December 30, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF K.A.N., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-333-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Payne and Hayden.
R.N., the biological mother of K.A.N., born August 31, 1994, appeals from the June 26, 2009 Family Division order finding her to have neglected K.A.N. We reverse and remand for a new fact-finding hearing in accordance with this opinion.
From a careful examination of the rather sparse record, we have gleaned the following. R.N. had two other children, D.L., born January 24, 1983, and V.N., born April 21, 1990. In the years prior to its most recent involvement in 2008, the Division of Youth and Family Services had received numerous reports concerning R.N.'s family, which alleged abuse or neglect of the children. While the circumstances never were found to constitute abuse or neglect, the Division attempted to provide a variety of services to stabilize the family.*fn1 In addition, K.A.N. received case management coordination of the multiple services needed to address his severe emotional and behavioral difficulties.
On March 3, 2009, the Division filed a verified complaint in the Family Division seeking an order for care and supervision of K.A.N. with custody to remain with R.N. The complaint contained many allegations involving past and recent involvement of the family with the Division, especially focusing on an incident in December 2008 when R.N. was alleged to have left K.A.N. with his eighteen-year-old sister V.N. for several days. The Division had previously determined that this allegation of neglect was unfounded. The complaint alleged other incidents in January and February 2009 when R.N. left K.A.N. with V.N. for several days without food or money. The complaint also alleged that K.A.N. had missed numerous days of school.
The day after the verified complaint was filed, just prior to the court hearing on the order to show cause, R.N. underwent a drug screen, wherein she tested positive for marijuana, PCP and cocaine. At the hearing, the Division verbally amended its complaint to request custody of the child, which the trial judge granted. K.A.N. was then placed with his maternal grandmother.
Several months later, at a court hearing on June 26, 2009, R.N.'s attorney stated that his client was going to enter into a stipulation of facts admitting to abuse or neglect. However, after R.N.'s testimony demonstrated her unwillingness to admit facts showing abuse or neglect, the stipulation testimony ended without the stipulation being accepted by the trial judge.
Next, the Division called Rosie Feliciano, the Division caseworker for the family since March 2009, to testify. She described a December 2008 incident, which was alleged in the complaint, where R.N. had left K.A.N. home for several days with only V.N., his eighteen-year-old sister. She also testified that there had been other occasions when R.N. had left K.A.N. in V.N.'s care without providing food. The caseworker attributed her knowledge about these incidents to statements made by V.N., who did not testify. In addition, the caseworker noted that the minor child had behavioral problems and could be very difficult. When he was residing with his mother, the caseworker reported, there were times when the mother did not fill the prescriptions for the medications given to him to help him control his behavior. The caseworker also testified that R.N. had tested positive for illegal drugs a number of times, beginning in March 2009, up to the day of the fact-finding hearing. No documentary evidence was admitted at this hearing.
After the caseworker testified, the trial judge rendered her opinion, stating:
This matter comes before the court for the court to make a determination whether the minor child [K.A.N.] is an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21. And I am satisfied having heard the testimony of both the mother and the current worker, Ms. Feliciano. And having reviewed and taken judicial notice of the urine screens that have been done in court with respect to the named defendant . . . . I make my findings by a preponderance of the believable evidence and based on the following facts: She tested positive for cocaine, PCP and marijuana on March 4 of this year; she tested positive for morphine and PCP on April 3rd; she tested positive for cocaine, PCP and marijuana on June 8th and she tested positive for marijuana today.
In addition to that I am satisfied that she left her son, who has serious behavior problems, in the care of her daughter, who was eighteen at the time. And neither . . .
[V.N.] nor the child nor her mother knew where she was. And . . . they were left without supervision. And considering the fact that this is a child that has serious behavioral problems, leaving [K.A.N.] with his 18-year-old sister was leaving him with inadequate supervision.
Nobody knew where she was, her daughter was concerned enough that [she] filed a missing persons report on her mother and [she] left [them] with no food. In addition to that, she did not give him his medication as prescribed and ended on one occasion, not filling the script. I understand that he's a difficult child and he may not wish to take the medication as prescribed but he also missed 44 days of school by her own account.
And since he went to his grandmother's house he has been attending school on a regular basis. So for all those reasons I find that this child is abused and neglected within the meaning of the statute. I believe that [R.N.] has a substance abuse problem, that she denies the extent of the problem.
At the ensuing dispositional hearing, the Division recommended that R.N. undergo a substance abuse evaluation, participate in both family therapy and individual therapy, and attend a psychiatric evaluation, which she agreed to do. Over the next nineteen months, the Division provided services to help the family reunify and stabilize. Following K.A.N.'s return to his mother's custody in October 2010, the litigation ended on November 10, 2010. This appeal followed.
The court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). These safeguards are designed to serve two functions: to protect innocent parents against government interference with their fundamental right to parent and to spare children unnecessary emotional trauma. Ibid.
The Division brought this case under Title Nine, N.J.S.A. 9:6-1 to -8.73, the statute covering non-criminal abuse and neglect of children. Title Nine requires that, after a child has been temporarily removed from his or her parent's custody, a fact-finding hearing must 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. The evidence presented at a fact-finding hearing must be competent, material and relevant. N.J.S.A. 9:6-8.46(b).
In the Title Nine provision at issue here, an "abused or neglected" child is defined as one who is less than eighteen years of age and whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with the 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).]
An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999). In G.S., the Court explained that "[t]he phrase 'minimum degree of care'" denotes "something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)).
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These 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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfindings." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). 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.
At the Title Nine fact-finding hearing, the Division must present prima facie evidence that R.N. had committed an act of abuse or neglect against K.A.N. by competent, relevant and material evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); J.Y., supra, 352 N.J. Super. at 262. To meet its evidentiary burden, the Division's reports may be admitted into evidence when qualified as business records, as they supply a high degree of reliability as to the accuracy of the facts contained therein. M.C. III, supra, 201 N.J. at 347; In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). However, when such documents contain 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 (2010).
Initially, R.N. argues that only the testimony of the Division's sole witness, the caseworker, should be considered when determining if the Division has proven its case. We concur. We recognize that the proceeding had unexpectedly diverged from a stipulation to a fact-finding hearing. Nonetheless, as we mentioned above, the Division has the burden of proving the allegations in its complaint by a preponderance of evidence in a fact-finding proceeding. N.J.S.A. 9:6-8.46(b); J.Y., supra, 352 N.J. Super. at 262. When it became clear that a stipulation was not going to occur, it was incumbent on the Division to present prima facie proof of abuse or neglect as pled in the complaint without regard for the statements of defendant during her attempted stipulation.
Reviewing the Division's fact-finding testimony, we find that the Division failed to meet its burden of proof through competent, relevant evidence. At the fact-finding portion of the proceeding, the caseworker, who had only been on the case since the child was removed, testified extensively about events leading up to the removal. Specifically, the caseworker testified about the circumstances involving R.N. leaving the children based on conversations with V.M. The caseworker also reported on R.N.'s alleged failure to properly give K.A.N. his medication and the alleged excessive school absences.
However, the Division offered no foundation to establish the caseworker's direct knowledge of these facts, and no information was elicited from her to demonstrate the source or reliability of her testimony. Nothing in the record indicates that she had reviewed any Division records and certainly none were admitted into evidence. Moreover, in her decision, the trial judge relied heavily on the caseworker's testimony in finding that R.N. had neglected K.A.N. due to her absences from the home and her alleged failure to give K.A.N. his prescribed medication. Additionally, the trial judge made factual findings based on the mother's testimony during the aborted stipulation, although R.N. had not testified on behalf of the Division at the fact-finding portion of the hearing. Defendant neither objected to, nor consented to, this inappropriate procedure on the record.
In this case we are constrained to conclude that the record lacked competent, material, and relevant evidence sufficient to sustain the court's determination that K.A.N. was an abused or neglected child. Rather, the decision was based solely on hearsay testimony without any foundation establishing a basis for the reliability of the hearsay and statements made by defendant while she was intending to stipulate.
Since defendant did not object at the hearing to the lack of competent evidence, we examine the matter to see if it constitutes plain error. Under the plain error standard, we only reverse if the error "is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. We find that, even without defendant objecting, plain error occurred here that deprived defendant of due process of law. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010). A proceeding 'conducted with [this level of] informality and general lack of adherence to fundamental evidentiary rules' is inadequate. J.Y., supra,, 352 N.J. Super. at 268.
We recognize that an unusual situation occurred when the proceeding changed from the anticipated stipulation to a fact-finding hearing. In light of the unexpected turn of events at the hearing, we do not view defendant's failure to object to be a matter of invited error. See M.C. III, supra, 201 N.J. at 342 (defendant cannot consent to admission of documents at trial, then take a different position on appeal). Moreover, the doctrine of invited error is inappropriate where, as here, its application would "cause a fundamental miscarriage of justice." Brett v. Great Am. Recreation, 144 N.J. 479, 508 (1996).
Accordingly, we find that R.N. is entitled to a new fact-finding hearing where the Division must prove by a preponderance of the competent, material and relevant evidence that K.A.N. was abused or neglected by R.N. as defined in N.J.S.A. 9:6-8.21(c).
Reversed and remanded for a fact-finding hearing consistent with this opinion. We do not retain jurisdiction.