NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M.

RECORD IMPOUNDED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,1

Plaintiff-Respondent,

v.

L.M.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF T.M., a minor.

______________________________________

January 14, 2014

 

Submitted December 9, 2013 Decided

 

Before Judges Yannotti, St. John and Leone.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-0135-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant L.M. (Lori)2 appeals the Family Part's June 21, 2012 order finding that she had neglected her daughter T.M. (Terry). We affirm.

I.

The record on appeal discloses the following facts and procedural history.

Lori is the biological mother of Terry and the subject of this appeal. M.M. (Matt), the biological father of Terry, was a party to the fact-finding hearing, but is not a party to this appeal. On April 20, 2011, the Division of Child Protection and Permanency (Division) received a referral from the Township of Hanover Police Department reporting concerns that Lori and her husband, Matt were "doing drugs." The Division was informed that Lori resided in the Econolodge on Route 210 in Whippany, with up to seven other individuals, including then eleven-year-old Terry. On that day, Officer Dominic Kaiser of the Hanover Police Department and two Division caseworkers went to the room at the hotel and observed three individuals in the room. Terry was not present, and Lori informed the caseworkers that she was with her grandparents.

The caseworkers and Kaiser observed that all three persons were under the influence of unknown substances, including Lori's then seventeen-year-old son, Gary. Shortly after Kaiser and the caseworkers entered the room, Gary went into the bathroom, locked the door, and refused to open it, despite Kaiser's requests. Gary eventually emerged from the bathroom with dark circles around his eyes and slurred speech. Caseworkers observed small brown flakes on the toilet seat, and Kaiser noted substances in the bowl, which he believed to be marijuana. Caseworkers interviewed Gary, and he informed them that Lori, Matt, and his younger sister, Terry, all resided in the room. He also stated that his older sister and her family frequently slept on the floor in the room. He admitted to caseworkers that he had used Percocet a few days earlier.

Caseworkers also interviewed Lori. They observed that she was shaking, her speech was slurred, and she appeared to be dazed. She informed workers that the only drugs in the room were her prescribed medications, which included Xanax, Soma, Oxycodin, and Senokot. She stated that all medications were kept in a locked container, and she denied that any of the prescribed medications were being illegally distributed. Caseworkers noticed two large pills in plastic wrap and a water bottle with a tube of large pills taped to it. Lori also confirmed that Terry resided in the hotel room on school nights, but stayed with her grandparents on the weekends.

Lori signed a consent to have the room searched, and the police found two plastic bags on the floor that contained a white residue believed to be a controlled dangerous substance (CDS). They also found a cigarette wrapper that contained two white pills. The Division informed Lori that it had determined that the children were at a substantial risk of harm because she appeared to be under the influence of drugs and there were concerns of drug activity in the family's room.

On that same day, the Division executed an emergency removal of Terry and Gary. Later that day, while at Morristown Memorial Hospital where he was being cleared for placement, Gary admitted to a Division caseworker that he had stolen prescription medication from his mother. He admitted to using the medication, but denied using it in the presence of Terry or distributing medication to any other individual. He also informed workers that Lori was aware that he had stolen the medication. Gary's hospital screening test was positive for benzodiazepines, opiates, cannabinoids, and cocaine.

During the evening on April 20, a caseworker met privately with Terry at her grandparents' home. Terry acknowledged that she usually resided at the hotel, and said other individuals besides her immediate family also frequented the room. She stated that everyone in her family, including Lori, was aware that Gary had a drug problem and Gary had been stealing Lori's pills. On April 21, caseworkers interviewed Matt and he explained that he was aware Gary used illegal drugs, but denied awareness that anyone else who resided in the hotel room used illegal drugs.

On April 25, 2011, the Division filed a complaint and an order to show cause against Lori and Matt. On that day, the Family Part judge entered an order by consent, placing Terry and Gary in the Division's custody. The judge held a hearing on June 2, 2011, the return date for the order to show cause. The judge entered an order continuing custody of Terry and Gary3 with the Division and ordering Lori and Matt to comply with substance abuse evaluations and psychological evaluations.

A fact-finding hearing was conducted on October 7, 2011. The Division called two witnesses, Kaiser, and caseworker Adrianna Cruz.

Kaiser testified to his observations on April 20, and informed the judge that he had personally dealt with prior drug arrests involving Gary. He also noted that the hotel room was "filled with clutter" and he observed a "corner bag" filled with a white powdery substance. He explained that, based on his expertise, all the participants appeared to be impaired and likely under the influence of one or more CDSs. He observed a prescription "safe," but noted that the lock was broken.

Lastly, he indicated that upon searching the room, he found a number of prescription pills and other items he believed to be CDSs. The prescription bottles contained Carisoprodol, Alprazolam, Senokot and Oxycodone. He counted the remaining Oxycodone pills and found that the prescription had been filled two days earlier, on April 18, and that there were thirty-six pills remaining out of a prescription for 240 pills. He then placed Lori under arrest for possession of CDS and drug paraphernalia. Matt was arrested the following day.4

Caseworker Cruz testified that she observed that the room was in disarray and she noticed what she believed to be CDSs. She also testified concerning Terry's interview of April 20, where she noted that Terry had verbalized suicidal thoughts because of arguing between her parents. Lori called no witnesses and offered no evidence.

