November 22, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF A.H., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-33-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Carchman, Graves, and Waugh.
Defendant M.C. (Matthew) is the biological father and defendant T.H. (Teri) is the biological mother of A.H. (Andrea), who was born on September 11, 2007.*fn1 In these consolidated appeals, we are asked to review separate orders of the Family Part (1) finding that both parents engaged in abuse or neglect; (2) relieving plaintiff Division of Youth and Family Services (DYFS) from its obligation to provide services to Matthew; (3) adopting a permanency plan calling for the termination of their parental rights to Andrea, to be followed by Andrea's adoption by her foster parents; and (4) dismissing the abuse and neglect litigation so that DYFS could pursue the termination action. We affirm.
We discern the following facts and procedural history from the record on appeal.
Teri has four other children, none of whom were fathered by Matthew. Teri's other children no longer reside with her, primarily due to DYFS's intervention. Three children reside with relatives, and Teri voluntarily surrendered one for adoption. Through its prior investigations, DYFS learned that Teri has significant mental health problems, especially when she is not taking her medications.
Matthew had one other child with a different woman. His parental rights to that child were involuntary terminated in March 2005. According to the records of the Wildwood Police Department, there was a history of domestic violence allegations involving Matthew and Teri prior to Andrea's birth.
On December 10, 2007, when Andrea was three months old, DYFS filed a verified complaint for care and supervision because of concerns about Teri's mental health and her ability to parent Andrea. At that time, DYFS did not know the identity of Andrea's father, so he was not a party to the litigation. The Family Court granted DYFS's application, and Teri was ordered to "attend Advanced Behavioral Counseling . . . and cooperate with any and all recommendations[,] including taking medications if prescribed." Based on Teri's cooperation, the litigation was terminated on April 2, 2008, with no finding of abuse or neglect.
During the pendency of the first DYFS litigation, Matthew was identified as Andrea's father. However, he was not added as a party to the litigation. He had been incarcerated during most of the time the litigation was pending, but was released shortly before the litigation was terminated. The order of dismissal provided that "[Matthew] shall be restrained from all contact with [Andrea]."
In August 2008, DYFS received two referrals claiming that Teri had left Andrea unattended for "long periods of time" and that Teri "entertain[ed] guests with alcoholic beverages until early morning hours" and brought "'crackheads' into her home."
Although DYFS did not substantiate those claims, its investigation revealed that Matthew had again been arrested and incarcerated, and that Teri was taking Andrea to the jail to visit him. After Teri "agreed to abide" by the earlier order that Matthew have no contact with Andrea, the investigation was terminated without substantiation of any abuse or neglect. Matthew was released from jail on October 16, 2008.
Between that date and October 23, there were reports from DYFS workers and the police that Matthew came to Teri's home on several occasions and was allowed contact with Andrea, and that there were domestic disputes between Matthew and Teri. On October 23, Teri alleged that Matthew threatened her with a knife while she was holding Andrea.
Matthew was arrested and charged with "endangering the welfare of children, unlawful [possession] of a weapon, [possession] of weapon [with] unlawful purpose and terroristic threats." He was incarcerated and ultimately pled guilty to contempt of a court order. DYFS effectuated an emergent removal of Andrea, pursuant to N.J.S.A. 9:6-8.28, and placed her in foster care pending a court hearing.
On October 27, 2008, DYFS filed a verified complaint against Teri and Matthew, summarizing the events that transpired between August and October of 2008 and seeking custody of Andrea. The Family Part judge ordered that Andrea be "placed in the immediate custody, care and supervision of [DYFS]," issued an order to show cause why custody should not be continued with DYFS, and set November 12, 2008, as the return date.
On the return date, the judge continued Andrea in DYFS's custody. He ordered Teri to attend a psychiatric evaluation, counseling, medication monitoring, and anger management counseling, and to cooperate with a parent capacity assessment at Rowan University. Matthew was required to submit to psychological and psychiatric evaluations and attend parenting skills training. Teri was permitted one weekly visit with Andrea. Matthew, who was incarcerated and did not attend the hearing, was "restrained from all contact with [Andrea]."
On May 21, 2009, the judge held a fact-finding hearing to determine whether Teri and Matthew had engaged in abuse or neglect with respect to Andrea. DYFS took the position that the events of October 2008, specifically Matthew's having contact with Andrea with Teri's consent in violation of the earlier order and the incident with the knife, were sufficient to satisfy the definition of an "[a]bused or neglected child."
N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as 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 . . . (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 . . . .
Teri agreed to enter into a stipulation of fact and acknowledge conduct meeting that definition. Matthew opted to oppose DYFS's position and requested a hearing.
Teri was sworn as a witness and gave the following testimony to support her stipulation:
Q: [Teri], you know that we're here today for a fact finding.
Q: And a fact finding is basically a trial?
Q: And at that trial the State would have to put on a case against you.
Q: And we would have the right to call witnesses and put in evidence and try to defeat their case.
