DIVISION OF YOUTH AND FAMILY SERVICES v. T.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6713-04T46713-04T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.H.,

Defendant-Appellant.

IN THE MATTER OF E.H.,

A Minor.

______________________________________________

 

Submitted February 14, 2006 - Decided March 6, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. FN-05-89-05D.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Laura McManamy, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for E.H., minor (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

PER CURIAM

In this appeal, we are required to consider whether the evidence presented at trial was sufficient to allow for a finding that an infant child was abused or neglected as the result of the acts or omissions of her mother, and, also, whether the trial judge should have discontinued the action once he found the child to be abused or neglected. We affirm the judge's findings, but conclude that the action should have remained open so that the circumstances that led to those findings could continue to be addressed with the court's supervision.

Defendant T.H. gave birth to E.H. on March 25, 2005. The Division of Youth and Family Services (the Division) commenced this action on April 6, 2005. On that same day, the court entered an order to show cause, which placed E.H. in the care and supervision of the Division and restrained T.H. from having unsupervised contact. On April 14, 2005, the court ordered that the child be placed with C.H., her maternal grandmother, recognizing that T.H. also resided in the same household. That same order also precluded E.H. from having any contact with T.H.'s boyfriend, M.C., whose parental rights to his own child had been involuntarily terminated.

An order entered on April 29, 2005 placed legal and physical custody of the child with T.H. The Division was also ordered to maintain care and supervision of the child, and T.H. was ordered to cooperate with the recommendations resulting from psychological and psychiatric evaluations. She was also ordered to cooperate with Family Preservation Services and to comply with all recommendations. A fact-finding hearing was scheduled for June 9, 2005.

On May 19, 2005, the Division filed an amended complaint which alleged that two days earlier, in violation of the April 14, 2005 order, T.H., together with the child, was in the company of M.C. outside the courthouse. According to the amended complaint, T.H. had gone to the courthouse with E.H. to file a complaint for child support. When she left the building she encountered M.C. and, according to the Division, T.H. asked M.C. to watch the child for a few minutes while she finished attending to her business inside the courthouse. As a result of these allegations, on June 9, 2005, the judge entered an order that transferred custody of the child to her father, J.H., and J.H.'s wife.

On July 28, 2005, when the child was four months old, the court conducted a fact-finding hearing regarding the Division's allegation that E.H. was abused or neglected. The Division presented various contact sheets and other documentary evidence and also asked the court to take judicial notice of the prior proceedings regarding T.H.'s other child. The Division called no live witnesses. T.H. presented, in response, only her own testimony regarding the May 17, 2005 incident that occurred outside the courthouse.

In concluding that E.H. was an "abused or neglected child" within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), the judge found that T.H. had been involved in the past with the Division regarding another child, who was found to be "abused or neglected"; that T.H. behaved inappropriately in the hospital at the time of E.H.'s birth; that T.H. failed to obtain proper or sufficient pre-natal care; and that T.H. permitted E.H. to be in the presence of M.C. for a matter of fifteen or twenty minutes in willful defiance of his prior order. As a result, the judge entered an order on July 28, 2005 that continued custody of E.H. with J.H., the child's natural father, and his wife. The judge gave no further direction regarding when, if ever, T.H. might regain custody of the child, or when T.H. might be able to visit with the child, leaving T.H.'s rights in this regard to be resolved either in a future action to be commenced by T.H. or through the grace of J.H and his wife. In short, the termination of this action meant that T.H.'s right to visitation or her ability to obtain a future change in custody could be resolved, as the judge suggested, either through the agreement of J.H. or through the entry of an appropriate order in an "FD" action. In addition, by terminating the action over T.H.'s objections, the judge freed the Division of any obligation to provide services that might be necessary to alleviate T.H.'s parenting problems.

In this appeal, T.H. argues that (1) her due process rights were infringed because the Division only presented its contact sheets and other documentary evidence and did not present a live witness to support its allegations; (2) the evidence was insufficient to support a finding of abuse or neglect; and (3) the judge erred by failing to address visitation issues, by failing to order the Division to provide services to T.H. to address the problems observed in his findings, and by failing to keep the matter open for further proceedings regarding custody and visitation.

We reject T.H.'s first argument. In such matters, it is well-established that the Division may attempt to meet its burden of persuasion by relying upon the records it keeps in the ordinary course of business. New Jersey Div. of Youth & Fam. Servs. v. J.T., 354 N.J. Super. 407, 414 (App. Div. 2002). Such records are prima facie evidence of their content, but subject to rebuttal. Had T.H. felt the need to cross-examine those who had made the accusations in question, she was free to subpoena them. In addition, we would expect that, upon request, the Division would have produced any witness within its control that possessed relevant information. And, if T.H.'s counsel was surprised by the Division's failure to call a particular witness regarding the May 17, 2005 incident, he could also have requested a continuance in order to secure the appearance of that witness, a request we expect the judge would have readily granted. Since T.H. never sought to compel the appearance of any witnesses, and since T.H. did not seek an adjournment in order to secure the production of other witnesses, she cannot now complain about the fairness of the proceedings.

