DIVISION OF YOUTH AND FAMILY SERVICES T.T IN THE MATTER OF J.T., C.D. and G.D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0698-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

T.T.,

 

Defendant-Appellant.

____________________________________________

IN THE MATTER OF

J.T., C.D. and G.D.,

minors.

____________________________________________

April 11, 2012

 

Submitted October 11, 2011 Decided

 

Before Judges A. A. Rodr guez, Ashrafi and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-174-08.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).

 

Paula T. Dow, 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 J.T., C.D. and G.D. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

T.T., the birth mother of three children -- J.T., a girl born in October 2003; C.D., a girl born in June 2005; and G.D., a boy born in May 2006 -- appeals essentially from a finding by clear and convincing evidence that she abused and neglected her children.1 The birth fathers were not named in the complaint.2 We reverse the finding of abuse or neglect. On August 20, 2010, the Family Part entered an order terminating the abuse or neglect action (Title 9 proceeding).3 This was done because a complaint for termination of parental rights (Title 30 proceeding) had been filed by the Division of Youth and Family Services (DYFS).4 We reverse the finding of abuse or neglect.

These are the relevant facts. The events triggering the abuse and neglect complaint occurred in the September 2007 to January 2008 time span. By way of background, DYFS has been involved with T.T. since she was a child. Caseworker Grace Amaechi was assigned to T.T.'s case from 2005 to June 2008. She testified that in March 2006, DYFS removed J.T. and C.D. from T.T.'s home because the family was about to be evicted. DYFS also wanted to undertake a psychological evaluation of T.T., but T.T. refused.

Three months later, T.T.'s housing situation improved. The Family Part ordered DYFS to reunify the children with T.T., and six days later, the family was reunited.

In September 2006, T.T. experienced a seizure while at a meeting at a DYFS office. She was transported to the hospital. Amaechi went to T.T.'s home to ensure the children would be cared for. She found the children under the supervision of T.T.'s brother. Amaechi found the home dirty and the children inappropriately dressed. As a result, DYFS executed a Dodd emergency removal.5 Four months later, DYFS returned the children to T.T.

On September 21, 2006, shortly after the seizure incident, Robert Kanen, Psy.D., conducted a confidential psychological evaluation of T.T. This report was admitted into evidence. T.T. informed Dr. Kanen that she was raised in Hoboken by her mother until the age of nine. Then she was placed in foster care and lived in group homes. Her mother lives in Newark and has a history of mental illness. Her father lives in Albany, New York and has had drug and alcohol problems in the past.

T.T. graduated from high school in 2000 after studying in the regular curriculum. She denied any learning problems or special classifications. Prior to the birth of her first child, she performed housekeeping and worked at a nursing home. T.T. reported to Dr. Kanen that her second child, her daughter J.D., is autistic.

During the interview, T.T. was oriented as to time, place and person. She was cooperative, her behavior was controlled, she was not in any distress, and she was alert and responsive. Her thought processes were logical and coherent. She reported no auditory hallucinations, delusions, or any unusual perceptual experiences. She reported no problems with sleep and did not feel depressed. She denied having any temper control problems, or a history of psychiatric hospitalizations.

T.T. has suffered from a seizure disorder her entire life. She has taken Dilantin for seizures, but she could not take this medicine during her pregnancies. Therefore, she had a few seizures during her pregnancies. Her last seizure was just before she gave birth to her son, G.D., in May 2006.

According to Dr. Kanen, T.T. has an IQ of 94, placing her in the average range of intelligence. She showed no evidence of cognitive limitations. Her responses to interview questions and tests indicated that she is not mentally ill. There was no evidence of a thought disorder, major depression, delusional disorder, bipolar disorder or dysthmia. There was no evidence of alcohol or drug abuse. There was no indication of antisocial tendencies. She appeared capable of functioning adequately in daily life. However, she was rather rigid and resistant to recommendations that might assist her in caring for her children.

Finally, Dr. Kanen concluded that T.T. "appears vulnerable to experience seizures when faced with stress beyond which she can cope." In Dr. Kanen's view,

[i]t is very likely that [DYFS] will have to provide support services to [T.T.] to adequately care for her children. Constant and sustained care of her children is likely to be very stressful for [T.T.], especially when considering that the two-year-old [J.D.], is described as autistic. [DYFS] will need to be involved with [T.T.] to ensure that she can provide a safe, secure and permanent home for her children.

 

The facts in the present action began with an August 27, 2007, incident. DYFS received a call from a person claiming to be a friend of T.T.6 The caller reported that T.T. had given birth to a premature baby in New York, and that both T.T. and the baby were in critical condition and on life support. A few days later, Amaechi visited T.T.'s home and asked her about the whereabouts of the newborn. T.T. responded that she had asked the hospital social worker to provide information to DYFS, and that the baby weighed one pound, but was doing well. T.T. blamed the child's father, M.S., for the lack of information provided to DYFS and promised to bring the newborn boy with her to DYFS the next day.

However, two weeks later, according to DYFS records, an unidentified person called the hotline to report that the previous month, T.T. had given birth to a boy named "Joshua S." in New York. T.T. had not provided any additional information to DYFS at this time.

On November 2, 2007, by way of an order to show cause and a verified complaint, DYFS moved for an investigation. T.T. provided some information to DYFS caseworker Iris Gomez about the baby, such as date of birth, the birth hospital, and the hospital where the baby was undergoing current treatment. Upon investigation, the named hospital had no record of T.T. or her baby. According to Amaechi, T.T. told her the baby's name was "Allan."

In late November 2007, DYFS opened a separate and unrelated case on a different woman named "Mary" and her child, "Baby Jayne."7 According to Mary, Baby Jayne had been born in New York on November 28, 2007. Because Mary was homeless, the New York City Administration for Children's Services (ACS) was notified. Mary told ACS that her friend T.T. who lived in New Jersey would be willing to house her and the child temporarily. ACS notified DYFS because Mary and Baby Jayne would be living in New Jersey with T.T.

DYFS caseworker Madeline Liriano was assigned to Mary's case. Liriano testified that DYFS was hesitant to allow Mary and Baby Jayne to live with T.T., because of T.T.'s history with DYFS. Nonetheless, the arrangement was temporarily approved.

On December 19, 2007, a hearing on the investigation of T.T.'s alleged premature baby began. T.T. appeared at the hearing unrepresented. She did not admit or deny that she had had a premature child in August. Instead, she asked the court why DYFS was allowed to keep bothering her and questioning her about the birth of a premature baby.

The court ordered T.T. to provide DYFS with information about the baby and strongly suggested that she go outside the courtroom and provide the requested information to her caseworker. T.T. met outside the courtroom with Amaechi and Amaechi's supervisor. She told them that she had not had a baby. Nonetheless, Amaechi testified that two days later, T.T. called DYFS and reported that her baby, "Allan," had come home from the hospital the day before.

Amaechi visited T.T.'s home and observed T.T. holding a newborn. According to Amaechi, T.T. represented this child as her son, Allan. The baby was dressed in blue. At a follow-up visit, Amaechi and Linda Gabones, a pediatric nurse at the University of Medicine and Dentistry of New Jersey, visited T.T.'s home. In answer to Gabones's questions, T.T. gave a detailed description of her labor and delivery and the baby's subsequent health problems. Gabones and Amaechi believed T.T. to be speaking about the newborn in the room.

The next day, Liriano visited T.T.'s home to meet with Mary. Mary did not indicate that she was having any specific problems with T.T., but said she was uncomfortable and ready to move on to a shelter and eventually to marry Baby Jayne's father. Three days later, Mary called indicating that she had left T.T.'s home and was afraid of her. Liriano testified that as a result of her conversation with Mary, she concluded that T.T. was possessive of Baby Jayne. Liriano heard messages on Mary's telephone, indicating T.T. wanted Baby Jayne back.

According to Liriano, Mary stated that T.T. was dressing Baby Jayne in boys clothes and calling her "Allan." Mary did not testify at the hearing.

Four days later, Liriano visited T.T.'s home. T.T. did not want Liriano to enter the house. She refused to allow Liriano to retrieve the crib used by Baby Jayne, and stated that she had thrown it away along with all of Mary and Baby Jayne's belongings.

At that point, DYFS decided to remove T.T.'s three children from her care via an emergency removal. Amaechi testified that the reason for the removal was that DYFS did not know T.T.'s mental status at the time.

Human Services Police Officer Jacqueline Rubino testified for T.T. Rubino was present during the removal in her role as a Human Services Police Officer. She gave T.T. her card as is her normal practice during a removal. Although her testimony was almost entirely in favor of DYFS, she implied that she had reason to believe that Amaechi could not communicate appropriately with T.T. and that Amaechi had a problem with T.T. When asked to elaborate, Rubino said, "I'm not going to lie. [Amaechi] did not have good communication with [T.T.], no."

T.T. testified on her own behalf, indicating that she had never told DYFS she had a fourth child. T.T.'s brother testified that contrary to Amaechi's testimony, he had not told anyone that T.T. had given birth to a fourth child. He was present for some of the meeting with nurse Gabones and Amaechi, and he had not witnessed T.T. representing Baby Jayne as her own child.

DYFS submitted into evidence four psychological or psychiatric evaluations of T.T., which had been performed in 2004 and 2006 in connection with DYFS's earlier involvement with T.T. None of the psychologists or psychiatrists involved testified at the hearing. The reports were all prepared at DYFS's request and suggested services that DYFS should provide in order to improve T.T.'s parenting skills.

