that "absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure"); A.L., supra, 213 N.J. at 23 (stating that "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect," although proof of regular use would be relevant); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331-32 (App. Div. 2011) (reversing finding that father neglected child based on his positive drug tests, where there was no proof that he posed a risk to child with whom he exercised supervised visitation).
On the other hand, the coincidence of untreated drug abuse and risks to child welfare are well-documented. Although defendant denied smoking marijuana in Sammy's presence, we may infer that he was often under the influence even if Yolanda was home as well. See, e.g. No Safe Haven, supra (documenting that children of parents who abuse alcohol and drugs faced significantly enhanced risks of being physically or sexually assaulted or neglected). See also, U.S. Dep't of Health & Human Servs., Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection 91 (1999) (finding "children exposed to severe substance abuse in the home often experience mental, emotional, and developmental problems, as well as severe trauma, which may result from physical or sexual abuse or chronic neglect."). This case is not one merely of a parent's occasional use of marijuana, or even of a parent's occasional sale of drugs. Defendant utilized the child's home as the base of operations for drug sales that were supported by the possession of a firearm.
In sum, defendant's utilization of his home as the base of operations for his drug activities — operations he protected with a firearm — was inconsistent with his parental duty to exercise the "minimum degree of care" required by N.J.S.A. 9:6-8.21(c)(4)(b). It posed a significant risk of harm to the child.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION