NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.D., JR.
DOCKET NO. A-3716-14T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
October 4, 2016
RECORD IMPOUNDED; APPROVED FOR PUBLICATION
Before Judges Fuentes, Carroll, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-153-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. DiDonato, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, on the brief).
The opinion of the court was delivered by
CARROLL, J.A.D.
The fact-finding order was entered after what can best be described as a “trial on the papers.” That is, the parties agreed to forego the presentation of witnesses, and to have the court decide the case based on various redacted documents offered into evidence by the Division, and oral argument. Defendant did not object to the Division‘s evidence or offer any proofs at the hearing. Jill presented defendant‘s drug and alcohol evaluation
In brief, the Division alleged that defendant drove to a bar, late on a school night, and left Jason unsupervised in the car while defendant patronized the bar. The police were called, and upon responding they observed that defendant was visibly intoxicated. Defendant attempted to flee the police, at a time when he still believed his son was left unattended in the car outside the bar. The Law Guardian supported the Division‘s complaint, seeking a finding of abuse or neglect.
On appeal, defendant challenges the abuse or neglect finding on three grounds: (1) there was insufficient competent, reliable evidence establishing harm or risk of harm to Jason, because the Division presented only documentary evidence; (2) expert testimony was required to establish defendant‘s intoxication or impairment; and (3) defendant‘s later admission to substance use at a substance abuse evaluation and engagement in treatment did not prove abuse or neglect. For the reasons that follow, we find these arguments unpersuasive, and affirm the finding of abuse or neglect.
I.
Before addressing defendant‘s arguments, we must define the record. At the fact-finding hearing, the Division offered into
By way of background, the Division has been involved with the parties since October 4, 2007. Between October 2007 and May 2014, the Division received twelve referrals, most of which related to Jill‘s history of substance abuse. The initial referrals received in 2007 were substantiated for Jill‘s possession and use of heroin and she was deemed unfit to have custody of Jason.
Pertinent to this appeal, on April 21, 2014, the Division received a referral alleging that defendant was abusing alcohol and driving intoxicated with Jason present. At the time, defendant had legal and physical custody of Jason pursuant to an August 12, 2013 order, which also terminated Jill‘s parenting time. Jill reported that she received a phone call from Jason‘s babysitter, K.H. (Kim), advising that defendant was intoxicated when he arrived to pick up Jason. According to Jill, defendant had a history of
The next morning, Jill filed a motion for an emergent hearing seeking temporary custody, which was denied. Jill told the Division caseworker that defendant “needs help” and that he was intoxicated when he dropped Jason off at her home the previous day. Jill stated that defendant was “lost for hours . . . and did not know how to get to her house” although he had been to her home several times. She further explained that defendant had called her in the evening stating that he went out drinking and “he was slurring on the phone.”
In response to the referral, a caseworker called defendant to determine why he left Jason with Jill despite the court order terminating her parenting time. Defendant explained that he “panicked” and that he could not leave Jason with the babysitter because of an incident that occurred with the babysitter‘s neighbor. Defendant claimed he made many phone calls to find another babysitter while he went to work, and that Jill was his last option.
As part of its investigation, a Division caseworker inspected defendant‘s home and conducted separate interviews with defendant and Jason. Defendant told the Division caseworker that he was a recovering alcoholic and addict, having used “everything but heroin,” although he denied being under the influence at the time of the referral. However, defendant declined to submit to a urine screen or complete any services through the Division. When questioned, Jason “denied that he has ever seen alcohol in his home and denied that he has ever seen his father drinking alcohol.”
The Division concluded that the allegation of abuse or neglect was not established by a preponderance of the evidence, but that Jason was “harmed or placed at risk of harm.” The Division recommended the case remain open to provide substance abuse services to Jill. The Division also sought a litigation conference due to defendant‘s refusal to complete a drug screening. Notwithstanding, the investigation revealed that Jason denied allegations defendant was intoxicated at the time; the Millville Police Department had no reports regarding defendant; and
The Division was in the process of completing its investigation when it received a second referral regarding defendant on May 9, 2014, which precipitated the filing of the Division‘s complaint. On that date, the Millville Police Department advised the Division that defendant had been arrested at Sidelines Bar (Sidelines) the night before. According to the police reports, Officers Joseph Dixon and Vern Babka responded to Sidelines at approximately 10:08 p.m. on May 8, “in reference to an intoxicated male who[] was inside the bar and left his juvenile child outside in his vehicle for an extended period of time.”
Based on their training and experience, Dixon and Babka observed “a strong odor of an alcoholic beverage emitting from [defendant‘s] person” and defendant was “having a difficult time maintaining his balance” while speaking with the officers outside in the parking lot. Babka summoned the Millville Rescue Squad to evaluate defendant due to his apparent high level of intoxication.
While waiting for the rescue squad to arrive, the officers questioned defendant about leaving his son outside the bar. Defendant stated that he “only ran inside.” However, an off-duty New Jersey State Trooper who was at Sidelines informed Dixon that “according to the surveillance tapes, [defendant‘s] vehicle was
As described in the police report, defendant made several attempts to walk away from the police before sprinting away from them. Defendant was apprehended and charged with endangering the welfare of a child,
Dixon reported that he was “forced to deliver several closed fist strikes to [defendant] in order to gain compliance.” Consequently, defendant sustained several lacerations to his head and upper lip and was taken to Inspira Medical Center (Inspira) for treatment. Dixon noted in his report that while at the hospital, defendant repeatedly refused an examination of his blood alcohol content by Inspira staff, and despite the passage of two to three hours, he was “eventually sedated for being uncooperative.”
Jason was taken into the care and custody of his paternal aunt, B.D. (Barbara), and the matter was referred to the Division for further investigation. The following day, Division caseworkers interviewed defendant at his home in Millville. Defendant claimed that Sidelines was a bar that also sold liquor to go, and that he was “on his way to a friend‘s home with [Jason]
Defendant further denied that he had been drinking prior to going to Sidelines, and he became visibly annoyed while stating to the caseworkers that he was a recovering addict and alcoholic and had not consumed alcohol for the past two years. However, he again refused the Division‘s request that he undergo a urine screen.
Division caseworkers then interviewed Jason privately at his Aunt Barbara‘s home. Jason denied seeing his father drink alcohol before going to Sidelines, and further denied that his father was “acting strangely, slurring words, or having difficulty standing and/or walking.” Jason reported that he was left in his father‘s car for approximately “five minutes” before the owner of the bar came outside and brought him into Sidelines through the back entrance and requested that he identify his father. Jason stated that he remained in the back room for approximately ten minutes while the bar owner spoke to defendant. When asked whether he saw
Defendant subsequently agreed to undergo a substance abuse assessment, during which he admitted consuming alcohol on May 8, 2014. As noted, the assessment report was introduced by Jill to impeach defendant‘s previous statements to the Division‘s caseworkers denying any alcohol consumption.
Following summations by counsel and a recess to review the documentary evidence, the court rendered an oral opinion finding that defendant abused or neglected Jason pursuant to
After reviewing relevant case law, the court reasoned that “[a] risk of harm is a sufficient basis for the [c]ourt to make a finding of abuse or neglect.” The court concluded that defendant‘s
As to dispositional matters, the court permitted defendant to have unsupervised visitation with Jason twice per week, and for overnight visits to be instituted at the Division‘s discretion. Subsequently, at a case management conference held on November 10, 2014, the court granted defendant overnight visits, noting that any objections raised by Jill resulted from the parties’ ongoing dispute regarding custody. Compliance review hearings were thereafter held on December 2, 2014, and February 23, 2015. On February 23, the court granted the Division‘s request to terminate the litigation, and continued joint legal custody of Jason with defendant and Jill, with defendant designated as the parent of primary residence. Defendant‘s appeal of the October 1, 2015 fact-finding order followed.
II.
We first address defendant‘s argument that the trial court erred in admitting the Division‘s investigation summaries and the police reports. Specifically, defendant contends that: (1) the trial court failed to conduct the necessary
We begin by recognizing that the documents admitted into evidence contained embedded hearsay subject to objection, notwithstanding the admissibility of Division records.
Defendant‘s own statements are admissible as statements of a party-opponent.
Here, however, defendant through his counsel agreed to admission into evidence of the documents, as redacted, and a trial on the papers. Notably, in response to Jill‘s counsel‘s initial objection,3 defendant‘s counsel specifically stated,
Your Honor, his client is dispositional . . . . This is strictly a finding that the Division [is] trying to make against my client. So, if I‘m not asking for any testimony, then I would like to proceed on the documents. If [Jill‘s counsel] doesn‘t want them admitted against his client, that‘s fine; but, I accept them as is against my client.
The record before us is clear that the Division relied on defendant‘s attorney‘s consent to the admission into evidence of the documents. Had defendant taken a contrary position, the Division was fully prepared to call the Division caseworker and the police officers as witnesses. Consequently, we conclude that defendant‘s belated challenge to the admission of the documents, including the trial court‘s failure to conduct a
Even if the invited error doctrine did not dispose of defendant‘s argument, we apply the principle that hearsay subject to a well-founded objection is generally evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). As we have recently recognized:
[A] party is free to waive objection to the admission of hearsay evidence. In some cases, parties may have no reason to question the accuracy of such hearsay, or may make “a strategic decision to try the case based on the documents, instead of possibly facing a witness‘s direct testimony.”
[N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 503 (App. Div. 2016) (citing M.C. III, supra, 201 N.J. at 342).]
In general, it is not the judge‘s responsibility, particularly in a bench trial with represented parties, to intervene with a well-founded hearsay objection, whenever counsel choose not to raise one of their own.4 When objectionable hearsay is admitted in a bench trial without objection, we presume that the fact-finder appreciates the potential weakness of such proofs, and takes that into account in weighing the evidence. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202-03 (App. Div. 2004) (stating that “possible prejudicial impact of complex diagnoses included in medical records [despite
As the trial court may give such evidential weight to objectionable hearsay that is appropriate under the circumstances, an appellant faces an especially high hurdle in an appeal from a civil bench trial to establish that the admission of such evidence constitutes “plain error” - that is, that the admission of such evidence was “clearly capable of producing an unjust result.”
Applying these principles, we are not persuaded that the court committed plain error by considering the embedded hearsay in documents admitted into evidence, and, in particular, the information attributed by Officer Dixon to an unnamed off-duty
III.
We next consider defendant‘s argument that the court‘s finding lacks the support of sufficient, reliable evidence. We accord deference to the Family Court‘s fact-finding in part because of the court‘s “special jurisdiction and expertise in family matters.” Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, that deference is perhaps tempered when the trial court did not hear testimony, or make credibility determinations based on the demeanor of witnesses. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (“[W]hen no hearing takes place, no evidence is admitted, and no findings of fact are made, . . . appellate courts need not afford deference to the conclusions of the trial court.“). We shall uphold the court‘s fact finding if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
An “abused or neglected child” means, in pertinent part, a child under the age of eighteen
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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]
[
N.J.S.A. 9:6-8.21(c)(4)(b) .]
Interpreting
Although the distinction between willful or wanton negligence and ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of willful or wanton negligence is that it “implies that a person has
A determination of whether a parent‘s or guardian‘s conduct “is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one.” T.B., supra, 207 N.J. at 309. “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 situation.” G.S., supra, 157 N.J. at 181-82. “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. The mere lack of actual harm to the child is irrelevant, as “[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention
In the present case, it is undisputed that defendant drove with ten-year-old Jason to Sidelines at 10 p.m. on a school night and intentionally left the child unattended in the car while defendant went inside and seated himself at the bar. It is further undisputed that the child remained outside for a sufficient period to attract the attention of the bar owner, who removed Jason from the car, brought him inside, had him identify his father, and alerted the police. Also undisputed are defendant‘s lack of knowledge that Jason had been taken from the car; that defendant attempted to flee the police and leave Jason behind; that defendant‘s level of intoxication was so high as to warrant the summoning of the local rescue squad; and that defendant refused blood tests at the hospital and urine screens requested by the Division.
Defendant argues that this evidence is insufficient to support the finding that his actions placed Jason at substantial risk of harm. We disagree. While thankfully the bar owner who approached Jason and removed him from the car acted with the highest of motives, the result may have been tragically different had another stranger confronted Jason outside the bar. Also, given defendant‘s level of intoxication, it is reasonable, and far
We nonetheless take this occasion to caution trial judges about the dangers inherent in adjudicating contested trials “on the papers,” and the corresponding need to make specific factual findings of abuse or neglect. See R.W., supra, 438 N.J. Super. at 468 (cautioning trial judges “in contested cases who render fact-findings based solely on documentary submissions, particularly in the affected parent‘s absence“). See also N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (cautioning that judicial findings must be based on competent reliable evidence and that judges must articulate, with particularity, the facts upon which a determination of abuse or neglect is made).
In the present case, we are able to glean sufficient undisputed facts from the record that adequately support the judge‘s finding of risk of harm to Jason. However, contested
IV.
We have considered defendant‘s remaining arguments and conclude they are without sufficient merit to warrant discussion in a written opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION