OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF O.S.S A Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5128-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.S.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF O.S.S.,

A Minor.

_______________________________________

April 19, 2012

Submitted March 12, 2012 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Atlantic

County, Docket No. FN-01-92-10.

Joseph E. Krakora, Public Defender,

attorney for appellant (Eric R. Foley,

Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General,

attorney for respondent (Lewis A.

Scheindlin, Assistant Attorney General,

of counsel; Kimberly S. Dinenberg,

Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender,

Law Guardian, attorney for minor

(Sonia G. Wagner, Assistant Deputy

Public Defender, on the brief).

PER CURIAM

Defendant-mother H.S. appeals from several orders of the Family Part adjudicating a complaint of abuse or neglect of her three-year-old son, O.S.S., under N.J.S.A. 9:6-8.21(c). The orders maintained custody of the boy with the Division of Youth and Family Services (DYFS), found that defendant had abused and neglected the child in three distinct ways, and terminated the Title 91 abuse or neglect case so that DYFS could proceed to a Title 302 case for termination of defendant's parental rights with the goal of adoption by the boy's paternal grandmother.

Although the court's transition from the abuse or neglect fact-finding hearing to a dispositional and permanency hearing should have included proper notice to defendant and more detailed findings in support of the approved permanency plan, we affirm the Family Part's orders in the particular circumstances of this case. More than a year had passed since the boy was placed in the custody of his grandmother, and defendant did not seek reunification with the child, agreeing to his permanent placement with his grandmother. Defendant was not prejudiced by the court's proceeding to a dispositional hearing before it had formally issued its decision on abuse or neglect, or by entry of the permanency order permitting DYFS to proceed with its Title 30 case. Preferably, DYFS's permanency plan should have been considered within the Title 9 proceedings, but defendant's right to contest the plan was adequately preserved in the ensuing Title 30 case.

I.

Defendant gave birth to the child in December 2006 when she was twenty years old. The child remained in defendant's custody until shortly before his third birthday. The child's father did not live with them. Defendant later gave birth to another boy, who has been in the custody of a maternal aunt since birth.3

Beginning in 2007, DYFS received several referrals concerning the health and welfare of O.S.S., initially when defendant left the child in the care of her own mother, who was not suited to care for the child, and subsequently because of poor living conditions and defendant's seeming inability to cope with the stress of raising a small child. DYFS investigated each referral but did not substantiate abuse or neglect at that time. Rather, DYFS provided assistance to defendant, such as by purchasing new bedding and furniture for her to eliminate bedbugs.

In 2009, defendant and her son were living in a two-bedroom apartment with another woman, whom we will refer to as the roommate, and her two children. Defendant was also involved in a relationship with a man, whom we will refer to as her boyfriend, but that relationship was marred by domestic violence. In the last documented incident of violence before the child was removed from defendant's custody, the child was struck and choked by the boyfriend and fell to the floor. The roommate stepped in to remove the child from further harm. Subsequently, defendant claimed that she broke off her relationship with the boyfriend and only reconciled with him after DYFS removed the child from her care in late November 2009. However, the day before the child's removal, defendant told a DYFS caseworker that the boyfriend was present and asleep in her apartment.

Removal of the child occurred from a hospital emergency room on Thanksgiving Day 2009. The child had trouble eating food that morning, and defendant took him to the emergency room of AtlanticCare Medical Center. There, a nurse called DYFS because the child had visible marks of injuries a swollen jaw, scratches on his face and body, bruises on his legs, and round marks the size of a fingertip on his hand, legs, and back. In addition, the child was wearing dirty clothes and behaving in a bizarre manner, such as licking the floor, but defendant was not correcting the behavior appropriately. Instead, defendant was yelling at the child continuously in the emergency room because, according to her, he was being "fussy." When defendant became aware that DYFS had been called, she tried to leave the hospital with the child but was prevented from doing so.

Hospital personnel informed DYFS that defendant and the child had come to the hospital two weeks earlier because defendant had been beaten up by her boyfriend and the child had been choked during the incident. In response to the DYFS caseworker's questions, defendant gave inconsistent answers about the causes of her son's injuries. She first blamed the child's father. After DYFS contacted the father by telephone and heard his denial that he had been with the child in recent months, defendant claimed that the child had been in the care of her roommate when the injuries occurred. Defendant explained that she lied originally about the father's involvement because she was concerned that DYFS would cause problems with her roommate and she would be evicted from the roommate's apartment. Also, she had no other babysitter to care for her son while she worked at a restaurant two days a week. She did not have a credible explanation, however, about why she allowed the roommate to watch the child alone when defendant was not working. She had admitted to another DYFS caseworker earlier that week that she did not want to be responsible for her son, that she had too much stress in her life, and that she "takes stuff out on him."

