NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.R., Sr

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05968-12T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.R., Sr.,

Defendant-Appellant.

____________________________

IN THE MATTER OF

E.R., M.R., Jr. and N.R.,

Minors.

_____________________________

October 24, 2014

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket. No. FN-16-0179-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.R., M.R., Jr. and N.R. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief.)

PER CURIAM

M.R., the father of E.R. (Emma1) and M.R., Jr. (Matt) appeals from a November 30, 2011 fact-finding order determining that he abused or neglected his two-year-old son Matt within the meaning of Title 9, N.J.S.A. 9:6-8.21(c), by speeding with the child in the car and intentionally crashing into Matt's mother's, A.R.'s, car.2 M.R. also appeals from a June 25, 2013 order terminating litigation without a dispositional hearing after the children were returned to their mother.3 The Law Guardian joins with the New Jersey Division of Child Protection and Permanency (the Division) in urging us to affirm. Because both judges4 based their findings on substantial, credible evidence and the children were returned to the custodial parent, we affirm.

From October 2007 through November 2008, prior to Matt's birth, the Division removed Emma and her older half-brother, N.R., from A.R. and M.R. following an incident in which M.R. destroyed A.R.'s apartment while the children were present. Investigating officers confirmed that there was a large amount of broken glass throughout the apartment, including in the children's room. A.R. allowed M.R. to return to the home despite the Division's request that she not do so. In November 2008, the two children were returned to the physical and legal custody of A.R. and M.R.

On March 15, 2011, the Division received a referral from A.R. stating that the previous day, M.R. had been driving his car erratically with Matt in the vehicle. The Division caseworker testified at the fact-finding hearing to the following sequence of events based on her interview with A.R. M.R. became upset and drove off "erratically with [Matt] in the car." A.R. "pursued" M.R. after seeing the way he was driving and because one wheel on his car was damaged. In her report, the Division caseworker wrote that A.R. said that she tried to block M.R. with her car so that he would stop. A.R. said that M.R. crashed into her car on purpose, continued to drive and "got onto the sidewalk." M.R. was pursued by the police and was eventually stopped and arrested.

The Paterson Police Department report, which was admitted into evidence without objection, states that Officer Galvan observed a car traveling "at a high rate of speed." The officer was trying to "catch up to the reckless driver" when A.R. pulled up alongside him and told the officer, "He just hit my car and took my baby." Several minutes later, M.R. was pulled over by different officers. Officer Galvan arrived and observed that M.R. appeared distraught. M.R. said his condition was due to the break up with his girlfriend, A.R. The child was unharmed. M.R. was given a summons for reckless driving. M.R. was interviewed by the Division and denied that the incident had occurred.

On appeal, M.R. raises the following issues

I. THE TRIAL COURT ERRED WHEN IT RELIED ON HEARSAY TESTIMONY TO FIND THAT M.R. NEGLECTED HIS CHILDREN IN VIOLATION OF N.J.S.A. 9:6-8.21(c)(4).

II. THE COURT ERRED IN CHANGING CUSTODY WITHOUT FIRST HOLDNG A DISPOSITIONAL HEARING TO DETERMINE IF IT WAS SAFE TO DO SO AND IF IT WAS IN THE CHILDREN'S BEST INTERESTS.

A. The Court was required to hold a dispositional hearing before terminating this litigation.

B. At the termination of this litigation, it was not safe to return M.R. and A.R.'s children to A.R.'s custody.

"'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court accords deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M, 211 N.J. 420, 448 (2012). A trial court "has a 'feel of the case' that can never be realized by a review of the cold record." 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. 261, 293 (2007)). A reviewing court "will accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165, 564 (1989)).

I

Over M.R.'s objection, the caseworker was permitted to read from the police report. Defendant argues that the fact-finding judge improperly relied on hearsay to reach his finding that defendant abused or neglected his child when the judge relied on the police report without the testimony of the police officer.

A determination that a child has been abused or neglected must be based upon a preponderance of the evidence presented in a fact-finding hearing through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46 (b). "'The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (quoting In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006)).

If the report was properly admitted, then reading from the report was not prejudicial. "A police report is usually a record of a regularly conducted activity under N.J.R.E. 803(c)(6)." Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998). N.J.R.E. 803(c)(6) defines "records of regularly conducted activity" which may be admitted as a hearsay exception as follows

A statement contained in a writing or other record of acts, events, conditions . . . 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.

Rule 803(c)(6) does "not require[] testimony of the custodian or other qualified witness as a condition for the admission of business records." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(6) (2014) (quoting 1991 Supreme Court Committee Comment). See Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 692 (App. Div. 1984) ("[P]roof to establish the . . . foundation[] for the admissibility of business records may be presented by affidavit or certification[.]").

"Police reports in civil cases in which the police officer making the report has no interest in the anticipated litigation are generally admissible under established law." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(6) (2014) (quoting 1991 Supreme Court Committee Comment).

Officer Galvan's police report was dated the same day as the incident, thus satisfying the condition that the writing be "made at or near the time of observation by a person with actual knowledge." N.J.R.E. 803(c)(6). The certification attached to the report attests that it was made at the time of the occurrence and accurately reflects the occurrence.

The caseworker and the police report consistently quote A.R. as saying that M.R. took Matt and hit her car with Matt in his car. A.R.'s statement to the police at the scene immediately after the incident, contained in Officer Galvan's report, while embedded hearsay, could well be admissible under the "excited utterance" exception because it was made while the "declarant was under the stress of excitement caused by the event . . . without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). Further, because the police report was admitted without objection, we would only reverse if the interests of justice required such a result. R. 2:10-2. In a similar situation, our Supreme Court applied the doctrine of invited error. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010). The testimony of the caseworker confirmed the accuracy of the report and thus the report's admission and the admission of A.R.'s statement within the report, even if admitted into evidence in error, did not lead to an unjust result.

II

M.R. further argues that his conduct did not meet the statutory standard for child abuse or neglect. Under N.J.S.A. 9:6-8.21(c), child abuse or neglect is found when a parent or guardian of a child under the age of eighteen,

creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious . . . disfigurement or protracted loss or impairment of . . . any bodily organ; . . . . or 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 . . .

"[T]he phrase 'minimum degree of care' 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). "[A] guardian fails to exercise a minimum degree of care when 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. Id. at 181. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the [35] situation." Id. at 181-82.

The judge found that M.R. committed an intentional act that put his young son at risk of serious injury. The act was not reckless driving alone, as every parent who is ticketed for a motor vehicle offense committed with a child in the car has not committed an act of abuse or neglect. Intentionally ramming another car, however, is extremely dangerous and risky behavior. The finding of abuse or neglect is supported by adequate, substantial and credible evidence in the record.

III

When the children were initially removed from their mother's residential custody, they were placed with their paternal grandmother and the Division offered the parents services. In February 2012, M.R. was permitted to return to his parents' home where the children were living and was granted physical custody of the children. In January 2013, over M.R.'s objection, and after a psychological and bonding evaluation indicated that A.R. was ready for reunification with her children, the court ordered the gradual return of the children to the custody of their mother. In April, after the children had been living with their mother for two weeks, the judge ordered primary physical custody to remain with A.R., joint legal custody for both parents, and a visitation schedule for M.R. In June the litigation was dismissed.

Defendant argues that he was entitled to a dispositional hearing before the children were returned to their mother's residential custody because they were in his physical custody following their removal.

In G.M., a mother who had primary physical custody of her children, but shared joint legal custody with their father, was found to have abused or neglected them. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387 (2009). The children were put in "temporary placement" with their father. Ibid. While the children still resided with their father, the trial court dismissed the proceedings and "advised the mother that she could seek any custody or parenting time modification through a matrimonial action." Ibid.

In reversing this procedure, our Supreme Court held that a custody determination based on the best interest of the child was not the appropriate action. Id. at 402. Instead, a dispositional hearing was needed. Ibid. The Court held that "the transfer of physical custody during a Title Nine action to the non-custodial parent is a placement under Title Nine." Id. at 405.

At the dispositional hearing, both sides may present material and relevant evidence for the court to determine whether the children may safely be released to the custody of their mother, who was responsible for their care at the time of the filing of the complaint, or whether . . . some other disposition is appropriate.

[Id. at 402 (emphasis added).]

The Court noted, "[A] parent, in this case the father, may always initiate a request for change in custody against the other parent . . . ." Id. at 402 n.3. Thus, "the central question in a Title 9 dispositional hearing is whether the child may be safely returned to the custody of the parent from whom the child was removed." N.J. Div. of Youth & Family Servs. v. N.D. (In re T.W.), 417 N.J. Super. 96, 107 (App. Div. 2010) (citing G.M., supra, 198 N.J. at 402).

Like the mother in G.M., A.R. had primary physical custody of Emma and Matt at the time the complaint was filed. Thus, the right to a dispositional hearing under G.M. belongs to A.R and not the defendant because she had physical custody of the children at the time they were removed. Because the children were returned to A.R. no further dispositional hearing was required.

IV

Finally, M.R. argues that it was not safe to return the children to their mother. The children had been with their mother for approximately three months prior to the dismissal of the litigation. This issue is without sufficient merit to require further discussion in a written opinion. R. 2:11-3(e)(1)(E). M.R. may file a custody application under a non-dissolution FD Family docket if he believes that the children's best interests would be better served in his custody. See G.M., supra, 198 N.J. at 402 n.3.

Affirmed.

1 We use fictitious names for the children to preserve their anonymity.

2 A.R., the mother of the three children, was also found to have committed abuse or neglect by throwing a plastic bottle containing iced tea at the head of the eldest, N.R., among other behaviors. She does not appeal that finding. The complaint against the father of N.R., N.J., was dismissed without a finding of abuse or neglect. N.R., born in 2002, is not the subject of this appeal.

3 The November 30, 2011 order was perfected for appeal when the trial court entered the final order on June 25, 2013, terminating the litigation.

4 One judge tried the fact-finding hearing and another determined custody of the children at the end of the litigation.