New Jersey Division of Child Protection and Permanency v. R.W. in the Matter of M.W. and Z.W.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4545-12T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, December 23, 2014
v. APPELLATE DIVISION
R.W.,
Defendant-Appellant.
___________________________________
IN THE MATTER OF M.W. and
Z.W., minors.
Submitted October 22, 2014 – Decided December 23, 2014
Before Judges Alvarez, Waugh, and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FN-04-437-11.
Joseph E. Krakora, Public Defender, attorney
for appellant (Chanima K. Odoms, Designated
Counsel, on the briefs).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Jeffrey S. Widmayer, 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
ALVAREZ, P.J.A.D.
Defendant R.W. appeals from a July 11, 2011 Family Part
order entered in a Title Nine1 proceeding finding that she abused
and neglected her infant,2 born February 2011, as defined in
N.J.S.A. 9:6-8.21(c)(4)(b). We now reverse, concluding that
R.W.'s use of marijuana on one occasion, while accompanied by
her child, did not establish that she placed the child in
imminent danger or at substantial risk of harm.
Plaintiff New Jersey Division of Child Protection and
Permanency (Division) effectuated an emergent removal3 of R.W.'s
child when she was incarcerated as a parole violator on March
29, 2011. The Division's verified complaint, filed two days
later, stated that R.W. and her family had a "long history with
the Division." Because eighteen-year-old R.W. "was no longer
welcome to reside with her adoptive parents" and had been in the
care of the Division for an unspecified number of years, the
1
N.J.S.A. 9:6-8.21 to -8.73.
2
The father's identity was unknown when the trial court entered
its order.
3
N.J.S.A. 9:6-8.28(a)(2) authorizes the Division to remove
children "to avoid imminent danger to the child's life,
safety[,] or health."
2 A-4545-12T3
Division placed her and her child in the Capable Adolescent
Mothers Program (CAM).
The complaint alleged:
The Division was informed that [R.W.]
had admitted to smoking marijuana on March
28, 2011[,] at CAM. The CAM staff had
reportedly made several efforts to assist
[R.W.] in developing life skills and
parenting skills, but had been unsuccessful.
It was further reported that [R.W.] had
exhibited poor parenting skills, as she had
been observed yelling, cursing[,] and
screaming at [her infant]. [R.W.] also
reportedly left [the infant] alone in the
room or with staff for extended periods of
time. Due to [R.W.'s] overall behavior and
lack of compliance at CAM, it was determined
that she had violated her parole. There
were also concerns with [R.W.] being
verbally aggressive towards the staff
members at CAM and her refusal to comply
with a psychological evaluation. Therefore,
on the afternoon of March 29, 2011, her
parole officer arrived at the CAM facility
to remove [R.W.] and to take her to the
Hayes Correctional Facility.
The record includes no information regarding R.W.'s parole, or
her original offense.
R.W. failed to appear for the fact-finding hearing, during
which the Division presented no witnesses and moved into
evidence only two exhibits. P-1, a document described as a
"Court Report," summarized the current status of services
extended to R.W.
3 A-4545-12T3
P-2, the crucial exhibit and sole basis for the judge's
finding of abuse and neglect, was the "Screening Summary"
prepared by a Division worker about the incident. It stated:
Report advises that [eighteen] year old
[R.W.] is a parolee and was placed in [CAM]
by [the Division]. She is the mother of [a
one] month old [] who is also a resident at
CAM. [R.W.] has admitted to smoking
marijuana while the baby was with her in the
community on [March 28, 2011].
CAM staff have made several efforts to
assist [R.W.] in developing life skills and
parenting skills to no avail. [R.W.] has
exhibited poor parenting skills when dealing
with her child. She has been observed
yelling, cursing and screaming at her baby.
[R.W.] has also left the baby alone in the
room or with staff for extended periods of
time.
Since [R.W.]'s behavior and overall
compliance with CAM is an important aspect
in the conditions of her parole, she has []
violated [her parole]. On [March 29, 2011,]
at approximately 1:00[ p.m.], her parole
officer arrived at the facility to remove
[R.W.] from CAM. [R.W.] is currently
detained and [the child] remains at CAM
awaiting [Division] placement.
During the fact-finding, the Division's attorney advised
the court that it could not prove that R.W. left the child "in
her room alone" or otherwise engaged in inappropriate behavior
toward her baby or toward CAM staff. Instead, the agency would
rely exclusively on the statements in the Screening Summary,
4 A-4545-12T3
"that she was using substances while caring for the child." The
Law Guardian did not object.
When asked if she objected to a "Title [Nine] finding"
based on the documents, R.W.'s attorney merely explained that
her client had been a minor in earlier protection cases, but was
now an adult with "her own child" and "using" drugs. Counsel
added that she did not know why her client was absent and that
"she's somewhat complying with some services." She did not
object to the Screening Summary's admission.
The trial judge then rendered his decision from the bench:
All right. [The] [c]ourt certainly
appreciates those issues, but the [c]ourt
does find that mom, here the defendant,
failed to properly care for her child by
using illegal substances, causing her to
lack the capability or the capacity to
properly maintain this child. The use of
the substances, and the [c]ourt finds cause
the inadequate supervision, but I understand
the inadequate supervision was not proven by
leaving the child alone, but because of the
use of the —— being under the influence of a
controlled dangerous substance, that caused
her to be in a position of not properly
caring for the child.
So the finding is clearly by the
substantial weight of the evidence. And []
the [c]ourt sustains . . . the Division's
position at this time.
After the fact-finding hearing, the litigation continued.
R.W. had a second child, and the matter was dismissed on April
19, 2013. Although not relevant to the issues addressed in this
5 A-4545-12T3
decision, it is undisputed that both children were later placed
with a family member.
Documents prepared by Division staff are admissible
pursuant to Rule 5:12-4(d), "provided [they] satisfy the
requirements of the business records exception [to the hearsay
rule], N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth &
Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div.
2012). But Rule 5:12-4(d) by its very terms requires the
Division to meet the foundational requirements for admission of
"Records of Regularly Conducted Activity," N.J.R.E. 803(c)(6).
The business record exception includes:
[a] statement contained in a writing or
other record . . . made at or near the time
of observation by a person with actual
knowledge or from information supplied by
such a person, if the writing or other
record was made in the regular course of
business . . . unless the sources of
information . . . indicate that it is not
trustworthy.
[N.J.R.E. 803(c)(6).]
That the Screening summary contained at least three
out-of-court statements —— R.W.'s alleged admission to a CAM
worker who allegedly repeated it to the Division worker who
wrote the report —— is not in and of itself the problem. See
N.J.R.E. 805; Konop v. Rosen, 425 N.J. Super. 391, 402 (App.
Div. 2012) (each hearsay-within-hearsay statement may be
6 A-4545-12T3
admitted so long as the basis for admission is separately
considered as to each). Turning to the most-remote statement
first, R.W.'s admission that she was using drugs is
"trustworthy" because it was against her penal interest,
exposing her to "criminal liability" as a result of potential
parole violation consequences. N.J.R.E. 803(c)(25).
The evidentiary problem arises from the CAM worker's
narrative to the Division worker. That statement could not be
assessed for trustworthiness. See N.J.R.E. 803(c)(6). We
cannot even discern from the narrative whether the CAM worker
who repeated R.W.'s statement to the Division was the same
person who originally heard it. In other words, absent any
foundation, the judge should have ruled this portion of the
Screening Summary inadmissible, recognizing his inability to
assess its trustworthiness. See N.J.R.E. 803(c)(6); M.G.,
supra, 427 N.J. Super. at 174.
R.W.'s attorney, however, appeared to accede to the
documents' admission. Thus the Division was deprived "of the
opportunity to overcome any objection," and the trial court was
deprived "of the necessity to make a ruling based on the
arguments presented by both sides." N.J. Div. of Youth & Family
Servs. v. M.C. III, 201 N.J. 328, 341 (2010). In New Jersey
Division of Youth & Family Services v. M.D., we reiterated the
7 A-4545-12T3
importance of a defendant's understanding the meaning of, and
consequences flowing from, stipulations to abuse and neglect.
417 N.J. Super. 583, 609-16 (App. Div. 2011). In such cases, a
defendant is "waiving her right to a hearing at which [the
Division] must prove abuse and neglect by a preponderance of the
evidence[.]" Id. at 617-18.
We take this opportunity to caution trial judges in
contested cases who render fact-findings based solely on
documentary submissions, particularly in the affected parent's
absence. Unquestionably, Rule 5:12-4(d) makes Division documents
admissible when they contain "reports by staff personnel or
professional consultants." But trial judges must nonetheless
fully assess the evidential issues inherent in the Division's
submission of documents which include statements by others than
Division workers or experts. In any event, had every
requirement of the Rules of Evidence been met, R.W.'s conduct
was nonetheless insufficient for a finding of abuse or neglect.
The Division relied exclusively on the Screening Summary's
statement that R.W. "admitted to smoking marijuana while the
baby was with her in the community on [March 28, 2011]." The
summary also discussed R.W. exhibiting "poor parenting skills,"
though the Division did not introduce any proof of such conduct.
The Division's attorney acknowledged it could not demonstrate
8 A-4545-12T3
any other relevant behavior and proceeded solely on the basis of
R.W.'s admission that she used marijuana on March 28.
Our Supreme Court explained in New Jersey Division of Youth
& Family Services v. A.L. that: "'Abuse' and 'neglect' are
carefully defined in the law. N.J.S.A. 9:6-8.21(c). . . . If
there is no evidence of actual harm, [] the statute requires a
showing of 'imminent danger' or a 'substantial risk of harm'
before a parent or guardian can be found to have abused or
neglected a child." 213 N.J. 1, 8 (2013). In A.L., a pregnant
mother tested positive for cocaine during delivery. Id. at 9.
The baby was born hours later, and his meconium "revealed the
presence of 'cocaine metabolites.'" Ibid. Nonetheless, the
child was born healthy.
At the fact-finding hearing in A.L., the Division proceeded
in much the same manner as in this case, solely by moving
records into evidence. The trial judge found, based on A.L.'s
cocaine ingestion shortly before the birth of her baby, that she
had abused and neglected her child. The Court reversed,
concluding, among other things, that the Division had not
presented evidence explaining the meaning of the hospital test
regarding the mother's cocaine ingestion.
The Court warned judges not to "fill in missing information
on their own or take judicial notice of harm." Id. at 28. The
9 A-4545-12T3
Court reminded judges that the "fact-sensitive nature of abuse
and neglect cases turns on particularized evidence." Ibid.
(citation omitted). Missing in A.L. was any explanation of the
effect the presence of metabolites would have on the child.
Missing in this case was any explanation of the potential for
harm to the child from R.W.'s marijuana use.
In her brief, R.W. also refers us to New Jersey Division of
Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div.
2011). In that case, the trial court found that a father who
had ingested cocaine and marijuana before exercising his
Division-supervised visitation with his eleven-year-old daughter
had abused and neglected her by virtue of that conduct. Id. at
323. We noted on appeal that the absence of expert testimony
interpreting his drug screen test results (obtained by the
Division at the time of the visits) precluded any precise
determination as to the extent that his drug use posed a risk of
harm to his child. Id. at 331. In fact, the Division worker
testified that V.T. behaved appropriately at both visits and did
not seem impaired. Ibid.
In V.T., we reiterated the societal concern that no child
come under the care of an intoxicated parent. Ibid. This
concern is more pressing where, as here, the child is an infant.
On the other hand, "not all instances of drug ingestion by a
10 A-4545-12T3
parent will serve to substantiate a finding of abuse or
neglect." Id. at 332. Instead of filling in missing
information, an understandable response by judges who regularly
witness the evils inflicted on children by their parents' drug
use, judges must engage in a fact-sensitive analysis turning on
"particularized evidence." A.L., supra, 213 N.J. at 28.
A.L. and V.T. were both issued after the decision in this
case. Prior to those decisions, however, N.J.S.A. 9:6-8.46(b)
obliged judges to decide abuse and neglect matters solely on
"competent, material[,] and relevant evidence." These
proceedings are important not only to the children involved, but
also to the parents, and to society as a whole.4
R.W.'s single admission was insufficient to meet the
Division's burden of proof. The circumstances of her ingestion
were not detailed, other than that she was "in the community."
Hence it cannot even be assumed that the baby was solely in her
mother's care when she was intoxicated, and that no one was
4
A fact-finding hearing's "significant consequences" include:
(1) the potential for a "dispositional order . . . plac[ing] the
child in the custody of a relative or another suitable person
for a substantial period of time[;]" (2) the potential for a
future "Division . . . action to terminate parental rights[;]"
and (3) the Division's recordation of the alleged abuser's name
"into a Central Registry" whose confidential records "may be
disclosed, on written request, to doctors, courts, child welfare
agencies, employers [], and others[.]" A.L., supra, 213 N.J. at
25-26.
11 A-4545-12T3
available to attend to the child's needs. Furthermore, the
trial court knew nothing about the magnitude, duration, or
impact of R.W.'s intoxication.
A judge's legal conclusions are reviewed de novo: when
they are unsupported by competent evidence in the record, they
will be reversed. Cesare v. Cesare, 154 N.J. 394, 412 (1998);
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.
474, 483-84 (1974). In this case, the legal conclusion that
R.W. placed her child in imminent danger or at substantial risk
of harm was unwarranted, as it had inadequate evidentiary
support.
Courts need not wait until harm occurs before interceding
to protect children. In re Guardianship of D.M.H., 161 N.J. 365,
383 (1999); accord N.J. Div. of Youth & Family Servs. v. A.W., 103
N.J. 591, 616 n.14 (1986). But this is not, for example, an
instance of a parent intentionally leaving an infant unattended in
a home or a car, which is generally treated as prima facie abuse
and neglect because such conduct risks tragic consequences. See
N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266,
272 (App. Div.) (upholding termination of parental rights where
defendant had left two young boys alone in a locked basement),
certif. denied, 196 N.J. 347 (2008); State v. M.L., 253 N.J.
Super. 13, 30-31 (App. Div. 1991) (upholding a child-
endangerment conviction where defendant had left her fifteen-
12 A-4545-12T3
month-old unattended in her apartment for several hours),
certif. denied, 127 N.J. 560 (1992). Here, the trial judge
"filled in missing information" and took "judicial notice of harm."
A.L., supra, 213 N.J. at 28.
Finally, the Law Guardian contends on appeal that R.W., by
consuming drugs while on parole, made her child an abused or
neglected child because of the risk she would be incarcerated
and thus unavailable. Parolees understand that they must
abstain from drug use or else risk incarceration. See N.J.A.C.
10A:71-6.4(a)(10), -7.1, and -7.9. If the Law Guardian's
argument had merit, however, then the mere act of committing a
crime, violating parole, or violating probation, with nothing
more, would constitute an act of abuse or neglect. The
Legislature could not have intended that result when it enacted
the abuse and neglect statute.
Reversed.
13 A-4545-12T3