NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.S.E.

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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

T.S.E.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.C.,

a minor.

__________________________________

July 30, 2015

Submitted July 14, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0214-13.

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

John J. Hoffman, Acting 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 minor, J.C. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

During an unusual Title 9 fact-finding proceeding, the trial court took testimony from T.S.E. by telephone, the Division of Child Protection and Permanency (the Division) presented no evidence, and the court determined that T.S.E. had abused or neglected her seventeen-month-old daughter.1 Because the court's decision was not based only on competent evidence a statutory mandate - we reverse and remand for a new hearing.

The procedural history is undisputed. In August 2012, the Division removed T.S.E.'s then thirteen-month-old daughter and placed the daughter in foster care. Several days later, at a DODD Hearing,2 the court entered an order placing the child in the Division's care, directing that the Division transfer physical custody of the child to her paternal grandmother, arranging for visitation, and fixing a return date on the order to show cause that had accompanied the Division's verified complaint.

On the return date of the order to show cause, the court continued the child's physical custody with her paternal grandmother and scheduled a fact-finding hearing for December. The fact-finding hearing was conducted as scheduled. Ten months after the hearing, following intervening compliance review hearings, the court entered an order terminating litigation because the child had been returned home and the conditions that had led to the child's removal had been remediated.

T.S.E. appeared at the fact-finding hearing by telephone. At the inception of the hearing, the Deputy Attorney General (DAG) stated her "understanding from [counsel for T.S.E.] . . . that . . . [T.S.E.] will be stipulating today." T.S.E.'s attorney replied: "Your Honor, she's going to basically - - in my talking to her she's going to explain what happened, and then you're going to have to determine whether or not that was an abuse or neglect finding." Acknowledging "this is a little strange," the court swore in T.S.E. and proceeded to take her testimony.

T.S.E. testified that she lived in Lindenwold on the day the Division removed her daughter, but went to Camden to have her "toes done." She gave this account of the incident

I didn't have any change on me, so they said don't worry about it, take this one. And I took three puffs of the cigarette. And not even 10 seconds I started feeling disoriented and discombobulated, and I don't really remember what happened. The next thing I do remember I was in the EMT and transported to Cooper Medical Center.

And then I had an interview with a couple of people, maybe doctors, I just really don't remember. And then I started gaining conscious well, I was conscious, but I started remembering more as time went on. And I did remember the DYFS worker telling me that he's going to remove my daughter from my care.

After T.S.E. gave this account, the court questioned her at length. In response to the court's questions, T.S.E. explained that she had parked her car and was walking to get her toes done at a nail salon when she came across a man selling cigarettes, or "loosies," one at a time for fifty cents. She denied being concerned that the loose cigarette could have been tainted with some kind of drug. Although she knew "by name and face" the person who was selling the loose cigarettes, she denied knowing that he sold illegal drugs. After the incident, she heard that the person was known for selling illegal drugs. She had smoked loosies before the incident.

Following the court's questioning of T.S.E., the Deputy Attorney General cross-examined her. T.S.E. denied telling hospital personnel that she smoked marijuana. She said she smoked something that she believed was "laced." She did not know what it was laced with until she received her test results. She had taken three puffs of the loosey and could not tell that it was something other than tobacco. After the third puff, she put it out and then, as she began to walk, she started to feel dizzy. She did acknowledge, however, that she had a history of smoking marijuana. In response to the DAG's question, "And during the incident you also tested positive for marijuana and PCP, isn't that correct," T.S.E. responded, "Yes, that's what I was told."

The court then resumed questioning T.S.E. Through its questions, the court elicited that T.S.E. had her seventeen-month-old daughter with her when the incident occurred.

During the attorneys' closing statements, the court once again resumed its questioning of T.S.E. The court pressed T.S.E. about whether she knew that on occasion people on the streets of Camden sell not only regular tobacco cigarettes, but also cigarettes "that could - - that have drugs in them, like marijuana or PCP or some other drug" T.S.E. denied such knowledge. The court then questioned her about whether she knew people could buy drugs in the area of an apartment complex near where she lived. She denied that she ever bought drugs in that area, but said she knew it was "a dangerous area as far as violence and crime and drugs."

The DAG then completed her closing statement. She argued that T.S.E.'s testimony was inconsistent with the statements she made during the investigation. The DAG noted that T.S.E. had told hospital staff "that she in fact did smoke marijuana, but that she didn't know that it was laced." When the court remarked that it had "no real discovery here," the DAG responded that she had provided "the [D]ivision's exhibits[.]" The court responded, "I have received no exhibits in this case." The DAG repeated that she had provided exhibits, to which the court responded, "No." Following a further colloquy between the court and T.S.E., the court delivered its oral opinion.

