Opinion
DOCKET NO. A-5328-10T1
06-18-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.G., Defendant-Appellant. IN THE MATTER OF L.F., K.G., and J.F., Minors.
Michael S. Harwin, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief). James F. Lafargue, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief). Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minors L.F., K.G., and J.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, J. N. Harris, and Koblitz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-260-10.
Michael S. Harwin, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).
James F. Lafargue, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief).
Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minors L.F., K.G., and J.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief). PER CURIAM
This is an appeal from a Title Nine protective services proceeding. Defendant Mary G. — a mother of three — appeals the May 18, 2011 Family Part order finding that she "[f]ailed to exercise the minimum degree of care for [John] by recklessly creating a risk of serious injury to the child, [John], when she failed to safely restrain the child and subsequently got into a car accident that resulted in injury to the child." We affirm.
N.J.S.A. 9:6-8.21 to -8.73.
We use fictitious names for the family members.
I.
There are no significant disputes about the facts. Nevertheless, Mary contends that the Family Part improperly considered inadmissible evidence, which, if excluded, would not have yielded plaintiff New Jersey Division of Youth and Family Services (the Division) sufficient proof of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Because the evidentiary determinations of the Family Part were substantially correct, we recite the facts from the entire record produced in the trial court.
On May 11, 2010, Mary was driving her car with her three-year-old son John in the back seat. John had missed the school bus and Mary was driving him to catch up with the bus. On the way, John unbuckled his restraints and got out of his car seat. While still driving in pursuit of the school bus, Mary unsuccessfully tried to get John back into his car seat. Her car collided with two or three parked cars, which resulted in an injury near John's eye. Although a flat tire resulted, Mary immediately left the scene of the accident (without waiting for the police) and drove John home to care for his injury.
Much of the testimony provided at the fact-finding hearing stated that the incident occurred on May 11, 2010. The trial court referred to the date as May 11 in its decision. However, according to statements made by Mary contained in the Division's Special Response Unit (SPRU) Investigation Summary, the incident had taken place on May 10, 2010.
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Consequently, the Division became involved and implemented a safety protection plan. On May 12, 2010, the plan was revised because of concerns over Mary's possible misuse of prescription medications. On May 26, 2010, the Division filed a verified complaint and an order to show cause pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 requesting care and supervision of Mary's three minor children. On June 16, 2010, the Family Part awarded the Division custody over the children.
At a September 22, 2010 emergent hearing, Mary noted under oath that she pled guilty in the Sayreville municipal court to leaving the scene of an accident, disorderly conduct, and "not having [her] son in restraints." She insisted, however, "that [she] did not neglect to restrain [her] son; he was restrained. He got out of the seat. [She] tried to hold him back and [it] all happened all at once and that's how [she] got into the accident." Mary's attorney then stated, "she has indicated that she is willing to do a stipulation at the next . . . hearing."
At the October 13, 2010 fact-finding hearing, Mary declined to stipulate that her conduct on May 11, 2010, constituted abuse and neglect. Consequently, the Division produced its caseworker, Lindsay Meseck, as the only witness. After Meseck testified that she was the record keeper for the Division's files in this matter, the Division's counsel sought to have her testify as to the contents of those documents. At the conclusion of the fact-finding hearing, and after several subsequent sessions devoted to arguing about evidentiary issues, the court found that Mary "failed to protect [the] physical well-being of [her] child by failing to secure the child in her vehicle that she was operating, resulting in injuries to the child."
On February 8, 2011, Mary's motion for reconsideration was granted, earlier findings of abuse or neglect were vacated, and Mary's "name [was] stricken from [the] [D]ivision's registry of Abuse and Neglect, as it pertains to this particular case." The court reasoned that it had failed to allow defense counsel a proper opportunity to cross-examine the Division's witness. The court also felt that it neglected to permit Mary the chance to present "any witnesses [herself] if [she] chose to."
A new fact-finding hearing was convened on March 2, 2011. Again, the only witness was the Division's caseworker Meseck, who was presented for cross-examination purposes only. Meseck identified and explained the nature of the exhibits that the Division sought to admit into evidence. She further described the general manner in which documents were prepared by Division employees. The exhibits ultimately admitted into evidence — although not created by Meseck herself — included a Division Safety Assessment, Contact Sheets, SPRU Investigation Summaries, and a Screening Summary.
On May 18, 2011, the court made its ultimate determination. It found that it was appropriate to (1) consider Mary's guilty plea as having evidential significance; (2) factor in Mary's statements to a Division caseworker about her May 11, 2010 conduct; and (3) include the caseworker's observation of an injury to John's face as part of its fact finding. After considering all of the proferred evidence, the court found that the Division had sustained its burden of proof that Mary had abused and neglected John on May 11, 2010. This appeal followed.
II.
A.
Mary contends that a SPRU Investigation Summary and a Contact Sheet recounting Mary's admission of culpability, together with a Division worker's observation of John's injury were improperly admitted into evidence. Mary further argues that the remainder of the proferred evidence was insufficient to sustain the court's finding of abuse and neglect. We disagree.