On October 21, 2011, the judge entered an order accompanied by a comprehensive written opinion finding that the Division proved by a preponderance of the evidence that Lori and Matt were grossly negligent as they exposed Terry to a dangerous environment replete with drug activity. On December 15, 2011, a compliance review hearing was held, where the judge ordered that Terry remain in the custody, care and supervision of the Division, and that Lori and Matt comply with psychiatric evaluations, random urine screens and individual therapy.

A permanency hearing was held on April 5, 2012, where the judge found that the parents were making progress and granted a three-month extension to work towards reunification. On June 25, the Division wrote a letter to the court and all parties, stating that unsupervised visitation began on May 5, and that the Division had no concerns. The judge entered an order on July 3, 2012, permitting unsupervised visitation between Terry and her parents.

Another permanency hearing occurred on July 19, where the judge approved the Division's plan for reunification, effective immediately with three months of care and supervision. On that date, legal and physical custody of Terry was transferred to Lori and Matt. The litigation was terminated on October 18, 2012, on consent of all parties. Terry has since been returned to her parents. Lori appeals the October 21, 2011 order finding that she had neglected her daughter Terry.

II.

On appeal, Lori argues that the trial judge erred in finding that there was sufficient evidence to "support a conclusion of abuse and neglect against [her]." Lori also argues that the trial judge erred in admitting and relying on certain evidence. Both the Division and the Law Guardian disagree and urge us to affirm the order.

A.

We briefly address the evidential issues raised by Lori.

She contends that despite finding that the Center for Evaluation and Counseling, Inc. (CEC) report was inadmissible, the judge relied on its contents in supporting her finding of neglect. Defendant argues that the judge's decision hinged on the CEC report and, prior to determining its admissibility, the judge read the report and allowed the Division's attorney to read portions of the report into the record. The report was offered to corroborate Terry's statements to the Division's caseworker that she had thoughts of suicide and detailed how she considered taking a knife to her stomach or swallowing her mother's medication because of her parent's fighting. Terry blamed ninety percent of her suicidal ideations on her mother. After hearing testimony from witnesses, the judge rendered her decision on the admissibility of the CEC report under N.J.S.A. 9:6-8.47, and determined that, as the CEC report was offered prior to the completion of the fact-finding hearing, it was inadmissible.

We conclude that defendant's contention is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Our review of the judge's written opinion indicates that the judge did not rely on the CEC report as a factual basis for the finding of abuse and neglect.

Defendant argues that the judge erred in permitting Kaiser to testify about prior bad acts of members of the family, particularly Gary, in violation of N.J.R.E. 404(b).

We note that the purpose of a fact-finding hearing in a Title Nine proceeding is not to assign guilt to a defendant but to determine whether a child is abused or neglected under N.J.S.A. 9:6-8.21 and N.J.S.A. 9:6-8.44. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). The Division must establish abuse or neglect through "competent, material, and relevant evidence" by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial judge "must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

A judge may consider a parent's past actions as indicative of his or her future ability to effectively parent. See J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) (finding that "[n]othing in the record suggests any dramatic change with respect to their capacity as parents to warrant our harboring the hope that [their child] can some day be safely returned to them"), certif. denied, 77 N.J. 490 (1978). Furthermore, [p]redictions as to probable future conduct can only be based upon past performance. . . . Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care to other children in their custody." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.) (quoting J. & E., supra, 157 N.J. Super. at 493), certif. denied, 192 N.J. 68 (2007).

We recently reaffirmed this principle.

[I]n civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child. N.J.S.A. 9:6-8.46(a) states that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian." Thus, the statute itself provides for admissibility of evidence about other children.

 

[I.H.C., supra, 415 N.J. Super. at 573.]

Because the abuse or neglect statutes expressly require the judge to assess risk to the children, "the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child." Id. at 575. Accordingly, "the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case." Id. at 575-76.

Courts need not wait until a child is actually irreparably impaired by parental inattention or neglect. In re Guardianship of DMH, 161 N.J. 365, 383 (1999). In DMH, the Court found that although there was no question the defendant father loved his children, "he was not able to fulfill any of his parental duties," and the record supported a finding of neglect because the father would "not be able to provide a safe and stable home for the children in the near future." Ibid.

At the fact-finding hearing in this case, Lori's counsel objected to any testimony by Kaiser concerning his prior history with the family. The judge permitted the inquiry subject to further objection to specific questions and responding testimony. Lori asserts that the judge erred by allowing any such inquiry, particularly testimony concerning Gary's past drug use and the fact that two unrelated individuals were arrested in Lori's driveway possessing CDS "that were going to be used at the household." In response to defendant's objection concerning the basis for Kaiser's statement as to where the drugs would be used, the judge instructed Lori's attorney that she was free to make that inquiry on cross-examination. The question was never asked.

Kaiser offered no testimony concerning Lori's character or of her crimes, wrongs or bad acts. Gary's history of drug use, his arrest history, and Lori's involvement is relevant to the issue of abuse or neglect of Terry by Lori, and was only elicited for that purpose. Evidence of Lori's fitness or unfitness can be gleaned not only from her past treatment of Terry, but also from the manner in which she exercised her parental responsibilities regarding Gary.

Important to our consideration is that the proceeding was not before a jury.

We also note that in abuse or neglect cases, a judge rather than a jury hears the evidence and makes findings of fact. One of the primary reasons for the prohibition of character evidence to show disposition, namely, misuse of that evidence by lay jurors, is not present in such a non-jury case. A judge, trained and experienced in using evidence only for its proper purposes, and charged with protecting the rights and interests of all parties, is much less likely to be prejudiced against a defendant by reaching a conclusion that the defendant is simply a person of bad character.

 

[I.H.C., supra, 415 N.J. Super. at 576.]

 

As such, we see no abuse of discretion by the judge in allowing Kaiser's testimony.

Lori additionally argues that the Division's screening summary and investigation summary, which her attorney did not object to, should not have been admitted into evidence. The Division caseworker identified the exhibits and was available for cross-examination. Lori contends that the judge erred by not analyzing whether the reports contained embedded hearsay in violation of N.J.R.E. 805.

Rule 5:12-4(d) allows the Division to submit into evidence reports prepared by staff personnel or professional consultants "provided the documents satisfy the requirements of the business records exception [to the hearsay rule], N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012); see also N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010). Pursuant to N.J.R.E. 803(c)(6), a business record is:

A statement contained in writing or other record of acts, events, conditions, . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, [is admissible] if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

 

We note that in response to a question to the judge as to whether she will exclude from consideration hearsay statements in the reports, the judge replied, "I know I can do that." The Division's screening summary and investigation summary are admissible pursuant to Rule 5:12-4(d) as they are reports by staff personnel or professional consultants. Lori has failed to show that these particular documents were prepared in such a way to indicate they are not trustworthy. Further, the only significant questioned hearsay was Terry's statement to the caseworker, which was comprehensively addressed by the judge in her opinion, to which we now turn.

Lori contends that the judge erred in finding that Terry's statements to the caseworker were sufficiently corroborated. Pursuant to N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." "By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).

Here, the judge found certain evidence corroborated Terry's statements. She determined:

First, [Terry's] statements that [Gary] was abusing drugs were corroborated by [Gary's] own statements, his positive drug screen, [Matt's] statements, and Officer Kaiser's statements about [Gary's] drug history. [The third persons] presence in the apartment also corroborates [Terry's] statements that people other than her family visit the apartment. Moreover, [Terry] commented that her mother is aware of [Gary's] drug problem and that she had argued about it with him. This was corroborated by [Gary's] statements describing same. Thus, [Terry] was able to describe drug-related activities of the apartment, and the details of what she saw were consistent with admissible evidence. The court finds that is sufficient to support an inference that [Terry] has knowledge that [Gary] uses drugs, steals his mother's pills, and argues with his mother about the pills.

Therefore, we hold that the judge did not misapply the principles governing out-of-court statements of child victims of abuse or neglect, Terry's statement was admissible, and it was sufficiently corroborated to support a finding of neglect pursuant to N.J.S.A. 9:6-8.46(a)(4).

B.

We now turn to the substantive issues raised by Lori, as to which we first outline our standard of review.

As we stated in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010):

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

 

Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is:

to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

 

[N.J.S.A. 9:6-8.8(a).]

The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).

Title Nine provides in relevant part that an abused or neglected child includes one:

whose 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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.

 

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

The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Such conduct can include failure to take a "cautionary act." T.B., supra, 207 N.J. at 306-07. Simple negligence, however, does not qualify as abuse or neglect. Ibid.

There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.

 

As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).

 

Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.

 

[G.S., supra, 157 N.J. at 178-179.]

Lori argues that the judge's decision must be reversed because there was insufficient evidence to support abuse and neglect. We disagree. The judge found that Terry regularly stayed in the hotel room with up to seven people where there was likely some CDS readily available. Also, that Gary, a minor, "was on a plethora of CDSs when his mother was present." Lori knew of her "son's drug issues and still allowed her daughter to regularly stay in the environment where some of these drug-related activities occurred." The judge further found that by "failing to properly safeguard her pills, [Lori] exposed both her children to dangerous substances, whether they were legally or illegally obtained medications."

The judge determined that Lori's actions constituted more than mere negligence, exposed Terry "to a dangerous environment replete with drug activity," and constituted abuse and neglect. The evidence amply supports the judge's decision that Terry "was put in imminent danger of becoming physically, mentally, or emotionally impaired because of the failure of her parents to exercise a minimum degree of care, as required by N.J.S.A. 9:6-8.21(c)(4)(b)."

Affirmed.

1 L. 2012, c. 16, eff. June 29, 2012, reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency.

2 We refer to defendant and members of her family by pseudonyms for the sake of convenience and confidentiality.

3 Gary turned eighteen-years-old before the fact-finding hearing and was dismissed from the litigation.

4 The record does not disclose the disposition of the charges.