NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01930-13T3

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

Y.L.,

Defendant-Appellant,

and

Ch.K.,

Defendant.

________________________________

IN THE MATTER OF C.K.,

a minor.

________________________________

December 8, 2015

Argued October 5, 2015 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0421-12.

Deric Wu argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the brief).

Joyce Booth, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea D'Aleo, Deputy Attorney General, on the brief).

Caitlin McLaughlin, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms.McLaughlin, on thebrief).

PER CURIAM

In this Title 9 action, defendant Y.L. ("the mother") appeals the May 8, 2013 order finding she abused and neglected her eight-month-old son, C.K. ("the baby" or "Cory"),1 in violation of N.J.S.A. 9:6-8.21(c)(4)(b). A similar finding was made against the baby's father, Ch.K ("the father"), but he did not appeal that finding. Specifically, the trial court found the mother abused and neglected the baby because she permitted a friend to package marijuana for distribution in her home while the baby was in the next room. The mother contends the trial court's conclusions were not based upon competent evidence, requiring reversal. We agree, and reverse the finding of abuse and neglect.

I

The competent, relevant evidence adduced at the fact-finding hearing was as follows. Natalia Aponte, an employee of the Division of Child Protection and Permanency ("the Division"), testified that on November 30, 2012, the Division received a call from the West New York Police Department advising that "people" were smoking marijuana in what was later identified as the mother s apartment. When the police responded to the apartment, the mother appeared to be under the influence and her friend, Angel, was "bagging" marijuana. The father and the baby were also present in the mother's home. According to Aponte, the caller from the police department also stated the parents were arrested. At the time of the arrest, the baby was asleep in another room.

Aponte responded to the apartment and met with both parents approximately five hours after their arrest. The parents advised that, earlier in the evening, the police knocked on their door and accused them of smoking marijuana. At that time, the parents' friend, Angel, was on the couch "wrapping" or "packaging" marijuana. The mother advised Aponte that both she and the father were arrested for "smoking marijuana," but denied she had in fact used this drug that evening. The mother did not appear to be under the influence at the time Aponte met with her.

There was no evidence of the quantity of marijuana Angel was handling. Aponte admitted she did not know in fact whether "drug distribution was going on" in the apartment that evening, but stated it was her "belief" the parents were arrested for distribution in addition to possession. Aponte did not explain the basis for her belief, other than to say it was based upon her contact with the parents that evening. However, according to Aponte, the parents indicated they were arrested for possession of marijuana the parents never informed her they were also arrested for distribution and there is evidence the father informed the Division that he was not aware any distribution was taking place. Finally, Aponte testified that the baby appeared to be healthy, clean, and well cared for, and that the house was clean and appropriate for a child.

The Division did not call any witnesses from the West New York Police Department. Over the mother's objection, three documents created by Division workers were admitted into evidence. These documents were the Screening Summary, the SPRU2 report, and an Investigation Summary. These three documents state that the Division received a call from the West New York Police Department and learned that the police went to the mother's home and found Angel and the father packaging marijuana, and that Angel and the parents were arrested for possession and distribution of this drug.

Neither parent introduced any evidence at the hearing. At the conclusion of the hearing, the trial court found that both parents had put Cory at risk for harm by allowing marijuana to be packaged in the mother's home for the purpose of distribution. Specifically, the court found that selling drugs is a dangerous activity because a drug dealer may have a gun and fight with the police, and that "other things could have gone wrong." The court stated

I do agree with the law guardian and the attorney general that this case is not one of infirmity due to drug use and a lack of proper supervision, because the parents were under the influence of marijuana. Rather, this case is a case of a more serious nature allowing a drug distribution distributor distribution activity to occur in their home while their young, young child was present. I do find that the Division has proven its case by a preponderance of the evidence more likely than not.

The testimony was that the caseworker stated that both parents admitted that they saw their friend, Angel, packaging up drugs on the couch, they were sitting a few feet away. [The mother] was clipping her toes very nonchalantly. The father was just sitting there. They were aware that there this was a drug activity, this is not their friend who was just smoking marijuana. The packaging of drugs to distribute, sell, whatever is a dangerous occupation, and the child was there. The police came, they were arrested, something could have happened, Angel could have had a gun, he could have fought with the police, there are lots of things that could have gone wrong. This is a risk of harm . . . .

The totality of these circumstances shows that the parents were aware that their friend was packaging drugs, there was this is drug activity, this is a failure to exercise a minimum degree of care and supervision for their young child. Drug distribution activity allowed in the home is [an] extremely . . . risky business, and placed that child at substantial risk for harm. Both parents admitted that on that night they were aware their friend was packaging up drugs. Although they denied using the drugs, that really doesn't make any difference. At this point it's the parents['] ability to provide a safe and secure environment for this child was compromised by the packaging up and the drug activity that was going on. So, I find that the Division has met its burden of proof under N.J.S.A. 9:6-8.21c(b).

On appeal the mother's primary argument is that the court erred in finding she put the baby in imminent danger or at substantial risk of harm. She contends there was no evidence to support the trial court's conclusion that Angel was packaging drugs for the purpose of distribution.

II

In a Title 9 action an "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4)(b)

"Abused or neglected child" means a child less than 18 years of age . . . 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 . . . by any [] acts of a [] serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

Thus, when "there is no evidence of actual harm, . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm before a parent or guardian can be found to have abused or neglected a child." N.J. Dept. of Youth & Family Services v. A.L., 213 N.J. 1, 8 (2013) (emphases omitted) (citing N.J.S.A. 9:6-8.21(c)).

Whether a parent has engaged in acts of abuse or neglect as defined by the statute must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)).), and whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014). "[M]ore than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

At a fact-finding hearing to determine if a party has abused or neglected a child, the Division bears the burden of proving "by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005). Courts may not "fill in missing information on their own or take judicial notice of harm. Instead, the fact-sensitive nature of abuse and neglect cases . . . turns on particularized evidence." N.J. Dep't of Children and Families, Div. of Youth and Family Services v. A.L., 213 N.J. 1, 28 (2013) (citing N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011)).

Our standard of review on appeal is narrow. "'[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)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." Ibid. (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, there is no evidence the baby suffered any actual harm and so the issue is whether the mother placed the baby in imminent danger or at a substantial risk of harm, see N.J.S.A. 9:6-8.21(c)(4)(b), in the manner found by the trial court. A preliminary question is whether Angel was packaging or wrapping the marijuana for the purpose of distribution. In our view, the record fails to substantiate that he was, and the trial court's conclusion to the contrary was based upon unsupported surmise and incompetent evidence.

First, although Aponte testified the parents told her Angel was "packaging" or "wrapping" marijuana, the amount of the marijuana Angel was handling is not known. Second, the parents' use of the terms "packaging" and "wrapping" was not clarified. Their description of what Angel was in fact doing was too ambiguous and inconclusive to find Angel was in fact packaging drugs for distribution. There was evidence a caller from the West New York Police Department informed the Division Angel was packaging marijuana when the police went into the mother's apartment that evening, but that characterization suffers from the same infirmity and, as discussed below, was inadmissible.

To the extent the trial court relied upon the fact Angel and the parents were charged with distribution to support its assumption marijuana was being prepared for sale or transfer, the record is devoid of competent evidence that anyone in the apartment that evening was in fact charged with distribution. The only evidence that the three were charged with this offense was the information provided by the caller from the West New York Police Department to the Division that was included in the Screening Summary, the SPRU report, and the Investigation Summary. However, that statement was not admissible. Further, the probative value of a charge is limited and does not aid the Division in meeting its burden of persuasion.

Documents prepared by Division staff are admissible pursuant to Rule 5:12-4(d) but only if the documents meet the requirements of the business records exception to the hearsay rule, see N.J.R.E. 803(c)(6) and 801(d). The caller from the West New York Police Department who informed the Division that Angel and the father were packaging marijuana and that the three adults in the apartment were arrested for possession and distribution could not be assessed for trustworthiness. See N.J.R.E. 803(c)(6); New Jersey Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 469 (App. Div. 2014). Therefore, this statement was inadmissible and should have been redacted from these three documents before they were admitted into evidence, as well as any other statement that was based upon the information supplied by the police.3

We are satisfied that, viewing the admissible evidence as a whole, the Division failed to prove by a preponderance of the evidence that the mother placed the baby's physical, mental, or emotional condition in imminent danger or substantial risk of being harmed. The trial court's assumption Angel was a drug-dealer and engaging in drug distribution activities in the mother's home was not supported by competent evidence. Further, there was no evidence Angel had a gun or conducted himself in a manner that placed the child at risk for harm when the police came to the mother's home. Because the trial court's legal conclusion the mother violated N.J.S.A. 9:6-8.21(c)(4)(b) was premised upon the factual finding Angel was engaging in activities related to drug-trafficking and that finding lacks evidentiary support, we reverse.

1 We use pseudonyms to maintain the confidentiality of the child, the parties, and their family members.

2 SPRU stands for "special response unit worker."

3 We further note that, during the colloquy between court and counsel over the admissibility of these records, the Division represented that none of the contents in the Screening Summary was being admitted for its truth. Based upon that representation, the court admitted the Screening Summary; therefore, the statements from the police in this document cannot be used for its truth. However, the same statements from the police appear in the other two documents, necessitating that we address their admissibility under Rule 5:12-4(d) and, derivatively, the business records exception to the hearsay rule, see N.J.R.E. 803(c)(6).