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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5914-08T45914-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

______________________________

IN THE MATTER OF J.N.,

a Minor.

____________________________________________________________

 

Argued April 14, 2010 - Decided

Before Judges Graves, Sabatino and J.N. Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County,

Docket No. FN-09-379-07.

Christine B. Mowry, Designated Counsel, argued

the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Ms. Mowry, of counsel

and on the brief).

Ariela E. Herzog, Deputy Attorney General,

argued the cause for respondent (Paula T. Dow,

Attorney General, attorney; Andrea M.

Silkowitz, Assistant Attorney General, of

counsel; Ms. Herzog, on the brief).

Christopher A. Huling, Assistant Deputy Public

Defender, argued the cause for J.N., a minor

(Yvonne Smith Segars, Public Defender, Law

Guardian, attorney; Mr. Huling, on the brief).

PER CURIAM

Defendant M.M. appeals from an order dated June 16, 2009, terminating this Title Nine action, N.J.S.A. 9:6-1 to -8.73, after the trial court found by a preponderance of the evidence that defendant abused or neglected her son, J.N., who was born in August 2000. Defendant has two other children, C.M., a son, who was born in 1988, and D.M., a daughter, who was born in 1990. C.M. and D.M. were living outside of the family home when the incidents underlying this litigation occurred. We affirm.

On May 3, 2007, a social worker at J.N.'s school reported to the Division of Youth and Family Services (Division) that J.N. had come to school with bruises on his arms. According to the social worker, J.N. did not seem to be in pain, but he indicated some of the bruises were caused by his mother hitting him, and others by falling while walking in his house at night because his family had no electricity. J.N. stated that his family had not had electricity or hot water "for a long time," and his mother had to boil water on the stove to bathe him.

On the same day, a Division caseworker, Romanita Rivera (Rivera), went to defendant's home at approximately 4:35 p.m. to investigate the referral. Upon arrival, Rivera knocked on the front door several times and rang the doorbell, but there was no response. After speaking to a nearby business owner, who informed her that defendant lived in the home, Rivera called the telephone number listed on the referral from J.N.'s school, but found it was a non-working number. At 5:46 p.m., and again at 6:35 p.m., Rivera returned to the home and knocked on the door several times and rang the doorbell, but did not receive a response.

After returning to her vehicle to call her supervisor, Rivera observed a child appear in the window of defendant's second floor apartment. She again knocked on the door of the home and rang the doorbell, but because no one responded, she called the police for assistance.

Two police officers arrived approximately thirty minutes later, and Rivera advised them of her unsuccessful attempts to gain entry to the home. The officers knocked on the door and either defendant or J.N. answered several minutes later. Rivera identified herself and stated that she was sent to investigate a report the Division had received. According to Rivera, after defendant "said it was fine," the officers entered the home and observed that J.N. was there.

Defendant informed Rivera she did not hear the doorbell because it was powered by electricity, which had been shut off for about one month because she fell behind on the payments. She explained that her electric bills totaled $500 or $600 per month, which she believed was caused by an ambulance garage located on the first floor of her building that she suspected was using her electrical outlets. Defendant stated she applied for financial assistance with the bills about two weeks earlier. Rivera confirmed that the apartment did not have hot water, but did have cooking gas. Defendant told Rivera she boiled water to bathe J.N. once, and had been bathing him at the home of C.R., the mother of E.R., defendant's boyfriend.

Because defendant did not "pose a threat," Rivera determined she could complete the investigation without the assistance of the officers, who then left the apartment. Upon interviewing defendant, Rivera learned that defendant's daughter, D.M., who was sixteen at the time, had moved to the home of her paternal grandmother, G.B., when the electricity was shut off.

