Opinion
DOCKET NO. A-2938-12T1
07-29-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.W., Defendant-Appellant. IN THE MATTER OF S.B., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-49-12. Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief). PER CURIAM
The Division brought this action after defendant D.W. was arrested for driving while intoxicated with her minor daughter S.B. Defendant appeals from an order finding that she abused or neglected S.B. We reverse and remand.
I.
The Division received a referral that defendant drove while under the influence with S.B. and another minor in the car, and that they were involved in an accident, on October 2, 2011, in Orange County, New York. The State of New York charged defendant with two felony counts of driving while intoxicated while a child who is fifteen years of age or less is a passenger, in violation of N.Y. Veh. & Traf. Law § 1192(2-a)(b) (Consol. 2014); a misdemeanor count of driving while intoxicated, in violation of N.Y. Veh. & Traf. Law § 1192(3) (Consol. 2014); and two misdemeanor counts of endangering the welfare of a child, in violation of N.Y. Penal Law § 260.10(1) (Consol. 2014).
The Division substantiated the allegations of abuse or neglect, finding defendant posed a risk of physical injury to S.B. After defendant refused to cooperate, the Division filed a verified complaint under N.J.S.A. 9:6-8.21 to -8.73, seeking care and supervision of the fourteen-year-old S.B. and defendant's seventeen-year-old daughter. The complaint related defendant's history with the Division, including a prior substantiation of neglect of S.B.
The older daughter, whose initials are also S.B., turned eighteen in September 2012, and was dismissed from the case on the first day of the fact-finding hearing.
At the January 17, 2012 hearing, defendant did not appear despite being notified. The family court signed the order to show cause, placing the children in the Division's care and supervision, but allowing defendant to retain legal and physical custody.
On February 10, defendant appeared, but declined to fill out the form requesting counsel. The court ensured she would be assigned counsel, and scheduled the next proceeding on March 23 to accommodate her New York criminal proceedings. She nonetheless failed to appear on March 23, and refused to cooperate or communicate with the Division. The court ordered defendant to cooperate and communicate with the Division, continue mental health treatment, attend a substance abuse evaluation, and sign releases. The court scheduled the case for a fact-finding hearing on May 31, which did not occur.
Defendant did not appear at the next hearing on July 20. The court's order warned that if defendant failed to appear on August 3, a warrant would be issued for her arrest. Defendant appeared on August 3, but refused to be represented by her appointed counsel. The court requested new appointed counsel. The Division reported that defendant had ongoing mental and alcohol problems, still would not communicate and comply with court orders, and refused to sign releases. The court's order renewed the prior orders' requirements, and scheduled a case management conference for October 5, of which we have no documentation.
The Division asserts a fact-finding hearing was calendared for October 19.
On October 19, 2012, defendant failed to appear despite being noticed in writing and reminded in person. Defendant's new counsel reported that defendant had not responded to counsel's efforts to communicate with her.
Counsel stated that "we're apparently here for a fact-finding trial today." The trial court replied, "[w]e're not doing a fact-finding trial today," but the Division stated it was "prepared to go forward with a fact-finding today." Counsel objected due to defendant's absence, but the court pointed out she had been noticed to appear and was non-responsive to her own counsel. Fact-finding proceeded, with counsel participating.
The Division called its supervisor, Nathan Bell, who testified to the Division's substantiation of the allegations of abuse or neglect based on defendant driving while under the influence with S.B. in the car and having an accident. Bell reported that defendant had been convicted in New York, and was scheduled for sentencing on October 22. The court sustained counsel's objection to Bell testifying to statements of New York officials. The court noted that a witness or certified documents from New York could be admissible. The Division asked to keep the hearing open to allow it to get the documentation. The court scheduled the resumption of the fact-finding hearing for November 30.
Defendant failed to appear for her October 22 sentencing in New York, and the New York court issued a warrant for her arrest.
Rather than appearing at the November 30 hearing, defendant sent a letter claiming she was unavailable, that she was not planning on appearing because she was giving guardianship over S.B. to her adult son, and that she wanted the case dismissed. The Division reported that the Orange County District Attorney's Office stated in official correspondence that defendant had been convicted of all charges after a jury trial, but that no judgment of conviction would issue until after sentencing. The court stated that, in the absence of a judgment of conviction, the correspondence would not be admissible evidence, but a certified transcript or the testimony of a witness could be admissible. The court scheduled resumption of the fact-finding hearing for January 14, 2013.
