OFCHILD PROTECTION AND PERMANENCY v. S.H and B.H IN THE MATTER OF D.H A Minor
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2415-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.H.,
Defendant-Appellant,
and
B.H.,
Defendant.
_______________________________
IN THE MATTER OF D.H.,
A Minor.
_______________________________
Submitted September 28, 2017 – Decided February 20, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FN-12-0236-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Deric Wu, Assistant Deputy
Public Defender, of counsel and on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General,
of counsel; Christie Pazdzierski,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief)
PER CURIAM
Defendant appeals from a December 19, 2013 Family Part order,
finding that he abused or neglected his then three-year-old son,
D.H.,1 within the meaning of
N.J.S.A. 9:6-8.21(c), by conducting
an illegal drug transaction in his son's presence. The fact-
finding order was perfected for appeal by a January 5, 2016 order
terminating the litigation. We affirm.
The fact-finding hearing followed the Division of Child
Protection and Permanency (Division) filing a verified complaint
and application for an order to show cause for investigation,
pursuant to
N.J.S.A. 30:4C-12. The Division was investigating
allegations of drug use predicated primarily on defendant's
October 3, 2012 arrest for drug related and child endangerment
offenses. Because defendant failed to attend two scheduled
substance abuse evaluations, the Division sought and obtained a
1
We use initials to protect the identity of those involved and
to preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
2 A-2415-15T1
court order directing defendant and his wife, D.H.'s mother, to
cooperate in the investigation. Based on the investigation, the
Division substantiated defendant for child neglect and filed a
verified complaint against defendant seeking care and supervision
of D.H., under
N.J.S.A. 9:6-8.21 to -8.73, and
N.J.S.A. 30:4C-12.2
The fact-finding hearing was conducted on December 9, 2013.
The Division introduced four exhibits into evidence: the police
report of defendant's October 3, 2012 arrest, the Division's
investigation report, defendant's judgment of conviction, and the
Division's November 5, 2012 substantiation letter. Division
caseworker Nicole Galeano, identified as "the keeper of the case
record," testified for the Division in order to authenticate all
four exhibits. Defense counsel objected to the admission of the
police report, arguing the certification did not meet the
foundational requirements for the business records exception to
the hearsay rules, and that the hearsay statements contained in
the police report were inadmissible. Defense counsel also objected
to the admission of the Division's investigation report. While
defense counsel conceded that Galeano had laid a proper foundation
for its admission as a business record, she objected to the
inadmissible hearsay statements it contained.
2
The Division did not seek any relief against defendant's wife,
who was named in the complaint for dispositional purposes only.
3 A-2415-15T1
As to the Division's investigation report, the judge agreed
to consider only defendant's statements. Regarding the police
report, the judge agreed that the certification was insufficient
and granted the Division's request for a one-day adjournment to
obtain the proper certification. However, after consulting with
her client, defense counsel withdrew her objection and consented
to the admission of the police report, subject to the exclusion
of any inadmissible hearsay. The judge agreed to restrict her
consideration of the police report to only "observations of the
officer" and any statements made by defendant.
The police report disclosed that on October 3, 2012, State
Police troopers were conducting a "plain clothes" surveillance
detail at the Cheesequake Service Area on the Garden State Parkway
to address "quality of life issues within the service area." While
patrolling the parking lot "in unmarked vehicles," they observed
an individual, later identified as defendant, seated in an
automobile. Their attention was initially drawn to defendant
because of his "nervous behavior." He was "manipulating [a]
prescription bottle in his lap and looking right to left." Shortly
thereafter, they observed defendant exit his vehicle with a child,
who was later identified as his three-year-old son, D.H. Remaining
in the vehicle was a woman, who was later identified as defendant's
wife.
4 A-2415-15T1
After exiting the vehicle, the troopers observed defendant
proceed to the food court with D.H. Moments later, defendant and
D.H. exited the food court and sat at an outdoor dining area.
Defendant then retrieved a clear plastic bag from his groin area
and placed it in a paper bag while continuing to display nervous
behavior by continuously looking "from right to left." They then
observed a man, later identified as W.N., approach defendant and
"conduct[] a hand to hand transaction," wherein defendant handed
W.N. the paper bag, and W.N. gave defendant money in exchange.
After completing the transaction, all three walked back towards
defendant's vehicle, at which point the troopers placed defendant
and W.N. under arrest. Defendant's wife was permitted to leave
with D.H.
A subsequent search of W.N. revealed thirty oxycodone pills
inside the paper bag. A subsequent search of defendant revealed
an orange colored prescription bottle containing sixty-one
oxycodone pills. Defendant was administered his Miranda3 rights
and agreed to give a statement. During questioning, defendant
admitted to police that he sold W.N. the "[oxycodone] pills in
exchange for [$450]" because he had "been out of work for a long
time and needed money to pay his rent." Defendant was charged
3
Miranda v. Arizona,
384 U.S. 436 (1966).
5 A-2415-15T1
with second-degree endangering the welfare of a child,
N.J.S.A.
2C:24-4(a); third-degree distribution of a controlled dangerous
substance,
N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and loitering
to commit a drug offense,
N.J.S.A. 2C:33-2.1(b), a disorderly
persons offense.
After the Division was notified of the arrest, caseworkers
interviewed defendant at the Middlesex County Corrections Facility
as part of their ensuing investigation. The Division's
investigation report recounted that defendant admitted selling his
prescription medication to W.N., but denied that the transaction
occurred in the dining area. Instead, defendant stated the
transaction occurred by the car, while D.H. and his wife were
seated inside the car. Defendant also denied that his wife had
any prior knowledge of the transaction. Defendant explained that
he was prescribed oxycodone for bursitis in his knee, but always
had a surplus of pills because he only took them on an as-needed
basis. W.N. was an acquaintance who repeatedly asked to purchase
his surplus pills. Defendant typically denied his requests but
ultimately relented because his family was struggling financially.
Defendant acknowledged he was "stupid" and "made a poor choice."
Subsequently, defendant was indicted and pled guilty to an
amended charge of third-degree conspiracy to possess a controlled
dangerous substance with intent to distribute,
N.J.S.A. 2C:5-2 and
6 A-2415-15T1
2C:35-5. He was sentenced on July 31, 2013, to a three-year
probationary term. The memorializing judgment of conviction was
entered on August 23, 2013.
Defendant did not testify or call any witnesses at the fact-
finding hearing. After the hearing, on December 19, 2013, the
judge issued an oral decision, finding the Division had "met its
burden" of proving "by a preponderance of the evidence" that
defendant abused or neglected D.H. First, the judge determined
that Galeano, whom the judge found credible, provided the proper
testimonial foundation for the admission of the exhibits. Next,
the judge noted that it was undisputed that defendant was illegally
selling his prescription medication because he admitted it to the
police and to the Division caseworkers and pled guilty to "a
criminal act." Acknowledging that it was a "fact sensitive"
analysis, the judge indicated that she had to determine whether
the Division proved "by a preponderance of the evidence, that
[D.H.] was even in the presence of this encounter," and, if so,
that "there was . . . harm to the child during the scenario, or
if there was even a risk of harm [to D.H.], because the [c]ourt
can't necessarily presume harm."
In discussing the discrepancy concerning where the drug
transaction occurred, the judge found that
"credibility . . . lie[d] with the trooper in this case, as well
7 A-2415-15T1
as the other two troopers who signed [the report] because they
sign[ed] after they read the report." The judge reasoned:
[S]omething that the [c]ourt would say lends
to the credibility of the trooper is that if
a drug transaction happened in a car as
suggested by [defendant] and [his wife] was
in there, she would not have been released
with the child. In fact [she] would have been
charged at that point in time, brought to
headquarters handcuffed and charged with the
same exact crime.
So I find it more believable that it more
than likely happened where the officers, all
three of them, had indicated pursuant to the
report, which is . . . at . . . the dining
area outside.
Next, the judge discussed the inherent dangers of bringing a
young child to a drug transaction, stating:
So at this point we have [D.H.] sitting
with his father and we now know that this
individual comes up to the father and we know
that the father, [defendant], is going to sell
this person drugs. He knows it's illegal.
He's got to know it's dangerous. He has
nervous behavior himself looking from side to
side. He doesn't want to get caught by the
police certainly.