Rivera also introduced herself to J.N., who was then six years old, and asked him to give her a tour of the home, which consisted of three bedrooms, a kitchen, and a living room. Defendant's "bedroom was organized and fully furnished," but J.N.'s bedroom "contained a small sofa, in which the cushions become a bed." Rivera observed two or three bruises on J.N.'s left arm and one on his right arm, in different stages of coloring. J.N. told Rivera that the bruises on his left arm were caused by his mother hitting him with a belt and the bruise on his right arm was caused by falling and bumping into the wall. According to Rivera, J.N. stated that his mother hit him with a belt "all over." J.N. also told Rivera there was no heat or hot water at the apartment, that he had been showering at C.R.'s home, and that he did not want to stay at the apartment.

Rivera took photographs of the bruises on J.N.'s arms, as well as other small pink marks on his body that appeared to be insect bites, which were submitted to the court as evidence in the Title Nine proceedings. While speaking with defendant, Rivera smelled alcohol on her breath and asked if she had been drinking. Defendant "stated she had been drinking vodka and that she takes 20 pills and asked the worker if she wanted to see them." Rivera told defendant she wanted to see the pills, but defendant never showed them to her.

When Rivera asked defendant about the bruises on J.N.'s arms, defendant denied hitting him and stated J.N. has "two left feet." Defendant claimed if she had hit J.N. with a belt, it "would leave a welt," not bruises. Rivera discussed with defendant the services she would need to complete to ensure that J.N. remained in her custody. Defendant informed Rivera she was attending stress management classes, "road to recovery" courses, and counseling services. Defendant claimed she suffers from depression, anxiety, and insomnia, and showed Rivera a prescription bottle for an antidepressant.

As the evening progressed and the apartment grew darker, Rivera noticed roaches coming out in the kitchen and told defendant they needed to leave. Rivera then drove defendant and J.N. to the home of C.R., the mother of defendant's boyfriend. While driving to C.R.'s home, defendant told Rivera that her son is dyslexic and was on medication until defendant stopped it "because he wasn't himself."

Upon arriving at C.R.'s home, C.R. told Rivera her son E.R. sometimes stayed at the home. Rivera knew there had been an allegation of child abuse against E.R. "that was coded human bites," and asked C.R. if her son could stay out of the home for the next few days while defendant and J.N. stayed there. C.R. responded she "could not guarantee that her son would not return to the home." Rivera then conferred with her supervisor and was told that if defendant had no alternate plan for short-term housing, the Division would need to remove J.N. from her care.

When Rivera asked defendant if she had any place else to stay, defendant mentioned her daughter D.M.'s paternal grandmother, G.B., and Rivera telephoned her. G.B. stated she could lose her senior citizen housing by having defendant and J.N. stay with her, but "it was okay because she wanted to help." Rivera then drove to G.B.'s home with defendant and J.N., and J.N. spent the night there.

While at G.B.'s home, Rivera spoke with D.M., who confirmed that she left her mother's home to stay with G.B. after the electricity was shut off. D.M. stated the electricity had been turned off once during the previous year, and that her mother owed $2100 in back utilities.

D.M. also stated she "would not be returning to her mother's home because she is always yelling and drinking," and claimed her mother sometimes hit her "with an open hand and with a belt." According to D.M., her mother "would rather drink than eat. . . . drinks vodka every day and . . . all the money goes towards drinking."

On the following day, May 4, 2007, the Division conducted an emergency removal of J.N. because of the allegations of physical abuse, alcohol abuse, and the lack of electricity and hot water in defendant's home. On May 8, 2007, the Division filed a verified complaint for custody of J.N. and an Order to Show Cause (OTSC) seeking appointment of a law guardian. The court held a hearing the same day and defendant appeared with counsel. The caseworker who conducted the investigation, Romanita Rivera, testified for the Division. Defendant did not testify or present any evidence.

Rivera testified that during her investigation on May 3, 2007, J.N. "reported that the bruises on his left arm were caused by a belt. He was hit with a belt, and he said with the strap part of the belt . . . and that the other bruises were from him falling." When asked if J.N. said his mother hit him with the belt, Rivera answered, "[y]es." Rivera described the bruises she observed on J.N.'s arms as "two or three bruises on his left arm, and at least one on the right arm."