Q: Rather than do that you've decided that you would do a stipulation or make a statement to the Court today?
Q: And by giving that stipulation you're giving up your right to a trial today?
Q: Okay. You're doing that freely and voluntarily?
Q: And nobody's coerced you or -
Q: - forced you to do this?
Q: Are you under the influence of any drugs, alcohol, or any substance clouding your judgment today?
Q: Okay. Have I been your attorney throughout this matter.
Q: And are you satisfied with my representation thus far?
Q: On or about - between the period of October 16th and October 23rd of 2008 did [Matthew] come to your home?
Q: On or about the 16th did he enter your home without being invited?
Q: And subsequent, later in the evening the police showed up at the house, correct?
Q: And did you tell the police that he was allowed to be there?
Q: Okay. So, in fact, you knew at the time that he wasn't supposed to be there by court order?
Q: And so you really didn't take sufficient steps to protect your daughter from having contact with him, is that correct?
Q: Okay. And then over the next week, approximately on three or four other occasions he did also come to the home, usually uninvited?
Q: And ultimately, on or about the 23rd, there was a domestic incident?
Q: Did he punch and kick you at one point?
Q: Did he also brandish a knife at one point?
Q: And did you have the child, [Andrea], in your arms at -
Q: - on either of those occasions?
A: Unh-unh. She was in her high chair eating.
Q: So at no point in time when he had the knife . . . you weren't holding her trying to remove her from the room?
A: No. He was blocking me from getting to her. She was in the high chair, and he had the knife. The high chair was here. He had the knife right here to her, and I was trying to get to her, but he wouldn't let me.
Q: Okay. On the day when he kicked and punched you, was [Andrea] in your arms?
Q: Where was she at that time?
A: She was in the high chair.
Q: Is that the same day?
Q: Was there any time where she was in your arms when she was in harm's way with him in the house?
A: No. She was always - She was in the high chair on October 23rd, the night the incident happened when he, he was blocking me from getting to her. He wouldn't let me get to her. He had a knife to her, and he wouldn't let me - I tried to get to her, and that's when he hit me.
Q: Okay. And do you recall if you ever made a statement to anyone that you -
A: Yeah. I made a statement to the police.
Q: - that you had, that you had her in your arms and, and that he threatened to kill you?
A: No. I didn't make a statement.
Q: And that it saved - that you were saved because you had the baby?
A: No. I was saved because - She was, she was in the high chair. I didn't make a - I said that he went, was out of control. He lost, he was crazy, and he wouldn't let me get to her. So he finally let me get to her, and then I left.
Q: Okay. At any time did you feel she was at risk?
[TERI'S ATTORNEY]: At this point I have nothing further, Your Honor.
THE COURT: [DYFS ATTORNEY], any questions?
CROSS EXAMINATION BY [DYFS ATTORNEY]: Q. [Teri], during that incident on the 23rd it's true, isn't it, that you at some point in the altercation actually got the knife from [Matthew], correct?
A: No. I didn't ever get the knife from [Matthew]. He had the knife, and he was holding it near [Andrea], and then after like five, ten minutes went by he let me grab her, and then I ran out the door .
Based upon the above quoted testimony and her stipulation, the judge concluded that Teri made a "free and voluntary" waiver of her right to a fact-finding hearing, and that there was "nothing . . . that would suggest that it's the product of force or coercion." He also concluded that she was "of a clear and sober mind based upon her testimony and demeanor" and that she "had an opportunity to consult with [her attorney] and that she is satisfied with the legal services that he has provided to her." Finally, he found that the facts to which Teri testified satisfied the statutory requirements for a finding of abuse or neglect.
The judge then proceeded to consider the allegations against Matthew. DYFS made a blanket offer of twenty-five exhibits, containing certified DYFS and police records, as well as a letter written by Teri to the judge. Matthew's counsel responded with a "blanket objection to all of them . . . as to hearsay, as to relevance, [and] as to portions not redacted that should be redacted." The judge admitted all twenty-five exhibits into evidence although he had not yet reviewed them.
In doing so, he relied on N.J.R.E. 803(c)(25) to the extent the documents contained statements made by Teri against her interest, and stated that he would not consider material he deemed to be irrelevant or otherwise inadmissible.
The judge then took a break, during which he reviewed the exhibits. After the break, he asked Matthew's attorney whether he was presenting any witnesses. Although Matthew's attorney had originally mentioned the possibility of cross-examining Teri or calling her as a witness, he informed the judge that he had decided not to present any testimony.
The judge then requested counsel to make their final arguments. Matthew's attorney outlined his view of the various exhibits, mentioning the inadmissibility of some and the manner in which others supported his client's position. The essence of his argument was that there was no proof that Matthew was served with the April 2008 order barring him from contact with Andrea, that no DYFS worker or police officer ever saw him in Andrea's presence, and that Teri was not credible. He asked the judge "not to take her testimony as true because . . . there's nothing to back up her statements besides her stipulation. . . ."
