STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4173-05T44173-05T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.M.,

Defendant-Appellant,

IN THE MATTER OF C.C., M.C.,

AND N.G.,

Minors.

__________________________________

 

Submitted: September 26, 2006 - Decided October 12, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cumberland County, FN-06-42-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor children, C.C., M.C. and N.G. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

R.M., the mother of then almost sixteen-year-old M.C., born February 21, 1989; eleven-and-one-half-year-old C.C., born July 27, 1993; and seven-year-old N.G., born September 11, 1997, appeals from the Family Part's order of January 28, 2005, finding she committed acts of abuse and neglect based on domestic violence and substance abuse, and from the order of March 6, 2005, continuing custody of M.C. with her maternal grandmother and N.G. with his biological father I.G., and terminating litigation. R.M. does not appear to be challenging the March 6, 2005 Judgment for Kinship Legal Guardianship of C.C. with a family friend, to which R.M. consented.

The finding of abuse and neglect was entered following a factfinding hearing where R.M. did not appear but was represented by counsel. R.M. asserts as error the judge's sole reliance on the Division of Youth and Family Services' (Division's) caseworker's response report, admitted without objection. She contends live testimony was required at a minimum to authenticate the report. She further challenges the findings as insufficient to constitute abuse and neglect.

The Division's first contact with R.M. and her family was in July 2001, when the Division received a referral stating that R.M. had an alcohol problem and there were incidents of domestic violence in the home. The Division continued to monitor the family, making routine visits to the home. According to the September 28, 2004 response report signed by caseworker Beth Ann Cole, she and another caseworker appeared at R.M.'s home the day before for their monthly visit around the time that N.G. arrived home on the school bus. Although the television was on and there was a car in front of the house, no one responded when they knocked on the door. While waiting, the caseworkers observed N.G. being dropped off by the school bus in front of the house. The seven-year old attempted entry by knocking and calling out for R.M.

The caseworkers summoned Human Services police officers who assisted N.G. into the house through an open bedroom window. N.G. opened the front door, and allowed the officers and caseworkers to enter. R.M. was asleep in the bedroom. When awakened, she was incoherent, displayed slurred speech, and had a black eye and bruises on her arms and legs. R.M. said she was sleeping because of medication she had taken the prior evening and claimed her injuries were from playing football with the children. The child's father I.G. called while the caseworkers were at the house, and the conversation and subsequent meeting with him indicated that R.M. had been drinking and he and R.M. apparently had a physical altercation the night before. When questioned about R.M.'s injuries, he stated that "sometimes things get out of hand" when R.M. drinks. The older children were with a relative and not at home at the time of the caseworkers' visit.

As a result of the incident, the Division removed the three children from the home and filed an abuse and neglect complaint against R.M. and I.G. as to all three children. Neither R.M. nor I.G. appeared for the factfinding hearing on January 28, 2005, although they were notified. R.M. was represented by Stephen B. Patrick and the three children were represented by the Law Guardian, Michael McCafferty. The Division moved the response report into evidence, and no objection was voiced by R.M.'s counsel or the Law Guardian. At the conclusion of the hearing, the judge found both parents committed acts of abuse and neglect based on domestic violence and substance abuse, and custody of the children was continued in their current placements, which findings were memorialized in an order. Following a compliance review, the March 6, 2006 orders continued custody of M.C. with his paternal grandmother and N.G. with his biological father, and terminated the litigation.

R.M.'s attorney did not object to the procedure used by the trial judge at the factfinding hearing, recognizing that live testimony is not mandated to satisfy due process where R.M. chose not to testify or otherwise dispute the caseworker's version of what occurred on September 27, 2004. As we held in In re Cope, 106 N.J. Super. 336, 344 (App. Div. 1969):

Reports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein. The 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 any event that such reports contain conclusions drawn from the facts stated in them, the reports may still be admitted, but they should be treated as no more than prima facie evidence of the validity of the conclusions contained in them. If the parent produces evidence refuting such conclusions, [the New Jersey State Bureau of Children's Services] would then have the burden of producing live testimony in order to establish their validity.

The referral response report was competent, reliable circumstantial evidence in an abuse and neglect proceeding. New Jersey Div. of Youth and Family Servs. v. J.T., 354 N.J. Super. 407, 413 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003). As it was prepared in the regular course of business within a reasonable time of the event, it was admissible without further authentication. N.J.S.A. 9:6-8.46a(3); N.J.R.E. 803(c)(6); Rule 5:12-4(d).

An "abused or neglected child" is a child younger than eighteen years old whose parent harms the child or places that child in imminent risk, including but not limited to: (1) creating a "substantial or ongoing risk of physical injury to such child by other than accidental means" which would likely cause severe harm to the child, N.J.S.A. 9:6-8.21c(2) or (2) by placing a child in imminent danger of becoming physically, mentally, or emotionally impaired as a result of the "failure of his parent or guardian . . . to exercise a minimum degree of care," N.J.S.A. 9:6-8.21c(4). The statute does not require proof of actual harm but includes those acts of a parent which create a substantial risk of harm to the child. Id.; see also N.J.S.A. 9:6-8.9b and -8.9d.

A judge's finding of abuse and neglect must be based upon a preponderance of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46b. Our standard of review is whether such findings could have been reasonably reached based on the credible evidence in the record. Beck v. Beck, 86 N.J. 480, 496 (1981). We are satisfied the referral response report supported the finding of abuse and neglect of N.G. by a preponderance of the evidence. R.M.'s alcohol problems, tendency towards violence when drunk, and her resulting inability to supervise her seven-year-old son when he was dropped off from school, exposed him to a "substantial risk" of harm analyzed in light of the dangers of the situation. N.J.S.A. 9:6-8.21c(4)(b); see also G.S. v. Dep't. of Human Servs., 157 N.J. 161, 181-82 (1999). As such, we are satisfied the record supports the trial court's finding of abuse and neglect as to N.G.

We are not satisfied, however, that the trial court's finding of alcohol abuse and domestic violence concerns based on the September 27, 2004 incident involving seven-year-old N.G. was sufficient to sustain a finding of abuse and neglect as to the two older children, M.C. and C.C., who were not even present at the house. Accordingly, even though I.G. did not appeal, we modify the January 28, 2005 order as to both R.M. and I.G. to delete the finding of abuse and neglect as to M.C. and C.C.

The January 28, 2005 order is modified as to M.C. and C.C. and is affirmed as to N.G.; the March 6, 2005 order is affirmed.

 

I.G. was not represented by counsel at the hearing.

(continued)

(continued)

7

A-4173-05T4

RECORD IMPOUNDED

 

October 12, 2006