Following Rivera's testimony, the court found it would be unsafe for J.N. to remain in the family home due to the lack of electricity or hot water and because of the bruises on his arms, which J.N. stated were caused by his mother hitting him and by falling in the dark after the electricity was shut off. The court further noted "the caseworker smelled alcohol on [defendant's] breath, and all of those [facts] taken together would be a risk that this child was in imminent danger." Accordingly, the court entered the OTSC on May 8, 2007, transferring legal and physical custody of J.N. to the Division.

Defendant and J.N.'s biological father, H.N., were both present in court on May 29, 2007, the return date of the OTSC. H.N. initially expressed interest in custody of J.N. and complied with a substance abuse evaluation and drug testing. However, the Division subsequently lost contact with H.N. and later confirmed that he had moved to Massachusetts. H.N. failed to attend a scheduled psychological evaluation in November 2007, and since that time the Division has not had contact with him. Following the hearing, the court ordered defendant to comply with a substance abuse evaluation, which recommended treatment for drug and alcohol abuse, and the Division was ordered to provide various services, including financial assistance with defendant's electric bill.

At a compliance review hearing on September 11, 2007, defendant's attorney requested that J.N. be returned to defendant's custody, based on her participation in the recommended services and a report from her treating therapist recommending reunification. Counsel for defendant also advised the court that defendant's electric bill had been paid and her utilities had been restored.

The Division recommended, however, that defendant attend an independent psychological evaluation. Additionally, counsel for the Division advised the court that J.N. had been placed in a treatment program to address his behavioral issues, and the program had not yet scheduled a discharge date. The law guardian also agreed that reunification was not appropriate at that time. The court denied defendant's application and ordered J.N. to remain in the Division's custody.

On November 29, 2007, defendant, her attorney, the Division, and the law guardian appeared in court for a hearing on defendant's motion to suppress and a fact-finding hearing. Defendant argued the exclusionary rule required suppression of "[d]efendant's statements to the DYFS worker and all evidence obtained in [d]efendant's home on or about May 3, 2007 . . . due to [p]laintiff's warrantless and illegal search and interrogation." Following oral argument, the court found there was no improper entry into defendant's home by Rivera or the police because either defendant or J.N. allowed them to enter the home; there was no custodial interrogation, which would have required Miranda warnings, because the police officers did not question defendant; and there was no violation of defendant's constitutional rights. Therefore, the court denied defendant's suppression motion. The court also found by a preponderance of the evidence that defendant abused or neglected J.N. by physically abusing him and by failing to provide suitable housing based on the lack of electricity in the home, which caused J.N. to sustain physical injuries.

Defendant participated in the services the Division offered and was reunited with J.N. on January 15, 2008. Defendant subsequently completed her substance abuse treatment and the court transferred legal custody of J.N. to his mother. The litigation was terminated on June 16, 2009.

On appeal, defendant presents the following arguments:

POINT I

CHILD PROTECTIVE MATTERS ARE QUASI-CRIMINAL IN NATURE AND MAY ALSO RESULT IN CRIMINAL CHARGES. A PARENT BEING INVESTIGATED MUST BE AFFORDED CONSTITUTIONAL PROTECTIONS.

POINT II

WORKERS ARE GOVERNMENT OFFICIALS AND SHOULD BE SUBJECT TO CONSTITUTIONAL STANDARDS. BOTH THE POLICE AND THE CASEWORKER VIOLATED M.M.'s RIGHT TO PRIVACY IN HER HOME. EVIDENCE GATHERED IN THE HOME AND THEREAFTER SHOULD BE EXCLUDED.

A. CASEWORKERS ARE GOVERNMENT OFFICIALS.

B. PRIVACY.

C. EXCLUSIONARY RULE.

POINT III

THERE WAS NOT A PREPONDERANCE OF EVIDENCE THAT M.M. PLACED J.N. AT RISK OF SERIOUS AND IMMINENT HARM AS DEFINED IN N.J.S.A. 9:6-8.21.