This appeal comes to us wrapped in three layers of deference: first, it is imbued with the ordinary — albeit substantial — deference to which any trial court's fact-finding is entitled, Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 484 (1974); second, it is permeated by the special deference accorded by the Family Part's particularized jurisdiction in family matters possessed of its acknowledged expertise in the field of domestic relations, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); and third, it enjoys the deference that attaches to evidentiary determinations made during trial that are to be "reversed only on a finding of an abuse of discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
B.
Mary contends that the May 11, 2010 SPRU Investigation Summary should not have been admitted because Meseck only testified generally as to when SPRU reports are required to be prepared, but not as to when the report at issue was actually prepared. Mary further argues that if the document had been excluded, insufficient evidence remained to sustain an abuse or neglect finding because that SPRU Investigation Summary was the only document containing information indicating that John's seatbelt was unbuckled at the time of the accident and that he sustained an injury because of the car accident.
Rule 5:12-4(d) states:
The Division of Youth and Family Services 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.Any business record admitted under this rule must, accordingly, still meet the requirements of N.J.R.E. 803(c)(6). N.J. Div. of Youth and Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010).
N.J.R.E. 803(c)(6) states:
A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.N.J.R.E. 801(d) defines a "business" as "every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies."
Accordingly, a party seeking to introduce a hearsay statement under this paradigm must prove that:
[1] the writing [was] made in the regular course of business, [2] the writing was prepared within a short time of the act, condition or event being described, and [3] the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.There is no requirement, however, that the authenticating witness possess personal knowledge of the proffered document. See Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996) ("[U]nder both the New Jersey and federal rules of evidence, the foundation witness generally is not required to have personal knowledge of the facts contained in the record.").
[B.M., supra, 413 N.J. Super. at 130 (quotations and citations omitted) (alterations in original).]
Meseck explained how the Division's records were generally created and maintained:
[u]sually the SPRU, I mean I don't know, I can't say as to whether or not this is true for every single SPRU investigation. But from the ones I've seen they say service application date, and then when they were assigned the case. And then it is policy for SPRU that they have to input their information. It has to be submitted to the local office by 9:00 a.m., the following day.She further stated that she had no "reason to believe that any of [the documents] were created sometime other than the next couple of days after the observation was made." Meseck also testified that she had been working at the Division for four years and that she knew the deadline on the creation of reports was enforced. She also described the training she received concerning how to properly prepare and maintain the records.
In ruling that the SPRU Investigation Summary qualified under the business records exception, the Family Part held that Meseck was a credible witness and that
she testified regarding the general keeping of notes. She is the keeper of the record. She was familiar with the documents kept by the Division. [She] [n]oted that these are kept for planning for the children. [She]
[t]estified . . . that she did the same type of reporting and knew of policies in the Division where things had to be done within a certain period of time. And basically what they did and when these reports are generated.
. . . .
[T]his court could find no reason to indicate a lack of trustworthiness of the record, and therefore found the elements of the business record had been met. And that those items would go into evidence under the business record exception.
Nothing about the trial court's evidentiary ruling suggests a discretionary misstep. There is no sign that the records themselves are not trustworthy. N.J.R.E. 803(c)(6). In fact, we have specifically recognized that records produced by the Division are likely to be reliable because of their nature. See N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349 (App. Div.) (affirming that Division records "supply a reasonably high degree of reliability" and should be admissible "as regularly-kept business records pursuant to N.J.R.E. 803(c)(6)"), certif. denied, 192 N.J. 296 (2007).
C.
Next, Mary argues that by admitting the Division's exhibits into evidence without Meseck testifying as to their contents, the trial court impermissibly shifted the burden of proof. Mary contends that under this procedure, it was up to her to identify the specific statements within the documents that the Division was relying upon to prove its case. Although Mary concedes that the documents admitted into evidence reveal that she collided with parked cars while trying to restrain John as her car was moving, Mary now argues that such documentary evidence is insufficient and live-witness testimony was required. We find this argument meritless.
Once admitted into evidence under an appropriate evidence rule, the various Division reports were permissibly relied upon by the court. As already noted, Rule 5:12-4(d) expressly states:
The Division of Youth and Family Services 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.Moreover, N.J.S.A. 9:6-8.46(a)(3) provides:
[(Emphasis added).]
[A]ny writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other publicThus, these rules acknowledge that the contents of the Division's authenticated documentary reports need not be repeated by a witness to be admissible.
or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.
After the court admitted the documents, Mary was permitted to rebut that evidence. There was no surprise about what was significant, and Mary's focus was not diluted by the volume of information contained in the Division's submission. It has long been established that a "parent remains free to offer evidence contradicting any statements present in such reports, and, of course, the trier of the facts may in his discretion call for live testimony on any point." In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). Here, the trial court acted within its discretion in not requesting embellishment of the documentary information. Also, notably, Mary neither called any witnesses nor presented any rebuttal evidence. This, nonetheless, does not mean that the burden of proof was shifted to Mary — the burden of proof always remained with the Division.
D.
Mary's final contention urges that even if all of the Division's proofs were properly admitted into evidence, it shows that she acted, at most, negligently, which was insufficient to support a finding of abuse or neglect. The Family Part found that the abuse or neglect finding was well-supported because Mary failed to stop her car when imminent harm to John was apparent, and this behavior evidenced that Mary
fail[ed] to exercise a minimum degree of care when she [was] aware of the dangers inherent in the situation. She's driving a car, her child is out of the seat restraint, and she fails to adequately supervise, or in this case she recklessly creates a risk of serious injury to the child by not getting that child in a seat with the restraint on, and we know the child was injured.
"The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-8.8). The "quantum of proof required in a fact-finding hearing brought under Title Nine . . . is well established that [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.'" Id. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
Title Nine defines an "abused or neglected child" as:
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 or guardian, as herein defined, 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . ."The phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care . . . . The most logical . . . measure of neglect is found in conduct that is grossly negligent because it is willful or wanton." G.S. v. Dep't. of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999). An action will be considered willful or wanton "if done with the knowledge that injury is likely to, or probably will, result," or with "reckless disregard for the consequences." Ibid.
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
"When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. However, "[w]hen the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011). "There exists a continuum between actions that are grossly negligent and those that are merely negligent. The parent's conduct must be evaluated in context based on the risks posed by the situation." Id. at 309. Additionally, although we are bound by the Family Part's factual findings, a "judge's determination that [a] defendant was negligent but not grossly negligent is a conclusion of law to which we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).
Recently, the New Jersey Supreme Court re-emphasized that not every failure to perform a cautionary act should result in a finding of abuse or neglect. In T.B., the Court reversed a neglect determination against a defendant mother who left her four-year-old son at home unsupervised when she mistakenly thought that her mother was home to care for the child. T.B., supra, 207 N.J. at 310. The Court concluded that, although the defendant was negligent in failing to confirm that there was adult supervision, her conduct did not rise to the level of gross negligence or recklessness because the defendant saw her mother's car in the driveway, knew that her mother was "always home on Sunday nights," and knew that her mother was ill and reasonably expected that she would be at home. Id. at 309-10.
Here, the Family Part found the following:
[Mary] clearly was the guardian of the child, and that on this date, the May 11th date, Mom was, in the words that were presented anxious and was driving to catch up with a school bus. The child had missed the bus. She gets into her car to go to the next bus stop, and misses the bus once again. She then goes after the bus again, and it is at this time when her child is out of the restraint and she tries to push her child back into the seat continuing to drive with the child out of the seat. By the way, she was unable to get the child back into the seat.
From this Court's perspective it is at this moment when Mom should have pulled the car over, stopped her car, but she did not. She continued to drive. She was in essence trying to get to the bus and put her child on it. So she did not pull over. She did not act in a way to carefully guard the child from harm. By not securing him in that seat, by not stopping or securing him in that seat, she put the child at risk of harm.
And if the focus is on . . . whether that harm could have been prevented had she performed some act to remedy the situation or remove the danger, th[e]n that focus at that point is right there. She never stopped, she never put the child so that the restraint was on the child at that time, and the child was injured, because she did hit two parked cars. And not only do we have
information that the child was injured from the caseworker and observations; we have information from even Mom and the child himself admits to the injuries.
So this Court finds that a parent fails to exercise a minimum degree of care when she is aware of the dangers inherent in the situation.
Although "the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision," G.S., supra, 157 N.J. at 178-79, we are satisfied that the trial court did not erroneously find that Mary neglected John. Driving her car in a race to the school bus created a very apparent and significant risk to her child's safety. Although Mary did not intend to harm John, her conduct was more than accidental because the risks of continuing to drive while John was not restrained were obvious, and Mary exhibited reckless disregard for those consequences by failing to stop the vehicle and ensure that her son was properly secured before proceeding after the school bus anew.
Additionally, despite Mary's arguments that her "momentary and isolated actions" should not constitute reckless conduct, a single incident of neglect may satisfy N.J.S.A. 9:6-8.21(c)(4)(b). The fact that Mary also pled guilty to the traffic offenses of leaving the scene of the accident and failing to properly restrain her son provides additional support for the Family Part's finding that her conduct constituted neglect.
We recognize that what constitutes abuse or neglect depends, in large measure, on the context of the situation. N.J. Division of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009). Arguably, the trial court did not consider many of the factors surrounding the incident, including "the speed [Mary] was traveling, whether she was exceeding the speed limit, that she was within her housing complex, [and] whether there was any traffic in the housing complex." Nevertheless, we cannot quarrel with the trial court's ultimate ruling because continuing to drive while attempting to re-secure a child created an inherently dangerous situation, regardless of how fast Mary was driving or the amount of traffic present.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION