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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.P., DEFENDANT-APPELLANT, AND S.P., DEFENDANT.
IN THE MATTER OF M.P., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, No. FN-11-15-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 21, 2010

Before Judges Wefing, Payne and Koblitz.

Defendant, L.P., appeals from a trial court order following a contested hearing, finding that she committed an act of abuse and neglect with respect to her daughter, M.P. After reviewing the record in light of the contentions advanced on appeal, we affirm.

L.P. and her husband, S.P., were divorced in 2004. During the course of their marriage, they had two daughters. M.P., now sixteen years of age, is the younger. Her older sister, S.P., was not the subject of the proceedings below and has since attained the age of eighteen.

L.P. first came to the attention of the New Jersey Division of Youth and Family Services ("the Division") in August 2007. On August 17, 2007, she went to the East Windsor Police Department to report that her boyfriend had used her ATM card without her permission. Detective Jeffrey Dorrian interviewed L.P.; during the course of that interview, she told him that her boyfriend had physically assaulted her and that he ceased only when M.P. had walked into the room. Detective Dorrian noted that L.P.'s fingertips were "charred" and "black in color, a little bit yellowish." He knew from his training and experience that often indicated use of crack cocaine. He raised the subject with L.P., and she denied any substance abuse.

Detective Dorrian later interviewed M.P. and L.P.'s boyfriend. Based on the information he gathered, he again spoke to L.P. on August 23, 2007, and told her he believed that the assault had arisen out of a dispute about crack cocaine. L.P. at first agreed and then said she did not wish to talk to him any further. She left the room and then returned, saying she wanted to talk with him but with her mother present. He agreed; according to the detective, she admitted in that conversation being addicted to crack cocaine and spending large sums of money to satisfy her addiction. The conversation was recorded on a DVD. Detective Dorrian told L.P. that he was going to notify the Division of the situation.

Some days thereafter, a Division case worker came to L.P.'s home to investigate. She testified that the home was in a "deplorable condition", with clothes and boxes strewn about, to the extent that it was even difficult to find a clear path to walk. The kitchen was filled with dirty dishes. She did not, however, consider it to be dangerous or hazardous. She spoke to M.P., who appeared healthy but did admit that she was embarrassed by the condition of the house and would not bring any friends over to visit. L.P. attributed the condition of the house to her recent bout with breast cancer; although financially able to do so, she said she was unwilling to hire anyone to assist her in cleaning the house. The case worker asked her to submit to a substance abuse evaluation, and L.P. agreed.

In fact, however, L.P. failed to keep a number of appointments that were scheduled for this evaluation. She did not submit to a drug test until July 2008, almost a year later. The Division attached to its complaint the report of this test, which was positive for cocaine.

The Division received another referral with respect to L.P. in December 2007, when it received an anonymous telephone call from an individual who stated that L.P. had left M.P. alone in a car for nearly a half hour while L.P. consumed drugs with her boyfriend in a motel room. The Division's case worker met with M.P. the following day. M.P. related that her mother had driven her the previous day to a motel where L.P.'s boyfriend was staying, saying she had to use the bathroom. She said L.P. entered the motel room and left M.P. in the car. After about twenty minutes, M.P. became nervous and called her father, who told her to lock the car doors and call her mother. L.P. did not answer her daughter's telephone call but emerged from the motel room about ten minutes later.

The case worker also spoke to L.P. about the incident.

L.P. said she was driving and went to the motel because she had to use the bathroom. She also said she wanted to ask her friend to take over the driving because it was snowing and she did not like driving in the snow. She denied there was any romantic involvement between the two.

The case worker also spoke to the man involved in the incident, who confirmed the two were lovers. He had no knowledge of L.P. wanting him to drive that day because of the snow and admitted to his own drug usage.

During the course of its involvement with L.P., the Division became aware that M.P. was having significant difficulties in school. Her attendance was sporadic, and she often arrived late. As a result, her performance was poor, and she was going to have to repeat the eighth grade.

In August 2008, shortly after the positive drug test, the Division filed its complaint, alleging that M.P. was abused and neglected. On the return date of the order to show cause, legal and physical custody of M.P. was transferred to her father, S.P., where it has since remained.

The contested fact-finding hearing spanned three days. The Division presented the testimony of Detective Dorrian and the case worker. L.P. testified, as did her mother. Both denied that L.P. suffered from any substance abuse problem and denied making any admissions to Detective Dorrian. L.P. attributed M.P.'s problems with attending school to a back injury she had suffered as a cheerleader, and to a bout of flu. Through testimony, it was brought out that M.P. continued to participate in cheerleading activities for seven to nine hours a week during the same time frame that L.P. maintained M.P. was so disabled she was unable to attend school.

