OF YOUTH AND FAMILY SERVICES v. E.F IN THE MATTER OF A.J.M., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3091-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.F.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF A.J.M., a minor.

_________________________________

February 10, 2012

Submitted January 9, 2012 - Decided

Before Judges Parrillo, Grall and Skillman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-103-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Tosca Blandford-Bynoe, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for A.J.M. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.F. appeals from a February 2, 2011 order of the Family Part denying her request to reopen a November 13, 2009 judgment finding that she abused and neglected her nine-month old daughter A.J.M. and for a new fact-finding hearing. She also appeals from a July 7, 2010 order of the Family Part approving the Division of Youth and Family Services' (Division) permanency plan seeking termination of E.F.'s parental rights to A.J.M., followed by adoption by the child's paternal relatives, and from an October 14, 2010 order terminating the FN litigation and continuing the matter under the FG docket. Because E.F. and the child's biological father M.M. subsequently voluntarily surrendered their parental rights to A.J.M., who was then adopted on August 31, 2011, the appeal of the July 7, 2010 and October 14, 2010 orders has been rendered moot, N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), and in her reply brief E.F. acknowledges as much. However, she contends her appeal of the denial of her request to reopen the abuse and neglect finding is ripe for resolution given the lingering adverse consequences attached to that judgment. We agree, N.J.S.A. 9:6-8.10a, -8.11; A.P., supra, 408 N.J. Super. at 262; N.J. Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66-67 (App. Div. 2005), and, therefore, proceed to address that limited feature of this appeal.

After its investigation found an earlier allegation of abuse and neglect of A.J.M. by E.F. to be unsubstantiated, the Division responded to a second referral on July 25, 2009. While at E.F.'s home, the Division caseworker found hardly any food in the refrigerator or cabinets, "only two cans of formula, some cereal, peanut butter and jelly" despite E.F. receiving food stamps and other public assistance. During this visit, E.F. admitted to hitting nine-month old A.J.M. with her open hand and to having sex with M.M. while A.J.M. was in the same room. Although the caseworker did not see any marks or bruises on A.J.M., she noticed the baby had a severe diaper rash that was being treated with an ointment.

During the next visit on July 30, 2009, the caseworker encountered another male, who, E.F. said, had spent the night sleeping in the same bedroom where A.J.M. slept, while E.F. slept on the couch. The caseworker found no baby food or formula in the house and E.F. explained that she had been feeding A.J.M. regular milk and Raman noodles "smashed up." Later that day, the Division obtained police records confirming a domestic violence incident between E.F. and M.M. on July 25, 2009, after which E.F. was treated at a hospital for her injuries and M.M. was arrested and incarcerated for aggravated assault. The caseworker also had A.J.M. examined on July 30, 2009 by the child's pediatrician, who reported that A.J.M. had only one well visit on July 23, 2009 since her birth, was behind on immunizations, looked dirty, had a diaper rash that worsened into an infection since a week prior, and had lost weight.

As a result of the Division's investigation, on July 30, 2009, A.J.M. was removed from E.F.'s care and custody pursuant to an emergency removal, N.J.S.A. 9:6-8.29 -.30. On August 3, 2009, the Division filed a verified complaint for custody of A.J.M. and an order to show cause, heard the same day. Both E.F. and M.M. appeared at the hearing and were represented by counsel. At the conclusion of the hearing, the Family Part judge found that:

[R]emoval of the child is necessary to avoid an ongoing risk to the child's life, safety, or health and that continuation of residence in the home would be contrary to the welfare of the child because of allegations that there was no food in the house, there was no formula, there were mutual acts of domestic violence, the baby was not up to date on immunizations and had a diaper rash that had turned into a[n] infection.

The judge ordered that A.J.M. be placed under the Division's care, custody and supervision and placed in the physical care of her paternal grandfather.

On September 4, 2009, at the return date of the order to show cause, both E.F. and M.M. appeared with counsel. At that time, custody was continued with the Division and a fact-finding hearing was scheduled for November 13, 2009 at 8:30 a.m. E.F. and M.M. failed to appear at that hearing without explanation and the matter proceeded in their absence, but with the full participation of E.F.'s counsel. Without objection, the Division submitted three documents, previously marked and distributed to counsel: agency referral response reports and investigations, dated November 18, 2008 and July 25, 2009, and E.F.'s substance abuse evaluation report, dated September 8, 2009. At the conclusion of the hearing, the court found by a preponderance of the evidence that A.J.M. was an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21 and accordingly, entered a finding of abuse and neglect against E.F., reasoning:

the conditions of the home, the lack of food, the instability in the home, and lack of follow-up medical care, lack of immunizations and serious diaper rash, all those things placed [A.J.M.] at substantial risk of harm.

