DCPP VS. S.J., N.L., AND D.P., IN THE MATTER OF M.P. AND D.P. (FN-07-0301-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0451-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.J. and N.L.,1
Defendants,
and
D.P.,
Defendant-Appellant.
__________________________
IN THE MATTER OF M.P.
and D.P., minors.
__________________________
Submitted November 1, 2021 – Decided November 19, 2021
1
Pursuant to Rule 1:38-3(d)(10) to (12), we use initials and fictitious names to
protect the confidentiality of the participants in these proceedings.
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0301-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Catherine W. Wilkes, Assistant Deputy
Public Defender, of counsel and on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Nancy P. Fratz, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
In this Title 9 proceeding, defendant D.P. (Dwayne) appeals from a
September 25, 2019 order entered by a Family Part judge under N.J.S.A. 9:6 -
8.21(c)(4)(b), 2 finding he abused or neglected his girlfriend's son M.P.
(Michael), born in 2017. The judge found Dwayne physically assaulted [the
mother] while [she] was holding their child . . . in her arms . . . [and] was [seven]
2
N.J.S.A. 9:6-8.21(c)(4)(b) provides an "abused or neglected child" includes
children under the age of eighteen whose physical, mental, or emotional
condition is in imminent danger of being impaired due to substantial risk of harm
caused by a parent or guardian's failure to "exercise a minimum degree of care."
A-0451-20
2
months pregnant.3 Defendant S.J. (Serena), the biological mother of Michael
and D.P. (Dante), born in 2019, had no findings made against her. N.L. (Neil)
is Michael's biological father, and no findings were made against him. 4 For the
reasons that follow, we affirm.
I.
We derive the following facts from the record. Serena has a long history
with the Division of Child Protection and Permanency (Division) dating back to
2004 after making sexual abuse allegations against her daughter J.R.'s father.
Those allegations were unsubstantiated. In addition, Serena suffered from
mental health issues and unstable housing, leading to the removal of J.R. in
2005. In 2006, Serena's other daughter, A.S., was released to her father's care
after she was born. Eventually, Serena's parental rights were terminated as to
J.R. and A.S., who were adopted and are not involved in this appeal.
On July 3, 2018, the Division received a referral from the East Orange
Police Department (EOPD) that Dwayne punched Serena in the face after an
argument because she allegedly said "something bad" about his family. Initially,
3
Dwayne is not Michael's biological father. At the time central to this matter
under review, Dwayne claims he was unaware of this fact.
4
S.J. and N.L. have not filed appeals.
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3
Serena told the EOPD that Michael, then seven months old, was in her arms
when this occurred. "[E]xcessive blood [was found] on the bathroom floor," and
medical personnel at East Orange General Hospital confirmed Serena's nose was
fractured and required surgery. However, Serena reported to Division
investigators that Michael "was sitting on the floor near the bed when the
incident occurred." She also informed the representative that this was "the first
physical altercation she had with [Dwayne]." At the time of the altercation,
Serena was unemployed and financially dependent on Dwayne, even though she
received various forms of government assistance. Dwayne's history is
significant for domestic violence and simple assault.
A week later, Serena called the Division and claimed she lied to the police
regarding her injuries and changed her story to claim "she was beat up by two
[women]," and Dwayne was cheating on her with one of them. Serena explained
she blamed the attack on Dwayne "because she felt as though it was his fault."
In response, Dwayne denied any knowledge of the incident and "vehemently
denied punching [Serena] in the face." Dwayne told the Division investigator
he was working out of state in California at the time of the alleged incident;
however, he did not produce his employer's travel logs to support his alibi and
stated his attorney advised him "not to speak to anyone regarding any matters."
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4
Although the two were in a relationship, they resided in separate homes.
Dwayne claimed Serena had "called the woman and invited her to the house to
fight." The Division concluded the allegations of physical abuse were "not
established" but assessed the scored risk level as "high" before transferring the
matter to the permanency unit to provide services.
