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New Jersey Division of Youth and Family Services v. A.P.


November 13, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Cape May County, FN-05-32-06.

Per curiam.



Submitted September 19, 2007

Before Judges Payne and Sapp-Peterson.

A.P. (fictitiously, Anna), the step-mother of J.C. and mother of M.H.L.C., appeals from an order of the Family Part, dated February 9, 2006, setting forth the court's determination that she abused or neglected her two children and from an order dated December 13, 2006, dismissing the abuse and neglect litigation as it applied to M.J.L.C. and terminating Anna, as a non-relative, from that litigation as it applied to J.C.

J.C. was age eleven, and his brother, M.J.L.C.,*fn1 was five days old at the time of the initial involvement of the Division of Youth and Family Services (DYFS) in this matter. That involvement occurred as the result of a raid, pursuant to a search warrant, conducted by fourteen police officers on the apartment occupied by Anna and her husband, J.C.A. (fictitiously, John). The raid took place at 4:30 a.m. on September 28, 2005, As the result of evidence discovered in the raid, both Anna and John were taken into custody on drug-related charges. After the raid was concluded, DYFS was contacted, and it took custody of the children, present in the home, on an emergency basis. See N.J.S.A. 9:6-8.29.

On September 30, 2005, as required by N.J.S.A. 9:6-8.30b, DYFS commenced an action by way of verified complaint against Anna, John and the mother of J.C., pursuant to N.J.S.A. 9:6-8.21 to -8.73, N.J.S.A. 30:4C-12 and R. 5:12-1, alleging abuse or neglect pursuant to N.J.S.A. 9:6-8.21c(4)(b) as the result of the evidence of the parent's alleged narcotics distribution and seeking custody of the two children. An order granting temporary custody, setting a return date for defendants to show cause why such custody should not be continued, and appointing a law guardian was entered on the same day. See N.J.S.A. 9:6-8.31.

Thereafter, on December 12, 2005, the deputy attorney general representing DYFS sent letters to counsel for Anna and John stating:

I wanted to inquire whether or not your client will be contesting the fact-finding hearing presently scheduled for December 14, 2005. At this time the Division will be seeking a Title 9 finding with regard to your respective clients. The Division intends, at this time, to rely on a submission of the documents noted on the enclosed Exhibit List. These documents have been provided to counsel in previous discovery submissions, with the exception of the N.W.P.D. documents. Please advise at your earliest convenience if this matter is going to be contested and if you will be seeking to call witnesses.

The record does not reflect a response to this letter or to a similar letter sent to counsel on January 9, 2006 after an adjournment of the hearing.

At the Title 9 fact-finding hearing, which occurred on February 9, 2006, DYFS introduced into evidence nine pre-marked exhibits, consisting of a September 28, 2005 DYFS Referral Response Report; a Cape May County Prosecutor's Office Child Abuse/Sexual Assault Telephonic Referral; Cape May County Prosecutor's Office Investigation Reports dated September 16, 2005, September 28, 2005, October 3, 2005, and October 4, 2005; a Wildwood Police Department Supplemental Investigation Report; and criminal complaints against Anna and John. The investigation report of September 16, 2005 disclosed the undercover purchase of eighteen grams of alleged cocaine for $500 from Israel Rivera Plumey, an alleged agent of "Mel," the name the report's writer stated was used by John when telephonically setting up the drug purchase. Other law enforcement reports detailed the September 28 search of Anna's and John's apartment, which resulted in the seizure of two ledgers containing numerous monetary entries; a Priority Mail box,*fn2 found "in the microwave stand in the kitchen," containing "nine (9) small paper bowls each containing a packed white powdery substance"; a baggie containing "a brown powdery substance," found in the top dresser drawer of the master bedroom"; cash in the amount of $10,275 located throughout the master bedroom; a safe, later found to contain $11,000 in cash and prescription medicines; and various documents. The reports also indicated that John resisted arrest, and that mace was used to subdue him. The Cape May County Prosecutor's Office General Investigation Report of October 3, 2005 stated that John was initially charged with first-degree distribution of cocaine and with being the leader of a narcotics distribution network. Bail was set at $500,000. According to the report, Anna was arrested and charged with first-degree distribution of cocaine and second-degree conspiracy to distribute cocaine. She was held on $250,000 bail. No reference was made in any of the reports to the children, other than to indicate that they were occupants in the home at the time of the raid, and they were being placed in the custody of DYFS.

