NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.O.

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NOT FOR PUBLICATION WITHOUT THE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.

M.O.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF G.M.O.,

A Minor.

_______________________________________

Argued May 27, 2015 Decided June 15, 2015

Before Judges Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-191-13.

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

James Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Nora P. Pearce and Jennifer J. Krabill, Deputy Attorneys General, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor G.M.O. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

Defendant, Mary1 appeals from the finding of Judge Linda G. Baxter that she abused and neglected her deceased child, Uri. On appeal, Mary argues her due process rights were violated because she did not have notice, as Uri was not named in the complaint. We affirm.

The Division of Child Protection and Permanency (the Division) received a referral from a hospital social worker indicating that Uri, a seven-week-old baby, was being taken off life support. Mary left Uri face-down in her crib on an adult pillow. Uri's father discovered the baby four hours later, not breathing and black and blue. Uri was hospitalized for three days before being taken off life support. After Uri's death, the Division investigated Mary for her care regarding another child, Gary.

A Division worker and Family Preservation Service (FPS) workers met with Mary. The FPS enrolled the parents in a Division safety protection plan. When FPS workers later met with Mary to conduct intake for the protection plan, they declined to provide services. During the meeting with FPS, Mary reportedly had difficulty staying awake, and she failed to comprehend the plan's process. As a result of FPS's decision to withhold services, the Division decided to remove Gary due to Mary's suspected substance abuse and her lack of stable housing.

The Division filed a complaint against Mary and Connor, Gary's father. The same day, an order was issued granting temporary legal and physical custody of Gary to Connor. In the complaint, the Division included allegations involving Uri's death. The hospital records relating to Uri's death were provided to Mary's attorney over the three months prior to the trial. Mary did not object to the records' admission at case management conferences or during the fact-finding hearing. The Division's counsel, in her opening, argued for a Title 9 finding against Mary based upon her parenting of Uri

[T]his is a case that the Division became involved in back in August of 2012 based on the fact that we received a referral of a death of a seven-week-old. Your Honor, what the Division intends to show at this point absolutely rises to a Title 9 finding against mom, [Mary].

Mary's counsel, in his opening, argued

It is our position that the Division is not going to be able to meet its burden under the statute, that we are prepared to present through the documents that have been entered and through the testimony of the two witnesses that this is more of a Title 30 case . . . that in no way was [Gary] or [Uri] an abused or neglected child by the statute.

A Division intake worker and an investigator from the Prosecutor's Office testified about the circumstances surrounding Uri's death. Mary did not object to the testimony as lacking relevance. During closing, the Division argued for a Title 9 finding against Mary as to Uri and Gary. At no time during the hearing did Mary object to the focus of the hearing or claim notice had not been given as to the scope of the allegations against her.

At the conclusion of the hearing, Judge Baxter found Mary to have committed abuse or neglect against her deceased child, Uri. The judge also held the Division did not present sufficient evidence to support a finding of abuse or neglect against Mary as to Gary.

The court held that "[Mary's] failure to observe and comply with clear instructions about [Uri's] sleeping position from the nurse practitioner amounts to gross negligence. This gross negligence includes placing seven-week-old [Uri] face down on a full-sized pillow." In justifying the finding regarding Uri, the court held "[n]obody ever sought to bar the evidence about what happened to [Uri.]"

Mary filed for summary disposition reversing the trial court's finding of abuse and neglect. Defendant's motion was denied.

Mary raises the following arguments on appeal

[MARY's] due process rights were violated when the trial court made a finding of abuse and neglect regarding a child that was not a subject of the complaint.

the trial court's finding of abuse of a non-subject child should be reversed because issues regarding [URI] were substantially different than those regarding her care of the subject child [GARY].

We defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case. N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Special deference is accorded to the Family Part's expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998). 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.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

Since there was no objection at trial, reversal is required only if there was error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Defendant argues she did not have notice of a finding of abuse and neglect regarding Uri because the child was not the subject of the complaint. We disagree.

Procedural due process requires notice and an opportunity to be heard. Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992). Generally, "issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2015). When considering a due process issue, "[t]he question to be answered is not whether particular procedures were used, but rather whether those procedures which were employed were appropriate and adequate to protect the interests at stake." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467-68 (App. Div.) certif. denied, 177 N.J. 575, cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).

Applying those principles here, we find the record clearly reflects the following. Mary was on notice in advance of the fact-finding hearing of the Division's investigation into Uri's death. The Division recommended Mary complete a family protection safety plan with FPS to allow Mary to understand how to properly maintain a family in the wake of Uri's death. The Division's verified complaint references allegations describing the details of Uri's death, and the events preceding and following the death. During the opening statements at the fact-finding hearing, both the Division's attorney and Mary's attorney addressed Uri's death and Mary's abuse and neglect regarding Uri. Reports were received in evidence and testimony was presented referencing Uri's death. All without objection.

Mary never claimed lack of adequate notice of the allegations against her nor did she request an adjournment or additional time to address the allegations. From our review of the proceedings there was ample support that Mary was afforded a full and fair opportunity to prepare and present a meaningful defense. Essentially, Mary "had notice and an opportunity to be heard the very essence of due process." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 444-45 (2012).

The evidence presented during the hearing was substantial and credible and fully supported Judge Baxter's finding that Mary abused and neglected Uri. Further, when the record is considered in light of our standard of review, we conclude there was no error.

Affirmed.

1 We have used fictitious names for the parents and children.