POINT IV

DYFS VIOLATED N.J.S.A. 9:6B-4 IN REMOVING THE CHILD, BY FAILING TO OFFER ANY ASSISTANCE TO PREVENT PLACEMENT AS WELL AS IN THE WAY IN WHICH IT PLACED HIM.

(Not Raised Below.)

We are satisfied from our examination of the record that there is substantial credible evidence to support the trial court's findings and its conclusion that defendant abused or neglected J.N. We therefore affirm with only the following comments.

"The exclusionary rule . . . requires the suppression of evidence obtained during searches and seizures in violation of the Constitution." State v. Gioe, 401 N.J. Super. 331, 339 (2008), certif. denied, 199 N.J. 129 (2009) (internal citations omitted). "The overarching purpose of the rule is to deter the police from engaging in constitutional violations by denying the prosecution any profit from illicitly-obtained evidence." State v. Williams, 192 N.J. 1, 14 (2007). On the other hand, the purpose of a Title Nine proceeding is to protect the safety of children rather than to punish parents or to prove a crime. N.J.S.A. 9:6-8.8(a). Title Nine provides that the Division must prove the parent abused or neglected the child by "a preponderance of the evidence," a standard used only in civil cases. N.J.S.A. 9:6-8.46(b).

Defendant argues that "child protective matters are quasi-criminal in nature" and therefore, the exclusionary rule applies to Title Nine abuse or neglect proceedings. However, the Supreme Court has "decline[d] to expand the rights of Title Nine respondents to include protections accorded criminal defendants after they have been indicted or taken into custody." State v. P.Z., 152 N.J. 86, 111 (1997).

Moreover, evidence obtained during a police investigation conducted for the purpose of protecting a child may be admissible pursuant to either the community caretaking doctrine or the emergency aid doctrine. See State v. Bogan, 200 N.J. 61, 75 (2009) ("The community caretaking role of the police also extends to protecting the welfare of children[, and] is a reflection of the State's general parens patriae duty to safeguard children from harm."); State v. Navarro, 310 N.J. Super. 104, 109 (App. Div.) (community caretaking doctrine may justify warrantless entry by police where they reasonably believe that a child is in danger), certif. denied, 156 N.J. 382 (1998); State v. Garland, 270 N.J. Super. 31, 44 (App. Div.) (emergency aid doctrine justified warrantless entry into premises for the purpose of protecting a child under circumstances where it was reasonable to believe the child was unattended), certif. denied, 136 N.J. 296 (1994).

In this case, as the trial court noted, neither the police nor the Division caseworker illegally entered defendant's home; there was no custodial interrogation; and there was "nothing in this case that . . . was coercive, [or] was in any way a violation of [defendant's] rights." Based on these findings, which are fully supported in the record, we agree with the trial court's determination that the exclusionary rule is inapplicable.

Defendant also argues the trial court erred in finding that she abused or neglected J.N. because the Division did not establish by "a preponderance of the evidence that defendant placed J.N. at risk of serious and imminent harm as defined in N.J.S.A. 9:6-8.21." We cannot agree.

Abuse or neglect occurs when a parent fails to exercise a minimum degree of care and unreasonably inflicts physical, mental, or emotional harm upon a child, or places the child at substantial risk of such harm. N.J.S.A. 9:6-8.21(c)(4)(b). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). In addition, the court "need not wait to act until a child is actually irreparably impaired" by parental abuse or neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

The scope of our 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 courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. D.M.H., supra, 161 N.J. at 382; Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In the present matter, the trial court's findings and conclusions are fully supported by sufficient credible evidence. Based on our review of the record, we conclude the matter was correctly decided and defendant's arguments do not warrant further discussion in a written decision. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

 

At the hearing on the Division's Order to Show Cause, Rivera testified she could not "recall exactly" whether it was defendant or J.N. who let her into the apartment.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

2

A-5914-08T4

RECORD IMPOUNDED

May 20, 2010