DIVISION OF YOUTH AND FAMILY SERVICES v. J.B. and N.D - IN THE MATTER OF J.H Ja.F., J.F. and N.D., JR Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4607-10T2

A-4699-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B. and N.D.,

Defendants-Respondents.

_______________________________________

IN THE MATTER OF J.H., Ja.F., J.F. and

N.D., JR.,

Minors.

_______________________________________

July 3, 2012

Argued May 22, 2012 Decided

Before Judges Messano, Yannotti and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-303-10.

Rebekah E. Heilman, Designated Counsel, argued the cause for appellant J.B. (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs).

Robert McGuigan, Designated Counsel, argued the cause for appellant N.D. (Joseph E. Krakora, Public Defender, attorney; Mr. McGuigan, on the brief).

Ella Skora, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia Parker, Deputy Attorney General, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for J.H., J.F., Ja.F, and N.D., minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

J.B. and N.D. appeal from an order entered by the trial court on July 13, 2010, finding that they abused or neglected four minor children. We reverse.

I.

J.B. is the biological mother of J.H., J.F. Ja.F., and N.D., Jr. N.D. is the biological father of N.D., Jr. J.B. and N.D. are not married but were engaged in a relationship for several years. N.D. provided the family with financial and emotional support although he maintained a separate residence.

On March 26, 2010, the Division of Youth and Family Services (Division) filed a complaint in the Family Part for care and supervision of the four children. Among other things, the Division alleged it was informed that J.H. and J.F. were found in school with marijuana. In addition, the Division alleged it was informed that Ja.F. told her teacher that J.F. had been helping her mother's boyfriend bag marijuana.

The court conducted a preliminary hearing on April 29, 2010. Counsel for the Division told the court that it was not making any allegations of abuse or neglect against J.B. but named J.B. as a defendant to afford her the opportunity to participate in the lawsuit. The court permitted J.B. to continue with custody of the children, pending the outcome of the fact-finding hearing, provided she did not allow N.D. to have unsupervised visits with them.

The court conducted the fact-finding hearing on June 18 and July 12, 2010. At the outset of the hearing, counsel for the Division informed the court that its allegations were against N.D., not J.B. The Division then presented evidence which established that, because of her work schedule, J.B.'s mother had custody of the children and they reside near the Peshine Avenue School, which the three older children attend. The children stay with J.B.'s mother during the school week but spend weekends with J.B. at her residence.

On Sunday, March 14, 2010, the children were at J.B.'s residence in the morning. Later that day, they went to a party at a cousin's house. Thereafter, the children went to their grandmother's home, while J.B. returned home.

On Monday, March 15, 2010, Officer Harvey Phillips (Officer Phillips) of the Newark Police Department was called to the children's school by the vice-principal, who reported that J.H. and J.F. had been found with marijuana. Officer Phillips testified that he went into the school's guidance office and observed fifteen bags of suspected marijuana on the table, along with one partially-spent cigarette, forty dollars in cash and a black pouch.

J.F. told Officer Phillips that he and J.H. found the drugs on the way to school. The officer inventoried the suspected marijuana, contacted the boys' parents, and transported the boys to the Youth Aid Bureau, where J.F. was arrested for possession of a controlled dangerous substance (CDS). The substance was not tested but Officer Phillips testified that, based on its appearance and the packaging, he believed the substance could be marijuana.

Geraldine Code (Code), Ja.F.'s second-grade teacher, testified that, on March 16, 2010, Ja.F. said her brothers had helped N.D. bag marijuana while they were staying with their mother over the previous weekend. Code told Ja.F. not to mention this to any of the other students. A school administrator directed Code to make a record of this conversation, and Code prepared and signed a report concerning the matter the same day.

Latoya Peoples (Peoples), one of the Division's investigators, interviewed Ja.F. later that day in the living room of her grandmother's house. The grandmother sat in on the interview. Peoples thought that Ja.F. appeared nervous in her grandmother's presence, and she answered all questions about her brothers' possession of marijuana in the negative.

Peoples interviewed Ja.F. at school the following day. She asked Ja.F. whether her brothers "had weed on them." Ja.F. replied that J.H. and J.F. were in their rooms bagging marijuana the previous Sunday, and J.H. hid the marijuana in his pillow case when he was done.

Ja.F. stated that, at one point, N.D. had gone into J.F.'s room, grabbed something she could not identify, and took it with him back to a bedroom. Ja.F. explained that J.B. and N.D. left that room a few minutes later and walked back and forth through the house. Ja.F. did not, however, state that J.B. or N.D. knew what her brothers had been doing.