On January 14, defendant appeared, having been produced from the Sussex County jail where she was held on the warrant and awaiting extradition to New York. The Division called as a witness by telephone the Orange County assistant district attorney (A.D.A.), who had prosecuted defendant. The A.D.A. testified that the jury had convicted defendant of all counts in the indictment on August 22, 2012. The trial court found that the New York verdict should be given full faith and credit, that the court was bound by that determination, and that defendant abused or neglected S.B. because she operated a motor vehicle while intoxicated with two minor children as passengers.
Counsel reported and defendant confirmed that S.B. was under the guardianship of defendant's adult son and was living with an aunt. At the Division's request, the court dismissed the litigation because defendant had made proper arrangements for the care of S.B. while she was incarcerated.
II.
Defendant appeals the January 14, 2013 fact-finding order. She first argues that the finding of abuse or neglect is not supported by substantial credible evidence. "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must examine "whether there was sufficient credible evidence to support the trial court's findings." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). "We will not overturn a family court's fact-findings unless they are so wide of the mark that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quotation marks omitted). We must hew to that standard of review.
In a fact-finding hearing under N.J.S.A. 9:6-8.44, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence," N.J.S.A. 9:6-8.46(b). "If facts sufficient to sustain the complaint under this act are not established, . . . the court shall dismiss the complaint and shall state the grounds for the dismissal." N.J.S.A. 9:6-8.50(c).
Here, the evidence was sufficient to show that S.B. was an "'[a]bused or neglected child,'" which 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 [the child's] parent or guardian, as herein defined, 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
In this case, the Division introduced evidence, including defendant's New York convictions, to show that defendant allowed S.B. to ride in an automobile defendant was driving while legally intoxicated. A parent "who permits a child to ride with an inebriated driver acts inconsistently with N.J.S.A. 9:6-8.21(c)(4)." N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68 (App. Div. 2014). "[N]o reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by an inebriated operator." Id. at 69. Thus, in J.A., we found that a father "was grossly negligent in failing to protect the children from the imminent risk posed by [their mother's] driving." Id. at 69-70. Here, defendant's gross negligence was more direct, because she was the inebriated driver.
The Division also introduced evidence that defendant was convicted in New York of endangering the welfare of S.B. in violation of N.Y. Penal Law § 260.10(1). That statute requires that "[a] person . . . knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." Ibid. Other than requiring only a "person" rather than a parent or guardian, a conviction of N.Y. Penal Law § 260.10(1) satisfies all of the elements traditionally required for N.J.S.A. 9:6-8.21(c)(4). See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (noting "a parent fails to exercise a minimum degree of care where a parent knows of the dangers inherent to a particular situation"); see also N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 420-21 (App. Div. 2014) (equating "imminent danger" with "likely"); see generally In re Commitment of W.Z., 339 N.J. Super. 549, 574 (App. Div. 2001) (equating "a substantial risk" with "likely" in the context of civil commitment), aff'd as modified, 173 N.J. 109 (2002).
M.C. held that, "[w]ithout evidence permitting a finding of likely repetition of past conduct creating a substantial risk of harm, a finding based on past conduct cannot be sustained." M.C., supra, 435 N.J. Super. at 420. Because this holding is novel and we are remanding for other reasons, the parties will have the opportunity to offer such evidence.
As the trial court correctly indicated, proof of such a conviction can give rise to collateral estoppel if the trial court finds the requirements are met and that it is equitable to apply that doctrine. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114-15 (2011); see N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 625 (App. Div. 2010) (finding "[d]efendants' respective criminal convictions [including third-degree child endangerment] in the death of K.S.N. collaterally estop any asserted claims of innocence" for abusing K.S.N.); In re Guardianship of J.O., 327 N.J. Super. 304, 308-10 (App. Div.) (collaterally estopping a defendant using out-of-state convictions), certif. denied, 165 N.J. 492 (2000). Thus, the trial court's finding of abuse or neglect was supported by sufficient evidence. Moreover, although defendant disputes her guilt, she does not question the credibility of the evidence supporting her conviction.
III.
Defendant challenges the admissibility of the evidence of her New York convictions. "We grant substantial deference to the trial judge's discretion on evidentiary rulings, and will only reverse when the trial judge's ruling was 'so wide of the mark that a manifest denial of justice resulted.'" N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted).
