May 10, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.L., DEFENDANT-APPELLANT, AND L.L., DEFENDANT-RESPONDENT. IN THE MATTER OF D.L., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-80-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012 -
Before Judges Yannotti and Kennedy.
Defendant M.L. appeals from a Family Part order dated June 1, 2010, finding that he abused and neglected his grandson, D.L. (Douglas), by acts that "alienated L.L. (Laura), the mother from [Douglas]."*fn1 The litigation was terminated by order of February 18, 2011, making this matter ripe for appeal. See N.J. Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164-65 (App. Div. 2003). M.L. argues that the trial court erred during the factfinding hearing under N.J.S.A. 9:6-8.44 "when it permitted the attorneys to argue the merits without presenting witnesses to testify and without the admission of competent, material and relevant evidence[.]" For reasons expressed in this opinion, we find this contention to be without merit and we affirm the order of the trial judge.
On January 19, 2010, the Division of Youth and Family Services (the Division) filed a verified complaint and an order to show cause under Title Nine (N.J.S.A. 9:6-8.21 to -8.73) seeking care, custody and supervision of Douglas based upon allegations of abuse and neglect by defendant and Laura. The complaint asserted that the Division received an anonymous tip in August 2009 that M.L. had a "history" of "sexual abuse" charges before the Administration for Children's Services in New York. The anonymous caller stated that M.L. had been accused of sexually abusing his biological daughters, including Laura, and that M.L. thereafter improperly obtained custody of Laura's son, Douglas, born May 1, 2007.
Following a hearing on January 19, 2010, at which M.L. was present and represented by counsel, the court entered an order granting custody, care and supervision of Douglas to the Division and placing the child with M.L.'s sister. The order further provided that exhibits A through F, attached to the verified complaint, were "entered into evidence."
The court thereafter held conferences on the record on February 9, April 20 and May 11, 2010. During this time, M.L.'s counsel arranged for a psychological evaluation of M.L. and a bonding evaluation for M.L. and Douglas to be undertaken by Dr. Melissa Rivera Marano, Psy.D. The reports of Dr. Marano were provided to the court and all parties. The court's "multi-purpose order" of May 11, 2010, noted these reports were "in evidence."
On June 1, 2010, the parties and counsel appeared at a hearing before the trial judge, except for Laura who failed to appear. A default was entered against her.*fn2 At the commencement of the hearing, the Deputy Attorney General for the Division indicated that the date had been established to "see whether or not there were any stipulations or agreements that we can put on the record today. And if not, we were going to reschedule for a contested factfinding date." She then indicated, there is a consent to a disposition on the papers. My papers, Your Honor, for purposes of the factfinding would be the verified complaint and the attachments to that verified complaint which would be Exhibits A through F.
Your Honor, in addition, the Division would also be relying upon the psychological and bonding evaluation that were provided by defense counsel of Melissa Rivera [Marano].
She further represented that the reports of Dr. Marano and the Division's expert "seem to be in agreement."
Defense counsel replied that M.L. "has noted that he will not try the issue of abuse or neglect" and thereafter indicated "I would submit on the evidence submitted, specifically what was outlined by [the Deputy Attorney General], as well as my expert reports . . . ." He added that he had been prepared to cross-examine the Division's expert, but noted "obviously we are not going to go down that path." Following argument from counsel, the trial judge rendered his findings of fact and conclusions of law on abuse and neglect.
The items in evidence before the trial judge, as agreed by counsel, consisted of:
1) Verified Complaint dated January 19, 2010; and the following exhibits appended thereto:
Exibit A - Screening Summary;
Exhibit B- Investigation Summary; Exhibit C - Case Plan dated October 30, 2009;
Exhibit D - Psychological Evaluation of M.L. by Dr. Lorraine Wiegand, Ph.D.; Exhibit E. "Notice of Emergency Removal" dated January 14, 2010; and Exhibit F - Medical Assessment dated January 14, 2010.
2) Psychological Evaluation of M.L. performed by
3) Bonding Evaluation performed by Dr. Marano.
As noted, the verified complaint and exhibits A through F were admitted into evidence pursuant to the order of January 19, 2010 and M.L.'s reports from Dr. Marano had been admitted into evidence by the court's order of May 11, 2010. We discern the facts from these records.
M.L. was born in Brooklyn, New York, on February 2, 1962. While in his mid-twenties and working as a security officer in a housing complex, he met Y, a teenager living in a nearby group home. Together they had three daughters, with Laura, the oldest, being born in 1987. At some point, Y "lost custody of the girls" and they went to live with M.L. In 2003, M.L.'s daughters were placed into foster care due to allegations they were sexually abused by M.L. M.L. was arrested in connection with these allegations, and later surrendered his parental rights to his daughters "in exchange for avoiding jail time." M.L. was then referred to a sex offender's program, but stopped attending the program.
On May 5, 2007, Laura gave birth to Douglas and began living with M.L. in New York. Laura claimed that after Douglas was born, M.L. "changed completely" and "he did not want her to take [the child] anywhere, not with her friends or her own family." She claimed that at one point M.L. "told her to leave and she left." Laura claimed that M.L. "would not let her take [Douglas]. [M.L.] went to court and lied and told the court that she left [Douglas]."
On September 15, 2008, M.L., having moved to Mercer County, obtained a "court order of temporary custody" of Douglas. M.L. did not reveal his history with Children's Services in New York in his petition for custody of Douglas. The record does not refer to any further hearings or orders with respect to that custody petition.
On August 21, 2009, the Division received a referral with respect to Douglas from an "anonymous female." She reported that "M.L. has put [Laura] out of the home and then went to Family Court and reported that [Laura] had abandoned [Douglas]." She also stated that M.L. had a history of sexual abuse charges with the "New York Administration for Children's Services" and that the agency in New York had "substantiated the allegations" against M.L. Division caseworkers thereafter made contact with M.L., M.L.'s sister and Laura. In its investigation, the Division learned that "[M.L.] was substantiated by Child Protection Services [sic] in New York for sexual abuse against his three daughters . . . New York records indicate that the substantiation against [M.L.] was approved in June 2003 . . . M.L.'s parental rights for his daughters were terminated." According to M.L., his rights were terminated "only because he accepted a deal that New York would not charge him criminally if he surrendered his parental rights."
After meeting with M.L. and Laura and initiating its investigation, the Division proposed a "case plan" which M.L. executed on October 30, 2009. The plan required Douglas to be examined by a physician and M.L. to attend a "family team meeting" and to present himself for a "psychological evaluation." The psychological evaluation of M.L. was undertaken by Dr. Wiegand on November 30, 2009.
According to Dr. Wiegand's report, M.L. said he had to obtain custody of Douglas to "go on family leave" from his job and to obtain governmental assistance. She found that M.L. had an "over-inflated sense of self" and presented with traits "consistent with the diagnosis of narcissistic personality." He had a "sense of entitlement and is interpersonally exploitive." He also "lack[ed] empathy and show[ed] no compassion as he discuss[ed] the multiple traumas that his own children have endured." He also presented with "paranoid ideation" and was "very judgmental." She concluded that M.L. had a "long history of marginal living" and "is not a suitable parent for his grandson at this time." She found that the New York agency had "substantiated [charges of] sexual abuse towards his daughters" and that M.L. "presents no rational explanation for why he moved to Central New Jersey while working in Brooklyn. One suspects he was attempting to seek custody without revealing his previous history."
She added that M.L. "did not complete his sex offender treatment program" and is "unable to put his children's needs before his own." She recommended that M.L. "not be allowed to have custody of his grandson" and explained that he had a "lifelong history of poor decision making and an inability to take responsibility." In addition, she noted that "his personality disorder makes it impossible for him to provide the nurturing and stability that a child needs." She recommended that M.L. "should complete his sex offender program and may benefit from intensive individual therapy."
Dr. Marano, who also examined M.L., concluded that he had "narcissistic personally traits" and that he "may have the ability to competently parent." She recommended that he "engage in individual counseling in order to address narcissistic traits" and she would thereafter assess "[M.L.'s] capacity and willingness to change." She recommended that "progress in such treatment be utilized in custody decisions for [Douglas]" and opined that M.L. suffered from narcissistic personality traits and adjustment disorder with depressed mood. She found M.L. needed "individual counseling."
After reviewing these materials, the trial judge announced his findings of fact and conclusions of law. He explained that, following the birth of Douglas, M.L. did not want Laura "to take him anywhere, not with her friends or around family." He found that M.L. also admitted that he surrendered his rights to his daughters "based upon sexual abuse allegations." The trial judge expressed "concern" about M.L.'s claim that he did not sexually abuse his daughters but nonetheless surrendered his rights to them based on the allegations. The judge found that M.L.'s conduct in obtaining a custody order for Douglas, based on his claim that Laura abandoned the child, justified the conclusion that M.L. had "alienated" Laura from Douglas.
The judge explained,
[H]aving alienated [Douglas] from [Laura] causes [the child] to be abused and neglected, [and it is] detrimental to his development [and] his welfare to be away from a biological parent. Children are entitled to their biological parents. Even if [Laura] had problems and issues, she had a right to work through those things and take care of her son to the extent that she could. And even if she had problems, even if she was having difficulty in taking care of her son, she would have just as much right as anybody to call the Division and ask for help . . . [M.L.] went and got a custody order without giving her notice. He went and got welfare benefits to help bring extra income into his own house. And then went on to continue to alienate the mother from the son.
So, I find that based on that the Division has made a case of abuse and neglect as to [M.L.]. I refer to 9:6-8.21(c)(4) as the legal cite for the abuse and neglect.
In terms of the weight of the evidence though, I find that the Division's case is by clear and convincing evidence on the Title 9 finding of abuse and neglect. [M.L.] alienated the mother. He's manipulative. He went after the money in this case. He got custody without telling [Laura] about it. If there's ever a situation of alienation, this is it. He took advantage of a mother who certainly has some weaknesses but I don't think there's any other way to say it.
Contrary to defendant's arguments, testimonial evidence is not a prerequisite for the entry of the finding of abuse or neglect at a factfinding hearing. What is required is that the court's determination be grounded upon competent and reliable evidence. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).
The admissibility of evidence in Title Nine actions is governed by statute, court rule and, of course, the rules of evidence. N.J.S.A. 9:6-8.46(b) provides that only "competent, material and relevant" evidence may be admitted in such actions and that a finding of abuse and neglect must be proved by "a preponderance of the evidence." Further, N.J.S.A. 9:6-8.46(a)(3) states, in pertinent part, that any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained [therein]. . . . All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility[.]
Other sections of N.J.S.A. 9:6-8.46 address evidence issues, but we do not cite them here, as they are immaterial to this appeal.
Also, R. 5:12-4(d) permits the Division to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), "reports by staff personnel and professional consultants" and states that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." N.J.R.E. 801(d) defines the term "business" to include "government agencies" and N.J.R.E. 803(c)(6) allows into evidence a statement in a writing of acts, events, conditions, and, subject to N.J.R.E. 808, opinions or diagnoses made at or near the time of observation by a person with personal knowledge or from information supplied by such person, "if the writing . . . was made in the regular course of business and it was the regular practice of that business to make it" unless the source or circumstances of preparation indicate it is not "trustworthy."
The expert report of Dr. Wiegand was obtained by the Division in the ordinary course of business. The circumstances under which the report of Dr. Wiegand was made provide a sufficient indication of its trustworthiness. The expert reports of both Dr. Wiegand and Dr. Marano "supply a reasonably high degree of reliability as to the accuracy of the facts recorded contained therein." In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). Thus, the reports were admissible under N.J.S.A. 9:6-8.46(a)(3) and Rule 5:12-4(d).
Since the reports were admissible, the reports can be relied upon as proof of any "condition, act, transaction, occurrence or event" reflected therein. N.J.S.A. 9:6-8.46(a)(3). Further, the conclusions drawn from the facts set forth in the reports "shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). Here, the trial judge properly relied upon the reports in finding that Douglas had been abused and neglected.
Moreover, M.L. may not complain that certain hearsay statements ascribed to him embedded in the expert reports should have been excluded. See N.J.R.E. 805. Such statements are themselves admissible under exceptions to the hearsay rule for admissions under N.J.R.E. 803(b)(1) and statements against interest under N.J.R.E. 803(c)(25).
Because M.L. agreed to the factfinding hearing based on the records submitted, we need not reach the question of whether the screening summary and investigation summary are necessarily admissible pursuant to statute, court rule or rule of evidence. Under to the doctrine of invited error, a party is barred from "'arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to accept the proposition now alleged as error.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. American Recreation, 144 N.J. 479, 503 (1996)). In M.C. III, supra, the defendant consented to the admission of the various documents, and by doing so created a circumstance where the Division was unable to address the alleged evidentiary error that the defendant raised on appeal. See M.C. III, supra, 201 N.J. at 341. Had defendant objected to specific documents at trial and the trial court sustained those objections, the Division would have had the opportunity to seek to admit the documents, or the information therein, in a manner consistent with the rules of evidence. Ibid. The court concluded that, under the circumstances, the defendant was "barred by the doctrine of invited error from contesting for the first time on appeal admission of various documents." See M.C. III, supra, 201 N.J. at 342.
These considerations apply here. Defendant's agreement to submit "on the papers" prevented both the Division and the trial judge from addressing any alleged error in the admissibility of the records. Having urged this course, defendant may not now contest it.
With respect to the findings of the trial judge, the applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based upon credible evidence in the record unless we are convinced those findings are "so wholly unsupportable as to result in the denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because the judges in the Family Part have special expertise in family matters, appellate courts should accord deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The trial judge's determination that M.L.'s decision to limit Laura's contact with Douglas and to secure an order for Douglas's custody, without notice to her and without notice to the court of his own background, constitutes impairment of a child's "emotional condition" under N.J.S.A. 9:6-8.21(c)(4). A parent has a fundamental right to the care, custody and nurturance of his or her child. Watkins v. Nelson, 163 N.J. 235, 245 (2000); See P.W.R., supra, 205 N.J. at 38. That right is recognized as "a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment of the Constitution" which is "rooted in the right to privacy." Moriarty v. Bradt, 177 N.J. 84, 101 (2003). A child also has a right to care, custody and nurture from its parent. Here, M.L., by his actions, deceitfully compromised the rights of both Laura and Douglas.
In addition, we reject M.L.'s argument that the trial court disregarded the procedural safeguards addressed in Division of Youth and Family Services v. M.D., 417 N.J. Super. 583 (App. Div. 2011). We held there that before a party in a Title Nine action stipulates to facts constituting abuse and neglect, certain conditions must be met. Parties in a Title Nine action may under certain circumstances stipulate to specific facts "'thereby narrowing the areas of dispute requiring the production of evidence and promoting the efficient administration of justice.'" M.D., supra, 417 N.J. Super. at 617 (citing N.J. Div. of Youth & Family Servs. v. J.Y., supra, 352 N.J. Super. at 265). "When entering the factual stipulation as to a finding of abuse or neglect, the stipulation must contain definite terms and the party's consent to enter into it must be clearly established." Id. at 610 (emphasis omitted). Such consent is effective only when various disclosures about the party's rights and the effect of the stipulations are acknowledged by the party. Id. at 610-11.
Here, unlike the defendant in M.D., M.L. did not enter into any stipulation regarding issues of abuse and neglect, but rather agreed to a disposition on documents, which the court may consider in making its determination. It was therefore not necessary for the court to advise M.L. that by stipulating to certain facts, he would be admitting to abuse and neglect of Douglas. M.L. did not stipulate to any facts, but rather merely stipulated to a disposition on the papers, as noted.
Finally, M.L. argues that the trial judge erred by failing to notify him that he would apply the clear and convincing evidence standard instead of the preponderance of evidence standard prescribed by statute. In N.J. Division of Youth & Family Services v. R.D., 207 N.J. 88-93 (2011), the Supreme Court held that, unless the parties are on notice that the Title Nine proceedings are to be conducted under the higher, clear and convincing evidence standard constitutionally required for Title Thirty proceedings and appropriate accommodations are made for the fundamentally different natures of these proceedings, Title Nine determinations cannot give collateral preclusive effect of any subsequent and related Title Thirty proceedings.
That is, if the trial court fails to advise the defendant in advance that it will apply the clear and convincing evidence standard, any determinations made under that standard in the Title Nine hearing will not have preclusive effect in the later Title Thirty hearing.
Unlike R.D., this appeal concerns only the Title Nine claim heard on June 1, 2010. It is therefore not necessary to remand this matter because the trial court applied a clear and convincing evidentiary standard rather than the preponderance of the evidence standard. In the event this case proceeds to a Title Thirty hearing, M.L. cannot be collaterally estopped from re-litigating the issue of whether Douglas's safety, health or development has been or will continue to be endangered as a consequence of the findings made in this proceeding. This is so because the trial judge did not, in fact, advise M.L. that he would be applying the higher clear and convincing standard in the Title Nine proceeding at issue.