Peoples asked Ja.F. if she knew what "weed" was and she replied that "it was green and it had little sticks in it." Ja.F. reported that she walked to school with her brothers that Monday, but they told her to walk on ahead. Peoples conceded that the fact the boys shared a bedroom in J.B.'s residence contradicted Ja.F.'s statement that the boys had been bagging marijuana in separate bedrooms.

Peoples also interviewed J.B. and told J.B. what Ja.F. said. J.B. stated she did not know why Ja.F. would say such things but said that Ja.F. had an active imagination. John Green (Green), another one of the Division's investigators, interviewed N.D. He denied Ja.F.'s allegations.

Peoples and Green both interviewed J.H. and J.F. The boys said that on Monday March 15, 2010, they walked to school with Ja.F., but told her to walk on ahead of them. The boys stated that they found a black pouch on the way to school and opened it to find forty dollars under a pile of bags containing marijuana.

They told the investigators they had removed the marijuana to retrieve the money, which they divided between themselves. J.F. held onto the marijuana because several weeks before, J.H. had been caught trying to flush some marijuana down a urinal at school, and J.H. did not want anything to do with the newly-found drugs.

J.H. discussed the earlier incident. He said he found the marijuana on the way to school. J.H. also discussed the second incident. He said J.F. hid the marijuana in his jacket as another student approached them.

J.F. claimed to have forgotten about the fifteen bags of marijuana in his pocket by the time he arrived at school. J.F. said he found the marijuana when several classmates noticed its distinctive odor and marijuana fell out of his pocket.

J.B. testified she does not use drugs or permit her children to use them. She said that, to her knowledge, neither the children nor N.D. had ever brought marijuana into the home. Although she was aware of N.D.'s criminal history, which involved illegal drugs, J.B. said N.D.'s most recent violation had been years before and he was a good "family man" to her and the children.

J.B. also stated that Ja.F. had denied mentioning anything to her teacher except that she heard rumors about her brothers getting into trouble. J.B. said that Ja.F. was an imaginative and playful child. She believed the boys found the marijuana on the way to school because of the nature of the area where they reside. She thought J.H. brought the drugs to school to show off to his classmates.

In addition, J.B. testified she told J.H. it was unacceptable for him to pick up drugs on the street. She signed him up for counseling and a mentorship program. She also took him for a drug test, and the results were negative. After the second incident, J.B. brought the boys to Beth Israel Medical Center for family counseling with herself and her mother.

The trial judge placed his decision on the record on July 13, 2010. The judge stated:

All right. I've heard the testimony of numerous witnesses involved here and I guess there's an old expression, "Out of the mouths of babes comes the truth," so to speak. I do believe that [Ja.F.] was telling the truth when she spoke . . . to the teacher, . . . I'm not saying that it's exactly what happened in the home, but that there was something going on in the home regarding marijuana that she observed, and that she had no reason to lie . . .

Now, I can't take that alone as the basis for . . . a finding in this particular case. However, there is all the other circumstantial evidence. [Not] on [one], but on two separate occasions, were the children found with marijuana in school. It seems that both of those occasions happened to occur on a Monday. I think . . . Ms. Peoples said that it was on a Monday, the first incident, two weeks prior.

Now, why does it occur on Monday, after [the children] have been living at home with the mother, as opposed to the grandmother? Only on Mondays? Do they get lucky enough to, on two separate occasions, two weeks apart, on Monday, happen to run into drugs that they find on the street on their way to school, twice? Maybe once, you could believe it. But I can't believe that happened twice. It [is] . . . just not believable to me, in any way. I cannot believe they found drugs on the street [on] two separate Mondays, going to school, two weeks apart. It just doesn't make sense to me.

I do believe that there is some kind of drug involvement going on . . . in that home. I do believe that [N.D.], who has a drug record involved here, including distribution. And I do believe that these children somehow picked up the drug. . . I'm not saying that they were intentionally given these drugs or allowed to have these drugs in any way, but something was going on that they had access to or were able to get access, and that does create a danger and risk to these . . . children . . . . [T]herefore, I do find that . . . the Division has proven by a preponderance of the evidence that there was abuse and neglect[.]

