New Jersey Division of Child Protection and Permanency

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NOT FOR PUBLICATION WITHOUT THE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
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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