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New Jersey Division of Youth and Family Services v. E.S. Defendant-Appellant

February 21, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-13-10.

Per curiam.



Submitted October 12, 2011

Before Judges Baxter and Nugent.

Following a fact-finding hearing in this Title Nine action, the Family Part determined defendant E.S. had abused or neglected her son, J.A. E.S. appeals from the June 16, 2010 confirming order, arguing the Division of Youth and Family Services (DYFS or the Division) presented insufficient evidence to sustain the court's finding. Specifically, E.S. challenges the sufficiency of the evidence that she abused or neglected J.A. by leaving him with his father and her husband, M.R.A., when M.R.A.'s ability to function was so impaired by his use of crack cocaine that he posed a risk to J.A.'s health and safety. E.S. also contends the court improperly admitted hearsay evidence at the fact-finding hearing.

Having considered E.S.'s arguments in light of the record and the applicable law, we conclude the trial court's decision was supported by sufficient credible evidence. We also conclude the trial court did not abuse its discretion by admitting into evidence the Division's investigation report. Accordingly, we affirm.


The events that culminated in the Division removing J.A. from E.S. and M.R.A. occurred over two days, January 28 and 29, 2010. By then, E.S., who had immigrated to America from Honduras in 1989, had been married to M.R.A. for over fourteen years and their child, J.A., was four years old. On the morning of January 28, 2010, while M.R.A. was taking J.A. to preschool, E.S. telephoned an employee of the preschool and told him she and J.A. were fearful of M.R.A. According to E.S., M.R.A. was emotionally abusive and controlling, yelled and cursed in front of J.A., smoked crack cocaine all night, and was violent when he came down from his high. E.S. also said she could not speak freely in front of M.R.A. The preschool employee referred the matter to the Division, and intake worker Victoria Torrado, accompanied by another DYFS worker, interviewed the school employee and J.A.

During the interviews, the preschool employee recounted what E.S. had told him during their telephone conversation and added that M.R.A. occasionally picked up J.A. from school, had never "been under the influence," and had not appeared to be under the influence when he dropped J.A. off earlier that day. The employee expressed concern about J.A., who had been diagnosed with attention deficit hyperactivity disorder, had made a troubling statement to the child study team, and had on several occasions become physically violent with school staff.

J.A. told Torrado that his parents fought, "daddy yells at mommy . . . for nothing," he, J.A., and "mommy" are scared when "daddy yells at mommy," and E.S. and M.R.A. had a "fight" that morning. He said M.R.A. never hit him, but did not know if "daddy" hit "mommy." J.A. did not know what drugs were, but said "daddy smokes white." Torrado asked if E.S. worked and J.A. laughed and replied, "no, daddy works."

When E.S. arrived at the school to pick up J.A., Torrado interviewed her. In response to Torrado speaking Spanish, E.S. said she spoke perfect English and preferred it so that everyone present would understand what was going on. E.S. said M.R.A. had smoked crack cocaine for at least twenty-five years, his behavior was out of control, and DYFS needed to do something about it. E.S. also said that when M.R.A. smoked crack in the bedroom at night, E.S. would sleep with J.A. in the child's room. Torrado asked if M.R.A. was ever high around J.A., to which E.S. responded, "yes." After explaining to E.S. that the Division could offer social services to help E.S. "maintain on her own" and could place E.S. and her son in a shelter, Torrado asked E.S. if she would be willing to leave home with J.A. E.S. said she would be willing to leave in March when she expected to start working, but she declined to leave immediately. She also declined to seek a restraining order against M.R.A.

While Torrado was interviewing E.S., M.R.A., who had been waiting in the car, came into the room to see what was taking so long. At the same time, J.A., who was elsewhere, had another violent outburst during which he kicked and threatened school staff members. He was taken to the hospital for a psychiatric evaluation and discharged later that night.*fn1

When Torrado learned of J.A.'s discharge she went to E.S.'s house with another Division worker and several police officers. Although the house was dark when they arrived, they waited and eventually saw a light go on. Torrado knocked on the door and attempted to telephone E.S., but no one answered the door and E.S. did not answer her phone, so Torrado returned the next day and spoke to E.S. and M.R.A.

When Torrado asked E.S. if M.R.A. had used crack cocaine the night before, E.S. did not respond directly, but said M.R.A. was "not that bad" and smoked crack only every month or so. E.S. also said she made sure that J.A. had no access to M.R.A.'s drugs; she left J.A. alone with M.R.A. only when she went to church; and that occasionally M.R.A. drove J.A. to school but never when M.R.A. was high. Torrado never specifically asked E.S. if M.R.A. "parented" J.A. when M.R.A. was under the influence of drugs. Nevertheless, Torrado thought E.S. was minimizing the problem.

Following those events, the Division filed a notice of emergency removal and removed J.A. from his parents on January 29, 2010. Four days later, on February 2, 2010, the Division filed a verified complaint and an order to show cause. At a hearing that same day, M.R.A. admitted he had a substance abuse problem and would test positive for drugs. Representing that he would move out of the family home and "ha[d] already engaged himself in drug treatment," M.R.A. agreed to continue with his drug treatment program, undergo a psychological evaluation, engage in domestic violence counseling, and attend supervised visitation sessions with his son.

Torrado testified and recounted the events and interviews that took place on January 28 and 29, 2010. E.S. testified she had been a preschool teacher for thirty years. Nonetheless, she sometimes had difficulty understanding English, and Torrado had misunderstood her during the interview at J.A.'s preschool. Had E.S. known DYFS would not have removed J.A. if she had applied for a restraining order against M.R.A., she would have done so.

After considering the testimony of Torrado and E.S., and finding that E.S. had been evasive, the court concluded that J.A.'s best interests would be served by placing him under the Division's care, control and supervision. The court reasoned that M.R.A. and E.S.'s history of domestic violence; M.R.A.'s substance abuse in E.S.'s presence; M.R.A.'s out-of-control, emotionally abusive and vulgar verbal behavior in front of J.A.; and E.S.'s failure to protect J.A. by leaving home or seeking a restraining order, created an ongoing risk of harm to J.A.'s life, safety or health. The court ordered M.R.A. to leave the family home by February 7, 2010, and provided for the parents' supervised visitation with J.A. The court also ordered M.R.A. to submit to drug evaluation and drug abuse treatment; ordered M.R.A. and E.S. to submit to psychological evaluations and domestic violence counseling; and ordered that J.A. undergo evaluation for his emotional outbursts.

On February 17, 2010, the return date of the order to show cause, the court ordered that J.A. continue under DYFS's custody, care and supervision and that M.R.A. and E.S. continue with supervised visitation, counseling and evaluation.

Five weeks later, at the March 24, 2010 case management review hearing, the court returned custody of J.A. to E.S. and also ordered M.R.A., E.S. and J.A. to continue to participate in various services. On June 16, 2010, the court conducted a fact-finding hearing*fn2 in which it considered the testimony of Torrado, M.R.A., and E.S., and admitted into evidence the Division's "Screening Summary" and "Investigation Summary." At the inception of the fact-finding hearing, M.R.A. stipulated to the following:

Q. [By M.R.A's counsel to M.R.A.] Okay. And you had admitted previously in court that you had a drug problem, to wit cocaine, is what ...

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