The court entered an order dated July 13, 2011, which stated that:

[N.D.] exposed the children to substantial risk of harm. The [c]ourt finds that the children had access to illegal substances at the home of [J.B.]. The [c]ourt finds that [Ja.F.]'s statements regarding her brothers packing marijuana with [N.D.] on Sunday, March 14, 2010[,] were corroborated by the fact that the boys were found in possession of marijuana on two different occasions by school personnel, always on Monday, following visits at their mother's home, in addition to [N.D.]'s prior criminal history involving illegal substances. The [c]ourt also finds that the Division's evidence established that [J.B.] knew about what was going on in the home and as such she abused or neglected the [children] in that she was aware of illegal activity and allowed it to happen.

On April 7, 2011, the court entered an order terminating the litigation. The order noted that the children had been returned home and the conditions that led to the court's intervention had been remedied. The order also required J.B. and her mother to ensure that N.D. did not have unsupervised contact with the children. Thereafter, J.B. and N.D. filed notices of appeal. On July 5, 2011, we consolidated the appeals.

II.

J.B. and N.D. first argue that the trial court erred by admitting certain hearsay statements into evidence.

Abuse and neglect claims under Title 9 must be proven by "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b). Consequently, hearsay statements are generally inadmissible unless they fall within an exception provided by statute or an evidence rule. Div. of Youth &Family Servs. v. M.C.III, 405 N.J. Super. 24, 34 (App. Div. 2008), rev'd on othergrounds, 201 N.J. 328 (2010).

N.J.S.A. 9:6-8.46(a)(3) permits the following evidence to be admitted in a Title 9 abuse or neglect proceeding:

any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency . . . , if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter[.]

[N.J.S.A. 9:6-8.46(a)(3).]

Furthermore, "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." N.J.S.A. 9:6-8.46(a)(4).

Here, the trial court heard testimony from, among other witnesses, Officer Phillips and Code. In conjunction with that testimony, the court admitted Code's report concerning Ja.F.'s first statement. The court also admitted Officer Phillip's police report, which included statements the boys made regarding the marijuana, but required that it be redacted to exclude the vice-principal's statements. The court admitted the reports after having been assured that the children's statements would be corroborated, and Code and Phillips would be available for cross-examination.

We are satisfied that the trial court did not err by admitting this evidence. Officer Phillips's report and Code's report were admissible under N.J.S.A. 9:6-8.46(a)(3). Officer Phillips and Code authenticated these reports and defendants had a full opportunity to cross examine these witnesses on the reports. Moreover, the children's statements as recorded in the reports were admissible under N.J.S.A. 9:6-8.46(a)(4) since J.H., J.F. and Ja.F. were identified in the complaint as children in need of care and supervision.

N.D. argues, however, that Ja.F.'s statements were not admissible pursuant to the statute. He contends that the statute only permits the admission of a child's statements if the child is the subject of the abuse or neglect claim. N.D. argues that Ja.F.'s statements do not qualify because she never had direct access to the illegal substances and was not involved in any of the behavior she described.

We disagree. Although Ja.F. apparently did not have direct access to the illegal substances and was not involved in the conduct that formed the basis for the Division's complaint, she was named in the complaint as a child in need of care and supervision. Indeed, Ja.F. lived in the household where the claimed illegal activity occurred. We are convinced that, under the circumstances, Ja.F. was a child "in an abuse or neglect proceeding" and her statements were admissible under the N.J.S.A. 9:6-8.46(a)(3).

In addition, while conceding that Ja.F.'s statements were admissible under N.J.S.A. 9:6-8.46(a)(3), J.B. argues that the Division's complaint should have been dismissed because the Division relied upon hearsay statements from witnesses who she did not have an opportunity to cross examine. She claims that, as a result, she was denied the right to due process of law.

Again, we disagree. The statute permits the introduction of the children's out-of-court statements and defendants were afforded a full opportunity to cross examine Code, Peoples and other witnesses concerning those statements. We are therefore convinced that the admission of the children's statements did not deny J.B. of her right to due process of law.

III.

Next, J.B. and N.D. argue that there was insufficient factual support for the trial court's finding of abuse or neglect. The Law Guardian for the children also argues that the evidence was not sufficient for the trial court's findings.

In an action brought under Title 9, the Division bears the burden of proving by a preponderance of the evidence that a child has been abused or neglected. N.J. Div. ofYouth & Family Servs.v. P.W.R., 205 N.J. 17, 32 (2011). An abused or neglected child is 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, . . . 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).]

The phrase "minimum degree of care" in the statute refers to conduct that "is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep'tof Human Servs., 157 N.J. 161, 177-78 (1999). Whether a parent or guardian has failed to exercise the required degree of care must "be analyzed in light of the dangers and risks associated with the situation." Id. at 181-82. The court must "focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." Id. at 182.

