K.P. VS. DEPARTMENT OF CHILDREN AND FAMILIES (DIVISION OF CHILD PROTECTION AND PERMANENCY) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 12, 2021
• Docket: A-2686-19
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2686-19

K.P.,

Respondent-Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner-Respondent. ____________________________

Submitted March 1, 2021 – Decided April 12, 2021

Before Judges Messano and Hoffman.

On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Agency Docket No. AHU 09-1211.

Williams Law Group, LLC, attorneys for appellant (Allison Williams, of counsel and on the briefs; Victoria D. Miranda, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Attorney General, on the brief). PER CURIAM

Following a hearing before an administrative law judge (ALJ), the

Assistant Commissioner of the Division of Child Protection and Permanency

(the Division) adopted the ALJ's findings and conclusion and issued a final

agency decision affirming the substantiated finding of neglect against K.P.

(Kevin).1 Kevin appeals, arguing the final decision was arbitrary, capricious or

unreasonable because the evidence was insufficient to establish that he

neglected his children. Kevin also argues the ALJ erroneously admitted hearsay

evidence, as well as evidence of "subsequent remedial measures," that affected

the Division's decision and requires reversal. We have considered these

arguments and affirm.

I.

The testimony and evidence as detailed in the ALJ's comprehensive

written decision revealed that on Memorial Day, May 25, 2009, shortly after

8:00 p.m., Sea Girt police sergeant Kevin Davenport was on patrol when he

observed a classic car 2 stopped at an intersection stop sign "in the middle lane

of traffic." Kevin was driving, with his five-year-old son on his lap and his

1 We use initials pursuant to Rule 1:38-3(d)(12). 2 The car was a 1966 Austin Healey convertible. A-2686-19 2 seven-year-old son in the rear seat. As Davenport attempted to draw alongside

the car, Kevin drove through the intersection a short distance before turning into

the driveway of his home. Davenport followed.

Kevin and the children exited the car. Davenport said Kevin "immediately

had to lean . . . on the . . . door for support[,]" and, when asked for his credentials,

Kevin slurred in response that his license was in the house. Kevin's wife brought

it outside to him, and he gave it to the sergeant. Kevin acknowledged having

taken "his kids for a joy ride." After the children left with Kevin's wife and went

into the home, Davenport, who detected an odor of alcohol on Kevin's breath,

asked him to perform field sobriety tests in the garage. Ultimately, Davenport

determined Kevin was under the influence of alcohol and arrested him for

driving while impaired (DWI).3 In response to questions posed on the "Drunk

Driving Questionnaire" that Davenport completed, Kevin claimed he drank two

"Bacardi and [D]iet [C]okes" between 7:30 and 8:00 p.m.

3 Police administered an Alcotest to Kevin. However, the results and Kevin's conviction were the subject of appellate litigation that ultimately resulted in suppression of Kevin's and thousands of other defendants' BAC readings. At the municipal court hearing, the parties stipulated that Sergeant Davenport had sufficient probable cause to stop Kevin for DWI, but without the BAC test results, Davenport could not be confident beyond a reasonable doubt that Kevin was under the influence of alcohol. A-2686-19 3 Davenport reported the arrest to the Department of Children and Families

(DCF), and Division caseworker Lavaughn Cox-Allison responded to Kevin's

home to investigate. Kevin's wife was not in the home when he left with his

sons in the car, and she was unaware he had been drinking. Cox-Allison spoke

with Kevin. He admitted having two glasses of rum and Diet Coke "[ten]

minutes prior to leaving the home" and driving with his sons.

In addition, before the ALJ, the Division produced Sea Girt Patrolman

Brian Joule and Division supervisor Catherine Pertesis as witnesses. We discuss

their testimony, the subject of Kevin's specific objections, in greater detail

below.

Kevin also testified, reiterating that he had only two drinks before he

yielded to his son, who begged him for a ride in the new car. While he was

driving, his younger son took off his seat belt and jumped onto his lap. Kevin

said he only drove a short distance, about "two-tenths of a mile." Regarding the

field sobriety tests, the ALJ noted that Kevin "did not disagree with Sergeant

Davenport's assessments[,]" but explained that he struggled because he had a

"really, really bad back" that would "seize up a lot."

The ALJ found that Kevin was under the influence of alcohol when he

drove with the children in his car. She credited Davenport's observations of

A-2686-19 4 Kevin at the scene. The ALJ found Kevin credibly testified that the drive was

short, "around the block," and he was "driving 'really, really slow.'" She

believed Kevin's testimony that his sons were initially buckled in their seats

using lap belts, but his youngest son unbuckled his and sat on Kevin's lap.

However, the ALJ noted that Kevin acknowledged the two children should have

been in child car seats, but he thought they would not fit in the car, and that he

did not want to stop the car so close to his home and "in the middle of the street"

to re-buckle his son in his seat. She found that Kevin was remorseful.

Citing appropriate provisions of Title Nine, and both published and

unpublished decisions of our court, the ALJ concluded DCF "appropriately

substantiated neglect[,]" because Kevin violated "N.J.S.A. 9:6-8.21(c)(4) by

driving under the influence of alcohol with the children in the car[.]" The

Assistant Commissioner's final decision adopted the ALJ's initial decision and

found Kevin: 1) "failed to exercise a minimum degree of care by driving under

the influence . . . with his children in a car without proper car restraints"; 2)

"failed a field sobriety test and displayed visual signs that he was impaired"; and

3) "placed his children at a substantial risk of harm[.]"

On appeal, we apply a limited standard of review to the Division's final

decision, namely, whether that determination was arbitrary, capricious or

A-2686-19 5 unreasonable. N.J. Dep't of Child. & Fams. v. E.L., 454 N.J. Super. 10, 21–22

(App. Div. 2018) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)).

"[A]n appellant carries a substantial burden of persuasion, and the agency's

determination carries a presumption of reasonableness." Dep't of Child. &

Fams. v. C.H., 414 N.J. Super. 472, 479–80 (App. Div. 2010) (citing Gloucester

Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390–91 (1983)).

"Reviewing courts should give considerable weight to any agency's

interpretation of a statute the agency is charged with enforcing." Id. at 480.

(quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)). "We do not,

however, simply 'rubber stamp the agency's decision.'" N.J. Dep't of Child. &

Fams. v. S.P., 402 N.J. Super. 255, 268 (App. Div. 2008) (quoting Paff v. N.J.

Dep't of Lab., 392 N.J. Super. 334, 340 (App. Div. 2007)).

Kevin contends, in essence, that the Division's decision was not supported

by "credible, competent evidence, and therefore was arbitrary, capricious and

unreasonable." He asserts there was insufficient evidence to demonstrate he

failed to exercise the necessary minimum degree of care for the children. We

disagree.

An abused or neglected child is one under eighteen years of age

whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming

A-2686-19 6 impaired as the result of the failure of his parent or guardian . . . 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 . . . 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).]

As used in the statute, a minimum degree of care is "conduct that is grossly or

wantonly negligent, but not necessarily intentional." G.S., 157 N.J. at 178. "To

be sure, '[w]hether a particular event is to be classified as merely negligent or

grossly negligent defies "mathematical precision."'" Dep't of Child. & Fams.,

v. E.D.-O., 223 N.J. 166, 185 (2015) (alteration in original) (quoting Div. of

Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011)).

We have no hesitancy in concluding, as we have repeatedly done in the

past, that permitting a child to ride in a motor vehicle with an inebriated driver

is grossly negligent. See, e.g., N.J. Div. of Child Prot. & Permanency v. J.D.,

447 N.J. Super. 337, 352–53 (App. Div. 2016) ("[I]t is reasonable, and far from

imaginary, to envision the harm that may well have befallen [a child passenger]

and others had [the intoxicated defendant-parent] driven his vehicle upon

leaving the bar."); N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super.

61, 69 (App. Div. 2014) (affirming substantiation of child neglect and observing

A-2686-19 7 "that no reasonable person could fail to appreciate the danger of permi tting

children to ride in a motor vehicle driven by an inebriated operator").

The Commissioner's decision, which accepted and adopted the ALJ's

credibility determinations and factual findings, was amply supported by the

substantial credible evidence in the record. To the extent Kevin challenges this

in a separate point in his brief, the argument requires no further discussion in a

written opinion. R. 2:11-3(e)(1)(E). The Division established by a

preponderance of credible evidence that Kevin neglected his children pursuant

to N.J.S.A. 9:6-8.21(c)(4).

II.

We address the two evidentiary issues Kevin raises, convinced that neither

one requires reversal.

Patrolman Joule testified that while on patrol on the day in question, an

older couple that was walking "flagged [him] down." When the officer began

to testify as to what the couple said, Kevin's counsel objected on hearsay

grounds. The ALJ overruled the objection, stating: "I make no comment on any

weight I will give it and whether it will comply with the residuum rule if I intend

to use it as a determination on its own."

A-2686-19 8 Joule testified that the couple "reported a . . . classic vehicle operating

with a child on the lap of the driver and driving erratically." Joule broadcast

that description over the radio and, a short time later, Sergeant Davenport

reported he had located the car. Joule responded to the location and provided

back up for the sergeant. On cross-examination, Joule acknowledged that he

never saw the car "in motion" and never witnessed any motor vehicle violations.

Kevin argues Joule's testimony recounting the elderly couple's statements

was inadmissible hearsay. Prior to the hearing, Kevin's counsel lodged certain

objections to documents the Division intended to proffer at the hearing. One

such document was Davenport's police report, which counsel noted included

embedded hearsay, i.e., "what . . . Joule report[ed] what alleged unidentified

'witnesses' observed." In a written opinion supporting the order denying that

objection, the ALJ stated essentially what she said in denying the objection at

the hearing.

As the ALJ noted and the Division now argues, the Rules of Evidence

generally do not apply to contested administrative hearings. N.J.A.C. 1:1-

15.1(c). Specifically, as to hearsay, N.J.A.C. 1:1-15.5(a) provides:

Subject to the judge's discretion to exclude evidence . . . or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be

A-2686-19 9 accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.

Kevin argues the relaxation of admissibility that normally applies to

administrative proceedings, however, does not apply to contested abuse or

neglect hearings. He cites N.J.S.A. 9:6-8.46 for support.

By its terms, N.J.S.A. 9:6-8.46(a) applies to "any hearing under [Title

Nine], including an administrative hearing held in accordance with the

'Administrative Procedure Act.'" Subsection (a) addresses four specific

categories of evidence presumptively admissible in any such proceeding. 4

4 These are:

(1) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian and (2) proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child, and (3) any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or

A-2686-19 10 However, Kevin cites subsection (b), which provides that "[i]n a fact -finding

hearing . . . only competent, material and relevant evidence may be admitted."

He contends this subsection trumps not only the administrative regulations

generally applicable to contested hearings cited above, but also the

Administrative Procedure Act (APA) itself. See N.J.S.A. 52:14B-10(a)(1) ("The

parties shall not be bound by rules of evidence whether statutory, common law,

or adopted formally by the Rules of Court. All relevant evidence is admissible,

except as otherwise provided herein."). In short, according to Kevin, because

hearsay is not competent evidence, it is inadmissible in contested abuse and

neglect hearings before an ALJ.

agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. . . . and (4) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.

[N.J.S.A. 9:6-8.46(a).] A-2686-19 11 We have recognized that judicial determinations made at a fact-finding

hearing "must be based on competent reliable evidence." N.J. Div. of Youth &

Fam. Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (citing N.J.S.A.

9:6-8.46; R. 5:12-4(d)). However, a fact-finding hearing is a defined term

within Title Nine. See N.J.S.A. 9:6-8.44 ("When used in this act the term 'fact-

finding hearing' means a hearing to determine whether the child is an abused or

neglected child as defined herein."). That definition, standing alone might

engender some confusion as to whether an administrative hearing before DCF

is a "fact-finding hearing," and, therefore, within the rubric of N.J.S.A. 9:6-

8.46(b)'s limitation of admissibility, i.e., "only competent, material and relevant

evidence may be admitted."

However, Title Nine provides that "[u]pon completion of the fact-finding

hearing, the dispositional hearing may commence immediately after the required

findings are made." N.J.S.A. 9:6-8.47(a). "A dispositional hearing must be held

to determine the appropriate outcome of the case." N.J. Div. of Youth & Fam.

Servs. v. G.M., 198 N.J. 382, 399 (2009) (citing N.J.S.A. 9:6-8.50). In DCF

administrative hearings there is no dispositional hearing to determine the

"appropriate outcome of the case," only a determination whether a parent or

guardian committed abuse or neglect.

A-2686-19 12 In short, nothing suggests the Legislature intended to disrupt the intricate

structure of Title Nine judicial proceedings and implicitly overrule the APA and

duly enacted regulations by restricting the admission of hearsay evidence only

in DCF administrative proceedings. Moreover, even if we were wrong in our

analysis, the ALJ's written decision recounted Joule's testimony, but she did not

mention it at all in her findings of fact and conclusions of law. The point

requires no further discussion.

In the pre-hearing motion to bar certain proffered documents, Kevin's

counsel sent a written objection regarding admission of substance abuse

evaluations or treatment recommendations for Kevin that resulted from the

Division's involvement with the case. Counsel claimed any such references

were inadmissible pursuant to N.J.R.E. 407, which generally bars evidence of

subsequent remedial measures as proof of negligence or culpability. The ALJ

denied the objection, concluding the reports were business records, admissible

pursuant to N.J.S.A. 9:6-8.46(a).

At trial, Pertesis explained that as Division supervisor, she was directly

involved in making the substantiated finding of neglect against Kevin. She said

that Kevin was referred for substance abuse evaluation, and treatment was

recommended. Kevin's counsel objected on multiple grounds: the evidence was

A-2686-19 13 hearsay; it violated N.J.R.E. 407; and it lacked relevancy. The ALJ overruled

the objection.

We agree that the evidence was irrelevant. The issue before the ALJ was

whether Kevin neglected the children on the day in question. See E.D.-O., 223

N.J. at 189 (where no actual harm befalls the child, the focus is not "the risk the

parent poses . . . at the time the incident is reviewed by a fact-finder"). However,

once again, other than to recount Pertesis' testimony, the ALJ did not cite it or

the results of the evaluation or recommendation in her actual findings and

conclusions. Any error was harmless. R. 2:10-2.

Affirmed.

A-2686-19 14