Investigators from the Atlantic County Prosecutor's Office arrived at the hospital and took a recorded statement from defendant. Defendant admitted that she punished her son physically when he cried or misbehaved, such as by picking him up by his wrists and throwing him on a bed and by slapping him. She admitted that she was overwhelmed by stress and problems and sometimes overreacted to the child's misbehavior.

The child could not communicate well, but the DYFS caseworker heard him respond to a question about some marks on his face by saying "Mommy did it."

X-rays at the hospital determined that the child's jaw was not broken. The emergency room doctor diagnosed the cause of the swelling as an ulcer, which could have been caused by eating hot food. The doctor suspected but expressed doubts that the round marks on the child's hand and body were cigarette burns. Defendant believed the round marks were caused by bedbugs, and she had recently begun treating them with hydrocortisone cream. She stated that the swollen jaw and bruises may have resulted from a fall and that the scratches on the child were caused by her cat.

DYFS directed the hospital to hold the child pending its further investigation. Meanwhile, DYFS interviewed the child's father and the father's aunt and mother, all of whom had arrived at the hospital. DYFS determined that the paternal grandmother could safely care for the child. In early December 2009, DYFS filed a complaint and an order to show cause under N.J.S.A. 9:6-8.28 and 30:4C-12 for custody of the child and placement outside defendant's home. It placed the child with the paternal grandmother pending a fact-finding hearing on its abuse or neglect charges against defendant.

On December 8, 2009, the boy was examined at the Cares Institute by Stephanie Lanese, M.D., a pediatrician. Dr. Lanese issued a report describing the nature of the boy's injuries. The report also stated Dr. Lanese's conclusions that the round marks on the child's hand and body were likely to be cigarette burns. According to the report, the boy was unable to provide any information about the source of his injuries.

On three dates from September 1, 2010, through January 28, 2011, the Family Part conducted a fact-finding hearing on the abuse or neglect charges. At the beginning of the hearing, the child's father agreed to an identified surrender of his parental rights in favor of his mother, and he was dismissed from the case. The case proceeded against defendant.

The court heard testimony from the DYFS caseworker who had investigated at the hospital, Lisa Brown. The caseworker's Special Response Unit (SPRU) report was admitted in evidence as well as the SPRU "buddy" report of a second DYFS caseworker who had also investigated at the hospital on Thanksgiving Day but was not called as a witness at the hearing. Over defendant's objection, the court also admitted in evidence for a limited purpose the report of Dr. Lanese regarding the child's injuries. The court ruled it would not admit and consider the doctor's conclusion that the round marks on the child's body were cigarette burns, or any other conclusion regarding child abuse, but the report was admitted for the limited purpose of establishing that a follow-up medical evaluation of the child was conducted and the observations made of the child's injuries.

DFYS then called defendant to the stand. Over defendant's objection on Fifth Amendment grounds, the court allowed questioning of defendant to identify her voice on the recorded statement taken by the Prosecutor's investigators at the hospital. After defendant identified her voice, the court admitted the recorded statement in evidence over defense objection that a witness from the Prosecutor's Office was necessary to authenticate the recording. In her testimony, defendant willingly answered some questions about her son's injuries. To avoid questioning about domestic violence with the boyfriend, defendant's attorney stipulated that incidents of domestic violence had occurred, such as the one in early November 2009 where the child was struck and fell to the floor.

On the last day of the hearing, defendant again testified briefly in the defense case and stated that the round marks on the child were caused by bedbugs. Finally, another DYFS caseworker was called by the defense to provide testimony about the child's placement after his removal. On cross-examination, the DYFS witness stated that the child's condition and welfare had improved significantly since being placed with his grandmother more than a year earlier and that the grandmother wished to adopt him.

At the conclusion of testimony and counsel's arguments, the court and counsel discussed the timing of a dispositional and permanency hearing pursuant to N.J.S.A. 9:6-8.45 and 30:4C-61.2. Defense counsel objected to the court proceeding immediately to a dispositional and permanency hearing. Defendant was not seeking reunification and had no objection to the child remaining in the custody of his paternal grandmother, but she objected to a plan of termination of her parental rights with a goal of adoption of the child. Instead, defendant sought a plan for kinship legal guardianship by the paternal grandmother in accordance with N.J.S.A.3B:12A-1 to -7. DYFS and the child's law guardian objected to kinship legal guardianship and argued in favor of a permanency plan leading to adoption.