The Division proved those convictions by introducing the A.D.A.'s testimony that a jury had convicted defendant. Trial counsel argued that "[t]here's no paperwork to confirm that my client was convicted." On appeal, defendant claims that admitting the A.D.A.'s testimony instead of the judgment of conviction or other documentation of conviction violated the best-evidence rule. See N.J.R.E. 1002. She also argues the convictions were not a proper subject for judicial notice under N.J.R.E. 201 because they were not final. For different reasons, we agree that the A.D.A.'s testimony was inadmissible.
"In a fact-finding hearing, . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). The admission of a criminal conviction in an action brought by the Division "is subject to the New Jersey Rules of Evidence." See State v. Lacey, 416 N.J. Super. 123, 126 (App. Div. 2010), certif. denied, 205 N.J. 101 (2011). Under N.J.R.E. 803(c)(22), an exception to the hearsay rule permits "evidence of a final judgment against a party adjudging the party guilty of an indictable offense in New Jersey or of an offense which would constitute an indictable offense if committed in this state, as against that party, to prove any fact essential to sustain the judgment."
However, N.J.R.E. 803(c)(22)'s exception applies only to a "final judgment." For purposes of that rule, a judgment of conviction must have issued. Sassano v. BLT Discovery, Inc., 245 N.J. Super. 539, 546-47 (App. Div. 1991); see Cnty. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 17-18 (2011); R. 3:21-5(b). As in New Jersey, in New York a judgment of conviction "is completed by imposition and entry of the sentence." N.Y. Crim. Proc. Law § 1.20(15) (Consol. 2014). Here, defendant had not yet been sentenced, meaning no judgment of conviction could have been entered.
The Division introduced the A.D.A.'s testimony about the verdict, but a jury verdict is "not a final judgment of conviction." Sassano, supra, 245 N.J. Super. at 546-47. "Because the verdict against [defendant] was not a 'final judgment' of conviction, it was not admissible as evidence that [s]he committed the [New York offenses], and it could not operate as the basis for collateral estoppel." See id. at 547. Evidence about the verdict thus provided "no legal basis" for the court's finding of abuse or neglect. Id. at 547-48.
We recognize defendant delayed her New York sentencing several months by failing to appear, preventing the entry of a judgment of conviction. However, there is no exception in the evidence rules for wrongful conduct that delays the production of a document. Cf. N.J.R.E. 804(b)(9) (creating a forfeiture-by-wrongdoing exception to the hearsay rule applicable where a party "has engaged . . . in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness"). We decline to create such an exception here. See State v. Byrd, 198 N.J. 319, 342-48 (2009).
Thus, admission of the A.D.A.'s testimony was an abuse of discretion. That error was not harmless under Rule 2:10-2, as the trial court plainly relied on the New York verdicts to find abuse or neglect. The remedy for the prejudicial admission of evidence is to remand for a new hearing. See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 158 (App. Div. 2003); e.g., R.D., supra, 207 N.J. at 121-23 (remanding for a new evidentiary hearing where the court improperly relied on a prior ruling as collateral estoppel).
Moreover, the Division improperly introduced evidence about all of defendant's New York convictions. "Only convictions of indictable offenses, however, are admissible against a defendant. Motor vehicle and disorderly persons offenses are excluded from this rule." State v. LaResca, 267 N.J. Super. 411, 418 n.4 (App. Div. 1993) (citing N.J.R.E. 803(c)(22)); accord Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(22) at 844 (2014). Defendant's three New York convictions for driving while intoxicated would not "constitute an indictable offense if committed in this state," N.J.R.E. 803(c)(22), because driving while intoxicated under N.J.S.A. 39:4-50 has never been treated as an indictable offense. State v. Hamm, 121 N.J. 109, 121 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991). If the Division on remand seeks to prove that defendant was driving while intoxicated with S.B. in the car, it must do so through other evidence.
On the other hand, knowingly endangering the welfare of a child under N.Y. Penal Law § 260.10(1) "would constitute an indictable offense if committed in this state." N.J.R.E. 803(c)(22). As set forth above, such a conviction satisfies all of the elements traditionally required for N.J.S.A. 9:6-8.21(c)(4). Thus, if committed in New Jersey it would constitute third-degree endangering the welfare of children under N.J.S.A. 2C:24-4(a)(2), which penalizes "[a]ny person" who knowingly "causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6-8.21." Ibid.; see State v. Demarest, 252 N.J. Super. 323, 329 (App. Div. 1991).