We also reject T.H.'s second argument. There appears to have been no dispute about the facts regarding the prior suit brought by the Division regarding T.H.'s other child. The judge was entitled to take judicial notice of those earlier proceedings. J.T., supra, 354 N.J. Super. at 414. Nor was there a dispute about the circumstances that preceded E.H.'s birth or T.H.'s conduct at the hospital when she gave birth and shortly thereafter. The only factual dispute presented at the hearing related to the May 17, 2005 incident. In that regard, the Division relied upon contact sheets that indicated T.H. allowed M.C. to watch the child for ten or fifteen minutes outside the courthouse. T.H. gave a number of statements regarding this incident during her testimony. She testified that she accidentally encountered M.C. outside the courthouse, and alternatively asserted that she spoke with him for "five minutes" or "for a minute and that was it." She testified that she told M.C. at the time that "he's got to go, he's got to leave . . . [h]e can't be around here with the baby." Yet, she acknowledged that she had recently seen M.C. on a number of prior occasions. While claiming that on these other occasions the child was not with her, T.H. also refused to provide the name of the babysitter who had allegedly watched E.H. on those occasions. The judge determined that T.H.'s factual version was not credible.

In making his findings, the trial judge correctly emphasized that it was T.H.'s willful defiance of his order and not so much the particulars of what occurred on May 17, 2005 that caused him to conclude that the child was abused and neglected:

So, we come down to May 17th and this interaction in front of this building where we currently sit here in Cape May Court House. [M.C.], in his interview, not unlike what I guess [T.H.] had thought, at least according to the worker's report, ["]what's the big deal[?"] . . . [M]y sense of it is that it doesn't really register with them that these are things about which not only the Division but the Court is serious. An order that says that a person is not to have contact with a child is not reasonably read, it seems to me, as an order which might have a footnote that says ["]unless it's in front of the courthouse and it's only for a little while." . . . The order's pretty clear. The knowledge of [T.H.] that the order existed is admitted by her and it seems that the basis for having the order in place is quite clear from the records that [M.C.] is a guy who isn't even allowed to be around his own child.

Based upon these and other findings, the judge concluded that the Division met its burden of persuading him, by a preponderance of the evidence, that E.H. "was placed at a substantial risk of harm by virtue of the flouting of the court proscription against contact by [M.H.] on May 17th."

The judge's findings are supported by credible evidence in the record and are entitled to our deference. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). We are also satisfied that the conclusions drawn from those findings -- that the child was endangered by T.H.'s willful refusal to adhere to the requirements previously imposed by the judge -- were also correct. Even if we were to assume that the child was not actually endangered by M.C.'s presence on May 17, 2005, the court was not required to wait until some inappropriate action by T.H. actually caused injury to the child. Id. at 383 ("Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect."); New Jersey Div. of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986) ("Although there was no direct evidence of injury . . . it would make no sense to wait until he had been injured to decide the issue."). As the judge wisely determined in his findings of fact, it was not so much what actually transpired between the child and M.C. on May 17, 2005, but the fact that T.H. had so blithely ignored the obligations imposed upon her -- obligations that existed for the safety of the child -- that warranted the ultimate conclusion that the child was endangered. We agree and, thus, reject defendant's argument that the evidence did not support the judge's findings.

As to the third point raised by T.H., however, we conclude that the judge mistakenly exercised his discretion in terminating the proceedings. At the end of the fact-finding hearing, the judge directed that the child be placed in the custody of J.H., her father. T.H. argues that the judge should have kept these proceedings open and required that she deal with her parenting issues through the services provided by the Division. She argues that by turning custody over to J.H. and leaving any relationship between mother and child either to the grace of J.H. or to an order that T.H. would have to seek in a new action, that the judge failed to properly exercise the discretion provided by N.J.S.A. 9:6-8.50(e). That statute indicates that "[i]f the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to the division, ordering that the division provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible."

Given that there appears to have been no dispute, as the judge observed in his oral decision, that T.H. had been in compliance with the services provided by the Division, we agree that the judge mistakenly failed to consider whether or to what extent the services available through the Division should have been compelled in order to attempt to rehabilitate and improve the child's family surroundings. Instead of continuing the action, through which the judge could monitor and manage the rehabilitation of T.H. through the services that had already been provided, or by other services that might in the future be warranted, the judge terminated the action and declined to further supervise the rehabilitation of T.H. In addition, in placing custody of the child with J.H., and his wife, without having made any findings as to whether that placement was in the best interests of E.H., the judge also did not provide a visitation schedule which would permit T.H. to continue her relationship with E.H., except to the extent voluntarily indulged by J.H. or imposed by order sought in a new action. In short, now that there has been a finding of abuse or neglect, we conclude that the court should have continued to address how the circumstances that brought about that finding can be remedied.

Accordingly, although we affirm the order of July 28, 2005 insofar as it determined that the child was abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), we vacate that part of the order which terminated the litigation and direct that, on remand, the trial judge expeditiously schedule a case management conference and take such further steps as are appropriate in conformity with this opinion. We do not retain jurisdiction.

 

In this earlier action, the trial judge found on May 15, 2003 that T.H.'s other child was abused or neglected.

This statute defines "abused or neglected child," in 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 [her] parent or guardian . . . 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 . . . ."

The "FD" preface in certain Family Part docket numbers indicates that the complaint does not seek the dissolution of a marriage but instead involves any number of other issues that may arise between litigants in a family setting.

The July 28, 2005 judgment states that "[T.H.] may have supervised visitation with [E.H.], as arranged with [J.H.]."

(continued)

(continued)

12

A-6713-04T4

RECORD IMPOUNDED

March 6, 2006