In response, DYFS pointed to Exhibit P-3, a copy of a DYFS report, which stated that a DYFS worker met with Matthew at his motel on October 20, 2008, and gave him a copy of the order. DYFS also argued that the DYFS and police reports in the record, as well as Teri's testimony, supported its position, although the deputy attorney general (DAG) did acknowledge that there were inconsistencies between Teri's testimony at the hearing and some of the statements attributed to Teri in the exhibits.
Following closing arguments, the judge delivered an oral opinion. He concluded that DYFS had established its case with respect to Matthew.
I think, I conclude that the evidence that's before me is, for all practical purposes, uncontroverted. It's not unchallenged. I certainly recognize that distinction, but I believe it's uncontroverted. I think that, frankly, [Matthew] had a copy of the April 2, '08 order at least by October 20th, 2008, if not before. I conclude that he did go to the house on October 23rd and that he engaged in acts of domestic violence in the presence of [Andrea] and the he did brandish a knife during the course of that episode at either [Teri] or [Andrea] while the incident was unfolding; and I think, I believe, I conclude that the evidence is clear and convincing that his actions on this occasion constituted a failure to exercise a minimum degree of care as this child's father and that they - that his actions also constituted a failure to provide proper supervision by, as the statute puts it, unreasonably inflicting a substantial risk of harm with respect to [Andrea].
In May 2009, DYFS filed a motion for waiver of its obligation to make reasonable efforts to reunite Andrea with Matthew. DYFS relied on N.J.S.A. 30:4C-11.3(c), which provides that DYFS "shall not be required to provide reasonable efforts to reunify the child with a parent if a court of competent jurisdiction has determined that . . . (c) [t]he rights of the parent to another of the parent's children have been involuntarily terminated."
The motion was heard on June 24, 2009. Matthew did not file any opposition. At oral argument, his attorney conceded the applicability of the statute, although he argued that he had not been furnished with documents from previous litigation terminating Matthew's parental rights to his other child. The judge granted DYFS's application, holding that the statute was applicable and noting that he had signed the earlier order terminating Matthew's parental rights.
On July 10, 2009, DYFS formulated a case plan for Andrea. The "case goal" for Andrea was termination of parental rights and adoption, but the "concurrent goal" was reunification with Teri. DYFS acknowledged that Teri was "actively participating in court-ordered services," but asserted that "it is questionable if she is gaining the insight to protect her child." Nevertheless, DYFS recommended that the judge order Teri "to continue to follow all court-ordered services and attend regular visitation with her daughter."
The judge held a hearing on the plan on August 10, 2009. There did not appear to be a dispute at the hearing that Teri was generally compliant with services, although she had stopped taking her medication to facilitate a pregnancy. Teri argued that the primary goal should be reunification rather than termination. Matthew left the hearing precipitously during the argument. His attorney advised the judge that Matthew wanted Teri to have custody, and that he wanted to be allowed visitation. Counsel outlined his intention to seek services for Matthew through the Office of the Public Defender.
The judge accepted DYFS's "plan of termination of parental rights followed by adoption as the primary goal, and reunification with [Teri] as the alternative/concurrent goal."
He briefly explained his reasons as follows:
Even if, as counsel for [Teri] suggests, she made a conscious decision to come off her meds so as to be in a position to conceive a baby with [M.D.].*fn2 Even if that's how it came down, meaning no slight, of course, to a person's right to procreate, I still feel it is reasonable to question the judgment and insight of a person who knows from experience that she does not function without medications and who still decides that it's more important to have another baby than to stay stabilized in a non-psychotic state. Especially here, where there are already three children before [Andrea] from whom [Teri] is not the custodial parent. In the case of one of them the parental rights were terminated.
In any event, for me in some global sense, at least as I sit here today, that phenomenon crystallizes the problem. Obviously there was a period where [Teri] was doing well with [Andrea]. That period came to an end, perhaps, as indicated, before she went off her medications. But this is child number five coming now, and the medications are no less essential for [Teri's] daily function.
In any event, as to [Andrea], I feel the plan as proposed is appropriate and warranted and is in [Andrea's] best interest at this point. Recognizing, of course, that it is a plan and that it is not over until a guardianship complaint is filed and a trial is held and a determination is made after the trial. So it is not the last step, but it is a significant step in the direction of permanency for [Andrea]. . . .
The judge also advised counsel that he would incorporate DYFS's proposed findings into the implementing order.
Consequently, the order provides the following findings of fact:
[Teri], although participating in [DYFS's] recommended and the [c]court's ordered services has not demonstrated appropriate insight into keeping the minor child, [Andrea,] safe. . . . [Teri] has, in the past, continuously violated court orders in allowing [Andrea] to have contact with [Matthew]. . . . One such occasion resulted in a serious domestic violence incident wherein [Matthew] was brandishing a knife in the presence of the minor child. . . . The Rowan Parenting Capacity Evaluation that was conducted on [Teri] . . . diagnosed her with bipolar disorder. Dr. Cahill recommended that a goal of long-term alternative placement of [Andrea] be pursued. It went on to state that [Teri] was not able to independently parent [Andrea], and that her noncompliance with her medications gives her a quite poor prognosis. DYFS has set up services for [Teri], but they have not been successful in changing [Teri's] insight into the well-being of the child. [Teri] continues to have issues with anger management and truthfulness. She seriously minimized many of the concerns in her life when she underwent a psychological evaluation with Dr. London on April 9, 2009. She has continued to demonstrate anger-related issues with her interactions with the caseworker and as recently as last week, pinched her daughter as a form of punishment. . . . [Matthew] has had his parental rights involuntarily terminated to another child. [Matthew] has been incarcerated numerous times . . . . [DYFS's] motion to waive reasonable efforts on [Matthew] was granted. He has a long history of serious drug and violence issues.
The order also granted DYFS ninety days to file a guardianship complaint.
The guardianship complaint was filed on September 9, 2009.
The judge entered an order terminating the abuse and neglect litigation, following a case management conference on November 12, 2009.
These appeals followed. They were consolidated on January 11, 2010.
On appeal, Teri raises the following issues:
THE COURT ERRED BY FINDING THAT [TERI'S] STIPULATION SUPPORTED AN ABUSE OR NEGLECT FINDING.
THE COURT COMMITTED ERROR BY NOT CONDUCTING THE PERMANENCY HEARING IN A PROPER FORMAT WITH SWORN TESTIMONY AND PROPERLY ADMITTED EVIDENCE.
THE RECORD DID NOT WARRANT THE COURT'S APPROVAL OF THE DIVISION'S PRIMARY PERMANENCY PLAN OF TERMINATION OF PARENTAL RIGHTS. And Matthew raises the following issues:
THE FACT-FINDING HEARING LACKED THE NECESSARY PROCEDURAL SAFEGUARDS NECESSARY IN ADJUDICATIVE PARENTAL RIGHTS PROCEEDINGS VIOLATING THE G.M. AND J.Y. STANDARDS.
A. [The judge] allowed hearsay evidence to be admitted at the fact-finding hearing violating the New Jersey Rules of Evidence and the In Re Cope standard.
B. The fact-finding hearing lacked the necessary procedural safeguards necessary in a fact-finding hearing.
C. The decision must be overturned since [the judge] made no threshold findings that [Andrea] was harmed.
[THE JUDGE] IMPROPERLY DECIDED THE MOTION TO WAIVE REASONABLE EFFORTS TO REUNIFY [MATTHEW] WITH [ANDREA].
THE TRIAL COURT DID NOT PROPERLY HOLD A PERMANENCY HEARING CONSIDERING THE BEST INTERESTS OF [ANDREA] AND PROCEDURAL SAFEGUARDS INHERENT IN DISPOSITIONAL HEARINGS.
Before addressing the merits of the case before us, we outline some of the law that will inform our decision.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropri- ate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand . . . . " N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.
In N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (citation omitted) (internal quotation marks omitted); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
The matters on appeal were brought in the Family Part pursuant to Title Nine, N.J.S.A. 9:6-1 to -8.73, which is concerned with "non-criminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, "the safety of the children shall be of paramount concern." Ibid.
In N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 397-400 (2009), the Supreme Court outlined the procedure in Title Nine cases:
We are largely concerned in this case with the statutory framework of Title Nine, and therefore we summarize the main requirements of that title.
As noted, the paramount concern of the Division is the safety of our children. N.J.S.A. 9:6-8.8(a). A "parent or guardian" is broadly defined to mean "any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." N.J.S.A. 9:6-8.21(a).
If a child's life or health is in imminent danger, the authorities may temporarily remove the child from the offending parent or guardian. N.J.S.A. 9:6-8.27(a); N.J.S.A. 9:6-8.29. In that event, the Division is authorized to arrange for "immediate medical screening of the child and shall have legal authority to consent to such screening." N.J.S.A. 9:6-8.30(c). After a complaint is filed, the court may enter preliminary orders for the protection of the child, including the return of "the child to the custody of his parent or guardian from whose custody or care the child was removed, pending a final order of disposition." N.J.S.A. 9:6-8.31(d). At any time during the proceedings, the alleged offending parent may make an application for the return of the child, which should be granted unless there is "an imminent risk to the child's life, safety or health." N.J.S.A. 9:6-8.32.
In any case in which the Division accepts the care or custody of a child, "the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home." N.J.S.A. 9:6-8.8(b)(2). Even after placement, "the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." Ibid. Once the Division concludes that reunification is not the ultimate goal, it must make "reasonable efforts . . . to place the child in a timely manner." N.J.S.A. 9:6-8.8(b)(4).
A fact-finding hearing shall be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b). Typically, there may be several case management conferences prior to the fact-finding hearing. The evidence presented at the fact-finding hearing must be "competent, material and relevant." N.J.S.A. 9:6-8.46(b). N.J.S.A. 9:6-8.50 sets forth the options available to the trial court at the conclusion of the fact-finding hearing:
a. If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings. b. If the proof does not conform to the specific allegations of the complaint, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations. c. If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal. d. If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to [N.J.S.A. 9:6-8.31] is required to protect the child's interests pending a final order of disposition. The court shall state the grounds for its determination. In addition, a child found to be abused or neglected may be removed and remanded to a place designated by the court or be placed in the custody of a suitable person, pending a final order of disposition, if the court finds that there is a substantial probability that the final order of disposition will be an order of placement under [N.J.S.A. 9:6-8.54]. e. If the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to the [D]ivision, ordering that the [D]ivision provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible. In the event of such referral, the court may suspend any dispositional hearing indefinitely. The [D]ivision shall report the status of the case so referred to the court annually in writing, a copy to be served upon the parent or guardian and the law guardian. The [D]ivision shall also report its intent to terminate services in a case so referred to the court in writing. Thus, if the trial court makes a finding of abuse and neglect, it shall determine whether a preliminary order pursuant to N.J.S.A. 9:6-8.31 is needed to protect the child's interests pending the dispositional hearing, N.J.S.A. 9:6-8.50(d), and "wherever possible," the court may order the Division to "provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life," N.J.S.A. 9:6-8.50(e). Following the fact-finding hearing, the dispositional hearing may commence immediately or at some other time. N.J.S.A. 9:6-8.47. Prior to the dispositional hearing, "the court may adjourn the proceedings to enable it to make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings." N.J.S.A. 9:6-8.48(b). A dispositional hearing must be held to determine the appropriate outcome of the case. N.J.S.A. 9:6-8.50. At the dispositional hearing the court may consider "only material and relevant evidence." N.J.S.A. 9:6-8.46(c). Notably, the court has multiple alternatives in determining the appropriate disposition. The court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made." N.J.S.A. 9:6-8.51(b). If the child remains outside the home and either the Division has provided the services ordered or twelve months have passed since the child was removed, the trial court shall hold a permanency hearing, in which the goal is to provide for the child's long term living arrangement. N.J.S.A. 30:4C-61.2. The permanency hearing will determine whether the family will continue towards reunification or whether an alternative plan must be adopted. Ibid. In some cases, the alternative plan may lead to the Division filing a petition seeking the termination of parental rights or the filing of a kinship legal guardianship action. However, the Division is not required to file a petition seeking the termination of parental rights if "[t]he child is being cared for by a relative and a permanent plan for the child can be achieved without termination of parental rights." N.J.S.A. 30:4C-15.3(a). Similarly, termination is not required if the Division "has documented in the case plan . . . a compelling reason for determining that filing the petition would not be in the best interests of the child." N.J.S.A. 30:4C-15.3(b).
The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). At a fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). At a dispositional hearing, "only material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(c).
The Supreme Court has made it clear that [b]oth the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted "with scrupulous adherence to procedural safeguards," D.Y.F.S. v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. D.Y.F.S. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). As concisely stated by the court in J.Y., "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b).
[G.M., supra, 198 N.J. at 401.]
In this case the trial judge did not hold a "dispositional hearing" pursuant to N.J.S.A. 9:6-8.50. Instead, he held a "permanency hearing" pursuant to N.J.S.A. 30:4C-61.2, which is part of Title Thirty, N.J.S.A. 30:4C-1 to -92. The primary purpose of Title Nine is to provide "temporary remedies for child-abuse problems." New Jersey Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 (1990). In contrast, Title Thirty provides "a permanent remedy: termination of parental rights and placement of the child under the guardianship of DYFS." Id. at 394-95.
The requirement that there be a permanency hearing is relatively recent.
[A] permanency hearing is found within the Adoption and Safe Families Act of 1997 ("AFSA"), which conditions the receipt of federal funds on the state's implementation of a program which reviews state-supervised children receiving foster care. 42 U.S.C. §§ 670-679. The program is required to have a procedure to assure that each child will have a permanency hearing "no later than 12 months after the date the child is considered to have entered foster care." 42 U.S.C. § 675(5)(C). AFSA only requires that the hearing be held within twelve months; there is no condition precedent that a fact finding first be held. . . .
Moreover, following the enactment of AFSA, the New Jersey Legislature in 1999 amended Title [Nine] and Title [Thirty], which are applicable to this action.
Indeed, Title [Thirty], also known as the Child Placement Review Act, provides that the court shall review the Division's permanency plan and make a determination after considering various sources of information following a hearing held "no later than 12 months after the child has been in placement." N.J.S.A. 30:4C-61.2(a)(2). . . .
. . . The legislative history of ASFA indicates that ASFA was intended to promote stability and permanence for children by requiring timely decision-making by the court to ensure that children receive permanent living arrangements outside of the foster care system. New Jersey DYFS v. M.F., 357 N.J. Super. 515, 525 (App. Div. 2003) (quoting Strengthening Abuse and Neglect Courts Act, Pub. L. No. 106-314, § 2(3), 114 Stat. 1266 (2000)). New Jersey's state scheme is intended to serve the same purpose, specifically, to ensure that a child's placement meets the safety, health and best interests of the child. N.J.S.A. 30:4C-51.
