NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.S.

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NOT FOR PUBLICATION WITHOUT THE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.

P.S.,

Defendant-Appellant,

and

C.W., Jr., and M.T.,

Defendants.

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IN THE MATTER OF T.S. and T.T.,

Minors.

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June 15, 2015

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0346-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, T.S. and T.T. (Karen Ann Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals from a July 1, 2013 Family Part order finding that she abused or neglected her two children, T.T. and T.S.,1 in violation of N.J.S.A. 9:6-8.21c(4), by her continued use of cocaine and alcohol. We affirm.

The judge conducted a fact-finding hearing on July 1, 2013. The Division of Child Protection and Permanency (the "Division") produced testimony from a Division caseworker and a social worker from T.S.'s school for special needs children. The Division moved into evidence various documents,2 including the Division's investigation report and a report from a Certified Alcohol and Drug Counselor (the "counselor") at Catholic Charities. We discern the following facts from the evidence adduced at the fact-finding hearing.

Defendant is the primary caregiver of the two children. The Division was first involved with defendant in 2007 due to substance abuse issues, and again became involved in December 2012 because of a report that defendant had recent arrests for assault and possession of drug paraphernalia. In February 2013, defendant tested positive for cocaine and alcohol as part of a substance abuse assessment completed by Catholic Charities. Defendant admitted to the counselor that she used drugs twenty-two of the previous thirty days. She also admitted to her Division caseworker that she used cocaine two to three times a week. Nevertheless, defendant told the counselor that she did not view her drug use as negatively impacting her ability to care for her children.

At the conclusion of the fact-finding hearing, the judge issued an oral decision. The judge found that the Division proved by a preponderance of the evidence that defendant failed to exercise the required minimum degree of care in providing care and supervision for her children. He found that defendant's use of drugs "[twenty] or more times out of the last [thirty] days and consuming alcohol just about every day" placed the children at risk because every day "there was an imminent danger that something could have happened" to the children.

On appeal, defendant argues that (1) the record contains insufficient credible evidence to prove by preponderance of the evidence that she failed to exercise a minimum degree of care; and (2) the judge relied on inadmissible hearsay when he considered the Division's investigation report that included statements from T.T. and T.S., as well as defendant's adult child, reporters, and neighbors; the Catholic Charities' evaluation; and the March 2013 drug test.

We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). The trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

I.

We reject defendant's contention that there was insufficient credible evidence to support a finding that defendant failed to exercise a minimum degree of care that placed her children in imminent danger and substantial risk of harm.

Title 9 defines "[a]bused or neglected child" to include

[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, . . . 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. 9:6-8.21c(4)(b).]

A parent may fail to exercise the minimum degree of care if "he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999).

If there is no actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). The Division must prove its allegations by a preponderance of the evidence at a fact-finding hearing. N.J.S.A. 9:6-8.46 b(1).

In this case, the record contains sufficient credible evidence demonstrating that the children were in imminent danger and substantial risk of harm while in the care of defendant, and that defendant failed to exercise the required minimum degree of care. Defendant, who is the primary caregiver of T.S. and T.T., admitted to her frequent use of cocaine and alcohol. In addition, she tested positive for high levels of cocaine. As the trial court noted, defendant "admitted pretty regularly to what could only be described as excessive use of both alcohol and drugs," and "us[ing] alcohol every day until [her] money runs out[.]"

II.

Defendant also argues that the trial court impermissibly relied on hearsay evidence. Specifically, defendant challenges statements contained in the Division's investigation report from third parties, such as the children, defendant's adult daughter, unknown reporters, and neighbors. She additionally contests the admission of the Catholic Charities' evaluation report and urine screen results.

Here, the judge admitted the Division's investigation summary, but omitted portions of the report that contained unfounded allegations. However, defendant did not object to the third-party statements contained in the report.

Accordingly, we apply the plain-error rule. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)); see also N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010).

The trial judge properly relied on the children's statements, as corroborated statements by a child in an abuse and neglect case may be admissible, even if hearsay. N.J.S.A. 9:6-8.46a(4) ("[P]revious 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."). The children's statements that defendant had a history of substance abuse were sufficiently corroborated by defendant's own admissions that she repeatedly used drugs and alcohol.

Moreover, defendant does not argue that the judge heavily relied on any specific third-party statement. Thus, the admission of any third-party statements, if erroneous, was harmless.

Moreover, N.J.R.E. 803(c)(6) provides that the following statements are not excluded by the hearsay rule

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, 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.

N.J.R.E. 801(d) defines a "business" as "every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies." This "business records exception routinely permits the admission of medical records." Konop v. Rosen, 425 N.J. Super. 391, 403 (App. Div. 2012). We are satisfied that the drug test of March 2013 was properly admitted by the trial court. Based upon our review, the records of the drug tests were made in the regular course of business of the entity that performed the tests, and it was the regular course of its business to record the results of the tests. The drug test's diagnostic nature differs from an expert opinion and did not require an expert's testimony.

Defendant also takes issue with a Catholic Charities' report and a section contained therein regarding a "diagnostic impression" of defendant's condition and recommendations for treatment. However, the judge did not make reference to the report in his findings, but rather, relied on defendant's own concession of her untreated substance abuse problems.

Affirmed.

1 T.T. was born in 2003. T.S. was born in 1998 and has special needs.

2 After deletion of information pertaining to unfounded allegations against defendant.