Opinion
DOCKET NO. A-5305-11T4
05-06-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.B., Defendant-Appellant. IN THE MATTER OF K.B. and S.E., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors K.B. and S.E. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-169-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors K.B. and S.E. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
S.B. appeals from the May 3, 2012 order entered after a fact-finding trial, finding by a preponderance of the evidence that she abused or neglected her two children, born in 2005 and 2009, by placing them "at substantial risk of harm by failing to continue her drug treatment and mental health treatment program and by relapsing in drug use." N.J.S.A. 9:6-8.21(c)(4)(b). S.B. argues that the judge erred by relying on documentary and hearsay evidence. The law guardian supported the finding in the trial court and, on appeal, joins the New Jersey Division of Youth and Family Services (Division) in urging this court to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On this date the judge also terminated the litigation, finding that S.B. had completed an inpatient drug treatment program and had safely returned home to live with her children.
Four witnesses testified for the Division: three caseworkers and Dorothy Rose, a licensed clinical alcohol and drug counselor and certified clinical mental health counselor employed at Khaleidoscope Health Care (Khaleidoscope). The Division presented the following facts. The Division first became involved with the family in 2007 when the Work First program reported that S.B. had tested positive for drugs. The Division closed its file in 2009 after S.B. completed drug treatment. The Division investigated several other incidents involving S.B., as well as her live-in boyfriend, K.E., the father of their two children.
Khaleidoscope is a Division-approved treatment facility designed to assist individuals with mental health and substance abuse problems. S.B. began attending this program in 2008.
The New Jersey Work First program is a welfare reform program offered by the State.
In September 2011 the Division filed a verified complaint, seeking care and supervision of the children, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-11 and -12. The complaint was based on S.B.'s history of substance abuse, her failure to obtain proper medical treatment for her bipolar disorder, and her violent behavior in the home. S.B. had tested positive for marijuana and amphetamines in March 2011, after which she was referred to Khaleidoscope for psychiatric care and substance abuse treatment. She received medication monitoring at Khaleidoscope. She agreed to return for treatment, but continued to test positive for marijuana. She admitted to her counselor, Rose, that she continued to use marijuana through September. Rose testified that S.B. also showed signs of bipolar disorder, cycling between mania and depression.
S.B.'s attendance at Khaleidoscope during the summer of 2011 was sporadic, and S.B. admitted to her Division caseworker in August that she had lapsed in her attendance due to stress. S.B. related that around this time she and K.E. had fought physically and broken each other's cell phone. K.E. related to the caseworker that S.B. had assaulted him, and the caseworker observed marks on his face confirming his account. K.E. also stated that S.B. had not been taking her prescribed medication and frequently lost her temper and became violent in the home, screaming and throwing things around the house. He indicated that he did his best to protect the children.
A few days later K.E. came to the Division to report that S.B. stated she was going to kill herself and their autistic son. He reported that S.B. appeared overwhelmed and was abusive to their son. When the Division caseworker spoke to S.B., she denied the threats, claimed to be taking her prescribed medication and refused to go to an immediate psychiatric evaluation. S.B. did agree to leave the home until an evaluation could be completed. She told the caseworker that if K.E. "wants to take care of the children by himself he can."
S.B. also tested positive for cocaine in August and September. She later completed a fifty-day drug program and returned to the Khaleidoscope program in November. More recently, S.B. had become compliant with services and she returned to her home to care for her children with K.E. S.B. did not testify or present evidence at the hearing.
The judge found the Division's witnesses to be credible. She found that S.B. had a history of substance abuse. The judge noted that she failed to attend treatment for substance abuse or mental health issues for several months in 2011, during which time her psychotropic medication was not monitored. The judge found that during this time period S.B. behaved aggressively in the home while the children were present. The judge stated that she did not rely on the records of positive urine tests, but rather on S.B.'s admissions.
S.B. raises the following issues on appeal:
POINT I: THE COURT'S FINDINGS ARE VOID AS THE COURT VIOLATED S.B.'S RIGHT TO DUE PROCESS BY FAILING TO ENSURE THAT SHE WAS ABLE TO CONFRONT THE WITNESSES AGAINST HER AND BY FAILING TO CONDUCT THE TRIAL IN ACCORDANCE WITH NEW JERSEY RULES OF EVIDENCE.
POINT II: [THE DIVISION] DID NOT PROVE ITS CASE IN ACCORDANCE WITH THE EVIDENTIARY REQUIREMENTS OF N.J.S.A. 9:6-8.46(a)-(b) AND THEREFORE THE COURT'S FINDING OF ABUSE AND NEGLECT WAS IMPROPER.
