New Jersey Division of Child Protection and Permanency

151 A.3d 985, 448 N.J. Super. 135

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2533-14T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION v. December 15, 2016

APPELLATE DIVISION S.G.,

Defendant-Appellant. ____________________________________

IN THE MATTER OF A.G. and G.W.G.,

Minors. ____________________________________

Submitted September 28, 2016 – Decided December 15, 2016

Before Judges Fuentes, Simonelli and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-608-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Matthew D. Lane, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.S.C. (temporarily assigned).

Defendant S.G. (Sandra)1 appeals from the Family Part's July

29, 2013 fact-finding order, finding that she abused or neglected

her two-year-old daughter, A.G. (Ava), within the meaning of

N.J.S.A. 9:6-8.21. The court terminated litigation on December

19, 2014, and granted sole legal and physical custody of Ava to

B.G. (Beth), defendant's mother.

Defendant argues that the court's finding of abuse and neglect

was not supported by sufficient competent material and relevant

evidence. Defendant also argues that she was not afforded

effective assistance of counsel due to trial counsel's failure to

require testimony by New Jersey Division of Child Protection and

Permanency (Division) caseworkers as a condition of agreeing to

the admission of documents. The Division and the child's Law

Guardian join in opposing the appeal. For the following reasons,

we vacate the finding of abuse and neglect, and remand for a

testimonial fact-finding hearing.

1 We use pseudonyms for the reader's convenience and to protect the privacy of the child. R. 1:38-3(d)(12).

2 A-2533-14T3 The fact-finding order was entered after what can best be

described as a "trial on the papers." That is, the court decided

the case based on various redacted documents offered into evidence

by the Division. Defendant did not object to the Division's

evidence or offer any proofs at the hearing. The pertinent

evidence in those documents is as follows.

By way of background, the Division became involved with

defendant in May of 2011 after receiving a referral that defendant

was operating a motor vehicle while under the influence with Ava,

then six months old, in the car. Through the ensuing

investigation, the Division confirmed that defendant used

marijuana, but concluded there were no safety or red flag issues

present. As a result of this referral, defendant completed a

substance abuse evaluation and treatment for cannabis dependence.

Pertinent to this appeal, on March 8, 2013, the Division

received a referral that the Pine Hill Police Department had

executed a search warrant at defendant's home, where she lived

with her brother, S.G. (Scott), her mother, and Ava. Acting on

information that defendant's boyfriend, M.W. (Michael), was

selling drugs out of defendant's home, the police conducted an

undercover investigation over a two-week timespan.

During the investigation, undercover police officers entered

the home and purchased marijuana from Michael on March 1 and March

3 A-2533-14T3 5, 2013. While conducting surveillance of the home, officers

observed several individuals enter and exit within one-minute

intervals, "consistent with drug trafficking." The controlled

drug purchases and the surveillance provided sufficient evidence

to obtain a search warrant for the home.

After executing the search warrant, police confiscated

methamphetamine, marijuana, and drug paraphernalia from the home.

Michael was arrested but all other residents of the home were

cleared of involvement. The execution of the warrant, coupled

with the condition of the home, which police described as

deplorable, provided the basis for the police referral to the

Division.

When Division caseworkers arrived at the home on March 8,

2013, they observed clutter in the front room, which was separated

from the rest of the house by a second door. The living room,

dining room and kitchen were much cleaner, and free of clutter.

In Ava's room, there were "clothes piled up in a corner, a crib,

and two mattresses on end against the wall." The caseworkers were

informed that the mattresses were placed against the wall in the

"raid."

Following the walkthrough, the caseworkers concluded that the

home was not deplorable. Additionally, the workers described

Ava's appearance during the visit as "happily playing[,] . . .

4 A-2533-14T3 clean and well nourished." During the visit, the caseworker

informed defendant of the dangers of allowing Ava to be present

in a home with drug activity. Defendant admitted to the caseworker

that she, her brother, and her boyfriend smoked marijuana, but

stated that it did not occur in Ava's presence. Specifically,

"[defendant] reported that it was only in the front room and [Ava]

is never in there as there is a childproof cover on the door

between the living area and the front room."

When questioned further, defendant admitted that she was

aware that Michael had sold drugs to "local friends", but denied

having knowledge that methamphetamines were in the home.

Defendant's mother, who owned the home, reportedly was unaware

that drug sales were occurring in her home, and did not know that

defendant and Michael were using drugs, as, according to defendant,

she would disapprove.

During a follow-up visit to the home on March 11, 2013,

Division caseworkers observed that the home was neat and clean,

and saw no indication that defendant was under the influence of

marijuana. Defendant informed the caseworkers that the family had

cleaned up after the "raid." At the Division's request, defendant

agreed to participate in a safety action plan, which allowed Ava

to remain in her custody but required that all contact with Ava

5 A-2533-14T3 be supervised by Ava's maternal great-grandmother, E.F. (Mrs.

Franklin), who resided in a home directly behind defendant's.

On April 2, 2013, the Division filed a verified complaint,2

pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12 and Rule 5:12-1,

seeking care and supervision of Ava in order to ensure that

defendant completed the services the Division had requested. At

the initial order to show cause hearing on April 4, 2013, the

court granted the Division's request and continued Mrs. Franklin

as the primary supervisor for all contact between Ava and

defendant.

At the pre-trial conference on July 1, 2013, the Division

offered into evidence four documents: (1) the Investigation

Summary, which recounted the Division's March 8, 2013 interviews;

(2) the Pine Hill Police Department Investigation Report, which

detailed the events leading up to and occurring on the date of the

drug raid; (3) the Investigation Summary, summarizing the

Division's May 6, 2011 prior contact with defendant; and (4) a

June 24, 2013 court report attaching a letter from the Division

to Beth ruling her out as a supervisor. All parties agreed on

2 Defendant's boyfriend, Michael, who described himself as Ava's father-figure, was a named party in the complaint but is not a party to this appeal. Ava's biological father, D.A., was a potential dispositional party but passed away during the pendency of these proceedings.

6 A-2533-14T3 redactions to the documents, which were subsequently admitted into

evidence without objection.

On July 29, 2013, at the fact-finding hearing, no testimony

was presented and the Division relied solely on the above-mentioned

documents. After considering the evidence, the court concluded

that defendant had abused or neglected Ava within the meaning of

N.J.S.A. 9:6-8.21. The court reasoned:

[Defendant] admitted to being aware of drug use. She admitted her own drug use. She claimed it was only when the child was in the care of her mother. She admitted that . . . she was aware that her brother smoked marijuana. She was aware that [Michael] did as well.

There's no specific admissions from her that it happened in the home. There's also no specific admission from her that she was actually aware that [Michael] was selling drugs out of the home.

I find it's more likely than not that she did know, given the drug use that was happening in the home, and the frequent comings and goings of strangers to the home, coming in, leaving promptly, there's no indication that she was not in the home at the time that the surveillance took place. It was in the middle of the day. 1 o'clock. One is at noon and the other at 6:30 p.m. There's no indication that she was working or not in the home.

So the combination of both allowing drug use in the home, where she and her young child were living with others, also permitting drug dealing to take place, or being aware of it, and doing [nothing] about it, to remove the

7 A-2533-14T3 child from that kind of danger, that . . . is also reckless conduct that put the child at substantial risk of harm.

Over the next several months, periodic compliance reviews

were conducted,3 until the litigation was terminated by order dated

December 19, 2014, with sole legal and physical custody of Ava

being granted to Beth.4 This appeal followed.

As a threshold matter, our standard of review is narrow. It

is well established "that findings by the trial court are binding

on appeal when supported by adequate, substantial, credible

evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This

court accords deference to the Family Part's findings of fact

"because it has the superior ability to gauge the credibility of

the witnesses who testify before it and because it possesses

special expertise in matters related to the family." N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012)

(citations omitted).

However, "that deference is perhaps tempered when the trial

court did not hear testimony, or make credibility determinations

3 On April 17, 2014, the Division filed an Amended Complaint for care and supervision of G.W.G (Gabby), defendant's second child, born in February 2014, which the court granted. Michael is the biological father of Gabby. 4 The December 19, 2014 order also granted physical custody of Gabby to Beth, with joint legal custody to Beth and Michael.

8 A-2533-14T3 based on the demeanor of witnesses." N.J. Div. of Child Prot. &

Permanency v. J.D., __ N.J. Super. __ (App. Div. 2016) (slip op.

at 18). Indeed, "when 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[,]"

N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396

(2009), and 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). Therefore, a "fact-finding hearing is a

critical element of the abuse and neglect process." N.J. Div. of

Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div.

2002).

To succeed in a Title 9 proceeding, the Division must prove

at the fact-finding hearing "that the child is 'abused or

neglected' by a preponderance of the evidence, and only through

the admission of 'competent, material and relevant evidence.'"

P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)). An

"abused or neglected child" is, in relevant part, a child under

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

9 A-2533-14T3 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, 306-7 (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

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

10 A-2533-14T3 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

or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383

(1999) (citation omitted).

Applying these principles, we are persuaded that the

Division's proofs fell short. In this case, the Division offered

as evidentiary support of their claims of abuse and neglect,

reports containing the Division workers' observations and

conclusions made during their investigations, as well as the police

report detailing the events of the drug raid. By relying on these

11 A-2533-14T3 redacted documents without witness testimony, the court was unable

to fully engage in its duty as fact-finder.

Indeed, defendant denied that any drug use occurred in her

daughter's presence. Further, although defendant admitted being

aware of her boyfriend's drug dealing to "local friends", it was

unclear whether defendant and her daughter were present during the

transactions. Moreover, defendant was never criminally charged.

We therefore find insufficient evidence for the court's inference

that "it's more likely than not that she did know" of the drug

activity taking place in the home. See N.J. Dep't of Children &

Families v. A.L., 213 N.J. 1, 28 (2013) (concluding that "[j]udges

at the trial and appellate level cannot fill in missing information

on their own or take judicial notice of harm.").

N.J.S.A. 9:6-8.46(a)(3) allows admission into evidence of

business 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.

12 A-2533-14T3 Although Rule 5:12-4(d) "permit[s] [the Division] to submit

into evidence . . . reports by staff personnel or professional

consultants[,]" pursuant to N.J.R.E. 803(c)(6) and 801(d), this

court has cautioned trial courts on the dangers inherent in relying

on these documents as the sole basis for deciding abuse and neglect

cases. In J.D., supra, slip op. at 22-23, we stated:

[C]ontested 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. . . . [E]ven 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. Family Part judges are not bound by the parties' wishes to adjudicate fact- finding hearings through the expedited approach reflected here.

[Ibid. (citations omitted).]

Here, there are material facts in dispute that could be

elucidated in a fact-finding hearing, with the court having the

benefit of, and the opportunity to make, first-hand observations

13 A-2533-14T3 of the witnesses. It is undisputed that defendant and members of

her household smoked marijuana. It is further undisputed that

drugs and drug paraphernalia were found in defendant's home.

However, defendant's statements to Division caseworkers that she

only smoked marijuana when her daughter was either not in the home

or not present were not explicitly contradicted. See N.J. Div.

of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App.

Div. 2011) (noting that "not all instances of drug ingestion by a

parent will serve to substantiate a finding of abuse or neglect.").

Additionally, defendant's knowledge of drug dealing activity in

the home and the extent of Ava's exposure to these activities was

disputed. Clearly, the court would have been better equipped to

perform its role as fact-finder had these matters been developed

more fully with evidence at a testimonial hearing.

The prevailing concern in abuse and neglect cases is the best

interests of the child. See N.J. Div. of Youth & Family Servs.

v. J.D. (In re J.B.), 417 N.J. Super. 1, 20-22 (App. Div. 2010).

As fact-finder, the judge's determination that a child is abused

or neglected "has a profound impact on the lives of families

embroiled in this type of a crisis[,] . . . this critically

important part of the business of the Family Part demands

meticulous adherence to the rule of law." J.Y., supra, 352 N.J.

Super. at 264-65.

14 A-2533-14T3 Here, the Division's reports did not provide any evidence

regarding how Ava's physical, mental or emotional condition might

have been affected by the drug activity in the home. Since a

determination of abuse and neglect requires a fact-sensitive

analysis of particularized evidence, witness testimony would

provide the court with the necessary facts to determine whether

defendant exercised the requisite minimum degree of care necessary

under the circumstances. See A.L., supra, 213 N.J. at 28

(citations omitted). Merely reciting information found in

redacted documentary evidence does not constitute fact-finding.

This is especially so when there are unresolved details regarding

facts of consequence to the determination of an abuse or neglect

finding.

Despite the completeness of the Division's reports, without

the testimony of witnesses, the court is unable to fully engage

in its duty as fact-finder. Since no testimonial hearing took

place, and no findings of fact were made, we do not afford

deference to the conclusions of the trial court. See G.M., supra,

198 N.J. at 396. We therefore vacate the July 29, 2013 fact-

finding order and remand for a testimonial fact-finding hearing.

In light of our disposition, we will not address defendant's second

contention that she was not afforded effective assistance of

counsel. The Division is directed to remove defendant's name from

15 A-2533-14T3 the Child Abuse Registry within ten days of this opinion. We do

not retain jurisdiction.

16 A-2533-14T3