A trial court's findings are entitled to deference on appeal, provided they are supported by sufficient credible evidence in the record. N.J. Div. of Youth& Family Servs. v.G.L., 191 N.J. 596, 605 (2007). Such deference is particularly appropriate in appeals from the Family Part because of that court's expertise in the field and its opportunity to observe the witnesses and assess their credibility. N.J. Div.of Youth & FamilyServs. v. E.P., 196 N.J. 88, 104 (2008).

However, "'where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." In re Guardianshipof J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (quoting Snyder Realty,Inc. v. BMW ofN. Amer., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Thus, we need not defer to the trial court's assessment of "the legal consequences that flow from established facts . . . ." Manalapan Realty v.Twp. Comm., 140 N.J. 366, 378 (1995).

Here, the trial court found that J.B. and N.D. had abused or neglected the children because "there [was] some kind of drug involvement going on . . . in that home." The court stated that J.H. and J.F. had access to the marijuana and "somehow picked up the drug[s]." The court determined that N.D. had exposed the children to a substantial risk of harm by engaging in illegal activity involving marijuana in J.B.'s home, and J.B. had been aware of that illegal activity.

The court's findings are essentially based on the statements of J.H., J.F. and Ja.F. As we stated previously, those statements were admissible under N.J.S.A. 9:6-8.46(a)(4) but cannot form the basis of an abuse or neglect finding unless corroborated.

We note initially that J.H. and J.F. corroborated each other's statements about the possession of the marijuana. Indeed, there appears to be no dispute as to the fact that J.H. possessed fifteen bags of marijuana on March 15, 2010, along with one partially-spent cigarette, forty dollars in cash and a black pouch. There also appears to be no dispute as to the fact that, two weeks before that incident, J.F. was found in possession of marijuana, which he tried to flush down the urinal at school.

We conclude, however, that the Division did not present sufficient corroboration of Ja.F.'s statements to support a finding that N.D. abused or neglected the children. The trial court found that Ja.F.'s statement that she observed J.H. and J.F. bagging marijuana for N.D. was corroborated by the evidence that the boys were found with illegal substances. The court stated that the boys most likely had access to the drugs in the home.

The trial court pointed out that the boys were twice found with the illegal drugs on Mondays. The court noted that the boys would ordinarily spend the weekends with J.B. at her home, and return to stay with their grandmother during the week while they attended school.

The court assumed that the boys had come into possession of the drugs during the weekend, but the boys could have obtained the drugs at any time during the weeks before they went to stay with their mother on the weekends. The judge found it not credible that the boys twice found drugs on the way to school, but someone outside of the home could have provided the boys with access to the drugs.

In finding that the boys probably had access to and obtained the drugs while staying at J.B.'s home, the court placed considerable weight on the fact that N.D. had a criminal record involving the possession and distribution of CDS. The court erred, however, by relying upon N.D.'s criminal record as support for its finding.

N.J.R.E. 404(b) prohibits the admission of evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." The evidence is admissible, however, "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. This prohibition applies to civil as well as criminal cases. N.J.Div. of Youth &Family Servs. v. H.B., 375 N.J. Super. 148, 181 (App. Div. 2005).

N.D.'s criminal record, which involves convictions in 2002 and 2003 for possession and distribution of heroin and cocaine, was not relevant to any disputed material issue in this case. The court essentially found that, because of his prior involvement with illegal drugs, N.D. was disposed to possess or distribute CDS and therefore introduced the marijuana into J.B.'s home. N.J.R.E. 404(b) does not permit the use of N.D.'s prior convictions for that purpose.

We also conclude that the Division did not present sufficient evidence to support its conclusion that J.B. abused or neglected the children. We note that the Division's attorneys twice told the court the Division was making no allegation of abuse or neglect against J.B. Those concessions should have been the end of the matter, at least as far as J.B. was concerned.

Moreover, Ja.F.'s statements regarding the marijuana were not sufficiently corroborated to support a finding of abuse or neglect by J.B. There was insufficient evidence to establish that illegal drugs were in the home or, if they were, that J.B. knew of them. Although J.B. was aware of N.D.'s criminal record, there was insufficient evidence to support the court's finding that "something [was] going on in the home involving marijuana" and J.B. was aware of it.

We accordingly reverse the trial court's findings that N.D. and J.B. abused or neglected the children.

Reversed.