And he has to know at this point in time
based on his own actions selling drugs is
dangerous. He may be seen. Anything can
happen. Selling drugs is illegal and it's an
inherently dangerous activity. Yet the entire
time [D.H.] is with him. He's indicated it
was a stupid thing to do. It was a poor
choice.
And I would agree 100 percent.
8 A-2415-15T1
The judge then assessed whether defendant's conduct placed
D.H. at risk of harm and whether defendant failed to provide the
requisite minimum degree of care. The judge reasoned:
So what do we look to? What could have
happened? A couple of
things . . . . [Defendant] didn't have to
sell drugs . . . . [H]e didn't have to bring
his son with him . . . . So he could have
left him at home. He could have left him [in]
the car. Or he didn't have to do this at all.
But instead he made that conscious
decision to go to the rest area, to be with
his son, to sell drugs to [W.N.] with his son
right there while he was completing this drug
transaction . . . .
An illegal transaction, inherently
dangerous drug transaction places the child
at risk of harm . . . . [W]hether a parent
has failed to exercise the required degree of
care must be analyzed in light of the dangers
and risks associated with the situation, which
is an illegal activity.
And is this conduct . . . grossly or
wantonly negligent? Yes. Because he's acting
with a reckless disregard for the safety of
[D.H.]. And I believe that this is shown by
more than mere ordinary negligence, but by
gross[] and wanton[] negligence.
There are many things that could have
been done to get [D.H.] out of that situation
if he decided to sell drugs. And he did none
of them. In fact I believe he put him in
harms way by bringing him with him and
conducting this drug transaction while he was
right there. He's a three[-]year[-]old child.
9 A-2415-15T1
On the same date, the judge entered a memorializing order, and
this appeal followed.
Defendant argues on appeal that "the police report should not
have been admitted because the observations of the police officer
were hearsay, just as any other statement in the report [was]."
Defendant contends that the police report does not qualify for
admission "under the business record exception," and the judge
erred in relying heavily "on the police report to craft together
a narrative of where D.H. was during the incident leading to
[defendant's] arrest and his level of exposure to harm."
"[I]n reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse of
discretion." State v. Kuropchak,
221 N.J. 368, 385 (2015) (quoting
Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008)). Trial courts are
afforded "[c]onsiderable latitude . . . in determining whether to
admit evidence." Ibid. (first alteration in original) (quoting
State v. Feaster,
156 N.J. 1, 82 (1998)). Under the abuse of
discretion standard, we should not reverse a trial court's
evidentiary ruling, unless the decision "was so wide of the mark
that a manifest denial of justice resulted." State v. Marrero,
148 N.J. 469, 484 (1997) (quoting State v. Kelly,
97 N.J. 178, 216
(1984)).
10 A-2415-15T1
In evaluating a trial court's evidentiary ruling, one
important consideration is the invited error doctrine. "The
doctrine of invited error operates to bar a disappointed litigant
from arguing on appeal that an adverse decision below was the
product of error, when that party urged the lower court to adopt
the proposition now alleged to be error." N.J. Div. of Youth &
Family Servs. v. M.C. III,
201 N.J. 328, 340 (2010) (quoting Brett
v. Great Am. Recreation,
144 N.J. 479, 503 (1996)). In other
words,
[A] defendant cannot beseech and request the
trial court to take a certain course of
action, and upon adoption by the court, take
his chance on the outcome of the trial, and
if unfavorable, then condemn the very
procedure he sought . . . claiming it to be
error and prejudicial.
[Ibid. (second alteration in original)
(quoting State v. Jenkins,
178 N.J. 347, 358
(2004)).]
The doctrine has particular applicability to situations where
a party consents to the use of a document at trial, only to later
appeal its admissibility. Id. at 341. Our Supreme Court has held
that it would be "unfair" to reverse an evidentiary ruling that
was consented to at trial, because it deprives the opposing party
"of the opportunity to overcome any objection" or "satisfy any
evidentiary requirements needed for the admission of the documents
or present[] a witness or witnesses in place of the documents."
11 A-2415-15T
1 Id. at 341-42. It also "deprive[s] the trial court of the
necessity to make a ruling based on the arguments presented by
both sides." Id. at 341.
Here, defendant had the opportunity to preserve his objection
to the police report at the fact-finding hearing, but instead
consented to its admission and use in the very same way that it
was considered by the trial judge. It would be fundamentally
unfair for defendant to allow the judge to rely on the police
observations in the report in rendering her decision, only to
later challenge its admissibility on appeal. Under these
circumstances, we hold the doctrine of invited error bars defendant
from contesting on appeal the admission of the police report and
the judge's consideration of the police observations documented
in the report in reaching her conclusions.
"In spite of our invocation of the doctrine of invited error,
we would not automatically apply the doctrine if it were to 'cause
a fundamental miscarriage of justice.'" Id. at 342 (quoting Brett,
144 N.J. at 508). However, we are convinced that this case
presents no fundamental injustice that would warrant relaxing the
doctrine, particularly since defendant never disputed conducting
the drug transaction in his son's presence.
Next, defendant contends the Division provided insufficient
evidence for the judge to conclude that he "recklessly placed his
12 A-2415-15T1
son in imminent danger or a substantial risk of harm on the night
he was arrested." As a result, defendant continues, the Division
"provided no evidence that D.H. was an abused or neglected child."
We disagree.
Our standard of review on appeal is narrow. We defer to the
Family Part's findings of fact and the conclusions of law that are
based on those findings. N.J. Div. of Youth & Family Servs. v.
G.L.,
191 N.J. 596, 605 (2007). "[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. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). Even where there are alleged errors in the
trial court's evaluation of underlying facts, 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.'" N.J. Div.
of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007) (quoting
Snyder Realty, Inc. v. BMW of N. Am., Inc.,
233 N.J. Super. 65,
69 (App. Div. 1989)).
Abuse and neglect cases are fact sensitive and require
"careful, individual scrutiny," N.J. Div. of Youth & Family Servs.
v. P.W.R.,
205 N.J. 17, 33 (2011), and the assessment of the facts
"must avoid resort to categorical conclusions." N.J. Div. of
13 A-2415-15T1
Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 180 (2015).
The burden of proof is on the Division to prove abuse or neglect
by a preponderance of the "competent, material and relevant
evidence."
N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth &
Family Servs. v. A.L.,
213 N.J. 1, 22 (2013).
N.J.S.A. 9:6-8.21(c)(4)(b) defines an "[a]bused or neglected
child" as a child under the age of eighteen years
[W]hose 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 . . . 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 . . . .
When there is no evidence of actual harm to the child, like here,
"a finding of abuse and neglect can be based on proof of imminent
danger and substantial risk of harm." A.L.,
213 N.J. at 23. Thus,
"the court 'need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect.'" N.J.
Div. of Youth & Family Servs. v. S.S.,
372 N.J. Super. 13, 24
(App. Div. 2004) (quoting In re Guardianship of D.M.H.,
161 N.J.
365, 383 (1999)).
Further, a parent "fails to exercise a minimum degree of care
when he or she is aware of the dangers inherent in a situation
and . . . recklessly creates a risk of serious injury to that
14 A-2415-15T1
child." G.S. v. N.J. Div. of Youth & Family Servs.,
157 N.J. 161,
181 (1999). While mere negligence does not trigger the statute,
it is "grossly or wantonly negligent" behavior that falls below
the "minimum degree of care." Id. at 178. A person fails to
exercise the minimum degree of care when "an ordinary reasonable
person would understand that a situation poses dangerous risks and
acts without regard for the potentially serious consequences."
Id. at 179. "When a cautionary act by the guardian would prevent
a child from having his or her physical, mental or emotional
condition impaired, that guardian has failed to exercise a minimum
degree of care as a matter of law." Id. at 182.
Here, under the totality of the circumstances, we are
satisfied that the trial judge's findings are supported by
adequate, substantial, and credible evidence. Defendant knowingly
allowed his three-year-old son to accompany him while he engaged
in an inherently dangerous illegal drug transaction. His
willingness to expose the child to this illegal activity,
particularly when he had options that he disregarded, placed the
child in "imminent danger and substantial risk of harm" and amounts
to "grossly or wantonly negligent" behavior that falls below the
requisite "minimum degree of care."
Affirmed.
15 A-2415-15T1
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