Opinion
DOCKET NO. A-2060-14T3
05-19-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.R., Defendant-Appellant, and W.J., Defendant. IN THE MATTER OF J.R., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. Didonato, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-304-13. Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. Didonato, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant T.R. appeals from the Family Part's January 18, 2013 order finding that she abused or neglected her eight-month-old son, J.R. The court found that defendant failed to exercise a minimum degree of care because she was under the influence while caring for the child, other adults in the home used crack cocaine in the child's presence, and the child was left in the care of an individual abusing drugs. For the reasons that follow, we affirm.
I.
The fact-finding order was entered after what can best be described as a "trial on the papers." That is, the court decided the case based on the Investigation Summary offered into evidence by the Division of Child Protection and Permanency (Division). The defense did not object to the Division's evidence or offer any proofs at the hearing. Neither the Division, the Law Guardian, nor defendant presented any opening or closing statements.
We discern the following facts from the hearing record. On October 11, 2012, the Division received a referral from the Merchantville Police Department alleging that, upon responding to a complaint of a domestic disturbance, officers witnessed defendant caring for J.R. while under the influence of alcohol. Division caseworkers arrived at the apartment around 9:30 p.m., accompanied by three Merchantville police officers. Defendant answered the door and immediately became angry and yelled "don't take my baby." She pleaded that she was a good mother and cared for her son. Defendant's paramour, C.W.L., and defendant's sister, Ta.R., were present, along with a man named Domingo, who appeared "dazed" and "confused" and was staring at the ceiling and having difficulty maintaining his balance.
The Division worker calmed defendant and accompanied her into the kitchen for an interview. As they made their way to the kitchen, the worker noticed an empty forty-ounce beer can near defendant's feet. The worker observed that the living room of the apartment was messy and cluttered with boxes of clothing and a dirty playpen. The worker also noticed that each of the bedrooms he passed on the way to the kitchen was "dirty and messy," with boxes and trash strewn on the floor. During this time, defendant held J.R. "down [by] her waist[,] swinging him around." The worker instructed defendant to be careful when holding J.R. and stressed that she should always hold him properly.
Defendant was visibly intoxicated. Her eyes appeared red and were "shut very small." Her speech was slurred and "not making [] sense." Defendant admitted to the worker that she had consumed two forty-ounce bottles of Hurricane beer and three Natural Ice beers over the course of three hours. She also reported that she attended Unity Place in Cherry Hill for mental health and drug treatment. Defendant complained that she "did not want to be in the home" because her sister and C.W.L. "smoke crack every day." Defendant indicated that both her sister and C.W.L. smoked crack the past two days while in the home with the child. Defendant stated that she disclosed the active drug abuse to the police the previous day, but after the officers left her home, C.W.L. "beat her up" in the living room while J.R. was in his playpen.
Defendant admitted that before the Division workers and police officers arrived that evening, she and C.W.L. were fighting in the living room, because "[C.W.L.] took [] food stamps and sold them for crack." When asked whether she lived in a crack house, defendant responded, "everyone in the home uses crack, except for her," although she confessed to drinking daily. Defendant explained that the "crack use, alcohol abuse and domestic violence in the home [], in front of [J.R.] . . . is why she does not want to be in the home." She contended that her sister and C.W.L. were her only supports and that C.W.L. cared for J.R. while she attended the Unity Place program.
The Division effected an emergency removal of J.R., citing defendant's intoxication, her neglect of J.R., and the drug use and domestic violence in the home. Defendant began to yell and hit the refrigerator, causing the toaster to fall, and the police had to contain her sister and C.W.L. Defendant gathered clothing and diapers for J.R., and agreed to appear in court. Defendant "was upset but understood why [J.R.] was being removed. She understood her current home was not safe for her child and admitted to workers that [J.R.] 'is not safe in the home.'" Defendant denied having relatives for possible placement and was unsure where J.R.'s father lived or how to contact him.
At some point, defendant W.J. was identified as J.R.'s biological father. The trial court made no findings as to W.J. and he is not a party to this appeal.
The Division worker transported J.R. to Virtua Hospital in Mount Ephraim for a physical. There were no marks or bruises on his body, and he appeared well fed. However, J.R. appeared not to have been bathed recently and was dirty. Also, he was wearing dirty clothes, had crumbs in his hair, and smelled like cigarettes. After the examination was completed, J.R. was placed in a non-relative resource home for the night.
The following day, J.R. was placed in a more permanent foster home. A Division caseworker interviewed defendant at Unity Place. She reported that she had been attending the program for four months, "trying to get over the loss of her daughter." Defendant listed her mother, E.J., her sister, and her aunt as supports, but noted that her mother had a criminal history and both her sister and aunt had drug abuse histories. Defendant denied having an alcohol or drug addiction, claiming that she drank socially the past two nights when J.R. was sleeping.
T.R.'s daughter, born in 2008, died of liver failure at five and one-half months old. --------
On October 15, 2012, the Division filed an order to show cause and verified complaint, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-21, seeking care, custody and supervision of J.R. At the initial hearing, the court found that J.R.'s continued "residence in the home would be contrary to the welfare of the child, because of allegations that there is drug use and alcohol abuse in the home. [Defendant] is unable to care for [J.R.]. There is domestic violence in the home and the conditions in the home are unsafe." Consequently, the court granted care, custody and supervision of J.R. to the Division.
At the pre-trial conference on January 4, 2013, the Division advised the court that it would be offering into evidence the Division's October 11, 2012 Investigation Summary, and would be calling no witnesses. The trial court and all counsel accepted the redactions to the Investigation Summary proffered by defense counsel, and the exhibit was moved into evidence without objection. The court also reviewed defendant's compliance with services. The Division reported that defendant had submitted to psychological, psychiatric and substance abuse evaluations, and was regularly attending Unity Place and parenting classes. The Law Guardian affirmed that J.R. was "doing very well," and enjoying consistent visits with defendant.
The fact-finding hearing took place on January 18, 2013. Without objection, the Division relied solely on its October 11, 2012 Investigation Summary, and neither the Law Guardian nor defense counsel presented witnesses or opening or closing statements. In an oral opinion, the court concluded that the Division's proofs supported a finding of abuse and neglect. The judge reasoned:
The factual basis is that at the time of the investigation, the Division reported that [defendant] appeared to be under the influence. She was slurring her words, not comprehensible, her eyes were red. She admitted to drinking two [forty]-ounce beers
and three Natural Ice beers in a period of three hours . . . . She admitted to drinking daily. She admitted she was in treatment for mental health issues, also that there were other people in the home who appeared to be under the influence. [Defendant] said that those people use crack regularly and that she had left the child in the care of her paramour who . . . had physically abused [defendant]. Also[,] [defendant] admitted to the caseworker that there was crack use, alcohol abuse and domestic violence in the home that day in front of the child. Those facts definitely constitute, by a preponderance of the evidence, abuse or neglect of the child.
The court ordered that J.R. remain under the care, custody and supervision of the Division. Defendant was granted weekend visits with J.R. and instructed to obtain safe and stable housing and continue attending parenting skills training. The court also ordered the Division to continue to provide defendant with transportation assistance.
The proceedings continued in the Family Part for the next twenty-two months with periodic compliance reviews. The litigation was terminated on November 19, 2014, following defendant's graduation from Unity House two days earlier. The Division reported that defendant and J.R. were successfully unified on October 10, and "things were going very well."
Defendant now appeals from the January 18, 2013 finding of abuse and neglect. She presents the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN FINDING THAT T.R. ABUSED OR NEGLECTED J.R.
A. DCPP Failed to Present Competent, Reliable Evidence That T.R. Abused Or Neglected J.R.
1. Hearsay
2. The trial court erred in relying solely upon DCPP documentary evidence
3. Expert testimony was required to establish intoxication or impairment
B. DCPP Failed To Prove There Was A Nexus Between Alcohol Use And A Risk Of Imminent Harm to J.R.
C. The Trial Court's Decision Is An Impermissible Expansion Of The Definition Of Child Abuse Or Neglect As Set Forth In N.J.S.A. 9:6-8.21(c)(4)(b) and G.S. [v. Dep't of Human Servs., 157 N.J. 161 (1999)]
D. The Trial Court's Finding Is Contrary To The Aims Of The Statute
II.
Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:
[A]ppellate courts "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Indeed, we recognize that "because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (alteration and parenthetical omitted).]
"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). The court may make rational inferences "grounded in a preponderance of probabilities according to common experience" derived from the credible evidence. N.J. Div. of Youth and Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (quoting In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006)). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." L.L., supra, 201 N.J. at 227 (alteration in original) (quoting E.P., supra, 196 N.J. at 104). We owe no deference to the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Applying these standards, we discern no reason to disturb the judge's ruling.
"To prevail in a Title 9 proceeding, the Division must show by a preponderance of the competent and material evidence that the defendant abused or neglected the affected child." N.J. Div. of Child Protection & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014). "The Division need only show that it was more likely than not that the defendant abused or neglected the child." Ibid.
An "abused or neglected child" means, in pertinent part, a child 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, as herein defined, to exercise a minimum degree of care . . . 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.
[N. J.S.A. 9:6-8.21(c)(4)(b).]
Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court has held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S., supra, 157 N.J. at 172-73 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 178). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.
Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result," and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179.
A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. "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. The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
III.
Defendant contends that the Division failed to prove she abused or neglected J.R. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). She argues that because there was no evidence linking her alcohol use to neglect or a threat of imminent harm, her conduct did not constitute a failure to exercise a minimum degree of care. Relying on New Jersey Department of Children & Families v. A.L., 213 N.J. 1 (2013), and New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), defendant posits that her admitted alcohol use alone was insufficient to prove she inherently created a substantial risk of harm to J.R.
In A.L., an expectant mother used drugs during her pregnancy, but there was no evidence of actual harm when the child was born. A.L., supra, 213 N.J. at 26-27. The record also lacked evidence that the mother continued using drugs while caring for the child. Id. at 27-28. The Court reversed a finding of abuse or neglect, holding that the mother's past drug use alone did not prove actual harm or imminent danger. Id. at 29-30.
In V.T., the defendant did not have custody of his eleven-year-old daughter. V.T., supra, 423 N.J. Super. at 323. He had ingested cocaine and marijuana prior to two supervised visits with the child and tested positive for those substances on each occasion. Id. at 323, 330-31. We disagreed that such behavior inherently created a substantial risk of harm to the child, and held that the "use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect." Id. at 331.
In contrast to A.L. and V.T., defendant had sole custody of J.R. and admittedly became highly intoxicated while caring for him. Defendant's alcohol abuse impacted her ability to properly supervise the child, as evidenced by the poor condition of the apartment where they resided, J.R.'s dirty clothes and playpen, and his lack of washing and grooming. When defendant attended Unity House, she left her young child in the care of her paramour, a known drug abuser. Defendant herself conceded that J.R. "[was] not safe in the home," and had witnessed alcohol abuse, illicit drug use, and domestic violence. Her willingness to expose the child to the illegal drug activity, and alcohol and domestic abuse taking place in the child's presence, placed him in "imminent danger and substantial risk of harm." In our view, defendant's willingness to place the child in this vulnerable situation amounts to "grossly or wantonly negligent" behavior that falls below the "minimum degree of care." Thus, we are satisfied that under the totality of the circumstances, the record amply supports the judge's finding that defendant abused or neglected J.R. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).