Following the introduction of documents into evidence without objection, DYFS rested without calling any witnesses.

Because criminal charges were pending against both Anna and John, they were advised by their counsel not to testify at the hearing, and they complied with that advice. The judge denied a request for an adjournment pending resolution of the criminal charges and, after commenting that the documents were not very voluminous, "mercifully, in terms of the press of time on various people's schedules today," the judge entertained argument by counsel for Anna and John. Anna's attorney argued first that:

I've looked at the reports that were provided, and all the police reports, and one of the things that's not there is a lab report. It doesn't seem to me that there's any provision in the law that says when deciding this case, the trial court is supposed to resolve all inferences against the Defendant. That's the only way you can find my client guilty of abuse or neglect is if you assume that the substances that were found there were drugs. You have no proof that they were.

Additionally, counsel argued that the evidence presented failed to indicate that Anna was involved whatsoever in the sale or distribution of drugs, that she had constructive possession of drugs, and that she did anything to occasion the use of mace by the law enforcement officers on John.

Following argument on John's behalf, DYFS responded:

I don't think the arguments that have [been] presented on the other side really hold weight in this case at all. This isn't a criminal case, it's a DYFS case. I think what DYFS's burden is, is to come in here and show you, by a preponderance of the evidence, that the two children named in the complaint were put at a risk of harm. I think the documentary evidence clearly shows that they were put at a risk of harm. I mean if they weren't drugs and substances, they [the parents] wouldn't be sitting here in orange. So, I don't know where that argument even goes. The kids were in the home. There was drugs in the home. There was money in the home which caused the police and the SWAT team, in one of the biggest raids that I've seen since I've been working down here, to break into the home, mace the Defendants. He [got] restrained, he got handcuffed. The children were in the home. They were put at risk.

In reaching a decision in the matter, the Family Part judge recognized that he could not assume the guilt of either parent. However, he found that a search warrant for their apartment had been issued, he inferred, without any evidentiary basis, that probable cause supported the warrant, and he noted that upon execution of the warrant "certain quantities of substances" were seized "that appeared to be controlled dangerous substances" and that $11,000 in cash was taken from the apartment's safe, as well as additional sums from the bedroom. The judge also noted that John would not comply with the directions of SWAT personnel, resisted arrest and was sprayed with mace.

Despite the absence of any evidence confirming, through field or lab test, the nature of the substances seized, the judge then found that DYFS's proofs, including the report of the controlled purchase on September 16, 2005, "which, admittedly, does not, in and of itself, refer to activity on the premises that was the location of the raid," supported the inference that "there was some form of commercial, or commercially tinged drug activity on the part of [John]."

In the judge's view, the question under N.J.S.A. 9:6-8.21c(4)(b) (the statutory provision defining an abused or neglected child upon which DYFS relied) was not whether there was proof that the substances seized were actually controlled dangerous substances, but "whether or not the circumstances that existed, in terms of the raid, placed the children at a substantial risk of harm." In other words: "[D]id these individuals engage in activity that resulted in 14 police officers descending on their home, on September 28th, 2005, and doing the things that they did in terms of seizing money and substances and items and also wrestling with [John] to place him under arrest. Did that circumstance in that home place those children who resided there at a substantial risk of harm?" The judge answered this question affirmatively, finding clear and convincing evidence that the activity and actions of John had placed the children at substantial risk of harm. He stated: "When people engage in illegal activities that have the tinge of narcotics, if not actual proof in this case that there were actually narcotics there, they can reasonably expect that bad guys and guns and drugs lead to police officers and search warrants and mace and handcuffs and guns." The judge reached a similar conclusion regarding Anna finding, by a preponderance of the evidence, and without specification of the basis for his conclusion, that "she was aware of the circumstances that existed that led to this search warrant being executed at her home."

Following the hearing, the judge entered an order, dated February 9, 2006, determining by a preponderance of the evidence as to Anna and by clear and convincing evidence as to John that defendants abused or neglected their children. In doing so, the judge relied upon the decision that he had placed on the record, and he stated further that the parents "put their children at a substantial risk of harm by engaging in illegal drug activities that led to [a] multi task force raid on the home while the children were present. [John's] lack of cooperation and combativeness during the raid also is a contributing factor."

The children remain in the legal custody of DYFS, and their placement with relatives has been continued.

At a review hearing, conducted on December 13, 2006, the Family Part judge determined that the abuse or neglect litigation regarding the infant, M.J.L.C., would be terminated as the result of the filing of a guardianship complaint. The judge also determined that, because Anna was not the mother of the remaining child, J.C., she would be dismissed from his abuse or neglect case. An order to that effect was entered on December 13, 2006.

In an indictment, filed on January 17, 2006, that was not presented to the Family Part judge as part of the evidence offered by DYFS, Anna was charged with one count of first-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2); one count of first-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(1); one count of second-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2); thirteen counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); one count of second-degree distribution within 500 feet of a public building, N.J.S.A. 2C:35-7.1 and -5a(1); one count of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5a(1), -5b(2) and 2C:5-2; and one count of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). On February 21, 2007, Anna pled guilty to one count of second-degree distribution of cocaine and was sentenced to seven years in custody. On November 28, 2006, John pled guilty to one count of first-degree distribution of cocaine and was sentenced to twelve years in custody. The record does not contain the plea transcripts.

On appeal, Anna presents the following arguments:



In large measure, Anna's appeal challenges the manner in which the fact-finding hearing was conducted in this matter and the factual foundation for the judge's conclusion that she had abused or neglected the two children. We agree that the skeletal case presented by DYFS to support its Title 9 action was deficient because, although packed with innuendo, it lacked substantial evidence of the sale of drugs by either parent in the children's presence, of drugs within the apartment to which the children could reasonably gain access, or of endangerment as the result of the police's dawn raid. DYFS appears to have assumed that the sensational aspects of the raid and the likely nature of its spoils relieved it of the obligation to prove its case.

A finding that a child is abused or neglected requires, in pertinent part, evidence that the child's 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 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. 9.6-8.21c(4)(b).]

DYFS bears the burden of proof, by a preponderance of the evidence adduced at a fact-finding hearing, that the parent has committed abuse or neglect. New Jersey Div. of Youth and Family Servs v. A.C. 389 N.J. Super. 97, 106 (Ch. Div. 2006) (citing N.J.S.A. 9:6-8.44 and 9:6-8.46(b)). The focus of the fact-finding process under the abuse or neglect provisions of Title 9 centers on whether the parent caused injury to her children and, if not, whether she is likely to do so in the future. New Jersey Div. of Youth and Family Servs v. L.V., 382 N.J. Super. 582, 588 (Ch. Div. 2005) (citing New Jersey Div. of Youth and Family Servs v. S.S., 372 N.J. Super. 13, 23-24 (App. Div. 2004) certif. denied, 182 N.J. 426 (2005)).

As we have recognized, the fact-finding hearing is "a critical element of the abuse and neglect process" New Jersey Div. of Youth and Family Servs v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002); see also, New Jersey Div. of Youth and Family Servs v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). It acts as "a significant and necessary check on DYFS's actions."

L.V., supra, 382 N.J. Super. at 588. "A finding of abuse or neglect has a profound impact on a family. Therefore, it is paramount that any finding must be based on competent reliable evidence." Ibid. (citing J.Y., supra, 352 N.J. Super. at 264-65); see also N.J.S.A. 9:6-8.46b (mandating that "only competent, material and relevant evidence may be admitted"). Although stipulations of fact may substitute for the introduction of reliable evidence on a point at issue, if the knowing and voluntary nature of the stipulation is established, J.Y., supra, 352 N.J. Super. at 266, in this case, none was placed on the record.

In the present matter, the evidence produced by DYFS consisted of documents, alone. None of the law enforcement officers with knowledge of the September 16 controlled purchase or the September 28 raid was called as a witness. Although DYFS contends that counsel to Anna and John consented to this truncated presentation by failing to object to pre-hearing letters informing them of the documents upon which DYFS planned to rely, the letters did not indicate that those documents constituted DYFS's sole evidence of the parents' abuse or neglect. Even the trial judge appeared surprised by the nature and brevity of DYFS's case.