The court found T.S.E.'s testimony "to be extremely uncredible[,] . . . almost to the degree of being ludicrous." The court stated

Whether you're from Lindenwold, or Haddonfield, or Cherry Hill, to come to Camden and buy loose cigarettes from someone the defendant knows, and then doesn't know, or does know, you know, the testimony starts falling apart at that juncture. And buys one of these or doesn't have the money to buy the cigarette, but buys, or purchases a portion of a cigarette. And then after three puffs of that cigarette gets horribly intoxicated or falls within the influence, or under the influence of some type of narcotic drug, which turns out to be a clearly - - a clear narcotic drug.

I'm satisfied that mom knew what she was doing, knew that this is not a taste of - - of tobacco, that this was an illegal substance. And mom had her child with her. And to do this and take this type of chance is clearly, without question, outrageous type of activity. It is gross negligence. And it clearly indicates a person who neglected, in a gross manner, her child by ingesting the drug in question.

The court apparently accepted either the hearsay brought out on cross-examination that someone told T.S.E. that she had tested positive for marijuana and PCP - or the representations made by the DAG in her closing statements about what the drugs were, because in the memorializing order finding that T.S.E. had abused or neglected her child the court wrote: "She smoked a cigarette that was laced with marijuana and PCP. Her use while caring for her daughter placed her child at significant risk of harm. [T.S.E.] was found incredible."

We begin or analysis with some basic principles. In a Title 9 case, the court must decide at the fact-finding hearing the crucial issue of "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Title 9 defines an "abused or neglected child" as

a child 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

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

Our review of a trial court's decision that a parent has abused or neglected a child is limited. Cesare v. Cesare, 154 N.J.394, 411 (1998). Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court factfinding." Id.at 413. We give particular regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "'feel of the case.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.at 261, 293 (2007)).

Nevertheless, our review of a trial court's abuse or neglect determination is not merely perfunctory. We have recognized that a "judge's determination has a profound impact on the lives of families embroiled in this type of a crisis," N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002).

Judicial findings based on unspecified allegations, hearsay statements, unidentified documents and unsworn colloquy from attorneys and other participants erodes the foundation of the twin pillars upon which the statute rests: (1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardians; and, commensurately, (2) that no parent should lose custody of his/her child without just cause.

The judge's determination, therefore, must be based on competent reliable evidence. N.J.S.A. 9:6-8.46; R. 5:12-4(d). The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made. N.J.S.A. 9:6-8.50. These factual determinations must be supported by evidence admitted during the hearing, which shall be held on the record. All documentary exhibits considered by the court must be clearly identified for appellate review. R. 1:2-3. Testimonial evidence must be presented through witnesses who are under oath, N.J.R.E. 603, and subject to cross-examination. N.J.R.E. 611. In short, this critically important part of the business of the Family Part demands meticulous adherence to the rule of law.

[Id. at 265.]

Here, the court's determination was not based on competent evidence. The sole testimony about T.S.E.'s smoking marijuana laced with PCP came during the Division's cross-examination of T.S.E. about a hearsay statement from unidentified hospital personnel, and from the DAG's closing remarks. Moreover, the court's rejection of T.S.E.'s testimony as incredible was not competent evidence that T.S.E. had knowingly smoked marijuana laced with PCP in the presence of her child.

We are sensitive to the volume of cases handled by Family Part judges as well as the demands placed upon the Division, charged as it is with the State's parens patriae responsibility to protect the welfare of children. Those burdens, however, should not result in a resort to expediency in trying and disposing of abuse or neglect determinations.

We recognize that what happened in this case was unusual. Apparently, the attorneys had some expectation that T.S.E. intended to stipulate to facts establishing that she abused or neglected her daughter. Or, perhaps she did not contest any of the Division's proposed evidence, and only disputed that she knowingly ingested some type of cigarette that contained marijuana and PCP. "However, a stipulation must be definite and certain in its terms and the consent to the parties to be bound by it must be clearly established." J.Y., supra, 352 N.J. Super. at 245. The court should have clarified the precise nature of T.S.E.'s intentions or stipulations before taking her testimony. And whatever those intentions or stipulations were, they should have been set forth clearly on a record that demonstrated T.S.E.'s knowing, voluntary, and intentional relinquishment to her "rights under Title 9 to a fact-finding hearing where the burden of proof will be on [the Division] to establish the elements of abuse and neglect by a preponderance of the evidence," id. at 266, and to a determination by the court based only on competent, reliable evidence, id. at 265.

For the foregoing reasons, we reverse the order determining that T.S.E. abused or neglected her child, and remand for a new hearing. Because the judge who conducted the fact-finding has already made credibility determinations, the remand hearing should be conducted by another judge. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986) ("'[t]he judge who heard the matter below has already engaged in weighing the evidence and has rendered a conclusion on the credibility of the Division's witnesses'") (quoting In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977).

Reversed and remanded. We do not retain jurisdiction.

1 The complaint also named the child's father. This appeal does not involve him.

2 "A '[DODD] removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which . . . is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). When the Division removes a child from a home on an emergent basis, the Superior Court, Chancery Division, Family Part, must "hold a hearing on the next court day, whereby the safety of the child shall be of paramount concern . . . ." N.J.S.A. 9:6-8.31.