E.F. did not file a timely appeal from this final determination nor did she move for reconsideration. Instead, the matter proceeded to a permanency hearing on July 7, 2010, at which time the court approved the Division's plan for termination of E.F.'s parental rights and, in accordance therewith, the Division filed a complaint for guardianship on August 17, 2010. On October 14, 2010, at the initial hearing on the guardianship complaint, the court terminated the FN litigation and continued the care, custody and supervision of A.J.M. with the Division under the FG docket.

On December 14, 2010, one year and one month after the abuse and neglect finding, E.F. moved to reopen the November 13, 2009 judgment and for a new fact-finding hearing.1 The court denied the motion on January 24, 2011, memorialized in a February 2, 2011 order, finding no reason to set aside the abuse and neglect finding, which was rendered after a plenary hearing in which E.F.'s counsel fully participated and represented E.F.'s interest. The court also found E.F.'s application to be out of time, Rule 4:49-2; Rule 4:50-2, and in any event lacking the "exceptional circumstances" required by Rule 4:50-1(f). This appeal by E.F. follows.

As a threshold matter, we emphasize that E.F.'s appeal is from the February 2, 2011 order of the Family Part denying her motion to set aside the November 13, 2009 abuse and neglect finding. We thus review such a determination under the abuse of discretion standard. Mancini v. E.D.S., 132 N.J. 330, 334 (1993). So measured, we discern no mistaken exercise of the court's discretion in this instance.

A finding of abuse and neglect within the meaning of Title 9 requires at a minimum that the child has a "physical, mental or emotional condition that is either impaired or in imminent danger of being impaired as a result of a [parent's] failure

. . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education or medical . . . care" even though the parent is financially able to do so either through his or her own means or through offered aid. N.J.S.A. 9:6-8.21(c)(4)(a); N.J.A.C. 10:129-1.3. The failure to provide for a child's needs when a parent is capable of doing so supports a finding of actionable neglect when a child's condition has been demonstrated to be impaired or in imminent danger of being impaired. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 552-56 (1994).

Here, there is ample credible evidence to support the abuse and neglect finding. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The Division caseworker's observations of A.J.M.'s condition and the lack of food in the home; the medical concerns documented by A.J.M.'s pediatrician; E.F.'s own description of the various events that had recently taken place in her home while A.J.M. was present and in her care; and the July 25, 2009 domestic dispute, collectively considered, provide a sufficient basis for the court's conclusion that A.J.M. was harmed and at substantial risk of continuing harm and as such was an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21(c)(4).

Moreover, this finding was made upon competent evidence. In this regard, N.J.S.A. 9:6-8.46(a)(3) provide in pertinent part:

[A]ny writing, record or photograph whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse and neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds

. . . that it was in the regular course of such business to make . . . .

Indeed, reports of staff personnel and professional consultants are admissible as well under N.J.R.E. 803(c)(6) and N.J.R.E. 801(d). And, as here, parties may agree to the admission of documents in an abuse and neglect case, disposing of the need to adhere to the stricture of the rules. N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 348 (2010).

Lastly, the finding of abuse and neglect was entered following a plenary hearing in which E.F. was afforded all the process due. E.F. had ample notice of the fact-finding hearing yet voluntarily absented herself therefrom. At the hearing, she was represented by counsel, who had the opportunity to call and cross-examine witnesses and to present affirmative defenses or mitigating factors. Under the circumstances, we discern no deprivation of her right to be heard. N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 504, 510 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011); N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464-65 (App. Div. 2002), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). Moreover, at no time following the abuse and neglect determination and prior to the dismissal of the FN litigation, did E.F. ever seek to explain her failure to appear, challenge the validity of the fact-finding, or reserve her right to challenge that finding at a later date. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 621 (App. Div.), certif. denied, 204 N.J. 38 (2010).

In sum, there being ample credible, competent evidence to support the abuse and neglect finding, rendered after a proceeding protective of E.F.'s procedural rights, the court did not abuse its discretion in denying E.F.'s motion to reopen that determination and convene a new fact-finding hearing.

1 As noted, E.F. also moved to vacate the October 14, 2010 order terminating the FN litigation, and the court's January 24, 2011 decision denying this relief is no longer the subject of this appeal inasmuch as E.F. and M.M. voluntarily surrendered their parental rights to A.J.M. on March 10, 2011.