The court considered but rejected defendant's arguments requesting another evidentiary hearing in the Title 9 proceedings to develop a permanency plan. The court stated that the case was already delayed beyond the one-year period by which a permanency plan must be proposed, seeN.J.S.A.30:4C-61.2(a)(2), and defendant was not contesting the child's placement. The court stated that it need not hold a contested dispositional hearing on the issue of kinship legal guardianship in the Title 9 case because that issue would be explored in the Title 30 termination of parental rights case. On January 28, 2011, the court issued a permanency order retaining custody of the child with DYFS and placement with his grandmother and approving DYFS's plan to file a Title 30 complaint for termination of defendant's parental rights with the objective of adoption by the grandmother.

On March 8, 2011, the court issued a written decision finding that defendant had abused and neglected her son in three ways: (1) by allowing her roommate to continue to care for the child after the child was injured while in the roommate's care, (2) by excessive corporal punishment of the child, and (3) by allowing the child to be exposed to injury and in fact being injured in a domestic violence incident with defendant's boyfriend. A judgment order was entered the same date finding that O.S.S. was an abused and neglected child within the meaning of N.J.S.A.9:6-8.21(c).

On May 9, 2011, the court held a further hearing and terminated the Title 9 case and set a schedule and ordered other relief in the Title 30 termination of parental rights case that DYFS had filed by that date. This appeal followed from the orders in the Title 9 case finding that defendant had abused and neglected her son and establishing a permanency plan.

II.

Defendant argues that the Family Part erred in concluding she had abused and neglected her son because it relied on inadmissible evidence and because insufficient admissible evidence was produced to support the court's findings and conclusions. We reject both parts of the argument.

N.J.S.A. 9:6-8.21(c)(4) 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 . . . 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.

"[T]he phrase minimum degree of care refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dept. of Human 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. DYFS has the burden of proving abuse or neglect by a preponderance of the evidence through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).

Addressing first defendant's challenges to the evidence considered by the Family Part, N.J.S.A. 9:6-8.46(a) provides that abuse or neglect may be proven 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." The statute also provides that "any writing, record or photograph . . . relating to a child in an abuse or 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," ibid., if the judge finds that the document or exhibit qualifies under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). The statute further provides that the record "shall be prima facie evidence of the facts contained in such certification." N.J.S.A. 9:6-8.46(a). Rule 5:12-4(d) provides that DYFS "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." See N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010). Consequently, the SPRU reports of the caseworkers who investigated at the hospital and the expert report of Dr. Lanese were admissible in evidence under the quoted statute and rule, at least to the extent their contents satisfied the business records exception to the hearsay rule.

The Family Part ruled that it would not consider the conclusions contained in Dr. Lanese's report that the child was subjected to abuse, in particular that he had suffered cigarette burns, and that such conclusions would require the doctor's live expert testimony at the hearing subject to cross-examination. In its written decision, the court adhered to that ruling. Dr. Lanese's report was admitted and considered for the limited purpose of establishing the medical evaluation that the child underwent and of further documenting his injuries.

As to defendant's recorded statement to Prosecutor's investigators, we reject defendant's argument that the statement was inadmissible on evidentiary and statutory grounds. Although at the hearing defendant argued that a witness from the Prosecutor's Office was required to authenticate the recording, that argument was made in support of her contention that she had a Fifth Amendment right not to incriminate herself by being called to the witness stand to identify her voice. Defendant gave no prior notice that she objected to the authenticity of the recording, and she did not dispute its accuracy or suggest any discrepancy.

Defendant's contention that her recorded statements in the hospital were inadmissible under N.J.S.A.9:6-8.35 and -8.36 is without merit because the statements were not made during a preliminary interview of defendant conducted by DYFS for the purpose of attempting "to adjust" an abuse or neglect complaint. Rather, the recorded statements were part of a criminal investigation by the Prosecutor's Office, obtained only after defendant was advised of and waived her Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Having concluded that the Family Part did not err in its evidentiary rulings, we will not address at length her argument that the evidence of abuse and neglect was insufficient. We have described defendant's admissions to DYFS and Prosecutor's personnel and her stipulations concerning domestic violence in the home. She admitted that the child was injured while in the care of her roommate and yet she continued to allow the roommate to watch the child. She admitted that she had slapped the child in the face at a time when he was less than three years old, and that she had picked up the child by his wrists and thrown him on a bed. She acknowledged to both the Prosecutor's investigators and to a DYFS caseworker that she was overwhelmed by the stress of caring for the child and sometimes overreacted in punishing the child. Her behavior in the hospital emergency room corroborated findings that she had a faulty understanding of a toddler's needs and vulnerability, or of her proper role as a parent.

Defendant also stipulated that her boyfriend was violent and that the child was present for at least one incident of violence and was injured. This case is distinguishable from circumstances where a child is merely a witness to domestic violence in the home but DYFS presents no evidence that the child was harmed. SeeN.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 15-16 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Furthermore, the trial court discredited defendant's testimony that she had broken off the relationship with the boyfriend. She told a caseworker just a day before the child's removal that the boyfriend was sleeping in her bedroom. Defendant's conduct indicated an unwillingness or inability to protect the child from a violent man.

These admissions and stipulations, together with the undisputed medical evidence of the child's injuries, were sufficient for the court to find that defendant had allowed the child to be harmed in three distinct ways and that the risk of harm was continuing. We find insufficient merit in defendant's additional arguments about the adequacy of the evidence to warrant further discussion in a written opinion. R.2:11-3(e)(1)(A).

Raising procedural objections to the Family Part's decisions, defendant argues that the court erred in holding a dispositional hearing without adequate notice and without permitting presentation of additional evidence to establish that a permanency plan for adoption and termination of her parental rights was not in the child's best interest. We agree that the court's manner of conducting the dispositional hearing did not meticulously adhere to the statutory procedures outlined in New Jersey Division of Youth & Family Services v. G.M., 198 N.J.382, 399-400 (2009). We do not condone the procedure in this case, but we conclude that defendant suffered no prejudice.

In G.M., supra, 198 N.J.at 399, the Court stated: "A dispositional hearing must be held to determine the appropriate outcome of the case. N.J.S.A. 9:6-8.50. At the dispositional hearing the court may consider 'only material and relevant evidence.' N.J.S.A. 9:6-8.46(c)." The Court listed the options available for disposition in accordance with N.J.S.A. 9:6-8.51 to -8.56, and added that the Family Part "'shall state the grounds for any disposition made.' N.J.S.A. 9:6-8.51(b)." G.M., supra, 198 N.J.at 399-400.

The Supreme Court also referenced the statutory requirement that the Family Part hold a permanency hearing if the child's placement remains outside the home for more than twelve months. Id.at 400 (citing N.J.S.A.30:4C-61.2). It explained the purpose of the permanency hearing as "determin[ing] whether the family will continue towards reunification or whether an alternative plan must be adopted." Ibid.

In this case, the Family Part conducted a dispositional and permanency hearing immediately after presentations were completed for the abuse or neglect fact-finding hearing. Notice of the permanency hearing was not given in writing at least fifteen days before it was held, as required by N.J.S.A.30:4C-61.2(b). The court was concerned that more than twelve months had already passed since the child's placement with his grandmother and further delay might extend to several more months, in violation of N.J.S.A.30:4C-61.2(a)(2). While a dispositional hearing in a Title 9 case "may commence immediately after the required findings are made[,]" N.J.S.A.9:6-8.47, here the dispositional and permanency hearing actually preceded the court's abuse or neglect decision.

In G.M., the Court also stated: "Both the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted 'with scrupulous adherence to procedural safeguards . . . .'" G.M., supra, 198 N.J.at 401 (quoting N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J.264, 286 (2004)). While the Family Part's deviation from the statutory requirements was procedural error, it did not cause any prejudice to defendant. R.2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result"). Unlike G.M., supra, 198 N.J.at 391-92, the court was not required to resolve a dispute about placement of the child. Defendant was not seeking reunification and agreed that the child should remain with his paternal grandmother.

Nor was there any issue of defendant receiving additional services to facilitate reunification. DYFS had arranged evaluations and counseling for defendant while the Title 9 case was pending, and she repeatedly failed to attend or cooperate. The permanency and subsequent orders of the court continued her right to weekly visitation with her son and directed DYFS to attempt further services for defendant. At the time of the dispositional hearing and later court proceedings, defendant gave no indication that she would take advantage of counseling or other services with a goal of improving her skills as a parent and avoiding termination of her parental rights.

The only reason defendant desired another evidentiary hearing was to argue in favor of a kinship legal guardianship by the grandmother instead of termination of defendant's parental rights leading to adoption. That issue was preserved for the Title 30 case. Defendant will have an opportunity to present evidence and argue against termination of her parental rights and adoption of the child. Reversal of the permanency order and a remand for further proceedings in the Title 9 case will not gain any right or opportunity for defendant that she lacks in the Title 30 proceedings.

Because defendant was not prejudiced by the procedural deviations in conducting the dispositional and permanency hearing in the Title 9 case, the Family Part's orders may stand as entered.

1 N.J.S.A. 9:6-8.21 to -8.73.

2 N.J.S.A. 30:4C-11 to -15.4.

3 The other boy, together with the maternal aunt and her husband, were originally part of this litigation, but they were dismissed from the case by agreement of all parties. The boy's custodial status was not affected.