RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3716-14T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Respondent, October 4, 2016 v. APPELLATE DIVISION J.D., JR.,
Defendant-Appellant,
and
J.G.,
Defendant.
IN THE MATTER OF J.D., III, a minor.
Submitted September 14, 2016 – Decided October 4, 2016
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.
Defendant J.D., Jr. (John)1 appeals from the Family Part's
October 1, 2014 fact-finding order, finding that he abused or
neglected his ten-year-old son, J.D., III (Jason). The court
terminated the litigation in February 2015, with defendant
ultimately retaining physical custody of Jason.2
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
1 We use pseudonyms for the reader's convenience and to protect the privacy of the child. R. 1:38-3(d)(12). 2 The February 23, 2015 order also continued joint legal custody of Jason with defendant and Jason's biological mother, J.G. (Jill). Jill was named as a defendant in the action solely for dispositional purposes. Plaintiff Division of Child Protection and Permanency (Division) did not seek a finding of abuse and neglect as to Jill, nor is she a party to this appeal. 2 A-3716-14T4 report for the limited purpose of impeaching statements defendant
made during the Division's investigation of the incident in which
he denied consuming any alcohol.
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
3 A-3716-14T4 evidence, with the consent of defendant's attorney, the following
documents: (1) the Division's investigation summary dated May 9,
2014; (2) the Division's investigation summary dated April 21,
2014; and (3) Millville Police Department investigation reports.
The documents contained several redactions that were agreed upon
by counsel for defendant and the Division. Jill introduced
defendant's substance abuse assessment, dated June 3, 2014, solely
for impeachment purposes. The pertinent evidence in those
documents is as follows.
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
4 A-3716-14T4 drinking daily to the point of intoxication, drunk driving, and
drug use. Jill reported that defendant planned to bring Jason to
her house because he had to go to work, although both were aware
that such action violated the existing court order prohibiting
Jill from having unsupervised contact with Jason.
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.
5 A-3716-14T4 Defendant acknowledged that leaving Jason with Jill was a
"mistake" and that he only did so on this occasion "out of pure
desperation." Nevertheless, defendant also explained that Jill
had been "doing well" and he thought he could "trust her."
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
6 A-3716-14T4 defendant did not appear to be under the influence of any substance
when interviewed by the Division.
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
7 A-3716-14T4 parked on the side lot of Sidelines for approximately [twenty] to
[thirty] minutes."
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, N.J.S.A. 2C:24-4a; resisting arrest by flight,
N.J.S.A. 2C:29-2(a); and obstruction, N.J.S.A. 2C:29-1(a). The
record does not disclose the status of these criminal charges.
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]
8 A-3716-14T4 and stopped at Sidelines to purchase a bottle for her." Defendant
noted that "kids are not allowed in bars," and further stated that
he was in Sidelines for approximately five minutes when police
approached him as he was exiting. According to defendant, the
police refused to let him speak with Jason, and he claimed they
"slammed [him] on the ground, [and] they said that [he] was
resisting arrest."
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
9 A-3716-14T4 his father drinking at the bar, Jason replied, "I don't know."
Jason denied witnessing his father's arrest, but stated he could
see him speaking with police upon their arrival and later inside
the police car.
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 N.J.S.A. 9:6-
8.21(c). Initially, the court noted that, "as [it] has only had
the opportunity to review exhibits, it's very difficult to assess
anybody's credibility as to items referenced in the report[s],
which were admitted without objection." The court found defendant
"was under the influence of alcohol at the time in question,"
although in the absence of a blood alcohol reading or balance
tests the court was "[un]able to make any particularized finding
as to the level of his intoxication."
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
10 A-3716-14T4 actions placed Jason at substantial risk of harm. In addition to
finding that defendant was under the influence, the court found
"that [he] was trying to flee the scene, while the child was still
present" and "that the child had been left alone in the car for a
period of time, at least five minutes."
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 N.J.R.E. 104(a) hearing
11 A-3716-14T4 requiring the Division to produce a qualified witness to
authenticate the records; and (2) the police report contained
inadmissible embedded hearsay from an off-duty state trooper,
which the Law Guardian relied on in arguing the length of time
that Jason was left unattended in the car before being taken inside
by the bar owner.
We begin by recognizing that the documents admitted into
evidence contained embedded hearsay subject to objection,
notwithstanding the admissibility of Division records. N.J.S.A.
9:6-8.46(a)(3) allows admission into evidence of Division records
"of any condition, act, transaction, occurrence or event relating
to a child in an abuse or neglect proceeding . . . [as] proof of
that condition, act, transaction, occurrence or event" if it meets
the prerequisites for admission of a business record. In other
words, the judge must find "it was made in the regular course of
the business . . . and 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." Ibid. See also R. 5:12-4(d) (stating that documents
prepared by Division staff are admissible if they satisfy the
requirements of the business records exception to the hearsay
rule, N.J.R.E. 803(c)(6) and 801(d)).
12 A-3716-14T4 However, hearsay embedded in such records must satisfy a
separate hearsay exception. See N.J. Div. of Child Prot. &
Permanency v. R.W., 438 N.J. Super. 462, 466-67 (App. Div. 2014)
(noting that notwithstanding admissibility of Division records
that meet the business records exception, hearsay embedded therein
must meet other hearsay exceptions in order to be admitted). See
also Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154,
173-74 (App. Div. 2012) (stating that trial court should have
excluded expert opinion, although contained in otherwise
admissible business records, absent specific findings regarding
trustworthiness).
Defendant's own statements are admissible as statements of a
party-opponent. N.J.R.E. 803(b)(1). Jason's out-of-court
statements are admissible as those of a child victim, subject to
the statute's corroboration proviso, N.J.S.A. 9:6-8.46(a)(4). By
contrast, the statements of another person, such as a police
officer recounting statements made by an unidentified off-duty
state trooper, must satisfy a separate exception.
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,
3 This objection was subsequently withdrawn. 13 A-3716-14T4 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 N.J.R.E. 104(a)
hearing, is barred by the invited error doctrine. See N.J. Div.
of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010)
(applying invited error doctrine and holding that defendant's
failure to object "deprived the Division of the opportunity to
overcome any objection and deprived the trial court of the
necessity to make a ruling").
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:
14 A-3716-14T4 [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 N.J.R.E. 808] was
of less concern" in bench trial); In re Civil Commitment of J.M.H.,
367 N.J. Super. 599, 613 (App. Div. 2003) (stating that risk of
fact-finder's misuse of hearsay utilized by testifying expert
4 On the other hand, it is certainly within a trial judge's discretion to interpose such objections, or alert counsel that objectionable hearsay shall not be considered. 15 A-3716-14T4 "does not pose as serious a concern" in bench trial), certif.
denied, 179 N.J. 312 (2004).
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." R.
2:10-2. See McCormick on Evidence, § 52 at 368 (suggesting that
the consideration of "relevant, trustworthy evidence" is not
likely to be deemed plain error, because it is not "likely to
cause justice to miscarry," absent violation of an exclusionary
rule of evidence designed "to promote an extrinsic social
policy").5
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
5 Our conclusion that various embedded hearsay statements were evidential is not at odds with N.J.S.A. 9:6-8.46(b)(2), which states that "only competent, material and relevant evidence may be admitted" in a fact-finding hearing. Hearsay does not relate to proof's relevance, see N.J.R.E. 401, or competence, see N.J.R.E. 601. Indeed, based on the doctrine of invited error, inadmissible hearsay was deemed acceptable evidence in M.C. III, supra, 201 N.J. at 342. 16 A-3716-14T4 state trooper who purportedly reviewed the bar's surveillance
tapes and ascertained that defendant's car was parked outside for
approximately twenty to thirty minutes. In any event, the trial
court appears to have largely discounted this information, finding
only that Jason had been left in the car for a period of at least
five minutes, which coincided more closely with the timeline
attributed to defendant and Jason in the Division's investigation
summary.
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,
17 A-3716-14T4 279 (2007). However, we will not hesitate to set aside a ruling
that is "wide of the mark." N.J. Div. of Youth & Family Servs.
v. P.W.R., 205 N.J. 17, 38 (2011).
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 N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court
held that mere negligence does not trigger the statute. Dep't of
Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v.
Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the
failure to exercise a minimum degree of care "refers to conduct
that is grossly or wantonly negligent, but not necessarily
intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra,
157 N.J. at 178).
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
18 A-3716-14T4 acted with reckless disregard for the safety of others." G.S.,
supra, 157 N.J. at 179 (citations omitted). Further, willful or
wanton conduct is that which is "done with the knowledge that
injury is likely to, or probably will, result[,]" and "can apply
to situations ranging from 'slight inadvertence to malicious
purpose to inflict injury.'" Id. at 178 (citations omitted).
However, if the act or omission is intentionally done, "whether
the actor actually recognizes the highly dangerous character of
her conduct is irrelevant," and "[k]nowledge will be imputed to
the actor." Ibid. (citation omitted).
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
19 A-3716-14T4 or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383
(1999) (citation omitted).
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
20 A-3716-14T4 from imaginary, to envision the harm that may well have befallen
Jason and others had defendant driven his vehicle upon leaving the
bar. In sum, we are satisfied there is sufficient evidence in the
record to support the trial court's finding that defendant abused
or neglected Jason by creating a substantial risk of injury to him
by leaving him unattended in a vehicle in the late evening while
defendant entered a bar, became intoxicated, and attempted to flee
the police.
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
21 A-3716-14T4 cases often turn on credibility determinations, which by their
nature are impeded when the trial court cannot make first-hand
observations of the witnesses. Additionally, the absence of live
testimony obstructs the trial court's ability to obtain additional
details that may be necessary to augment or clarify information
contained in the documentary evidence, potentially impairing the
judge's ability to make more detailed factual findings. In short,
the procedure employed here, that is, submitting redacted
documents in lieu of testimonial evidence, fails to allow the
judge to resolve disputed issues or make credibility
determinations. "Our overarching consideration in all matters
concerning children involved in the judicial system is 'the best
interests of the child.' This principle is embedded in the
doctrine of parens patriae, which authorizes the court to intervene
when necessary to prevent harm to the child." Segal v. Lynch, 413
N.J. Super. 171, 178 (App. Div.), certif. denied, 203 N.J. 96
(2010). Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009). Thus, even
when the parties acquiesce to a trial "on the papers," we reiterate
that fact-finding hearings must still adhere to fundamental rules
of evidence and must be conducted with the formality and decorum
we expect from any other adjudicative proceeding. J.Y., supra,
352 N.J. Super. at 264-65. Family Part judges are not bound by
22 A-3716-14T4 the parties' wishes to adjudicate fact-finding hearings through
the expedited approach reflected here.
IV.
We have considered defendant's remaining arguments and
conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E). Contrary to defendant's
argument, expert testimony is not required to establish that an
individual is intoxicated due to alcohol. See State v. Smith, 58
N.J. 202, 213 (determining that "[a]n ordinary citizen is qualified
to advance an opinion in a court proceeding that a person was
intoxicated because of consumption of alcohol"). We are also
satisfied that defendant's substance abuse evaluation, during
which he admitted consuming alcohol on the date of the incident,
was properly admitted solely to impeach his earlier statements in
which he denied any alcohol use during the prior two years. In
any event, this admission played scant if any role in the court's
ultimate finding of abuse and neglect.
Affirmed.
23 A-3716-14T4