RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. Argued April 4, 2016 Decided June 21, 2016

Transcription

1 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, v. A.A., RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Plaintiff-Respondent, Defendant-Appellant. IN THE MATTER OF D.W., JR., A Minor. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Argued April 4, 2016 Decided June 21, 2016 Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN Anastasia P. Winslow, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the briefs). Benjamin H. Zieman, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Zieman, on the brief).

2 PER CURIAM Tracye Wilson Elliot, Designated Counsel, argued the cause for minor D.W., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Wilson Elliot, on the brief). Defendant A.A. (Amy) 1 appeals from the Family Part's January 18, 2013 order following a fact-finding hearing pursuant to N.J.S.A. 9: The judge found that Amy had neglected her ten-year-old son, D.W., Jr. (David), by "fail[ing] to provide a minimum degree of care in providing adequate and proper supervision and placed the... child at risk of harm by her not addressing her significant alcohol problem (level III inpatient recommendation) and continued excessive use of alcohol based on evaluations and observations of the child." Amy argues 1) there was insufficient evidence that her "drinking placed David at substantial risk of harm"; 2) her due process rights were violated because she was not given adequate notice of certain evidence David's alleged out-of-court statements to representatives of the Division of Child Protection and Permanency (the Division) introduced at the fact-finding hearing; and 3) the judge erred in relying on David's statements because they were uncorroborated and not 1 We have fictionalized the names of those involved to maintain their confidentiality. 2

3 competent evidence pursuant to N.J.S.A. 9:6-8.46(b). The Division and David's Law Guardian urge us to affirm. We have considered these arguments in light of the record and applicable legal standards. We affirm. I. Amy and David became known to the Division as the result of a series of unsubstantiated referrals beginning in Following a March 5, 2012 referral that was also unsubstantiated, and based on concerns David's school expressed regarding his behavior, Amy agreed to enroll the child in behavioral therapy, but failed to do so. Another unsubstantiated referral on March 29 resulted in the Division referring Amy for substance abuse evaluation. She failed to keep several appointments or complete the evaluation in April and May. On May 23, the Division received another referral claiming that Amy was a "raging alcoholic" and drug addict, there were frequent fights in the home and Amy permitted a "child predator," D.H. (Dale), to care for David. The Division investigated by interviewing Amy, Dale and David, and conducting a criminal background check of Dale, which was negative. Amy denied any allegations of substance abuse, and David denied any 3

4 knowledge of violence in the home or his mother's substance abuse. Finally, on June 1, Amy provided a urine sample to Catholic Charities but refused to stay and complete the evaluation, claiming she had to leave for work. She smelled of alcohol and claimed to have had a drink the day before. The blood alcohol content of the sample, however, was.20, the equivalent of eight alcoholic drinks. As of June 21, Amy had not kept, or failed to re-schedule, appointments to complete the evaluation. On August 7, Saudatu E. Braima, a Division caseworker who testified at the hearing, encountered David and Dale in a Rite Aid Pharmacy. Dale explained that David was visiting him for the day because Amy had been laid off from her job. He had been driving Amy to and from her methadone program, Organization for Recovery (OFR), for about a month because "she had a problem that required her to report daily." Amy told Braima later that day that her diabetes medicine caused her to fail a urine screen at OFR. However, a September 2012 letter from OFR admitted in evidence at the hearing revealed that Amy had tested positive for alcohol in May and July, and her take-home methadone privileges were suspended. In the interim, Amy completed her substance abuse evaluation on September 6, Her urine screen was positive 4

5 for benzodiazepines (without a prescription), alcohol and ethyl glucuronide (ETC). The laboratory reported that the alcohol in Amy's urine sample was "the equivalent of a.17 BAL ([six] to [seven] drinks)," and it ruled out the possibility that Amy's diabetes altered the test results. The counsellor recommended that Amy be referred to a level-three medically monitored, inpatient detoxification unit for further evaluation. The events leading to David's removal occurred on September 17, Braima contacted OFR by phone to provide the results of the evaluation and "explore the possibility of including the... treatment recommendation into [Amy's] treatment regimen." OFR reported that Amy was there, "smelling of alcohol and appearing drunk." OFR counselors were conducting an intervention in an attempt to convince Amy to check into an inpatient program. Braima could hear Amy yelling in the background. In a letter to the Division dated that same day, OFR stated that "[a]fter observing [Amy] there is a concern/question as to whether [she] can adequately care for her [ten-year-old son David]." Amy left OFR after refusing to participate any further in the intervention. David, who sometimes accompanied Amy to OFR, was not with her that day. Braima attempted to locate the child at his school, but it was closed for the day because of a religious 5

6 holiday. Braima contacted David's uncle, N.W. (Ned), who was able to contact Dale. Dale knew that David was spending the day with a friend, but he had the incorrect phone number for the friend's family and did not know the address. Braima went to Amy's apartment and saw that "two of the garbage cans outside [of] the home were full of beer cans." Initially, there was no response when she knocked on the door and rang the bell. Forty-five minutes later, Amy opened the door, "stumbled" and "staggered" outside wearing nothing except "her underwear and a short blouse," and she "smell[ed] of alcohol." Braima stated that Amy was somewhat incoherent and gave confusing information about David's whereabouts. Ultimately, Ned called and advised Braima that Dale picked David up at his friend's house and delivered the child to him. After speaking with her supervisor, Braima effected an emergency removal pursuant to N.J.S.A. 9:6-8.29, met with David and Ned later that evening and explained that all contact with Amy and Dale was suspended until further notice. Ned expressed his commitment to care for David as necessary. The Division filed its verified complaint and order to show cause for care, custody and supervision on September 19, 2012, and the judge entered an order granting that relief the same day. On December 3, Braima and another caseworker interviewed 6