At the close of all evidence, the judge found the testimony of the DYFS witnesses to be credible, and T.T.'s testimony not credible. The judge found that T.T. had reported to DYFS that she had a fourth child and then continued to deceive DYFS by allowing DYFS to believe Baby Jayne was that child. The judge determined that T.T. had abused and neglected her three children by clear and convincing evidence. The judge stated, "I agree with [T.T.'s attorney] that there's nothing in the record that says up until this point that her actual children weren't fed, weren't clothed, et cetera. I don't think that's the issue here."

However, the judge found that T.T.'s bizarre behavior and failure to be under some type of psychiatric care placed her children in danger because her actions, if "not checked and not medicated can certainly affect a parent's ability to care for the children."

On appeal, T.T. contends that:

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONCLUSION THAT [T.T.'S] CHILDREN WERE AT RISK WITHIN THE MEANING OF TITLE NINE.

 

EVEN IF A FINDING OF ABUSE AND NEGLECT COULD BE BASED ON A PRESUMPTION THAT MENTAL INSTABILITY EQUATED WITH PROBABLE FUTURE HARM, THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONCLUSION THAT [T.T.'S] MENTAL STATE WAS ACTUALLY UNSTABLE.

 

DYFS and the Law Guardian urge affirmance. We agree with T.T.'s position.

N.J.S.A. 9:6-8.21 defines a child as abused or neglected when the child's

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 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; or by any other acts of a similarly serious nature requiring the aid of the court.

 

The 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., Div. of Family Servs., 157 N.J. 161, 178 (1999). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid.

N.J.S.A. 9:6-8.46 provides the evidentiary bases for proving abuse or neglect. Essentially, abuse or neglect may be proved through evidence of injuries to the child that are "of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian . . .[,]" and through a written or photographic record memorializing "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," subject to slightly lessened foundational requirements. N.J.S.A. 9:6-8.46(a). The judge's role is "to determine whether the child is an abused or neglected child as defined herein." N.J.S.A. 9:6-8.44; N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002).

DYFS has the burden to prove its case by a preponderance of the evidence through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b). Therefore, if a judge makes findings that are "based on unspecified allegations, hearsay statements, [or] unidentified documents," the purposes of the statute are negated. See N.J.S.A. 9:6-8.46; R. 5:12-4(d). These purposes are "(1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, (2) that no parent should lose custody of his/her child without just cause." J.Y., supra, 352 N.J. at 265.

An abuse or neglect "inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." G.S., supra, 157 N.J. at 176. Rule 5:12-4(d) allows DYFS "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants," and provides that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." We have held that this rule allows admission of such evidence "only if it satisfies the prerequisites for admissibility set forth in N.J.R.E. 803(c)(6)," the business records exception to the hearsay ban. N.J. Div of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010). A finding of abuse or neglect made by applying the clear and convincing standard cannot be adopted as a finding at a Title 30 proceeding involving the same parties to establish that the children are endangered by the parental relationship. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 120 (2011). Such a finding must be made based on the evidence addressed during the Title 30 proceeding. Id. at 122.

Applying those standards here, we conclude that the finding of abuse and neglect must be reversed because it is not supported by sufficient, competent evidence. Although the incident involving an alleged fourth child by T.T. is bizarre, there is no proof that such incident harmed any of her children.

The alleged harm to T.T.'s children is based on conjecture and not based on actual proof. Thus, there is an insufficient evidentiary basis for the judge to have made an abuse or neglect finding under these facts. N.J.S.A. 9:6-8.46(a). The same applies to the finding that T.T. is mentally impaired. The September 21, 2006, psychological evaluation belies that finding.

Given this result, we do not address T.T.'s two other contentions. These are:

THE COMPETENCY AND RELIABILITY OF SOME OF THE EVIDENCE ON WHICH THE FACT-FINDING COURT RELIED WAS DOUBTFUL AND DYFS' OWN ACTIONS IN THE INVESTIGATION OF THE MATTER WERE SOMEWHAT SUSPECT AND COUNTERPRODUCTIVE.

 

THE FACT-FINDING COURT WAS ENTIRELY WIDE OF THE MARK IN MAKING ITS DETERMINATION THAT THE LEVEL OF EVIDENCE PRESENTED BY DYFS WAS "CLEAR AND CONVINCING."

 

We adhere to our conclusion that there is insufficient evidence to support a finding of abuse or neglect.

R

eversed.

1 T.T. appeals not only from the June 3, 2008, order finding abuse or neglect, but from all orders there under preceding the Final Order Terminating FN Litigation, which was entered on August 20, 2010. However, her principal challenge is to the abuse or neglect finding.

2

The birth fathers of the children are not parties to this appeal. The birth father of J.T. is M.S., whose whereabouts are unknown. The birth father of C.D. and G.D. is A.D., who died in 2006.

3

HUD-FN-09-174-08.

4

HUD-FG-09-107-11.

5 Named after the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.

6 According to a DYFS report, the caller was Jackie Rubino, a Human Services Police Officer. Rubino later testified that she did not make the call.

7 These are fictitious names.