At a fact-finding hearing, the judge must determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44. Our scope of review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial judges have the opportunity to see and hear the witnesses and evaluate the credibility and weight to be afforded their testimony. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Deference is appropriate unless the trial judge's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)).
The judge found that S.B. placed her children at substantial risk of harm pursuant to N.J.S.A. 9:6-8.21(c), which defines an "abused or neglected child," in pertinent part, 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 . . . (b) in"Courts need not wait to act until a child is actually irreparably" harmed. D.M.H., supra, 161 N.J. at 383 (1999) (citation omitted).
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).]
S.B. argues that the admission of the results of drug screening and hearsay testimony regarding her violent behavior was contrary to the New Jersey Rules of Evidence and violated her due process rights. We have defined due process in the termination of parental rights context as the following:
The United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Similarly, although Article I, paragraph 1 of the New Jersey Constitution "does not enumerate the right to due process" it nonetheless, "protects against injustice and, to that extent, protects 'values like those encompassed by the principle[] of due process.'" . . . .S.B. was awarded due process in this hearing.
Due process requires adequate notice and a fair opportunity to be heard. It is a flexible concept and calls for such procedural protections as the particular situation demands. Evaluation of whether due process requirements have been met is "an uncertain enterprise which must discover what 'fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake" in the circumstances at hand.
[Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.) certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004) (alteration in original) (citations omitted).]
Division records are admissible in Title 9 proceedings under certain safeguards.
[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 public 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. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility . . . .Rule 5:12-4(d) specifically indicates:
[N.J.S.A. 9:6-8.46(a)(3).]
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) [regarding records of regularly conducted business activity], reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.
Division caseworkers testified that the Division contact sheets and screening summaries were kept in the normal course of business, and that the toxicology reports were kept by a Division-approved substance abuse facility. S.B. did not choose to rebut the records. She had the opportunity to confront and cross-examine four witnesses who had first-hand information about her behavior leading up to her September 2, 2011 court-ordered removal from the home.
After violating her voluntary agreement to leave, S.B. was subsequently restrained from the home except for visits supervised by K.E. Initially, home visits were also supervised by a homemaker, but that restriction was removed in October 2011.
I. Drug screens
S.B. points to our decision of New Jersey Division of Youth and Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), in support of her contention that the results of the drug screens were inadmissible and, even if admissible, did not support a finding of abuse or neglect. In V.T. we determined that the Division had failed to prove abuse or neglect where a father tested positive for drugs at a supervised visit with his eleven-year-old daughter, where he behaved appropriately at all times. Id. at 323, 331. We stated,
a failure to successfully defeat drug addiction does not automatically equate to child abuse or neglect.
Absent expert evidence, the State is unable to demonstrate whether or not [the father] was impaired to the point of posing a risk to [his daughter] in a supervised setting. The level of drugs in his system is not explained and, as the trial judge acknowledged, absent expert testimony the meaning of the reported levels is unclear.
[Id. at 331.]
Rose, S.B.'s counselor at Khaleidoscope, laid the foundation through her testimony for the admission of the instant drug screens administered at the program, which reflected positive results. S.B. had a history of drug abuse and psychiatric illness. She and K.E. were caring for their six-year-old autistic son and three-year-old daughter in their home, not in a supervised setting. S.B.'s continued drug use was much more likely to result in harm to her children under these circumstances. Additionally, S.B. admitted to using drugs. The judge relied on her admissions rather than the drug screens, stating that she did not need to rely on the drug test results because S.B. admitted to using marijuana in June, July and September of 2011.
II. K.E.'s statements
S.B. argues that K.E.'s statements concerning S.B. are inadmissible hearsay. N.J.R.E. 802. The Division argues that these statements are statements against interest, and therefore admissible because "any statement [K.E.] made regarding violence in his home was against his interest because it could have resulted in the removal of his children." See N.J.R.E. 803(c)(25). Although it is not clear that K.E. understood he risked losing his children by reporting to the Division, it does seem that he was motivated by a desire to protect the children. K.E.'s statements were supported by S.B.'s own statement that she and K.E. had engaged in a physical altercation resulting in her destruction of his cell phone. K.E.'s statements were also substantiated by his injuries and demeanor observed by a testifying caseworker.
"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (citations omitted). We generally defer to evidentiary rulings made by a trial court, and see no reason not to do so in this instance.
When making her findings, Judge Lipton stated:
Based on the testimony, the credible testimony, it's clear to this [c]ourt that [S.B.] ha[]d a longstanding history of substance abuse, that she, for a period of several months, most of the summer of 2011, did not attend her substance abuse therapy or mental health treatment, that she was taking psychotropic medicine unsupervised, that during that time there were incidents which her children's father described as tantrums, throwing, screaming, and scratching to the point of drawing blood in the home while the children were present.These findings are supported by adequate, substantial and credible evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION