NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.S.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
IN THE MATTER OF J.S.,
December 29, 2014
Submitted November 18, 2014 Decided
Before Judges Yannotti and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-29-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.S. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
S.S. appeals from an order entered by the Family Part on November 15, 2011, finding that she abused or neglected her minor child, J.S. We affirm.
The record discloses the following. On August 3, 2011, the Division of Youth and Family Services (the "Division)1 received a report that S.S. had been arrested and charged with possession of a controlled dangerous substance ("CDS"), possession of a CDS with intent to distribute in a school zone, and endangering the welfare of a child.
The Division was informed that S.S. had been in a minivan with J.S., with Phencyclidine ("PCP") on her lap. J.S. was in a rear seat of the vehicle, with no seatbelt. The child was three years old at the time. Because another passenger had attempted to destroy the CDS, J.S. was taken to a hospital to determine if she had been exposed to the drugs. One of the Division's workers went to the hospital, where she met with an officer from the Paterson Police Department, who confirmed that S.S. had been arrested on the charges mentioned in the referral.
The officer accompanied J.S. to the hospital to determine if she had been exposed to PCP. An emergency room doctor advised that the child did not appear to have been affected by the drugs. The worker was informed that S.S. had not identified any relatives who were available to care for J.S. that evening. The officer reported that S.S. did not have any family members in New Jersey. In addition, S.S. said she could not identify J.S.'s father. The Division effected an emergency removal of the child, and she was placed in a non-relative resource home.
The following day, a Division worker met with S.S. at the Paterson police station. S.S. said she was being held on $50,000 bail, and would be transferred to the county jail. She named J.R. as the child's father, but did not know where he could be reached. S.S. told the worker that she had requested S.P., her paramour, to drive her to pick up J.S. at daycare and then to drive them both home. S.P. agreed.
According to S.S., they drove to daycare and picked up J.S., but before they returned home, S.P. went to "do his thing." S.S. explained that S.P. and J.V., another female who was also in the car, went to sell drugs. S.S. told the worker she did not sell or use drugs, but she acknowledged that she knew S.P. and J.V. were in possession of drugs when they were in the minivan. S.S. confirmed that she had been charged with drug possession, possession with intent to sell drugs and endangering the welfare of a child.
S.S. told the worker she did not have any relatives who could care for J.S. Her parents reside in Kentucky, but she did not recall their phone number. S.S. said she recently lost her job, her unemployment benefits had been exhausted, and she was receiving food stamps. S.S. indicated that her uncle was living in Paterson.
On August 5, 2011, the Division filed a complaint against S.S. and J.R. seeking custody, care and supervision of J.S. On that date, S.S. and J.R. appeared in court, along with the Law Guardian for the child. S.S. was represented by counsel. The court entered an order finding that J.S.'s removal was required due to the imminent danger to the child's life, safety or health.
The order required S.S. and J.R. to show cause on September 9, 2011, why the child should not be continued in the Division's legal and physical custody. S.S. was permitted weekly supervised visits, and J.R. was ordered to submit to a paternity test. On August 25, 2011, J.S. was placed with her maternal uncle, N.S., and her maternal aunt, M.C.V.
On September 9, 2011, S.S. and J.R. appeared in court with counsel. The Law Guardian for the child also appeared. The court entered an order continuing the child in the Division's custody, care and supervision. Psychological counseling was ordered for S.S. as well as J.R. S.S. was required to submit to random drug/alcohol screenings, and to participate in counseling as referred by the Division. S.S. and J.R. were permitted weekly supervised visits. On October 26, 2011, J.R. submitted to a paternity test, which confirmed that he is J.S.'s father.
The court conducted a fact-finding hearing on November 15, 2011. S.S. did not appear, but she was represented by counsel. The Division presented testimony from one of its permanency workers and the worker who handled the intake at the hospital following the August 3, 2011 referral. The Division also presented certain records, including its Screening Summary dated August 3, 2011, and an Investigation Summary Report dated August 4, 2011, which had been prepared by a worker after speaking with S.S. at the police station.
The court placed its decision on the record, finding by a preponderance of the evidence that S.S. abused or neglected J.S. by failing to exercise a minimum degree of care "in this instance." The judge stated that S.S.'s decision to possess the CDS, and her awareness that the others in the vehicle intended to sell the drugs, placed the child "into harm." The judge noted that S.S. knew that S.P. was involved in selling drugs, and she did not exercise the degree of care required in these circumstances. The court entered an order on November 15, 2011 memorializing its findings.
Thereafter, the court conducted periodic compliance review hearings, and J.S. continued in the Division's custody, care and supervision. Initially, the Division's plan was reunification, but the plan could not be implemented for various reasons. At a hearing on July 16, 2013, the court considered and approved S.S.'s voluntary surrender of her parental rights regarding J.S. to N.S. and M.C.V.
In August 2013, the Division filed a complaint seeking the termination of J.R.'s parental rights to the child. On August 28, 2013, the court entered an order terminating the protective services litigation, since S.S. had surrendered her parental rights to the child. S.S.'s appeal from the trial court's fact-finding order of November 15, 2011 followed.
On appeal, S.S. raises the following arguments for our consideration
THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER AS [THE DIVISION] FAILED TO PROVE THAT S.S. HARMED OR WOULD HARM J.S. AS A result OF HER WILLING, KNOWING, AND VOLUNTARY ACTIONS. THE DEFENDANT'S ACT WAS AN ISOLATED INCIDENT AND DID NOT AMOUNT TO A "SUBSTANTIAL" RISK OF HARM TO THE SUBJECT CHILD.
THE APPELLATE DIVISION SHOULD REVERSE THE FACT FINDING ORDER BECAUSE THE EVIDENCE PRESENTED BY [THE DIVISION] THAT S.S. KNOWINGLY CREATED A SUBSTANTIAL RISK BY PUTTING J.S. IN [HARM'S WAY] WAS hearsay which was NOT ADMITTED FOR THE TRUTH OF THE MATTER.
As noted, S.S. contends that the Division failed to prove that she harmed or would harm J.S. by willing, knowing and voluntary actions. She claims the alleged abuse or neglect was the result of an isolated incident that did not place the child at substantial risk of harm.
The scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
N.J.S.A. 9:6-8.21(c)(4) provides in pertinent part that a child is "[a]bused or neglected" if the 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, . . . 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[.]
The phrase "minimum degree of care" in N.J.S.A. 9:6-8.21(c)(4) "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J.161, 178 (1999) (citing Miller v. Newsweek, 600 F. Supp. 852, 858-59 (D. Del. 1987)).
In addition, "[c]onduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid.(citing McLaughlin v. Rova Farms, Inc., 56 N.J.288, 305 (1970)). The "difference between merely negligent conduct and wanton and willful misconduct . . . 'takes its meaning from the context and purpose of its use.'" Ibid.(quoting Fielder v. Stonack, 141 N.J.101, 124 (1995)).
The concept of "willful and wanton" action as referred to in N.J.S.A.9:6-8.21(c)(4)(b) "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Ibid.(quoting McLaughlin, supra, 56 N.J.at 305). The concept "implies that a person has acted with reckless disregard for the safety of others." Id.at 179 (citing Fielder, supra, 141 N.J.at 123).
In addition, "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds [that person] responsible for the injuries [he or she] causes." Ibid.(citing Fielder, supra, 141 N.J.at 123). Consequently, "under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of [his or her] actions, regardless of whether [he or she] actually intended to cause injury." Ibid.
We are convinced that there is sufficient credible evidence in the record to support the trial court's finding that S.S. abused or neglected J.S. by failing to exercise the minimum degree of care when S.S. rode with the child in the minivan from daycare. As the record shows, S.S. was in the vehicle with S.P. and J.V. S.S. was in possession of PCP. S.S. also knew that S.P. and J.V. had drugs in their possession and intended to sell them. The record supports the court's determination that, during the drive, S.S. placed J.S. at risk of harm by exposing the child to drugs and the potential illegal drug transaction.
S.S. argues, however, that the Division failed to present sufficient evidence to show that she knowingly engaged in the aforementioned actions. She says she merely intended to get a ride home from daycare. Previously, S.S. had sold her car. She says she could have taken a bus if she believed her paramour would try to sell drugs when she and J.S. were in the minivan. She asserts that her judgment in this one instance may have been "flawed" but it did not justify a finding of abuse or neglect.
We cannot agree. S.S.'s admissions to the Division's worker, which were recorded in the Division's Investigative Summary Report, provided ample support for the finding that S.S. placed the child at risk of harm by having her ride with individuals she knew were in possession of drugs. She also became aware that S.P. intended to "do his thing" by selling the drugs. In addition, S.S. was in possession of PCP at the time. The judge properly found that exposing the child to illegal drugs and a potential drug sale constituted abuse or neglect.
S.S. further argues that there is no evidence that the child sustained any substantial harm. She notes that after she was arrested, the child was taken to a hospital and the child did not test positive for drugs. However, the record shows that the child was brought to the hospital because one of the individuals in the minivan attempted to destroy the illegal drugs, and it was thought the child may have been exposed to PCP.
Where, as here, there is no actual harm to a child, "a finding of abuse or 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) (citing N.J.S.A.9:6-8.21(c)(4)(b)). There is sufficient credible evidence in the record to show that J.S. was placed at substantial risk of harm by the exposure to the illegal drugs. We conclude that the trial court did not err by finding that, under the circumstances, S.S. abused or neglected the child.
S.S. also argues that the trial court erred by relying upon her admissions which were set forth in the Division's Screening Summary, which was marked as P-2 and admitted into evidence, but not for the truth of the statements contained therein. S.S. asserts that there was no evidence in P-2 which indicated that she knew S.P. possessed drugs when she drove with him to pick up J.S. at daycare, and that he intended to sell the drugs while they were in the minivan.
However, S.S. fails to acknowledge that the trial court also admitted the Division's Investigative Summary Report, dated August 3, 2013, which a Division worker prepared after speaking with S.S. at the police station. The document was marked as P-4, without any evidentiary limitations. Testimony at the hearing established that the Report was prepared and maintained in the ordinary course of the Division's business. The Report records statements S.S. made to the worker about the incident, and her admissions that she knew S.P. and J.V. possessed drugs while in the minivan, and that they intended to sell the drugs. S.S. also admitted that she had been arrested and charged with possession of CDS.
The Report was admissible pursuant to the business-records exception to the hearsay rule in N.J.R.E.803(c)(6). The document also was admissible pursuant to Rule5:12-4(d, which permits the admission of reports by the Division's staff and consultants pursuant to N.J.R.E.803(c)(6) and N.J.R.E.801(d). Such reports are prima facie evidence, subject to rebuttal. R.5:12-4(d). Furthermore, S.S.'s statements, which were contained in the report, were admissible as statements of a party-opponent, pursuant to N.J.R.E.803(b).
Thus, the Division's Investigative Summary Report was properly admitted into evidence. We conclude that the court did not err by considering S.S.'s statements, as recorded in that document, to support its finding that S.S. abused or neglected J.S.
1 The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.