[N.J. Div. of Youth & Family Servs. v. S.A., 388 N.J. Super. 324, 333-34 (Ch. Div. 2005).]
In 1999, the Legislature amended N.J.S.A. 30:4C-51 to declare that "it is in the public interest, whereby the safety of children shall be of paramount concern, to afford every child placed outside his home by [DYFS] with the opportunity for . . . placement in an alternative permanent home . . . ." N.J.S.A. 30:4C-51; L. 1999, c. 53, § 37. (Emphasis added to amended text).
The parameters of a permanency hearing are governed by N.J.S.A. 30:4C-61.2, which provides, in pertinent part, as follows:
c. The hearing shall include, but not necessarily be limited to, consideration and evaluation of information provided by the division and other interested parties regarding such matters as:
(1) a statement of the goal for the permanent placement or return home of the child and the anticipated date that the goal will be achieved;
(2) the intermediate objectives relating to the attainment of the goal;
(3) a statement of the duties and responsibilities of the division, the parents or legal guardian and the temporary caretaker, including the services to be provided by the division to the child and to the temporary caretaker;
(4) a statement of the services to be provided to the parent or legal guardian or an exception to the requirement to provide reasonable efforts toward family reunification in accordance with [N.J.S.A. 30:4C-11.3]. Services to facilitate adoption or an alternative permanent placement may be provided concurrently with services to reunify the child with the parent or guardian;
(5) a permanency plan which includes whether and, if applicable, when: (a) the child shall be returned to the parent or guardian, if the child can be returned home without endangering the child's health or safety;
(b) the division has determined that family reunification is not possible and the division shall file a petition for the termination of parental rights for the purpose of adoption; or
(c) the division has determined that termination of parental rights is not appropriate in accordance with [N.J.S.A. 30:4C-15.3] and the child shall be placed in an alternative permanent placement.
d. If the court approves a permanency plan for the child, the court shall make a specific finding of the reasonable efforts made thus far by the division and the appropriateness of the reasonable efforts to achieve the permanency plan.
The standard by which DYFS's permanency plan is reviewed was addressed in S.A., supra, 388 N.J. Super. at 335-36:
In reviewing the child's placement, the court is required to determine whether the "placement ensures the safety and health and serves the best interests of the child." N.J.S.A. 30:4C-51; In re E.M.B., 348 N.J. Super. 31, 52 (App. Div. 2002). Accordingly, "'the best interests' of the child is the polestar in the implementation of a placement plan." State in the Interest of L.L., 265 N.J. Super. 68, 77 (App. Div. 1993); see also DYFS v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). In this case, the court is required to determine what is in [the minor's] best interest based upon circumstances as they exist at the time of the hearing. M.F., supra, 357 N.J. Super. at 527 (citing In re Baby M., 109 N.J. 396, 456 (1988)).
. . . This is a hearing to determine a child's permanent placement pursuant to Title 30. "The phrase 'permanent placement' is not synonymous with the phrase 'termination of parental rights.'" E.M.B., supra, 348 N.J. Super. at 48. Accordingly, as stated above, the best interests standard applies. Id.; M.F., supra, 357 N.J. Super. at 528; L.L., supra, 265 N.J. Super. at 77; see also In re C.R., 364 N.J. Super. 263 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004). Indeed, the "best interest" standard employed by the court requires that the court not rely on such a presumption, but rather, engage in "the meticulous fact finding required in custody cases." M.F., supra, 357 N.J. at 528 (quoting Beck v. Beck, 86 N.J. 480, 488 (1981); L.L., supra, 265 N.J. Super. at 77). Ultimately, the court must determine "whether [DYFS's] proposed placement plan satisfies the legislative goals and objectives of the Act by providing a stable, safe and healthy environment for the child considering all of the circumstances surrounding the placement." L.L., supra, 265 N.J. Super. at 79.
[S.A., supra, 388 N.J. Super. at 335-36 (Ch. Div. 2005).]
We turn first to Teri and Matthew's challenge to the trial judge's determination that they abused or neglected Andrea.
Teri argues that the trial judge incorrectly determined that her stipulation of facts warranted a finding of abuse or neglect. According to Teri, the judge failed to consider that she never invited Matthew to her apartment and that she had previously reported Matthew's conduct to the police. Moreover, Teri argues that the record does not reflect any actual harm to Andrea.