Defendant contends for the first time on appeal that the Division failed to present competent, reliable evidence that she abused or neglected J.R. Specifically, she contends that the Division's Investigation Summary was "inadmissible as an unauthenticated, hearsay document," and that expert testimony was required to support the Division's allegations.
At a fact-finding hearing, N.J.S.A. 9:6-8.44, the Division must prove abuse or neglect by a preponderance of the credible evidence, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Documents prepared by Division staff are admissible pursuant to Rule 5:12-4(d), "provided [they] satisfy the requirements of the business records exception [to the hearsay rule], N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012). Further, "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d).
Here, defense counsel proposed certain redactions to the Investigation Summary, and, following their acceptance, acquiesced in admitting the document into evidence. The Division relied on defense counsel's consent to the admission of the investigation report. Had defendant taken a contrary position, the Division could have attempted to call the responding police officers and Division workers at the hearing. See M.C. III, supra, 201 N.J. at 340-41 (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").
Even if the invited error doctrine does not dispose of defendant's argument, we apply the principle that hearsay that is subject to a well-founded objection is generally evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). See also Morris v. United States, 813 F.2d 343, 348 (11th Cir. 1987) (stating that "if evidence of this kind [that is, hearsay] is admitted without objection, it is to be considered, and accorded its natural probative effect, as if it were in law admissible") (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co., 253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920)); Newsom v. United States, 335 F.2d 237, 238-39 (5th Cir. 1964); In re Petagno, 24 N.J. Misc. 279, 283-84 (Ch. 1946) (same); 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"); Kenneth S. Broun, 1 McCormick on Evidence § 245 at 181 (7th ed. 2013) ("If otherwise inadmissible hearsay evidence is received without objection, it typically may be considered and, if apparently reliable, is sufficient to sustain a verdict or finding of fact."); id. § 54 at 381.
Defendant also argues that the Division caseworker was not qualified to offer expert testimony as to whether defendant was intoxicated or impaired at the time of J.R.'s removal. In opposition, the Division contends the caseworker's observations were admissible under N.J.R.E. 701, as lay opinion testimony.
Pursuant to N.J.R.E. 701, an opinion or inference may be admissible if it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Ibid. Therefore, a lay witness may offer an opinion on matters of common knowledge provided the opinion is rationally based on his or her personal knowledge, and obtained through his or her own senses. State v. LaBrutto, 114 N.J. 187, 197-98 (1989). "New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication." State v. Amelio, 197 N.J. 207, 214 (2008) (quoting State v. Bealor, 187 N.J. 574, 585 (2006)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). However, "[t]he admissibility of opinion evidence rests within the discretion of the trial court." LaBrutto, supra, 114 N.J. at 197.
In the present case, the statements in the Investigation Summary consisted of the Division caseworker's personal observations that defendant was intoxicated based on her slurred speech, red eyes, the alcohol that was present, and defendant's own admissions. We conclude that these observations satisfied the standard for admissibility under N.J.R.E. 701 and expert testimony was not required to establish defendant's intoxication.
We acknowledge the Law Guardian's thoughtful position that the case be remanded for expansion of the record at a full hearing. Reluctantly, we choose not to do so. However, we again "take this opportunity to caution trial judges in contested cases who render fact-findings based solely on documentary submissions . . . ." N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 468 (App. Div. 2014). In the present case, for the reasons we have explained, the caseworker's observations and defendant's own statements were sufficient to establish defendant's extreme intoxication and the rampant drug use and domestic violence that J.R. was exposed to in the home while being cared for by defendant and her paramour, as well as the child's dirty and unkempt condition. Moreover, it is undisputed that defendant herself conceded that J.R. was not safe in the home, which, along with the other evidence, leads us to conclude he was at risk of harm. Thus, unlike A.L., supra, 213 N.J. at 28, in this case we are not called upon to "fill in missing information on [our] own or take judicial notice of harm."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION