DCPP VS. B.R. AND D.B. IN THE MATTER OF D.B.  (FN-06-171-14, CUMBERLAND COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3439-14T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
B.R.,
Defendant-Appellant,
and
D.B.,
Defendant.
________________________________
IN THE MATTER OF D.B.,
Minor.
________________________________
Argued April 6, 2017 – Decided May 11, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland
County, Docket No. FN-06-171-14.
Jared I. Mancinelli, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr.
Mancinelli, on the briefs).
Jennifer A. Lochel, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General
of counsel; James D. Harris, on the briefs).
Danielle Ruiz, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms. Ruiz,
on the brief).
PER CURIAM
Defendant B.R. appeals from a December 2, 2014 order after a
finding she abused or neglected her son, Dave.1 We affirm.
On the night of on June 10, 2014, in Vineland, while B.R. and
Dave slept in a back bedroom, D.B., Dave's father, allowed two
individuals to enter the house, so he could sell them drugs. Once
inside the home, one of the individuals followed D.B. into the
kitchen where marijuana was stored and attempted to rob him. D.B.
told the police he tried to grab the individual's gun, and during
the struggle, shots were fired. One of the shots hit a family
friend in the heel, as he attempted to run from the living room
to the back bedroom where Dave and B.R. were sleeping. Police
found a bullet hit the bathroom door, and another bullet had gone
1 Pseudonyms are used to protect the identity of the child.
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through a window in Dave's bedroom and hit a neighbor's car parked
outside.
The Vineland police arrested D.B. No charges were filed
against B.R., but the police called the Division of Child
Protection and Permanency (the Division). The police informed the
Division Dave and B.R. left the police station with D.B.'s mother.
An address for D.B.'s mother was provided to the Division
caseworker; however, when she arrived at the address provided, no
one was there.
The caseworker went to the police station to interview D.B.
D.B., who initially refused to provide the caseworker with B.R.'s
contact information because he did not want B.R. and his son to
suffer because of something he did. D.B. told the caseworker B.R.
and Dave lived with him in his house, but he sometimes went to his
mother's house if he and B.R. were fighting. D.B. admitted selling
drugs out of the house. When asked if Dave was present during any
transaction, D.B. responded "not like beside me." D.B. also
admitted smoking marijuana every day, but he denied caring for
Dave while under the influence.
D.B. reported B.R. knew he was "hustling," but she told him
to stop. Despite B.R.'s insistence, D.B. had continued to sell
drugs but was "willing to take the weight for all of this," and
"[B.R] had nothing to do with any of this." At the end of
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conversation, D.B. gave the caseworker information for his sister
who knew how to reach B.R.
The caseworker called the number and spoke with B.R. who
agreed to meet the caseworker. When the caseworker arrived, B.R.
told her she had been sleeping in a bedroom with Dave when she
heard gunshots. B.R. rolled off the bed with Dave, placing him
beside her on the floor. B.R. admitted knowing D.B. was selling
drugs out of the home. She also acknowledged she left Dave with
D.B. while she attended classes four days a week from 4 p.m. to
10 p.m. B.R. had been in a relationship with D.B. for five years.
She denied any substance abuse.
The caseworker informed B.R. she would be performing an
emergency removal of Dave because the drug transactions out of the
house placed Dave in immediate danger. B.R. provided information
for her mother, so Dave could go there. The Division filed a
complaint seeking custody of Dave on June 13, 2014, and an order
to show cause hearing was held. While the Division originally
sought custody of Dave in its complaint, at the hearing, the
Division requested care and supervision of the child and custody
to remain with B.R. pursuant to a safety protection plan. B.R.'s
mother and her husband were to supervise all contact between B.R.
and Dave. The Division asked B.R. to submit to a drug screening
test.
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On July 21, 2014, the safety plan was lifted based upon B.R.'s
compliance with Division services. B.R. was living with her mother
and Dave at the mother's home. Both B.R. and D.B. were ordered
to complete substance abuse evaluations, continue parenting
classes, and sign releases of information to the Division. Legal
and physical custody of Dave remained with B.R.
The fact-finding hearing took place on December 2, 2014. The
Division submitted its Investigation Summary, as stipulated by
B.R.'s counsel without objection or redactions. Defense counsel
did not call any witnesses nor did she present any arguments. The
Division argued both parents admitted drugs were sold from the
home, and thus, there was a substantial risk of harm to Dave.
After reviewing the Investigation Summary, the trial judge
found, absent a finding of actual harm, "a finding of abuse and
neglect can be based on proof of imminent danger and substantial
risk thereof." The judge found both B.R. and D.B. failed to
exercise a minimum degree of care because they both admitted drugs
were being sold out of the home. Additionally, the judge noted
gunshots being fired at the home is not
something that would not be anticipated as
possibly happening. The Court finds that by
selling drugs from the home, while the child
was in the care of [D.B.], those four nights
a week, . . . placed the child at imminent
risk of harm.
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The disposition order continued care and supervision with the
Division and custody of Dave with B.R., who was also ordered to
attend a psychiatric evaluation.
The litigation was terminated on February 9, 2015. B.R. was
compliant with all Division recommended services, and the Division
kept the case open to provide B.R. with continued services.
Pursuant to the court's order, Dave remained in B.R.'s custody as
the "conditions have been remediated." This appeal followed.
On appeal, B.R. argues she was denied effective assistance
of counsel because her lawyer did not prepare a defense, introduce
evidence or present opposition to the Division's case. She also
argues the Division's evidence did not establish abuse and neglect
within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), and the child
faced no future danger from her. On December 9, 2015, B.R. was
granted leave to supplement the record to include certifications
addressing ineffective assistance of counsel claims.
This court "ha[s] a strictly limited standard of review from
the fact-findings of the Family Part judge." N.J. Div. of Youth
& Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div.
2010) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).
"[A]ppellate courts 'defer to the factual findings of the trial
court because it has the opportunity to make first-hand credibility
judgments about the witnesses who appear on the stand; it has a
6 A-3439-14T4
feel of the case that can never be realized by a review of the
cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause
of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court
fact-finding." Cesare, supra, 154 N.J. at 413. We afford
deference to a trial court's findings "unless it is determined
that they went so wide of the mark that the judge was clearly
mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007).
We turn to B.R.'s argument the Division failed to establish
she abused or neglected Dave within the meaning of N.J.S.A. 9:6-
8.21(c)(4)(b). She asserts the limited evidence in the record did
not establish she knew D.B. would be selling marijuana in the home
the night she slept in the back bedroom with Dave, and there is
no evidence she acted recklessly in disregard of imminent danger.
Additionally, B.R. argues the court failed to consider the
subsequent steps she took to remedy the situation starting with
the moment the Division made the emergency removal. We disagree.
Pursuant to N.J.S.A. 9:6-8.46(b), a fact-finding hearing is
required to determine, by a preponderance of the evidence, if a
child has been abused or neglected. The Division must "demonstrate
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by a preponderance of the competent, material and relevant evidence
the probability of present or future harm." N.J. Div. of Youth &
Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004)
(citation omitted), certif. denied, 182 N.J. 426 (2005). Title
Nine defines an "abused or neglected child" as one
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 . . . 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).]
The standard in deciding whether a guardian has failed to
exercise a minimum degree of care is one of gross negligence. G.S.
v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999). The failure
to exercise such a degree of care is "analyzed in light of the
dangers and risks associated with the situation." N.J. Dep't of
Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div.
