CAMERON SMITH VS. WALMART STORES, INC.(L-126-13, MORRIS COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-0729-15T2
STATE OF NEW JERSEY,
DEPARTMENT OF CHILDREN
AND FAMILIES,
Respondent,
v.
Y.N.,
Appellant.
____________________________________
Argued November 2, 2016 – Decided March 3, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Department of Children and
Families.
Clara S. Licata argued the cause for
appellant.
Erin O'Leary, Assistant Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
O'Leary, on the brief).
Deric Wu, Assistant Deputy Public Defender,
argued the cause for amicus curiae Office of
Parental Representation (Joseph E. Krakora,
Public Defender, attorney; Mr. Wu, of counsel
and on the brief).
PER CURIAM
On June 29, 2011, the Family Part found the Division of Child
Protection and Permanency (hereinafter "the Division") proved by
a preponderance of the evidence that Y.N. (Yvonne)1 abused or
neglected her infant son, Paul, by using methadone before and
during her pregnancy. Yvonne was prescribed methadone by a
physician as part of a medically sanctioned treatment plan. This
court affirmed the Family Part's finding of abuse and neglect
based on evidence showing Paul suffered "severe withdrawal, which
required treatment in the NICU and numerous doses of morphine over
an extended period of time[.]" N.J. Div. of Youth & Family Servs.
v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013).
The Supreme Court granted Yvonne's petition for
certification, 216 N.J. 13 (2013), and reversed, holding "that,
absent exceptional circumstances, a finding of abuse or neglect
cannot be sustained based solely on a newborn's enduring methadone
withdrawal following a mother's timely participation in a bona
fide treatment program prescribed by a licensed healthcare
1
To preserve the confidentiality of these proceedings, we use
pseudonyms to identify the child and his parents. R. 1:38-
3(d)(12).
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professional to whom she has made full disclosure." N.J. Div. of
Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014). The
Court remanded the matter to this court "to decide whether there
is sufficient credible evidence in the record to support the
finding of abuse or neglect on an alternate theory articulated by
the family court." Id. at 186.
On remand, this court reviewed the evidence the Division
presented at the fact-finding hearing before the Family Part and
concluded that the record was "inadequate to permit a meaningful
determination of the alternative theories[]" of abuse or neglect.
N.J. Div. of Youth & Family Servs. v. Y.N., No. A-5880-11 (App.
Div. Mar. 18, 2015) (slip op. at 5). This court concluded that
"the fairest procedure to all parties is a remand to the Family
Part for a de novo fact-finding." Ibid.On July 31, 2015, the Supreme Court granted Yvonne's petition
for certification, summarily reversed this court's decision to
remand, and vacated the Family Part's 2011 finding of abuse and
neglect. N.J. Div. of Child Prot. & Permanency v. Y.N., 222 N.J.
308, 308–09 (2015).
As the burden of presenting sufficient
credible evidence of abuse and neglect is on
the Division, the Appellate Division's
conclusion in this regard is tantamount to a
finding that the Division failed to satisfy
that burden. The panel's determination
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resolves the question posed by this Court in
its remand in favor of petitioner.
[Id. at 309.]
On August 13, 2013, while Yvonne's first appeal to the Supreme
Court was pending, a person who identified herself as Paul's
paternal aunt called the Division's "Hotline" and alleged that
Yvonne "is a [h]eroin addict and she continues to use." As
described in the Division's screening summary, the reporter
claimed that Paul's father, Phil, went to Yvonne's home the
previous night "and had to call the police four times[.]"
According to the reporter, Phil stated there were "'drug addicts'
throwing bricks and pipes through [Yvonne's] windows because
[Yvonne] owe[d] them money." On that same day, Phil filed an
order to show cause in the Family Part. Phil sought to obtain
custody of his son, whom he believed was "in imminent danger of
physical harm."
Phil's custody application was transferred to a Family Part
judge who was hearing Yvonne's application to obtain a domestic
violence temporary restraining order against Phil. During the
hearing, the judge informed Yvonne that Phil had filed an order
to show cause seeking custody of Paul, based on his belief that
Yvonne was "back using drugs[.]" This prompted the following
colloquy between Yvonne and the court.
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THE COURT: [Yvonne], what is your position
regarding this request to have custody at this
time?
[YVONNE]: Your Honor, I feel that at this
point, I have relapsed --
THE COURT: Okay.
[YVONNE]: -- and I feel that my son's father's
concerns are legitimate.
THE COURT: All right.
[YVONNE]: And I appreciate his concern because
he's done nothing --
THE COURT: I appreciate -- the [c]ourt
appreciates the fact that you're being honest
about it and are --
[YVONNE]: Yes.
THE COURT: -- and care enough about your son
that you are -- you know, that you're willing
to, at this point, grant [Phil] physical
custody.
[YVONNE]: I am. Yes. And my son deserves to
be with his father until I seek the adequate
treatment that I deserve for myself, so that
I can be the proper mother --
The subject matter of the call Phil's sister made to the
Division's Hotline involved two separate incidents. The record
includes two Newark Police Department incident reports documenting
what occurred at Yvonne's residence. The first incident occurred
at 10:05 p.m. on August 11, 2013. The police report identified
the person who called to report "criminal mischief" as the manager
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of the property where Yvonne and Paul resided at the time. Two
police officers responded to investigate.
According to "the victim," later identified as Yvonne's
mother, "she was watching television when she heard a knock at the
front door." When she responded, she saw an African American man
and a white man, neither of whom she recognized. Because she did
not know these men, "she refused to open the door." The two men
"proceeded to the backyard and began to forcibly kick the rear
door." The men damaged her rear door and also shattered the
kitchen and car windows. Yvonne told the responding officers that
she knew both men. Although she did not know where they lived or
their actual names, Yvonne told the officers "the street names"
of both of these men. The African American man, whom she described
as approximately twenty-six to twenty-eight years old, she knew
as "Cy." She knew the white man only as "Powder."
The second incident occurred at 6:44 a.m. on August 12, 2013.
The police report again identified the person who called as the
manager of the property. Two police officers were dispatched to
investigate what was first described as "a burglary in progress."
The caller described the suspects as "two black males[.]" The two
men "were outside the residence screaming[,] ['G]ive me my
money[.']" They then proceeded to the rear of the location, where
"one actor broke the rear window and the other actor began to kick
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the rear door[,] causing some damage[.]" Both men fled the scene
before the police officers arrived.
Two Division investigators responded to Yvonne's residence
on August 13, 2013. They described the property as a "beige and
white multi-family home[.]" The investigators "immediately
noticed" in their report "that there was no visible broken glass
or damage to the home." They stayed outside the property for
approximately forty-five minutes to determine whether there was
any indication of illicit drug activity. They did not find
anything to suggest any criminal activity had taken place. Yvonne
moved out of this property the following morning.
Division investigators met personally with Yvonne on August
15, 2013. Paul was present and appeared to be in good health.
Yvonne was alert and responsive and did not appear to be under the
influence of any illicit drugs. She admitted that the August 11,
2013 and August 12, 2013 incidents of vandalism were related to
her history of substance abuse. Furthermore, these incidents were
the reasons she moved out of her home. She denied using drugs at
the time and stated she was receiving methadone treatment. She
claimed to have been sober and drug-free for two years. The
Division concluded its investigation, finding the allegations
against Yvonne were "unfounded."
On July 7, 2014, the Division revisited its finding of neglect
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stemming from the August 13, 2013 referral. The Division changed
its prior finding from "unfounded" to "substantiated" based on new
information it received following the completion of the earlier
investigation. By letter dated July 9, 2014, the Division informed
Yvonne that it had "determined that neglect was substantiated for
Substantial Risk of Physical Injury/Environment Injurious to
Health and Welfare[.]" The letter apprised Yvonne of her right
to appeal the decision and request "an Office of Administrative
Law (OAL) Hearing." On August 1, 2014, Yvonne appealed and
requested a hearing before the OAL. She also filed an application
to compel the Division to "pay for Public Defender counsel" and
to pay for the cost of an expert if necessary.
On September 19, 2014, Yvonne filed a motion for summary
disposition of the matter before it was transmitted to the OAL.
The Division Director denied the motion on December 1, 2014, and
ordered that the matter be transmitted to the OAL for a hearing.
On December 26, 2014, the Director denied Yvonne's application for
counsel and expert fees. On August 27, 2015, the Division sent a
form-letter to the Administrative Law Judge (ALJ) assigned to the
case, advising that the Department of Children and Families (DCF)
had "modified the finding[] . . . , resulting in a change from
'substantiated' to . . . 'established[.]'" The form-letter was
signed by Brenda Phillips, MSW, Administrative Analyst I, DCF-
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Administrative Hearings Unit.
In a Notice of Change of Child Abuse or Neglect Finding dated
September 23, 2015, DCF Newark-Northeast Local Office Manager
Monica Chavez notified Yvonne, the Essex County Area Director, and
the Supervising Family Service Specialists I and II that the DCF
had formally changed its investigative finding from
"substantiated" to "[e]stablished."
In this appeal, Yvonne argues she has the right to a hearing
before an ALJ to challenge the evidential basis for the Division's
finding that child abuse and neglect has been "established" against
her. We agree and remand this matter for a hearing before an ALJ
for the reasons expressed in N.J. Div. of Child Prot. & Permanency
v. V.E., ____ N.J. Super. _____ (App. Div. 2017). Because "an
established finding is a finding of child abuse or neglect under
N.J.S.A. 9:6-8.21(c)(4), subject to disclosure as permitted by
N.J.S.A. 9:6-8.10a(b) and other statutes," we conclude that "due
process considerations require a party against whom abuse or
neglect is established be afforded plenary administrative review."
Id. (slip op. at 3).
Reversed and remanded. We do not retain jurisdiction.
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