NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4923-05T44923-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF M.S. and D.S.,

Minors.

__________________________________

 

Submitted November 1, 2006 - Decided November 20, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from Superior Court, Chancery Division, Family Part, Ocean County, FN-15-246-06.

Louis S. Scalzo, attorney for appellant.

Stuart Rabner, Attorney General of New Jersey, attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

attorney for minors, M.S. and D.S. (Melissa R.

Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.S. appeals from a judgment of abuse and neglect under N.J.S.A. 9:6-8.21c(4)(b), entered against her following a fact-finding hearing. We affirm.

According to the proofs adduced by the Division of Youth and Family Services (DYFS), on April 15, 2006, on the ride home after watching a Trenton Thunder baseball game, during which she consumed wine and mixed drinks, S.S. began arguing with her live-in boyfriend of five years, L.C., a police officer, in the presence of her two children M.S. and D.S., ages fourteen and eleven respectively. The argument continued upon their return to their Jackson, New Jersey home until S.S., whose driver's license was suspended, left the residence with her children in L.C.'s Trailblazer vehicle. At some point, she pulled over to vomit and then continued driving while taking a drink of Vodka from a cooler in the vehicle. S.S. eventually parked the car at a local pizzeria and, together with her children, walked through a wooded area back towards home, discarding the car keys in a bush along the way.

Meanwhile, fearing for the safety and welfare of the children, L.C. called the Jackson Police Department and reported that S.S. had taken his vehicle, with the children, without his consent. When Officer McLean arrived at the couple's residence, L.C. expressed concern that S.S. had been drinking. McLean then left to search for the missing vehicle, which he eventually located parked at the nearby pizzeria.

By then, S.S. had returned home with the two children. L.C., who had locked himself in the master bathroom, called

9-1-1 twice to report that S.S. had returned home with the children, was out of control, and doing damage to the residence. Upon McLean's arrival at the scene, he saw S.S. and the children on the front porch crying "hysterically." He tried to calm her down because the children were present, but to no avail. At the time, S.S. smelled of alcohol and her eyes were watery and bloodshot. McLean believed she was under the influence and S.S. did admit to having a few glasses of wine at the baseball game.

S.S. and the two children then accompanied McLean upstairs where L.C., standing in the master bathroom, advised that S.S. had kicked the door and broken the door jamb. When S.S. was about to be placed under arrest, she became belligerent, shouting obscenities at the four officers now present at the scene. She continued her resistance as the officers escorted her downstairs, restrained her with handcuffs and placed her in the back of the patrol car, while her children watched, obviously frightened. S.S. continued to be combative back at the station.

A DYFS caseworker, James Hennig, responded to the station to interview the parties. He also noticed that S.S. appeared to be under the influence. The children told him of their mother drinking at the baseball game, on the way home, and later while driving with them to the pizzeria. They also mentioned that S.S. had hidden the car keys in a bush. Subsequently, Hennig, accompanied by the children and a police officer, found the keys in the exact location pinpointed by the children.

Thereafter, L.C. obtained a domestic violence restraining order against S.S. DYFS obtained an emergency removal of the children and S.S. consented to their being placed in the agency's temporary custody and remaining in the home of L.C., pursuant to N.J.S.A. 9:6-8.28. A two-day fact-finding hearing followed at the conclusion of which the Family Part judge found by a preponderance of the evidence that S.S. abused and neglected her children within the meaning of N.J.S.A. 9:6-8.21. Specifically, Judge Strelecki found:

I'm satisfied that it is a logical inference to be drawn from the facts which have been presented in this Court that while having a suspended license, she drove off in that vehicle.

I'm further satisfied that she thereafter took the children in that vehicle with her, that she was intoxicated at the time. The police officers clearly described her condition, and I'm satisfied that she had more than two wines and some beer, that she had sufficient alcohol, whether she had it in the car from the wine cooler or whether she had it at the park when they were there to see the Trenton Thunder. I need not come to that conclusion. I can safely conclude, clearly conclude from the evidence and the testimony before me that I believe the police officers that her condition was such when they observed that they were able to conclude that she was intoxicated when they saw her in the house.

I'm satisfied that as a result of this argument and then her intoxicated condition that it escalated into a domestic violence situation, that she did try to force the door in and whether the damage to that door came from her forcing the door or whether the dogs did it a year before, I'm satisfied that the conduct on her part was sufficient for [L.C.] to say that, "I don't want this to go any further. I'm fearful for what is happening here," and he thus called the police.

On appeal, S.S. challenges both the order of temporary removal and the subsequent fact-finding of abuse and neglect. Neither of these issues has merit. R. 2:11-3(e)(1)(A) and (E).

(i)

S.S. contends that the trial court erred by ordering the temporary removal of her children without providing a factual basis that the three statutory factors of N.J.S.A. 9:6-8.28 had been met. We disagree. Here, there was no need, at the initial filing of DYFS' complaint for custody, for a preliminary finding that immediate removal was necessary to avoid imminent harm to the children because S.S. had agreed to DYFS maintaining temporary legal custody of her children and having them remain in their current placement with L.C., an arrangement memorialized in the order of April 18, 2006. See N.J.S.A. 9:6-8.28. Thus, not only did S.S. consent to the temporary removal, but at no time prior to the final determination of abuse and neglect did she make application for the return of her children, as was her right under N.J.S.A. 9:6-8.32. Moreover, both on April 18, 2006, when DYFS' complaint was filed, and on May 3, 2006, the scheduled return date on the order to show cause, DYFS was prepared to proceed with the testimony of its caseworker, but S.S. made no request for testimony to be taken on either date. Under the circumstances, there was no error in ordering the temporary removal of the children. See N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 243 (App. Div. 2005).

(ii)

Equally unpersuasive is S.S.'s argument that the finding of abuse and neglect is not supported by sufficient competent credible evidence.

The scope of our review of a trial court's fact finding function is generally limited.

"Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld wherever they are 'supported by adequate, substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988), quoting Rova Farms Resort & Investors Ins. Co., 65 N.J. 474, 483-84 (1974). An appellate court "may make new and independent findings of fact in cases tried without a jury, [citations omitted] but

. . . 'when the result of the contest must turn on the truthfulness of witnesses, the superior advantage of the trial judge in seeing and hearing and appraising the disputants must ordinarily be regarded as the fulcrum on which the issue should be resolved.'" Rubel & Jenson Corp. v. Rubel, 85 N.J. Super. 27, 39-40 (App. Div. 1964), quoting Abeles v. Adams Engineering Co., Inc., 35 N.J. 411, 423-24 (1961).

[New Jersey Div. of Youth and Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110

S. Ct. 2178, 109 L. Ed. 2d 507 (1990).]

In addition, because of the Family Court's "special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Applying these principles here, we are satisfied that DYFS has met its burden under the statute and case law. We see no reason to repeat the detailed findings enunciated by Judge Strelecki and accordingly affirm the judgment of abuse and neglect substantially for the reasons expressed in her oral opinion of May 11, 2006. We add only the following comments.

Both police officers at the scene, McLean and Notare, testified that S.S. had bloodshot and watery eyes and a flushed face, smelling of alcohol and acted erratically and belligerently, all in the presence of D.S. and M.S. The DYFS caseworker observed her slurred speech. Their opinion that S.S. was under the influence of alcohol constituted competent proof of same and was properly credited by the trial judge, despite the absence of objective testing. See, e.g., State v. Bealor, 187 N.J. 574, 585 (2006) (sobriety and intoxication are matters of common observation and knowledge); State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960); State v. Pichadou, 34 N.J. Super. 177, 180-81 (App. Div. 1955); cf. State v. Johnson, 120 N.J. 263, 294 (1990); State v. Labrutto, 114 N.J. 187, 198-99 (1989). By the same token, it was well within the sound discretion of the trial judge to reject the contrary testimony of L.C., especially since it was at odds with his prior statements to the police at the time the events at issue were unfolding, all of which were properly admissible. N.J.R.E. 803(c)(1) and (2). See Cesare, supra, 154 N.J. at 412 (deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility).

Just as competent were the out-of-court statements of the children to the DYFS caseworker, describing their mother's drinking and being ordered into the car driven by S.S., who eventually abandoned the vehicle and discarded the keys in a bush. These statements concerning their abuse are exempted from the exclusionary hearsay rule under N.J.S.A. 9:6-8.46a(4), which admits into evidence previous statements by a child relating to any allegations of abuse or neglect. To be sure, no such statement, if uncorroborated, will be sufficient to support a finding of abuse or neglect. Here, however, there was ample other credible and competent proof of S.S.'s drinking, driving and erratic behavior, and the retrieval of L.C.'s car keys in the exact location described by the children provided sufficient corroboration to lend further support to the court's ultimate finding of abuse and neglect.

Affirmed.

 

(continued)

(continued)

9

A-4923-05T4

RECORD IMPOUNDED

November 20, 2006