On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-377-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Payne, Simonelli and Hayden.
Defendant, A.R., the father of minor children A.A.R., born in 1992, and fraternal twins, A.M.R. and M.F.R., born in 1994, appeals from an order of the Family Part, entered on August 20, 2008 following a fact finding hearing, determining by a preponderance of the evidence that A.R. abused or neglected his children, in that he refused to permit A.A.R. to return home,*fn1
failed to ensure that the children were attending school and used excessive corporal punishment on the children, thereby placing the children at significant risk of harm.
On appeal, A.R. raises the following issues:
POINT I THERE DID NOT EXIST SUBSTANTIAL, CREDIBLE EVIDENCE SUPPORTING THE JUDGE'S FINDING OF NEGLECT AND ABUSE BY A PREPONDERANCE OF EVIDENCE AND THE TRIAL COURT DID NOT PROPERLY APPLY THE LAW TO ITS FINDING OF FACTS. POINT II THE TRIAL JUDGE ERRED BY RELYING ON SCHOOL RECORDS WHICH WERE NOT PROPERLY AND TIMELY SUBMITTED BY DYFS INTO EVIDENCE THEREBY DEPRIVING DEFENDANT OF A PROPER DEFENSE. (Not Raised Below.)
A. The School Records Submitted By DYFS As P-4 Were Not Properly Submitted Into Evidence As A DYFS Record Or Pursuant To The Business Record Exception To The Hearsay Requirement.
B. The School Records Submitted By DYFS As P-4 Were Not Properly Submitted Into Evidence Pursuant To The Business Record Exception To The Hearsay Requirement.
C. The Judge Erred By Considering The School Records In H[er] Decision As They Were Not Properly Admitted Into Evidence.
POINT III THE UNTIMELY SUBMISSION OF SCHOOL RECORDS BY DYFS DEPRIVED DEFENDANT [OF] HIS RIGHT TO CROSS EXAMINATION AND DUE PROCESS. (Not Raised Below.)
POINT IV THE FACTS IN THE RECORD DO NOT SUPPORT THE JUDGE'S FINDING OF EDUCATIONAL NEGLECT.
POINT V A.R. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL DID NOT OBJECT TO THE SCHOOL RECORDS' UNTIMELY SUBMISSION. (Not Raised Below.)
Legal proceedings in this matter commenced on April 25, 2008, when the Division of Youth and Family Services (DYFS or the Division) filed a verified complaint and order to show cause against appellant A.R. and his wife, T.C.,*fn2 pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, seeking custody of minor children A.M.R. and M.F.R. A hearing on the order to show cause was held on May 1, 2008, at which time testimony was offered by Nichole Govan,*fn3 a DYFS employee assigned to work with A.R. and his family. Govan attested to the truth of the verified complaint and testified additionally that, at the time, M.F.R., a daughter, was in the custody of a paternal aunt, having been left by her father at the apartment of a woman in Newark who subsequently determined she did not wish to care for the child and dropped her off at the home of the aunt. A.M.R. remained in his father's custody, but had not attended school since April 7, 2008 and had multiple prior absences. A.A.R., the eldest son, had been taken into the custody of DYFS after another paternal sister had filed a family in crisis petition.
Govan testified that the complaint was filed after M.F.R. had called her from a friend's house, stating that she was hiding there out of fear of her father. The police were called. Although they reported that "everything was fine," shortly thereafter, M.F.R. was taken out of school by her father and could not be located by DYFS. Further, when calls by Govan to A.R.'s residence were answered by A.M.R., he refused to disclose to her why he was not in school or where his sister was located. When Govan finally was able to reach A.R., he stated that he was planning to move to North Jersey, where he had enrolled his daughter in an East Orange school. However, A.R. refused to give a residence address, and calls to East Orange schools failed to disclose M.F.R.'s enrollment there. A.R., who had tested positive for marijuana, had declined treatment. At the conclusion of the hearing, custody of A.M.R. and M.F.R was given to DYFS.
An amended complaint was filed on May 22, 2008 to include the third child, A.A.R. At a further order to show cause hearing, counsel for DYFS reported to the court that M.F.R. remained with her paternal aunt. A.M.R. had been placed in a Therapeutic Live-in Care (TLC) shelter,*fn4 and A.A.R., who had emotional problems, was in a ...