Moreover, as noted by defense counsel at the fact-finding hearing, the documents introduced by DYFS lacked many facts crucial to a determination of abuse or neglect, including the grounds for concluding that John was the source of the alleged drugs sold to the undercover investigator on September 16; the factual basis for the issuance of the search warrant leading to the raid on September 28; a confirmation of the suspected nature of the substances found at the apartment; a description of the location of the children during the raid and any reactions they may have had to the police's intrusion, search and subsequent arrest of their parents; and a description of the effects of the mace, if any, upon apartment occupants other than John. As a result, an inadequate factual foundation existed for the conclusion of the Family Part judge that John, and particularly, Anna, had engaged in criminal activities sufficient to engender a raid that, in turn, placed the children at a substantial risk of harm, thereby supporting a finding of abuse or neglect. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Furthermore, we cannot affirm a conclusion resulting from a procedure that so thoroughly deprived the defendants of their due process right to contest the evidence against them through the cross-examination of witnesses produced in court for their testimony. "Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Portiz, 142 N.J. 1, 106 (1995); Division of Youth and Family Servs v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.) (applying concept to termination of parental rights proceeding), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed. 2d 1207 (2004). In this case, as the result of the pendency of criminal indictments against both parents and the discoverability by the prosecutor of any testimony given by them in the abuse or neglect proceeding, the parents reasonably declined to testify on their own behalf. Their request for an adjournment was denied.*fn3 Nonetheless, the parents retained the right to test the evidence presented against them by DYFS. In re Guardianship of D.J.M., 325 N.J. Super. 150, 162 (Ch. Div. 1999). However, the evidence that DYFS produced was entirely documentary and hearsay in nature. The parents did not contest the admissibility of the documents. Nonetheless, nothing in the record suggests their consent to an evidentiary proffer limited to such documents.

Where, as here, a hearing is statutorily required, it is proper to assume that a fair hearing is envisioned. Fifth St. Pier Corp. v. City of Hoboken, 22 N.J. 326, 335 (1956). While we do not question the use of properly stipulated facts and documents as a partial or even total basis for a determination of abuse or neglect in the proper case, this was not that case. Here, DYFS retained the full evidentiary burden of demonstrating abuse or neglect. Yet, in the circumstances presented, fairness was eliminated by DYFS's sole reliance upon evidence incapable of elucidation, supplementation or challenge. The effect of DYFS's proffer was simply to nullify the right of cross-examination, a "basic element[] of the hearing essential to due process," In re Plainfield-Union Water Co., 11 N.J. 382, 392 (1953). As a consequence, defense counsel were left with the unsatisfactory alternative of argument to the Family Part judge that the documents introduced by DYFS, on their face, were insufficient to sustain DYFS's claims of abuse or neglect. In Plainfield, the Court considered the use by a municipal counsel of the report of an engineer who was not called as a witness at hearings in the matter in its determination to approve plans for a new water supply. In rejecting the procedure utilized on due process grounds, the Court stated, in language applicable here:

Cross-examination is an indispensable instrument for assessing the evidential worth of assertions of fact or opinion; and it is basic in due process that the parties affected by testimony adduced with the accepted safeguards shall be afforded the opportunity of refuting or qualifying the force of the testimonial assertions. It strikes at the very foundation of justice to obtain what purports to be factual information bearing upon the substance of the issues by consulting informed persons not brought into the inquiry. Essential justice would be a vain pursuit were not this the inexorable rule. The particular statutory policy, involving as it does public and private rights, would not be served if the rule were otherwise. [Id. at 392-93.]

See also Matter of East Park High School, 314 N.J. Super. 149, 164 (App. Div. 1998) (holding that a teacher was denied due process by a procedure that permitted a finding by DYFS of substantiated child abuse, triggering inclusion of the abuser in its Central Registry, without a hearing, and that the teacher's right to submit a sworn statement was inadequate to test the charges "because the outcome depended upon a credibility evaluation of [the teacher] and the witnesses against her, who she was not allowed to cross-examine.").

It may appear inevitable, in light of Anna's conviction, that a conclusion similar to that reached by the Family Part judge will be reached again upon remand. But the record does not contain the factual basis for Anna's plea and does not permit an evaluation of whether that plea provides grounds for a finding of abuse or neglect. Nor does the record, now, contain any of the other evidence crucial to a determination of abuse or neglect by Anna that we have found was absent from the initial proceeding, including the nature of the substances present in the home, the location of the children at relevant times, and the danger to the children presented by the raid, by the presence of the substances seized by the police, by Anna's conduct, or by other factors attributable to her. Anna retains her due process right to explore these matters and to a determination as to abuse or neglect based upon fact, not supposition.

Reversed and remanded for further proceedings in accordance with this opinion.

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