Teri not only stipulated to the facts to which she testified, but also stipulated that those facts constituted an act of abuse or neglect. Teri specifically stipulated "that her actions directly put [Andrea] at substantial risk of harm . . . constitut[ing] abuse or neglect pursuant to law." She also acknowledged her failure to "take sufficient steps to protect [Andrea] from having contact with [Matthew]." She did so after consulting with her attorney and with full knowledge that she was giving up her right to an evidentiary hearing by doing so. Teri's stipulation was "definite and certain in its terms" and clearly established her intent to be bound by it. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002) (citing Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 325 (App. Div.) certif. denied, 152 N.J. 10 (1997)). Additionally, the judge satisfied himself that she was acting voluntarily, knowingly, and without coercion, as required by J.Y., supra, 352 N.J. Super. at 263-66.
Abuse or neglect occurs when "a child whose physical, mental, or emotional condition . . . 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 . . . . "
N.J.S.A. 9:6-8.21(c)(4). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999).
Here, Teri stipulated that, while Andrea was living with her, Matthew came to her home on several occasions, albeit "usually uninvited." (Emphasis added). She also stipulated that, on one occasion, she informed the police that it was okay for Matthew to be there, despite the fact that she knew he was barred from contact with Andrea, as a result of which she conceded that she "really didn't take sufficient steps to protect [Andrea] from contact with [Matthew]." On Matthew's last visit to her home, Matthew brandished a knife while close to Andrea and threatened Teri in Andrea's presence. Teri's actions demonstrate, by a preponderance of the evidence,*fn3 that Andrea was an abused or neglected child, within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), while in Teri's custody.
Consequently, we affirm the trial judge's finding that Teri engaged in an act of abuse or neglect.
Matthew argues that the DYFS and police reports admitted into evidence during the fact-finding hearing contained impermissible hearsay. He also argues that there was no credible evidence that he knew about the order limiting his contact with Andrea or that he was ever in her presence. Our review of the record leads us to conclude that there was sufficient credible and competent evidence to support the judge's relatively narrow finding of abuse or neglect.
In In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969), we held that "[r]eports of this type [DYFS reports], prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein."
In addition, police reports are also admissible under the business record rule. State v. Burris, 357 N.J. Super. 326, 337 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003); Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998). However, when such reports include additional hearsay, such as the statements of third parties, there must be an independent basis for the admission of the included hearsay. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010).
To the extent the DYFS reports and police reports contain statements attributed to Matthew, they would be admissible against him as statements by a party-opponent under N.J.R.E. 803(b)(1) ("the party's own statement"). And, to the extent they contain statements attributed to Teri, we agree with DYFS that, at least potentially, they could be admissible as statements against her interest under N.J.R.E. 803(c)(25), which provides that
[a] statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, . . . that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true.
Nevertheless, the statements being offered must actually be against Teri's own interest, as opposed to being merely statements by Teri against Matthew's interest.
We agree with Matthew's argument that the admission of the documents was problematic. After DYFS offered the documents as a group, rather than individually explaining the purpose and basis of admissibility for each one, Matthew's attorney proffered a "blanket objection" to all of the exhibits. See Rule 1:7-2. The trial judge then admitted all of the documents in evidence without having reviewed them first.
That procedure undercuts our ability to accord our usual deference to a trial judge's evidentiary rulings. Estate of Hanges, supra, 202 N.J. at 374 ("[O]rdinarily, an evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion . . . ."). We cannot afford deference to a decision to admit documents into evidence that were offered in bulk and over a hearsay objection when the judge did not first review the documents. The documents at issue contained considerable additional hearsay, including reports of what others told the author of the documents, which statements themselves sometimes included hearsay.
Whether the included hearsay contained in the exhibits is admissible under either of the rules of evidence discussed above, or some other rule, would require an analysis of each such statement to determine whether it satisfied the requirements of the applicable rule. The record does not reflect that such an analysis was performed by the judge in this case, and certainly none was performed before the documents were admitted into evidence.
Despite the flawed procedure, we nevertheless find sufficient support in the record for the judge's conclusion. In arguing that there was no support for the finding of abuse or neglect on his part, Matthew ignores Teri's testimony that [Andrea] was in the high chair on October 23rd, the night the incident happened when [Matthew] was blocking me from getting to her. He wouldn't let me get to her. He had a knife to her, and he wouldn't let me - I tried to get to her, and that's when he hit me.
Matthew's attorney chose not to cross-examine Teri, or call her as a witness. Instead, he merely urged the trial judge not to credit Teri's testimony, pointing to inconsistent statements in the records admitted over his objection. In addition, Matthew chose not to testify on his own behalf to refute Teri's version of the events of October 23.
In addition, Exhibit P-3, a DYFS report, contains the record of the case worker's conversations with Matthew on October 20, 2008, three days before the incident with the knife.
In a telephone conversation earlier in the day, Matthew asked the worker for a copy of the court order prohibiting him from having contact with Andrea. Later in the day, the worker visited Matthew at the motel where he resided, gave him a copy of the order, and explained that Andrea could be removed from Teri if he continued to have contact with her.
Teri's testimony about the incident with the knife and the case worker's report that she gave Matthew a copy of the order fully support the judge's basic factual finding that "[Matthew] had a copy of the April 2,  order at least by October 20th, 2008 if not before," and that Matthew went "to the house on October 23rd and that he engaged in acts of domestic violence in the presence of [Andrea] and that he did brandish a knife during the course of that episode at either [Teri] or [Andrea] while the incident was unfolding." Matthew never contradicted that evidence, as the judge noted in his oral opinion.
Consequently, while DYFS might have presented a stronger case through additional witnesses or by specifying what portions of the documents were specifically admissible against Matthew, there was sufficient evidence in the record to support, by a preponderance of the evidence, the judge's finding of abuse or neglect by Matthew. His actions demonstrated that he failed to exercise a minimum degree of care, placing Andrea in imminent danger. N.J.S.A. 9:6-8.21(c)(4)(b); G.S., supra, 157 N.J. at 181-82.
Matthew argues that the trial judge erred in granting DYFS's motion to be relieved of the obligation to provide him with reasonable services. Having reviewed the record on that issue, we find it to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add only the following. The termination of Matthew's parental rights with respect to his son in 1999 satisfied the requirements of the N.J.S.A. 30:4C-11.3(c) for an exemption from the reasonable-efforts requirement with respect to Andrea.
There was no evidence of rehabilitation on Matthew's part since the prior termination. See N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 536-37 (App. Div. 2006). Indeed, the record reflects several subsequent incarcerations, as well as the potentially dangerous nature of his conduct with a knife on October 23, 2008.
Finally, both Teri and Matthew argue that the permanency hearing was procedurally flawed. Most notably, they argue that (1) the hearing transcript does not reflect that any evidence was submitted during the hearing, (2) no witnesses were offered by DYFS, and (3) the judge failed to make findings of fact as specifically required by N.J.S.A. 30:4C-61.2(d).
A review of the transcript confirms that all counsel had copies of the permanency plan and the reports about which the judge heard their oral argument. However, the transcript also reflects that they were not admitted into evidence at the hearing. In addition, there is no specific statement in the record, either way, as to whether the judge actually had copies of those documents at the time. Nevertheless, the DAG stated that the plan had been "presented" to the judge; and the judge's ruling suggests that he had reviewed the plan.*fn4 Neither defense counsel objected to the procedure followed at the time of the hearing, nor did they propose to call any witnesses or offer any written evidence of their own.
Our review of the record convinces us that the judge's decision to accept the permanency plan as being in the child's best interest was supported by the record, including the evidence submitted at the time of the fact-finding hearing. Rule 5:12-4(d) provides that DYFS "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) [(the business record rule)] . . . reports by staff personnel or professional consultants" and that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." Neither Teri nor Matthew offered any evidence to rebut the "prima facie evidence" offered by DYFS.
The permanency plan submitted by DYFS acknowledges that Teri was "actively participating in court ordered services," but also stated that DYFS viewed it as "questionable" as to whether she was "gaining the insight to protect her child." The report of Janet Cahill, Ph.D., which was certified to on February 25, 2009, made the following recommendations:
1. In my view, [Teri] is currently not able to independently parent [Andrea]. Since [she] is not compliant with medications and services, her prognosis is quite poor. She does not have a stable, mature adult who can consistently supervise her with her daughter. Therefore, the case goal of long-term alternative placement of [Andrea] should be pursued.
2. [Teri] should regularly attend medication management and psycho-educational counseling to assist her in more effectively managing her bipolar disorder. Her counselor should work with [Teri] regarding family planning and her pattern of relationships.
3. No other services are recommended at this time. Supervised visits with [Andrea] could continue.
It was conceded at the permanency hearing, however, that Teri had stopped taking her medications for an extended period of time so that she could conceive and bear her fifth child, at a time when she did not have custody of any of her first four children. See J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978) ("Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody.").
At the time of the hearing, there was a significant question whether Teri would be able to parent Andrea in the foreseeable future, and DYFS had already been relieved of the obligation to provide services to Matthew. Even though the "case goal" was adoption, the permanency plan left open the possibility of reuniting Teri and Andrea, and specifically listed reunification as the "concurrent goal." The plan also called for Teri to receive services from DYFS and to participate in parenting time with Andrea.
The adoption of permanency plan calling for eventual adoption and the termination of abuse and neglect litigation for that reason are not the equivalent of the termination of parental rights. S.A., supra, 388 N.J. Super. at 335. In the event DYFS decides to pursue termination, each of the four elements of N.J.S.A. 30:4C-15.1(a) will have to be proven by DYFS by clear and convincing evidence before either parent's parental rights can be terminated.
As the Supreme Court has noted, a delay in securing permanency may continue or add to a child's harm. See In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999). The Court has also stated it is "mindful of [the] strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999) (emphasis added). We are satisfied that the judge's decision to approve the plan and terminate the Title Nine litigation was in Andrea's best interest. The record, despite the procedural flaws, supports the judge's finding that it was time to proceed to the next stage so that the issue of permanency could be resolved under the more exacting standards applicable in a termination case.
Consequently, we affirm the orders approving the permanency plan and terminating the Title Nine litigation.