DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

D.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.C. and

J.C., minors.

___________________________________

December 14, 2015

Submitted November 16, 2015 - Decided

Before Judges Sabatino and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-669-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Eden F. Feld, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

In this Title Nine case, defendant D.P. appeals the Family Part's determination that she engaged in abuse or neglect of her daughters, who were six and five years old at the time. We affirm.

The record from the trial court's fact-finding hearing shows that on May 3, 2013, the Division of Child Protection and Permanency ("the Division") received a report from the police that defendant had abandoned her children. Defendant had left the children that evening in the care of her adult cousin, A.R., at A.R.'s residence. Defendant then went to a local city park in Camden to drink and socialize with friends. The report indicated that A.R. had called the police and complained that defendant had refused to return home and attend to the children, despite A.R. repeatedly asking her to do so.

A Camden city police officer responded to the situation by first going to A.R.'s residence and then walking to the park, where she observed a gathering of a group of men and two women. The police officer asked both women if they were D.P., and they each denied it. However, according to the officer, as defendant attempted to walk away, several of the men in the group made comments indicating that defendant was the mother that the officer was trying to find. Thereafter, defendant acknowledged to the officer who she was. She further admitted to the officer that she had been drinking. She stated that she had arrived in New Jersey from Texas two months earlier, and that the children's father was in jail. Defendant did not have her own place to live with the children and they had been staying with A.R.

The officer took defendant and the two children to the police station. A Special Response Unit ("SPRU") worker sent there by the Division met privately with defendant. Defendant admitted to the SPRU worker that she had lied to the police in the park about her identity. When asked about the events that had precipitated her cousin's call to the police, defendant told the SPRU worker that her cousin may have been smoking crack cocaine or had wanted to do so.

Defendant, who had an active arrest warrant against her, was placed in jail. The children were briefly left with her sister, R.W., in her small one-bedroom apartment. The Division then undertook an emergency removal of the children and placed them with a resource family.

The Division filed a complaint in the Family Part for the care and custody of the children, which the court granted. After drug testing results1 of defendant were obtained, the court concluded that the emergency removal had been proper, expressing "substantial concern" that the children had been left in "imminent danger[.]"

The fact-finding hearing took place several months later in September 2013. Defendant was present with her assigned counsel. The children's father waived his appearance. The Division presented testimony from the police officer who had investigated the cousin's report. The officer confirmed that defendant had lied about her identity when she encountered her in the park. The officer further indicated that defendant appeared to be intoxicated when she encountered her. The Division also presented a number of documentary exhibits from the Division's records. Defense counsel objected to the court considering any hearsay statements embedded in the records. Defendant did not testify, nor did she present any witnesses on her behalf.

At the conclusion of the fact-finding hearing, Judge Angelo DiCamillo issued an oral opinion concluding that the Division had proven by a preponderance of the evidence that defendant had abused or neglected her daughters in violation of Title Nine. Among other things, the judge found especially significant that defendant had lied to the police in the park about her identity when they were looking for the children's mother.

On appeal, defendant contends that the trial court's finding of abuse or neglect was not based on sufficient credible evidence, that the court improperly relied in its analysis on inadmissible hearsay, and that she was not given proper notice of the Division's allegations. We disagree.

"The focus in abuse and neglect matters . . . is on promptly protecting a child who has suffered harm or faces imminent danger." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)). One type of an "abused or neglected child" is defined by Title Nine as

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, 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, including the infliction of excessive corporal punishment; 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).]

It is "well established" that the Division must prove that the child is abused or neglected by "a preponderance of the evidence[.]" N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The phrase "the minimum degree of care" means "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). The focus of Title Nine is "on harm to the child" because "[t]here is a wide range of harmful conduct that all reasonable persons would characterize as neglect, regardless of the caregiver's intent." Id. at 180.

"[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 this minimum degree of care has been violated should be assessed "in light of the dangers and risks associated with the situation" as the courts "recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care[.]" Id. 181-82. Evidence of actual harm to a child is not required, because "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23.

In reviewing determinations in abuse or neglect cases, we afford substantial deference to the Family Part. We must defer on appeal to the trial judge's factual findings if they are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). By contrast, "[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,' [this court] expand[s] the scope of [its] review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Applying this scope of review here, we have no hesitation in sustaining Judge DiCamillo's conclusion that defendant engaged in conduct that amounts to abuse or neglect of her two young children. It is undisputed that defendant left her children in the care of someone whom she herself claimed was either currently smoking crack cocaine, or would smoke crack cocaine sometime in the near future. The evidence here shows that defendant was "aware of the dangers inherent in [the] situation" yet "fail[ed] [to] adequately supervise" her children, thus pointing to an overall failure to exercise the required minimum degree of care. G.S., supra, 157 N.J. at 181.

Moreover, as Judge DiCamillo rightly emphasized, upon being confronted in the park by a police officer investigating the safety and care of her children, defendant lied about her identity. The officer made it plain that she was trying to locate the mother of the two children because an incident had occurred concerning their welfare. Nevertheless, defendant attempted to evade that inquiry and was untruthful to the officer. If her true identity had not been fortuitously exposed by some of the men in the park, her children could have continued to be left without a competent and willing caregiver. Her dishonest and indifferent behavior under these circumstances placed the children at a substantial risk.

We reject defendant's claim that the judge relied on inadmissible hearsay in reaching his decision. The mother's own out-of-court statements were properly considered as statements by a party opponent, N.J.R.E. 803(b), and statements against interest, N.J.R.E. 803(c)(25). In addition, the court had the prerogative to rely upon the contests of the Division's business records under N.J.S.A. 9:6-8.46(a)(3) and Rule 5:12-4(d). We do not discern that Judge DiCamillo strayed beyond the strictures of these evidence provisions. In fact, the judge assiduously focused in his oral opinion upon defendant's own admissions to the police officer and the SPRU worker. He did not rest his decision upon the unauthenticated drug test results or other hearsay sources. Although the Division surely could have presented more firsthand testimony in this case beyond that of the police officer, it nonetheless provided sufficient proofs in this unrebutted case to meet its burden.

Defendant's final claim is that she was not given fair notice of the Division's allegations, and that she was thereby deprived of a sufficient chance to prepare her defense in compliance with N.J.S.A. 9:6-8.50. This contention lacks sufficient merit to warrant comment. R. 2:11-3(e)(1)(E). We simply note that a plain reading of the complaint, particularly its paragraph B, shows that the pleading contained sufficient detail to apprise defendant fairly of the Division's charges against her.

Affirmed.

1 The results were not admitted at the fact-finding hearing due to a lack of authenticating certifications, so we will not comment on them.