K.P. VS. DEPARTMENT OF CHILDREN AND FAMILIES (DIVISION OF CHILD PROTECTION AND PERMANENCY) (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NOT FOR PUBLICATION WITHOUT THE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-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.
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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.
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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
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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
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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
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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
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"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."
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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
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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
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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).]
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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.
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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
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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.
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