On October 15, 2018, Serena underwent a psychological assessment with
Dr. Mark Singer. He found Serena:
has a history of engaging in intense and unstable
relationships, acknowledged having had an altercation
with some women and related this to jealousy involving
the father of [Michael]. Of concern, [Serena] appears
to have difficulty dealing with anger . . . [and]
acknowledged that she has mood swings, consistent
with [bipolar] [d]isorder. At present, she denied
receiving any mental health treatment and indicated
that medication may be helpful.
....
[Serena] denied any domestic violence in the
relationship (contrary to the record) and indicated that,
''[she and Dwayne] are still together." She reported that
they have been together for [two] years. As [Dwayne]
was not evaluated, no comments may be made
regarding his parenting capacity or any risk factors he
may or may not present. The data does suggest that
[Serena] has some difficulty trusting [Dwayne].
Dr. Singer recommended Serena "participate in individual therapy"; "be
evaluated by a psychiatrist in order to assess any need for medication"; maintain
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sobriety and, "[i]f needed, an updated substance abuse evaluation should occur."
Dr. Singer also recommended Dwyane "should be evaluated by a psychologist
in order to have a more complete picture of the adult relationship and to identify
any potential risk factors present." During a psychiatry evaluation, Serena
claimed "she has been in [an] abusive relationship with [Dwyane]." She also
stated there were "frequent episodes of abuse directed towards her and often
times . . . in [the] presence of [Michael]." In April 2019, Dwayne was arrested
by the Newark Police Department (NPD) for striking Serena over the head with
a bottle while he was drunk.
On May 13, 2019, the Division received a referral from the NPD about
another alleged altercation between Dwayne and Serena after he contacted her
to apologize and return home with Michael. She told the NPD and the Division
that after Dwayne picked her and Michel up after 1:00 a.m., an argument ensued
while she was sitting in the passenger seat holding Michael on her lap. When
Dwayne reached a stop sign, Serena jumped out of the car with Michael and ran
for help, but Dwayne parked the car and followed them. Serena rang doorbells
of local townhouses and screamed for help.
According to Serena, Dwayne "grabbed her and struck her in the face
multiple times with a closed fist until she fell," and then kicked her in the
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stomach and face. She was seven months pregnant with Dante at the time of
this incident. According to Serena, Dwayne "did not stop hitting her until he
heard the police sirens approaching." The NPD received two calls about the
incident. The first caller reported a male "beating a woman with a child in her
arms." The second caller reported a "woman . . . being beaten by a tall, skinny
man driving a burgundy truck." Two officers pursued Dwayne, who ultimately
crashed his truck at an intersection before fleeing on foot. Serena was admitted
to the hospital for "fetal monitoring." During his interview with the Division,
Dwayne denied having seen Serena since May 12, 2019, but "figured she signed
herself in[to] the crisis [unit] because . . . .[she has a] habit of signing herself in
. . . when things [are] not going her way."
Serena reported prior domestic violence with Dwayne while Michael was
often in her arms. She informed the Division she intended to leave Dwayne and
apply for a temporary restraining order (TRO) under the New Jersey Domestic
Violence Statute, N.J.S.A. 2C:25-17 to -35, and pursue criminal charges against
him.
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7
On May 17, 2019, the Division filed a complaint for custody of Michael,
which was granted that day. 5 On May 29, 2019, Serena testified she had declined
a TRO, shelter, and domestic violence services because she wanted to co-parent
with Dwayne. When Dante was born in June 2019, the Division amended its
complaint to include custody of him as well, which was granted by the judge.
Serena had not initiated service for substance abuse assessment or the Batterers
Intervention Program (BIP). During a June 19, 2019 meeting between the
Division, Dwayne, and Serena at the hospital, a representative informed Dwayne
he had missed a previously scheduled substance abuse assessment, and Dwayne
claimed he was unsure if the appointment was rescheduled. A new date was
scheduled for him.
On September 25, 2019, the fact-finding trial took place. Neither Dwayne
nor Serena appeared. The Division offered fifteen exhibits into evidence. The
judge excluded only one exhibit—an uncertified police report. The other
fourteen documents were admitted without objection or any limitation on
hearsay statements contained therein. No witnesses or documentary evidence
was presented on behalf of Dwayne or co-defendants.
5
A Dodd removal is an emergent removal of a minor without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of
Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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In her oral decision, the judge found "it[] [was] more likely than not" that
Dwayne had engaged in a physical altercation with Serena while she was holding
Michael. The judge determined the Division established by a preponderance of
the evidence that Dwayne had abused or neglected Michael because he placed
the child at substantial risk of harm as defined by N.J.S.A. 9:6-8.21(c). On May
8, 2020, the judge granted the Division's motion to dismiss the matter as to
Michael, who had been reunited with his father, Neil. Dante remained in the
Division's custody, and on July 29, 2020, the judge terminated the litigation after
the Division filed a complaint for termination of Dwayne and Serena's parental
rights because neither parent had complied with services.
Dwayne now appeals. He primarily argues the record is insufficient to
establish he engaged in a physical altercation with Serena that put Michael at a
substantial risk of harm under N.J.S.A. 9:6-8.21(c)(4)(b). Dwayne also contends
the judge erred by improperly basing her finding on inadmissible hearsay
statements embedded in a police report and hospital records. He also claims the
judge failed to make credibility findings under N.J.R.E. 808.
II.
Our standard of review of the Family Part's fact-finding determination is
limited. On appeal from orders issued in Title 9 cases, we accord considerable
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deference to the trial court's credibility determinations and findings of fact, as
long as those findings "are supported by adequate, substantial, and credible
evidence." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278-79
(2007) (internal quotation marks and citation omitted). "[I]f there is substantial
credible evidence in the record to support the trial court's findings, we will not
disturb those findings." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210,
226 (2010); N.J.S.A. 9:6-8.46(b) (A court's finding of abuse or neglect in a Title
9 action must be proven by a preponderance of "competent, material, and
relevant evidence"). "Deference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" A.J. v. R.J., 461 N.J.
Super. 173, 180 (App. Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)).
However, "if the trial court's conclusions are 'clearly mistaken or wide of
the mark[,]' an appellate court must intervene to ensure the fairness of the
proceeding." L.L., 201 N.J. at 227-28 (alteration in original) (quoting N.J. Div.
of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). We also owe no
deference to the trial court's legal conclusions, which we review de novo. State
v. Smith, 212 N.J. 365, 387 (2012) (citing State v. Handy, 206 N.J. 39, 44
(2011)).
A-0451-20
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Title 9 cases are fact-sensitive, and the court should "base its findings on
the totality of circumstances." N.J. Div. of Youth & Fam. Servs. v. V.T., 423
N.J. Super. 320, 329-30 (App. Div. 2011) (citing N.J. Div. of Youth & Fam.
Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)). Notably, the Title
9 proof standard is less stringent than in guardianship cases for the termination
of parental rights, which instead must be proven by clear and convincing
evidence. See N.J.S.A. 30:4C-15.1(a).
N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the
abuse or neglect of a child. Among other things, the statute specifically covers:
a child 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, as herein defined, 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, including the infliction of
excessive corporal punishment; 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)(b) (emphasis added).]
Our Supreme Court has noted, "[t]he law's paramount concern is the safety
of the children, and not the culpability of parental conduct." N.J. Dep't. of Child.
& Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013) (internal
quotations and citations omitted). "The focus in abuse and neglect matters . . .
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is on promptly protecting a child who has suffered harm or faces imminent
danger." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)).
Further, our courts have recognized that "[p]redictions as to probable
future conduct can only be based upon past performance." C.H., 414 N.J. Super.
at 482 (quoting Div. of Youth & Fam. Servs. v. R.M., 347 N.J. Super. 478, 493
(App. Div. 1978)). "We cannot conceive that the Legislature intended to
guarantee to parents at least one chance to kill or abuse each child." N.J. Div.
of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div. 2007)
(quoting J. v. M., 157 N.J. Super. 478 493 (App. Div. 1978)). Nonetheless, our
Supreme Court has cautioned that where, as here, an "allegation of child neglect
in which the conduct of the parent or caretaker does not cause actual harm is
fact-sensitive and must be resolved on a case-by-case basis." Dep't of Child. &
Fams. v. E.D.-O., 223 N.J. 166, 192 (2015).
Applying our limited scope of review and these standards here, we are
satisfied there was competent, credible evidence in the record to support the
judge's finding that Dwayne abused or neglected Michael. We add the following
comments.
For the first time on appeal, Dwayne argues: (1) the judge erred in relying
on inadmissible hearsay statements; and (2) there was insufficient evidence to
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conclude he abused or neglected Michael. Dwayne does not contend that the
reports were improperly admitted into evidence, including 600 pages of
uncertified medical records. 6 Rather, Dwayne asserts Serena's out-of-court
statements made to the police, medical personnel, and Division representatives
constitute inadmissible hearsay not subject to an exception. We disagree .
Generally, we do not consider issues not raised before the Family Part
"unless the questions so raised on appeal go to the jurisdiction of the trial court
or concern matters of great public interest." N.J. Div. of Youth & Fam. Servs.
v. B.H., 391 N.J. Super. 322, 343 (App. Div. 2007) (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973)). "[A]n appellate court will not reverse
an error not brought to the attention of the trial court unless the appellant shows
. . . it was 'plain error,' that is, 'error clearly capable of producing an unjust
result.'" Ibid. (citing R. 2:10–2). "[A]n appellant faces an especially high hurdle
in an appeal . . . to establish that the admission of [unopposed] evidence
constitutes 'plain error' . . . ." N.J. Div. of Child Prot. & Perm. v. J.D., 447 N.J.
Super. 337, 349-50 (App. Div. 2016) (citations omitted).
6
Although the Newark Beth Israel Medical Center medical records did not
include an authenticating certification, at trial counsel for the Division
represented to the judge that the hospital records each contained certifications
and the medical records were admitted into evidence by agreement.
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"Hearsay is not admissible except as provided by [the New Jersey Rules
of Evidence] or by other law." N.J.R.E. 802; see also N.J.R.E. 801(c) (defining
"hearsay" as "a statement that . . . the declarant does not make while testifying
at the current trial or hearing . . . and . . . [is] offer[ed] in evidence to prove the
truth of the matter asserted in the statement"). N.J.S.A. 9:6–8.46(a)(3) provides
Division records may be admitted as evidence "'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." J.D., 447 N.J.
Super. at 347 (alterations in original).
The New Jersey Rules of Evidence provides a business record may be
admitted if it "was made in the regular course of business and it was in the
regular practice of that business to make such writing or other record." N.J.R.E.
803(c)(6); see also R. 5:12-4(d) (stating the Division "shall be permitted to
submit into evidence . . . reports by staff personnel or professional consultants
[and the] [c]onclusions drawn from the facts stated therein shall be treated as
prima facie evidence, subject to rebuttal"). "[H]earsay embedded in such
records[,] [however,] must satisfy a separate hearsay exception." J.D., 447 N.J.
Super. at 347-48 (citing N.J. Div. of Child Prot. & Perm. v. R.W., 438 N.J.
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Super. 462, 466–67 (App. Div. 2014); N.J. Div. of Youth & Fam. Servs. v. M.G.,
427 N.J. Super. 154, 173–74 (App. Div. 2012)).
A "[d]efendant's own statements are admissible as statements of a party-
opponent." Id. at 348 (citing N.J.R.E. 803(b)(1)). An allegedly abused or
neglected child's statements are generally "admissible as those of a child
victim." Ibid. (citing N.J.S.A. 9:6–8.46(a)(4)). The statements of a third party,
such as a police officer, however, "must satisfy a separate exception." Ibid.A "belated challenge to the admission of [evidence] . . . is barred by the
invited error doctrine." Ibid. (citing N.J. Div. of Youth & Fam. Servs. v. M.C.
III, 201 N.J. 328, 340-41 (2010)). "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." M.C. III, 201 N.J. at 340 (quoting Brett v.
Great Am. Recreation, 144 N.J. 479, 503 (1996)). Where a litigant does not
object to the admission of relevant evidence, the litigant effectively "consent[s]
to the admission of the [evidence]." See id. at 341. Therefore, "depriv[ing] the
[litigant's adversary] of the opportunity to overcome [the] objection[,] . . . . [to]
take[] steps to satisfy any evidentiary requirements [thereafter] needed for the
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admission of the [evidence objected to,] or [to] present[] [alternative evidence]
in place of the [evidence objected to]." Ibid."[H]earsay[,] subject to a well-founded objection[,] is generally evidential
if no objection is made." J.D., 447 N.J. Super. at 348-49 (citing State v.
Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring)). We have
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.”
[Id. at 349 (quoting N.J. Div. of Child Prot. & Perm. v.
N.T., 445 N.J. Super. 478, 503 (App. Div. 2016)).]
It is generally not the Family Part'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." Ibid. "When
objectionable hearsay is admitted in a bench trial without objection, we [must]
presume that the fact-finder appreciates the potential weakness of such proofs,
and takes that into account in weighing the evidence." Ibid. (citations omitted).
"[A]n appellant faces an especially high hurdle in an appeal . . . to establish that
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the admission of such evidence constitutes 'plain error.' . . . ." Id. at 349 (citing
R. 2:10-2).
First, Dwayne's counsel consented to the admittance of the evidence. A
party who fails to object to the admittance of evidence, effectively consents to
its admittance. In M.C. III, where "the one document that defendant objected to
. . . was not admitted into evidence," the Court held "[t]he record [wa]s clear
that defendant consented to the admission of the [other] relevant documents."
201 N.J. at 341. The Court found "no error in the trial court's reliance on defense
counsel's indication that he did not object to the admission of the various
documents." Id. at 342. Similarly, in J.D., where "defendant through his counsel
agreed to admission into evidence of the documents" and "the Division relied on
defendant's attorney's consent to the admission into evidence of the documents,"
the appellate court held the Family Part did not commit "plain error by
considering the embedded hearsay in [the] documents admitted into evidence."
447 N.J. Super. at 348, 350.
Where "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." Id. at 349
(citations omitted). We will not "weigh the evidence, assess the credibility of
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witnesses, or make conclusions about the evidence." Slutsky v. Slutsky, 451
N.J. Super. 332, 344 (App. Div. 2017) (quoting Mountain Hill, LLC v. Twp. of
Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)). Such findings are left
to the deference of the Family Part, especially "when the evidence is largely
testimonial and involves questions of credibility." A.J. v. R.J., 461 N.J. Super.
173, 180 (App. Div. 2019) (quoting Cesare, 154 N.J. at 411-12).
In the matter under review, defense counsel objected to only one
document—the police report—which was not admitted into evidence. And,
Dwayne's counsel consented to the admission of the other relevant documents.
J.D., 447 N.J. Super. at 348. Because the documents were admitted into
evidence unredacted and without any objection in whole or in part, the judge
was allowed to consider the embedded hearsay within those documents. Id. at
348, 350. We cannot overlook the fact that Dwayne's counsel had Serena's
medical records admitted into evidence and thereby had the strategic advantage
of arguing she suffered from mental illness.
As such, the Family Part did not commit plain error by considering
Serena's statements included in the Division, police, and medical reports. Thus,
we will not disturb the judge's factual findings unless such findings were
"manifestly unsupported by or inconsistent with the competent, relevant[,] and
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reasonably credible evidence as to offend the interest of justice." Slutsky, 451
N.J. Super. at 344 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). Here, we discern no error.
Dwayne's argument is further weakened by the fact that he relies on some
of the now contested evidence in his argument on appeal. Dwayne's counsel
asserted that the information that the Division is relying on in this case to
substantiate my client is coming from [Serena] who I believe the evidence
indicates . . . is not completely credible. Specifically, . . . the evidence shows
that she has mental health issues." We note that Dwayne specifically referenced
the medical records indicating substance abuse issues when Dante was born and
the recanted allegations made during the first Division referral on July 3, 2019.
We are convinced the judge did not rely on inadmissible hearsay evidence to
make her findings.
Second, even if Serena's out-of-court statements are not barred by the
invited error doctrine, the statements still qualify as a hearsay exception. 7 Under
7
Although other exceptions may apply, including N.J.R.E. 803(c)(4),
statements for purposes of medical diagnosis or treatment, the most vital
statements to Dwayne's appeal are those where Serena identified Dwayne as her
assailant and claims previous incidences of domestic violence, which she
claimed occurred often with Michael in her arms. Such statements may qualify
as a hearsay exception under N.J.R.E. 803(c)(25), statements made against
interest.
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N.J.R.E. 803(c)(25), a hearsay statement is admissible if the statement, "at the
time of its making[,] [is] so far contrary to the declarant's [interest] . . . that a
reasonable person in [the] declarant's position would not have made the
statement unless the person believed it to be true." The declarant "need not be
a party" in the case for the statement to be admissible. Rowe v. Bell & Gossett
Co., 239 N.J. 531, 559 (2019) (citations omitted).
A parent's out-of-court statement reporting domestic violence in the home
to the Division are against his or her interest. N.T., 445 N.J. Super. at 498-99.
In N.T., the defendant appealed the Family Part's finding that he had abused or
neglected his stepson by allowing him to witness domestic violence perpetrated
against co-defendant, defendant's wife, and stepson's biological mother. Id. at
486. We held the co-defendant's statements contained in reports and evaluations
qualified under the hearsay exception for statements against interest because
"the children could be removed." Id. at 498 (citing N.J.R.E. 803(c)(25)).
Here, Serena has a well-documented history with the Division. Two of
her children had already been removed from her custody due to Serena's mental
health issues and unstable housing. In speaking with the Division representative
following the alleged physical assault on May 13, 2019, Serena confirmed she
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had been "made aware the Division would be contacted as a result of the family
violence."
When the Division asked if Serena was "aware how the Division can help
ensure [Michael]'s safety, [Serena] stated, 'Taking him from me.'"
Consequently, her statements to the police, hospital staff, and Division were
against her interests because "a reasonable person in [Serena]'s position would
not have made the statement unless the person believed it to be true," N.J.R.E.
803(c)(25), because the statements ran the risk "the children could be removed,"
N.T., 445 N.J. Super. at 498. We conclude Dwayne's argument that the judge
relied on inadmissible hearsay unpersuasive.
For the reasons stated above, the judge did not abuse her discretion in
admitting and considering Serena's "hearsay" statements included in plaintiff's
testimony and admitted reports because Dwayne consented to the inclusion of
the statements by not objecting to their admission at trial. Moreover, the
statements otherwise qualify as a hearsay exception. Therefore, we may reject
Dwayne's argument and conclude the judge's findings are supported by
adequate, substantial, and credible evidence in the record.
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III.
Next, Dwayne argues the judge's finding that he abused and neglected
Michael was based on a misunderstanding of applicable legal principles because
the judge "did not have sufficient, competent, admissible evidence."
Specifically, Dwayne argues N.J.S.A. 9:6-8.21(c)(4) requires: (1)
"psychological" evidence Michael "was emotionally or mentally harmed by
witnessing the alleged incident"; (2) "trustworthy" evidence Dwayne "failed to
exercise a minimum degree of care"; and (3) "particularized evidence" of "a
substantial or ongoing risk of harm" by a preponderance of the evidence.
First, psychological evidence of emotional or mental harm is not required.
A child need not be harmed to be abused or neglected. The Legislature's intent
in enacting Title 9 was "to assure that the lives of innocent children are
immediately safeguarded." N.J.S.A. 9:6-8.8(a). In deciding Title 9 cases, the
Family Part judge must be mindful that the "safety of the children" is the
"paramount concern and the best interests of the child shall be a primary
consideration." Ibid. "The focus in abuse and neglect matters, thus, is on
promptly protecting a child who has suffered harm or faces imminent danger."
A.L., 213 N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)) (emphasis added). In
determining whether a child has been abused or neglected, a court must consider
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"the totality of the circumstances." V.T., 423 N.J. Super. at 329-30 (citing C.H.,
414 N.J. Super. at 481).
Title 9's definition of an "abused or neglected child" includes:
child[ren] whose physical, mental, or emotional
condition . . . is in imminent danger of becoming
impaired as the result of the failure of [a] parent . . . to
exercise a minimum degree of care . . . in providing the
child with proper supervision . . . by unreasonably
inflicting or allowing to be inflicted harm, or
substantial risk thereof . . . .
[N.J.S.A. 9:6-8.21(c)(4).]
By the express wording of the statute, a child who has not yet been
impaired but is in imminent danger of being impaired may be considered an
"abused or neglected child" under the statute. A.L., 213 N.J. at 23 (determining
that "a finding of abuse and neglect can be based on proof of imminent danger
and substantial risk of harm" (citing N.J.S.A. 9:6-8.21(c)(4))). A court "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)
(citing N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 616 n1.4
(1986)). Hence, the Division must merely prove, based on the totality of the
circumstances, that it’s more than likely than not there exists a substantial risk
of harm.
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Second, the "trustworthiness" of the evidence is left to the deference of
the Family Part judge, especially "when the evidence is largely testimonial and
involves questions of credibility." A.J., 461 N.J. Super. at 180 (quoting Cesare,
154 N.J. at 411-12). A guardian's actions need not be intentional to be abusive
or neglectful. "To find abuse or neglect, the parent must 'fail[] . . . to exercise a
minimum degree of care.'" E.D.-O., 223 N.J. at 179 (alterations in original)
(quoting N.J.S.A. 9:6-8.21(c)(4)(b)). This requires "conduct that is grossly
negligent because it is willful or wanton . . . but not necessarily intentional."
Ibid. (quoting G.S. v. Dep't of Hum. Servs., 157 N.J. 161, 178 (1999)). "Willful
or wanton" conduct is "done with the knowledge that injury is likely to, or
probably will, result." Ibid. (quoting G.S., 157 N.J. at 178).
A parent or guardian is liable for the foreseeable consequences of his or
her actions, the dangerous risks "an ordinary reasonable person would
understand . . . [the] situation poses," regardless of his or her intentions. G.S.,
157 N.J. at 179 (citations omitted). "[W]here a parent or guardian acts in a
grossly negligent or reckless manner, that deviation from the standard of care
may support an inference that the child is subject to future danger." N.J. Div.
of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 307 (2011). Here, the Division
was required to show, based on the totality of the circumstances, that it was more
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than likely than not Dwayne's conduct on May 13, 2019, created a foreseeable
consequence of risk of harm to Michael, which an ordinary reasonable person
would understand.
Third, evidence of a substantial or ongoing risk of "harm is fact-sensitive
and must be resolved on a case-by-case basis." E.D.-O., 223 N.J. at 192. Courts
undertaking this analysis "must avoid resort[ing] to categorical conclusions."
Id. at 180 (citing T.B., 207 N.J. at 309). "Instead of filling in missing
information . . . judges must engage in a fact-sensitive analysis turning on
'particularized evidence.'" R.W., 438 N.J. Super. at 471 (quoting A.L., 213 N.J.
at 28). The judge "must weigh the entire relationship [and particular history]
between the parties and must specifically set forth their findings of fact in that
regard." Cesare, 154 N.J. at 405. "[I]n making their determinations, [the Family
Part] can consider evidence of a defendant's prior abusive acts regardless of
whether those acts have been the subject of a domestic violence adjudication."
Ibid. (citations omitted). The Division must merely show, based on the totality
of the circumstances, that it’s more than likely than not domestic violence is an
ongoing risk of harm to a child.
Here, during the fact-finding trial, the judge admitted all of the Division's
evidence, save an uncertified police report, and considered testimony from a
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Division representative, who the judge found to have "good recollection and was
consistent with the other evidence." "[H]er demeanor on the stand led th[e]
[judge] to find her testimony to be credible." Moreover, the judge appropriately
found that Dwayne placed Michael at sufficient risk of harm based on the totality
of the circumstances and the child was abused and neglected. Dwayne produced
no evidence to the contrary.
To the extent not addressed, Dwayne's remaining arguments lack
sufficient merit to warrant discussion. Rule 2:11-3(e)(1)(E).
Affirmed.
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