As noted above, M.C. holds N.J.S.A. 9:6-8.21(c)(4) requires "a finding of likely repetition of past conduct creating a substantial risk of harm." M.C., supra, 435 N.J. Super. at 420. Whatever the merit of that holding in the civil context, where "the concern is 'not the culpability of parental conduct,'" id. at 419, we decline to extend it to N.J.S.A. 2C:24-4(a)(2), where the criminal culpability of the parental conduct is the central concern.
We are advised that defendant has now been sentenced, and that a judgment of conviction for endangering the welfare of S.B. now exists. If offered into evidence on remand, the court should determine whether the judgment of conviction is the subject of a pending appeal. See N.J.R.E. 803(c)(22) committee comment ("The provision in [Fed. R. Evid. 803(22)] allowing proof of convictions on appeal was not adopted as contrary to New Jersey law."). We agree with the trial court that defendant's conviction did not become inadmissible merely because she filed a grievance with the Orange County Bar Association against her criminal attorney, which could not itself invalidate the conviction.
A motion panel denied the Division's motion to supplement the appellate record with the judgment of conviction.
Defendant also challenges the admission of the Division's Screening Summary and Investigation Summary. When she objected that the reports contained hearsay, the trial court sustained the objection "to [the] extent that there's a comment in there that's hearsay," admitted the reports "subject to the deletion of any hearsay," and stated the reports "can't all be hearsay." Defendant argues that the court should have clarified what statements were inadmissible hearsay. If the Division's reports are again offered into evidence on remand, the trial court shall make the necessary findings and clarification. See N.J.S.A. 9:6-8.46(a)(3), (4); R. 5:12-4(d); N.J.R.E. 801(d), 803(c)(6); see also M.C. III, supra, 201 N.J. at 346-48.
IV.
Defendant contends that the trial court exhibited bias against her. To the contrary, the court repeatedly acted to protect her rights by ensuring she obtained counsel and then replacement counsel, and by refusing to proceed when she lacked counsel. Despite her frequent failures to appear and refusal to cooperate, the court properly declined to grant the Division's request for default based on her non-appearance, instead requiring the Division to prove its case. See N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17, 21-22 (2011).
Defendant argues that the court showed bias in its evidentiary rulings, but the court sustained her objections to hearsay in the Division's reports, the testimony by the Division's supervisor, and the letter from the District Attorney's Office. It was not bias for the court to observe that her conduct in New York would have to be proven by a witness or by a proper certified document. The court honored defendant's refusal to stipulate to the undeniable fact that she had been convicted in New York.
Defendant complains that the court continued the fact-finding hearing after the first day. At that time, her New York sentencing was to occur three days later. The next continuance occurred after she improperly postponed sentencing by failing to appear. In both instances, there was "good cause" to grant the Division's request to continue the hearing for a reasonable time to await the judgment of conviction under N.J.S.A. 9:6-8.48(a). That "statute anticipates that adjournments may be required to marshall the information to . . . support a finding of abuse or neglect," particularly when the child has not been removed from the home and is not in imminent danger of harm. L.A., supra, 357 N.J. Super. at 164; see N.J.S.A. 9:6-8.49.
As indicated by the confusion over whether a fact-finding hearing was scheduled for October 19, the proceedings here were not without flaws. Nevertheless, this case bears no resemblance to N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 263-64 (App. Div. 2002), where the court advised the litigants to stipulate to "an unidentified, undisclosed allegation" of abuse or neglect, and treated the fact-finding process in a "perfunctory manner." We thus find no evidence of bias and no basis for disqualification under Rule 1:12-1.
Finally, defendant argues that the trial court should have dismissed the litigation before the completion of the fact-finding hearing. She cites the Division's November 30 statement that it was "the intent of the Division, obviously after a fact-finding hearing, dispositionally to dismiss the case, because at this point, the case has just dragged on with [defendant] not complying with anything." Defendant's attempt to use her own non-compliance with court orders as a basis to demand dismissal is characteristic of her obstructionist tactics throughout this litigation, and must be rejected. The court properly proceeded with the fact-finding hearing on the serious issue of whether defendant endangered S.B. by driving while intoxicated with S.B. as her passenger. At the Division's request, the court properly dismissed the litigation because S.B. would not be in defendant's legal and physical custody while she was incarcerated, and the court's "assistance [was] not required." N.J.S.A. 9:6-8.50(c).
Reversed and 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