7 David. He admitted seeing his mother and her boyfriend bring alcohol into the home in the past, sometimes smelled alcohol on them and saw them "wobble to the side when they walked." David's statements were contained in the Division's investigative summary that was admitted into evidence at the fact-finding hearing. Amy did not testify or call any witnesses. The judge found Braima to be a credible witness and summarized the relevant facts adduced from her testimony and the documentary evidence admitted at the hearing. The judge stated that the court must examine "the sum of the actions of [Amy] collectively." She found that Amy's excessive use of alcohol, her failure to attend treatment when it was provided, her failure to know where her son was at all times, and her combined use of alcohol and methadone, showed a "complete disregard" for the safety of David. The judge entered the order under review, and this appeal ensued. 2 II. We "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & 2 The record reveals that, although the Division initially envisioned reunification, the permanency plan changed to termination followed by adoption. The Title Nine litigation was terminated on December 11, We are not aware of the results of any subsequent proceedings in the Family Part. 7

8 Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make firsthand 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. M.C. III, 201 N.J. 328, (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause 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). However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citations omitted) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, (App. Div. 1993)). And, when the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, (App. Div. 2011). 8

9 "In general, 'Title 9 controls the adjudication of abuse and neglect cases.'" Dep't. of Children and Families, Div. of Child Prot. and Permanency v. E.D.-O., 223 N.J. 166, 177 (2015) (quoting M.C. III, supra, 201 N.J. at 343). "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). "However, when there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J. at 178 (citing N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013)). "Under those circumstances, 'the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.'" Ibid. (quoting A.L., supra, 213 N.J. at 22). "Moreover, '[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (alteration in original) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). In pertinent part, Title Nine defines an "'abused or neglected child'" as one under the age of 18 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... to 9

10 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.... [N.J.S.A. 9:6-8.21(c)(4)(b).] "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "Simply stated, the statute requires more than a mere showing of harm to a child. The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 181 (2014). Amy argues that "parental drug use itself is not sufficient to support a finding of abuse or neglect." However, "[a]n analysis of a parent's conduct must account for the surrounding circumstances." E.D.-O., supra, 223 N.J. at 180 (citing G.S., supra, 157 N.J. at ). "As we have previously recognized, '[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be "substantial" or the sum of many acts may be "substantial."'" N.J. Div. of Youth and 10

11 Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) (alterations in original) (quoting N.J. Div. of Youth and Family Servs. v. C.M., 181 N.J. Super. 190, 201 (App. Div. 1981)), certif. denied, 207 N.J. 188 (2011). In this case, citing C.M., the trial judge considered the sum total of Amy's conduct, including the excessive amounts of alcohol she repeatedly ingested, the fact that she could have obtained treatment but refused to do so, her alcohol abuse combined with her methadone treatment and her visibly intoxicated and somewhat incoherent state on more than one occasion. The judge also considered David's statement to the Division's caseworkers wherein he admitted seeing his mother intoxicated while he was in her care. Taken together, Amy's conduct posed a substantial risk of harm to David. We conclude that the Division demonstrated by a preponderance of the evidence that David was a neglected child within Title Nine's statutory definition. Amy's final two arguments challenge both the admissibility of, and the trial judge's reliance upon, David's statements to the caseworkers. Amy raises for the first time on appeal that her due process rights were violated because she "did not have adequate notice" of the statements and the Division's intention to prove that David observed his mother's intoxication. The 11

12 argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add only the following. Due process requires that a parent charged with abuse or neglect have adequate notice and opportunity to prepare and respond. N.J. Div. of Youth and Family Servs. v. B.M., 413 N.J. Super. 118, (App. Div. 2010). As noted, David's statements were contained in the Division's investigative summary report. Pursuant to prior orders, discovery was to be provided to defendant by December 6, 2012, and the fact-finding hearing started two weeks later on December 20. There is nothing in the record to indicate that defense counsel did not have the report. In fact, during the first day of Braima's testimony, defense counsel objected to Braima's testimony regarding David's statement. Additionally, the hearing continued into a second day of testimony, more than three weeks later, on January 11, The record clearly demonstrates that defense counsel knew about the statements, and she had a fair opportunity to cross-examine Braima or otherwise rebut them. Lastly, Amy argues that David's out-of-court statements were uncorroborated and, pursuant to N.J.S.A. 9:6-8.46(b), they were not competent evidence and cannot support a finding of 12

13 neglect. The argument is unpersuasive because it rests upon a misunderstanding of the relevant statutory scheme. Pursuant to N.J.S.A. 9:6-8.46(b), only competent, material and relevant evidence may be admitted at the fact-finding hearing. "[P]revious statements made by [a] child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4) (emphasis added). By the statute's plain language, the statement is admissible, whether corroborated or not. However, if the statement remains uncorroborated by other testimony, standing alone it is insufficient to prove abuse or neglect. P.W.R., supra, 205 N.J. at 32-33; see also N.J. Div. of Child Prot. and Permanency v. C.W., 435 N.J. Super. 130, (App. Div. 2014) ("Such a finding [of abuse or neglect] cannot be based solely on 'previous statements made by the child relating to any allegation of abuse or neglect,' without further corroboration.") (quoting N.J.S.A. 9:6-8.46(a)(4)). Here, David's statements were in fact corroborated by Braima's observations and conversations with Amy, as well as the lab results and reports from service providers and OFR. Together, there was sufficient evidence corroborating the 13

14 child's statement implying he observed that his mother was intoxicated while caring for him, and the judge's finding of neglect was not based solely on David's uncorroborated statements. Affirmed. 14