S.P., M.P.'s father, called one witness, a woman who had been a friend of L.P.'s for many years and who came to stay with her for approximately ten days in October 2007. She said the house "was in shambles" and that there were so many dirty dishes in the kitchen it was not possible to see the counters. She also said there were a number of crack pipes strewn throughout the house. She said that L.P. admitted to her that she used cocaine but sought to minimize the extent of her usage. L.P. took the stand again and disputed these assertions.

When the Division presented its direct case, it sought to introduce into evidence the DVD recording of Detective Dorrian's interview with L.P. and her mother on August 23, 2007. L.P.'s attorney objected, saying he had not been provided a copy of this in advance. The trial court sustained the objection but noted that if L.P. or her mother testified, the Division would be permitted to use the DVD in rebuttal. That is, in fact, what occurred.

After hearing the attorneys' closing arguments, the trial court placed an extensive oral opinion on the record, finding that L.P.'s failure to address her substance abuse problem had exposed M.P. to harm, both in the child's being supervised by an individual suffering from an untreated substance abuse problem and in having her educational needs neglected. In its oral opinion, the trial court made specific credibility assessments, finding Detective Dorrian and L.P.'s friend to be credible witnesses. It also noted that it did not consider L.P. to be truthful and noted the conflict between L.P.'s testimony and the DVD recording. L.P. has appealed and presents the following issues for our consideration:

I. The trial court's finding of abuse/neglect was error because the proceedings below violated the defendant's constitutionally protected rights, did not comport with statutory requirements, and did not rely upon competent, credible, admissible evidence.

II. The trial court's significant evidentiary errors require reversal.

N.J.S.A. 9:6-8.21 defines an "abused or neglected child" in pertinent part in the following terms:

[A] child 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, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate . . . education . . . though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . . [N.J.S.A. 9:6-8.21(c)(4).]

The conclusion that a child has been abused or neglected must be supported by a preponderance of the competent, material and relevant evidence presented. N.J.S.A. 9:6-8.46(b).

The sum of L.P.'s argument is that the trial court gave too much weight to certain of the evidence presented and not enough weight to other portions of the evidence. The assessment of the strength and value of the evidence, however, rests within the purview of the trial court, which has the opportunity to observe and assess the particular witnesses who appear. It is not the role of an appellate court to determine that the testimony offered by one witness has more value than that offered by another. That is particularly so when the trial court has, as it did here, made credibility assessments of those witnesses and offered reasons for those assessments. Contrary to L.P.'s contention, the fact that Detective Dorrian's initial contact with L.P. was not a part of a drug investigation and that he did not observe L.P. consuming drugs provides no basis for the trial court to have rejected his conclusion that L.P. suffered from a substance abuse problem.

L.P. contends that because she had not been ordered by a court to submit to a drug evaluation, the trial court improperly drew a negative inference from her repeated failures to appear for an evaluation. We disagree. The trial court reasonably concluded that her failure to comply with the Division's requests for almost one year meant that her substance abuse problem went untreated for that entire period.

L.P. also challenges the trial court's conclusion that she was responsible for M.P.'s difficulties in school. The trial court's findings in that regard are amply supported by the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Her attempts to posit alternate causes rest on speculation, not evidence.

We also reject L.P.'s challenge to the trial court's evidentiary rulings. L.P. contends that the trial court lacked any evidence that she suffered from substance abuse since the Division did not present any expert testimony to that effect.

The Division, however, was not required to do so. Ample facts were presented during the trial that support the trial court's conclusion in that regard. Ibid.

We perceive no error, moreover, in the trial court's handling of the DVD recording of Detective Dorrian's interview of L.P. and her mother. L.P.'s statements were admissible under N.J.R.E. 803(a)(1). The trial court clearly advised L.P. and her attorney, when it initially excluded the DVD recording, that the Division would be permitted to play the recording in rebuttal if L.P. or her mother took the stand and testified in a manner contrary to the recording. We can perceive no unfairness in this ruling, which could only help the trial court in its ultimate task of determining the truth.

Finally, we note that at oral argument, L.P.'s attorney contended that the Law Guardian, by arguing in support of the trial court's order, was acting against her client's wishes because, he asserted, M.P. has expressed the desire to return to her mother's care. We agree with the Law Guardian's response, that the responsibility of the Law Guardian is not simply to advance the minor's expressed position but, rather, to form a considered judgment as to what is in the minor's best interests for her health and safety and act accordingly.

Affirmed.

20101019

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