2014) (citing G.S., supra, 157 N.J. at 181-82). Additionally, the
court must consider whether "an ordinary reasonable person would
understand that a situation poses dangerous risks and acts without
regard for the potentially serious consequences." G.S., supra,
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157 N.J. at 179. Ultimately, the court must determine whether a
parent "has acted with reckless disregard for the safety of
others." Ibid. (citing Fielder v. Stonack, 141 N.J. 101, 123
(1995); McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 306 (1970)).
When there is an absence of actual harm, "a finding of abuse
and neglect can be based on proof of imminent danger and
substantial risk of harm." N.J. Dep't of Children & Families v.
A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
The court does not need to wait until the child is actually harmed
before taking action. In re Guardianship of D.M.H., 161 N.J. 365,
383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103
N.J. 591, 616 (1986)).
Here, there is sufficient evidence to support the court's
finding of abuse or neglect because B.R. knew D.B. was selling
drugs out of the home where they lived with Dave. Not only was
B.R. aware D.B. was selling drugs, she knew D.B. was smoking
marijuana daily and left Dave alone with him while she attended
school four nights a week. Whether she knew he would engage in
drug transactions resulting in a shooting that particular night
is irrelevant because the risk was ubiquitous.
An "ordinary reasonable person" would understand having a
child stay in a home where drugs are being sold and stored places
that child in a "situation [that] poses dangerous risks." See
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G.S., supra, 157 N.J. at 179. B.R.'s awareness and inaction
demonstrated indifference to the serious danger and placed Dave
in substantial risk of harm. One does not need to be able to
predict the future to appreciate inherent risks.
B.R. argues the court should have considered her immediate
compliance with the Division and the steps she took after the
Division's referral to alleviate the risk of harm. The Court in
New Jersey Department of Children & Families v. E.D.-O., instructed
the statute is focused on the "parent's conduct at the time of the
incident to determine if a parent created an imminent risk of harm
to the child." 223 N.J. 166, 189 (2015). Here, while B.R.'s
steps to alleviate the risk of harm to Dave are laudable, they do
not overcome her inaction prior to the Division's intervention.
Lastly, B.R. argues her counsel was ineffective because she
did not present any witnesses or arguments in her defense, and the
order finding abuse or neglect should be vacated because the trial
court conducted the fact-finding hearing "on the papers." B.R.
does not identify any witness or evidence her counsel did not
utilize that would have changed the outcome of the proceeding.
In New Jersey Division of Youth & Family Services v. B.R.,
192 N.J. 301 (2007), the Supreme Court adopted the test developed
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
10 A-3439-14T4
Fritz, 105 N.J. 42 (1987), for guardianship cases, to determine
whether counsel was ineffective.2
We have adopted the Strickland standard for findings of abuse
or neglect cases. See N.J. Div. of Youth & Family Servs. v. M.D.,
417 N.J. Super. 583, 613-14 (App. Div. 2011); N.J. Div. of Youth
& Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010).
The defendant bears the burden of demonstrating a constitutional
violation, as the court will presume counsel acted competently.
United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046,
80 L. Ed. 2d 657, 667 (1984).
The B.R. Court instructed what type of evidence and
certifications defendants should provide for ineffective
assistance of counsel claims. B.R., supra, 192 N.J. at 311. The
2 To prevail on an ineffective assistance of counsel claim the
defendant must establish the following:
(1) counsel's performance must be objectively
deficient - i.e., it must fall outside the
broad range of professionally acceptable
performance; and (2) counsel's deficient
performance must prejudice the defense - i.e.,
there must be a "reasonable probability that,
but for counsel's unprofessional errors, the
result of the proceeding would have been
different."
[B.R., supra, 192 N.J. at 307 (citing
Strickland, supra, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 697; Fritz, supra,
105 N.J. at 58).]
11 A-3439-14T4
Court stated the appellate counsel "must provide a detailed
exposition of how the trial lawyer fell short and a statement
regarding why the result would have been different had the lawyer's
performance not been deficient." Ibid. Such an exposition would
include an evidentiary proffer. Ibid. If a defendant claimed
trial counsel was ineffective for failing to produce expert or lay
witnesses, the "appellant will be required to supply
certifications from such witnesses regarding the substance of the
omitted evidence along with arguments regarding its relevance."
Ibid.
B.R.'s certification does not rise to the level of the
"detailed exposition" required in B.R. In her certification, B.R.
details her attorney failed to discuss any defenses or witnesses
but does not provide specifics of what testimony could have been
presented or what type of arguments counsel should have made. See
B.R., supra, 192 N.J. at 311. The only witness testimony proffered
by B.R. was her mother's testimony about B.R.'s efforts to remove
Dave from D.B.'s home after the incident. As previously stated,
the critical issue here is the substantial risk of harm on the day
of the incident, not after the Division had already intervened.
B.R. provided a certification from T. Gary Marshall, Deputy
Public Defender from the Office of Parental Representation. Based
upon his review of the record, he opined "[e]vidence or argument
12 A-3439-14T4
also could have demonstrated that measures taken by the mother
even before the time of incident, including expressions of
disapproval, were able to dispel the element of recklessness
required to sustain a Title [Nine] violation." He opined B.R.'s
trial counsel "fell significantly below the reasonably acceptable
professional standards," and "these deficiencies had a reasonable
probability of permitting a trial court to reach an erroneous
result." B.R. argues the expert certification she provided
establishes other documents could have been presented in evidence,
but neither B.R. nor the expert certification identifies what
those documents are.
B.R. also argues counsel failed to research relevant case
law, and the State was then able to establish a Title Nine finding
without proving the frequency or dangerousness of the
circumstances of drug sales. Ultimately, B.R. has not presented
any evidence or argument disputing the core facts of this case,
which are B.R. allowed her son to live in a home and in the care
of someone she knew was smoking marijuana daily and selling drugs
out of the home. B.R. has not established "that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different."
We have recently cautioned against the practice of conducting
fact-finding hearings "on the papers," N.J. Div. of Child
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Protection & Permanency v. S.W. and R.W., 448 N.J. Super. 180, 183
(App. Div. 2017), stating,
[w]here there are contested facts in a Title
Nine fact-finding hearing, forgoing testimony
in favor of the submission of documents serves
neither the defendant, who may be deprived an
opportunity to present a meaningful defense,
nor the Division, which may be limited in
admitting all available proofs of a
defendant's culpability.
We instructed before a court allows a fact-finding hearing
to continue "on the papers," the judge must make sure the defendant
has been informed of his or her right to a hearing, right to
testify and call witnesses, the right to confront witnesses, and
the right for a judge to make credibility findings. Id. at 192.
In S.W. and R.W., we said defendant's trial counsel was ineffective
for failing to ensure defendant understood his right to a hearing
and did not make a knowing and voluntary waiver, id. at 193, and
the evidence in the record was insufficient to find defendant
abused or neglected his children. Ibid. B.R. argues her defense
suffered the same irregularities because her trial counsel did not
present arguments or witnesses, inform the court of any relevant
case law, and failed to communicate with B.R. She argues this
matter should be reversed because the hearing was conducted "on
the papers."
14 A-3439-14T4
In New Jersey Division of Child Protection and Permanency v.
J.D., we also cautioned trial judges to avoid deciding contested
trials "on the papers." 447 N.J. Super. 337, 353 (App. Div. 2016).
We emphasized the importance of credibility determinations in
contested cases, which require first-hand observations of
witnesses, and noted how without live testimony, the trial judge's
ability to make detailed factual findings may be "potentially
impair[ed]." Ibid. Despite our disfavor of the procedure used,
we found sufficient undisputed evidence in the record supported
the trial court's finding defendant abused or neglected his child.
Ibid.
As in J.D., the undisputed evidence establishes B.R. abused
or neglected her child, and despite the use of a disfavored
procedure, a thorough review of the record supports the trial
court's determination.
Affirmed.
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