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New Jersey Division of Youth and Family Services,*Fn1 v. C.G


September 20, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-96-11.

Per curiam.



Argued: September 10, 2012

Before Judges Graves, Espinosa, and Guadagno.

C.G. (Courtney)*fn2 appeals from the Family Part's June 13, 2011 order, following a fact-finding hearing, determining she abused and neglected her then two-year-old daughter, R.S. (Reba), by becoming incapacitated while caring for Reba and by failing to seek appropriate treatment for severe anxiety. Because the record in this matter is inadequate to support a finding of abuse and neglect and the trial court relied on previously excluded hearsay evidence, we reverse.


Reba was born on December 27, 2007, to Courtney and E.S. (Eric). Courtney and Eric divorced, and Courtney married O.G. (Oscar) in June 2010. At the time the Division became involved with this family, Courtney resided with Oscar and shared custody of Reba with Eric.

During the evening of August 18, 2010, Oscar and Courtney argued about finances. After Oscar put Reba to bed, he went into the bedroom he shared with Courtney. As he entered the bedroom, Courtney was holding a bottle of Xanax pills and said, "How many of these will it take to kill me?" Oscar told her not to take the pills or he would call the police. Courtney then swallowed all of the pills in the bottle which Oscar estimated to be twenty to thirty pills.*fn3 Oscar called the police who responded and arranged for Courtney to be taken by ambulance to a hospital where she remained for several days. The police then notified the Division, who began an investigation.

On September 1, 2010, the Division filed a complaint seeking care and supervision of Reba due to the August 18 incident. At a hearing that day, Eric was awarded temporary custody of Reba who had been with him since the incident.

A fact-finding hearing began on February 14, 2011 and continued on April 15, 2011. The Division first called Jeffrey Sudol, one of the police officers responding to Oscar's 9-1-1 call. The Division attempted to introduce Officer Sudol's report of the incident, but defendant objected to statements contained in the report from Oscar who did not testify. The Division suggested that they were not introducing the report "for the truth of the matter asserted, but only to show what information was received to which [the police] responded." The court allowed the report for that limited purpose and excluded the hearsay portions.

Officer Sudol testified that Oscar was holding Reba when he answered the door. Oscar took Sudol upstairs to the bedroom where Sudol observed Courtney lying in bed with a half-empty beer can next to the bed and an empty pill bottle on a bedroom counter.

Courtney's speech was slurred and when the officers tried to interview her, she refused to answer questions and was uncooperative. Sudol observed her "grasping for support" when she attempted to walk.

Oscar held Reba while the police were in the home. At first, the child was calm, but became upset when Courtney began to argue with the police. Reba was then taken into another room out of her mother's line of sight, which further upset the child. Sudol testified that Reba remained calm for approximately five minutes after the police arrived:

During that time the child was quiet. As soon as [Courtney] began to become argumentative with us, and yell at us, and ask why we were there, as we attempted to inform her why we were there, she began to scream at us more and that's when the child started to become upset.

After Reba began to cry, Courtney attempted to take her from Oscar but the officers kept mother and child separated for the child's safety as Courtney was not stable on her feet.

Sudol's partner called a mental health crisis hotline and an ambulance was dispatched. When the ambulance arrived, Courtney refused to leave and the officers placed her in restraints. She was then transported to Bergen Regional Medical Center (Bergen Medical). The police shielded Reba from seeing the restraints put on her mother by keeping her and Oscar in another room. After the ambulance departed, Sudol testified that Reba began to calm down.

Oscar called Eric who came to the home and took Reba back with him. The police then contacted the Division. Sudol explained that DYFS was called, not out of concern with Oscar's ability to care for Reba but because he was not her biological father.

The next witness called by the Division was caseworker Brian Padilla, who visited Courtney at Bergen Medical on August 19, 2010. Courtney told Padilla that she and Oscar argued earlier that evening about a job opportunity and, as a result, she became "frustrated." Courtney was not sure how many Xanax pills she took that evening but claimed that she took them to help her sleep and denied she was attempting suicide or trying to harm herself. The Xanax had been prescribed for her by her primary care physician. She denied any prior diagnosis of mental health problems.

Padilla also spoke with Courtney on September 2, after she had been discharged from Overlook Hospital.*fn4 She had just submitted to a substance abuse evaluation during which she tested positive for benzodiazepine (Xanax). She admitted that when she was discharged, it was recommended that she not take any habit-forming drugs, including Xanax. She told Padilla she took Xanax because she was feeling very anxious. Later that day, Courtney signed a safety plan agreeing to supervised visits with Reba.

After the Division rested, the law guardian indicated he intended to call Courtney as a witness, because "it would be in the best interest of [his] client that the Division is able to sustain its burden of proof in this matter." Courtney's counsel objected based on lack of prior notice and because the law guardian was not a plaintiff in the action. The court overruled the objection and gave Courtney's counsel the lunch hour to prepare her to testify.

Courtney testified that on August 18, 2010, she remembered getting into an argument with Oscar and drinking some beer. She did not remember what the argument was about or how many beers she consumed. She also did not remember taking any pills. She denied ever being diagnosed with bipolar disorder but acknowledged that she told doctors at Overlook that she suffered panic attacks and anxiety in 2000, when her uncle was killed. She also admitted being hospitalized at age fifteen for alcohol poisoning.

Courtney claimed she drank one or two times per week and admitted that on August 18 she drank more than usual. She received the prescription for Xanax from her primary care physician approximately six weeks before the incident, when her "stressors began to increase." Prior to her hospitalization at Bergen Medical, Courtney was not seeing a psychiatrist or a therapist. She explained her symptoms to her primary care physician, and he did not recommend that she see a mental health professional.

Courtney also admitted that she took Xanax shortly before her September 2 evaluation even though her Overlook discharge summary recommended against taking any habit-forming drugs. She explained, "I guess I didn't understand the implications. It was just a recommendation, [a]nd I was terrified that day. I was having anxiety."

On June 13, 2011, the trial court found by a preponderance of the evidence that Courtney abused and neglected Reba by: fail[ing] to exercise minimum care when she did not seek appropriate treatment for her severe anxiety and increased alcohol consumption, especially considering that she had been hospitalized in the past when her anxiety escalated. She acted with reckless disregard when she consumed twenty to thirty pills of Xanax in the presence of her two-year-old daughter.

On appeal, defendant argues that the trial court's findings are not supported by substantial evidence and the court relied on impermissible hearsay. Defendant also claims that it was impermissible to allow the law guardian to call defendant as a witness and the court was required to ensure that defendant understood her Fifth Amendment rights.


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, 278-79 (2007). We must defer to a trial judge's findings of fact if "supported by adequate, substantial, and credible evidence on the record." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Factual findings which undergird a trial court's judgment should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and should be upheld whenever they are "supported by adequate, substantial and credible evidence."

Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)(quoting In re J.T., supra, 269 N.J. Super. at 188-89). "Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." Ibid.

N.J.S.A. 9:6-8.21(c), in relevant part, 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 . . . to exercise a minimum degree of care . . . 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. [N.J.S.A. 9:6-8.21(c)(4).]

The focus of the Title Nine scheme is protection of the child from serious harm, emotional or physical, or the threat of such harm. N.J.S.A. 9:6-8.8; G.S. v. Dep't of Human Servs., 157 N.J. 161, 176-177 (1999).

Neglect cases are fact sensitive. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Cases in which the only risk of harm was created by an act or omission of a parent as the basis of a neglect complaint are particularly fact sensitive. In N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 160-62 (App. Div. 2009), we held that a finding of neglect was unfounded against a mother who allowed her three-year-old and five-year-old sons to return to their home from a nearby playground while she stayed in the play area.

Conversely, in N.J. Div. of Youth & Family Servs. V. R.M., 411 N.J. Super. 467, 481 (App. Div.), cert. denied, 203 N.J. 439 (2010), we held that a mother had created a substantial risk of harm to her children when "[she] had used drugs and alcohol at a time when she was caring for her young children and there was a strong basis to conclude that she would have driven with them under those circumstances had she not been prevented from doing so."

Applying these principles to the facts of this case, which are not in dispute, the trial court's finding that Courtney "acted with reckless disregard when she consumed twenty to thirty pills of Xanax in the presence of her two-year old daughter" is not supported by the evidence.

First, Reba had already been put to bed in another room before this incident began. Thus, defendant did not consume pills "in the presence" of her daughter.

Second, we are mindful that drinking beer and consuming enough pills to be rendered unable to care for a child could create a substantial risk of harm to the child if that parent was the child's sole caretaker, as was the mother in R.M. However, Oscar was not only present throughout the entire evening but was acting as Reba's primary caretaker, putting her to bed, holding her throughout the police presence in the home, calming her after they left and calling Eric to come to the home and take the child. Although she became upset after the police arrived, Reba was well cared-for by Oscar during the incident and was never in danger. As we emphasized in J.L., "the standard is not whether some potential for harm exists," but whether the conduct "'recklessly creates a risk of serious injury to the child.'" 410 N.J. Super. at 168-69 (quoting G.S., supra, 157 N.J. at 181). Courtney's conduct did not meet the requisite standard of willful or wanton misconduct required under G.S.

The court's finding that Courtney had consumed twenty to thirty Xanax pills was based on hearsay evidence that the court had specifically excluded. The only source for the number of pills consumed by Courtney was an approximation by Oscar, who did not testify. While his observations were reflected in both the police and DYFS reports, and both documents were admitted into evidence, they were admitted on the condition that all hearsay references would be redacted.

"A judge's determination in a fact-finding hearing must be based on competent reliable evidence." N.J.S.A. 9:6-8.46; R. 5:12-4(d). "This critically important part of the business of the Family Part demands meticulous adherence to the rule of law." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). In referencing the number of pills defendant was thought to have consumed and making that a critical element in his findings, the trial court improperly relied on evidence he had previously excluded.

Other findings of the trial court are also unsupported by the evidence, including the conclusion that Courtney "did not seek appropriate treatment for her severe anxiety." Courtney's undisputed testimony was that six weeks prior to this incident she noticed increased "stressors" from financial and domestic issues and sought treatment from her primary care physician. As a result, she received a prescription for Xanax. There has been no showing that her actions in addressing her condition were reckless, negligent or even inappropriate.*fn5

In addition, there was no competent, admissible evidence to support the court's finding that Courtney "had been hospitalized in the past when her anxiety escalated." Courtney testified that she was hospitalized when she was fifteen for alcohol poisoning and not for any psychiatric issues. To the extent that any entry in either the DYFS reports or the hospital records suggests a contrary conclusion, those portions were specifically excluded as hearsay.


Defendant also claims that the trial court erred in allowing the law guardian to call defendant as a witness. Defendant claims (1) she was not fairly notified, per Rule 4:11-1, that she would be called as a witness, or permitted to meet with her attorney following such notice to prepare her testimony; (2) the court did not ensure that defendant understood and clearly waived her Fifth Amendment right against self-incrimination; and (3) the law guardian did not have the legal authority to assist the Division in meeting its burden of proof in abuse and neglect matters.

At the outset we note that Rule 4:11-1 is inapplicable here as it addresses perpetuation depositions, and provides that "[a] person who desires to perpetuate his or her own testimony or that of another person . . . may file a verified petition, seeking an appropriate order[.]" R. 4:11-1(a).

Rule 1:9-1 provides that the testimony of a party who could be subpoenaed may be compelled by a notice in lieu of subpoena served upon the party's attorney demanding that the attorney produce the client at trial. The rule further provides that notice shall be served in accordance with Rule 1:5-2 at least five days before trial.

Defendant concedes that, as a party to the action, she could be compelled to testify without a subpoena. She argues that she should have been noticed as a witness and permitted to speak with her attorney before testifying. We agree.

The law guardian first informed the defendant that he intended to call her as a witness immediately after the Division rested its case, just before the lunch break. Counsel for defendant objected to the lack of notice but did not seek a postponement. Had he done so, under these circumstances, the application should have been granted for good cause. N.J.S.A. 9:6-8.48. We are aware that Title Nine proceedings must be conducted with "immediacy and speed." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 109 (2011). However, a one-hour break over lunch may not be sufficient time to prepare a defendant facing the severe consequences of a finding of abuse and neglect.

Defendant also maintains the court erred by not ensuring that defendant understood and clearly waived her Fifth Amendment privilege against self-incrimination.

The Fifth Amendment, applicable "to the states under the Fourteenth Amendment, grants individuals the right to decline to answer questions in any proceeding 'civil or criminal, formal or informal, where the answers might incriminate [this individual] in future criminal proceedings.'" In re Guardianship of D.J.M., 325 N.J. Super. 150, 155 (Ch. Div. 1999). "The touchstone of the Fifth Amendment is compulsion," in other words, "whether an individual has been put in a position that by its very nature is so coercive, due to either physical or psychological factors, that it compels the individual to make an incriminatory statement involuntarily." Ibid.

The New Jersey right against self-incrimination is derived from our common law and has been subsequently codified in our statutes and rules. State v P.Z., 152 N.J. 86, 101 (1997). The privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection.

Ibid. "Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary." D.J.M., supra, 325 N.J. Super. at 157 (citing Minnesota v. Murphy, 465 U.S. 420, 429, 104 S. Ct. 1136, 1143, 79 L. Ed. 2d 409, 420 (1984); P.Z., supra, 152 N.J. at 101; State v. Fary, 19 N.J. 431, 435 (1955)).

When called to testify, defendant did so, albeit under protest with regard to the issue of notice. Defendant was represented by counsel and she did not invoke her Fifth Amendment privilege with respect to any of her testimony. As a result, we presume that her responses were voluntary. D.J.M., supra, 325 N.J. Super. at 157. Defendant claims that the right against self-incrimination, entitled her to be "informed by the court that she might have the ability to invoke her Fifth Amendment rights." She provides no authority to support this claim.

Defendant contends that it was not appropriate for the law guardian to "bolster" the Division's proofs at fact-finding by calling defendant as this resulted in "a large portion of DYFS' case in chief [being] unfairly and improperly elucidated by the law guardian."

Title Nine governs the adjudication of abuse and neglect cases. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). Title Nine grants the Division certain powers and duties, such as the ability to conduct an emergency removal of a child without court order.

N.J.S.A. 9:6-8.29. However, contrary to defendant's suggestion, Title Nine does not vest the Division with the sole responsibility or authority of proving abuse and neglect. Under N.J.S.A. 9:6-8.34, multiple entities or individuals may file a Title Nine complaint, including "[a]ny person having knowledge or information of a nature which convinces him that a child is abused or neglected." N.J.S.A. 9:6-8.34(d). Moreover, N.J.S.A. 9:6-8.46, which governs admissibility of evidence in an abuse and neglect case, neither mentions the Division nor places limits on who may present such evidence. It provides instead that "[i]n a fact-finding hearing (1) any determination that a child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).

Finally, Title Nine specifically creates the position of law guardian and vests it with certain rights and duties. Under N.J.S.A. 9:6-8.23(a), "[a]ny minor who is the subject of a child abuse or neglect proceeding under [Title Nine] must be represented by a law guardian to help protect his interests and to help him express his wishes to the court." By definition, a law guardian must be "an attorney admitted to the practice of law in this State[.]" N.J.S.A. 9:6-8.21d. As court-appointed counsel, a law guardian "acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted." N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 69 (App. Div. 2002) (citation omitted). Here, the law guardian asked to call defendant as a witness because he believed doing so was in the child's interest. This was well within the law guardian's authority.

Contrary to defendant's claims, the law guardian did not impermissibly act as a guardian ad litem or an "independent fact finder[.]" As an "independent fact finder," a guardian ad litem may "submit[] a written report to the court and is available to testify." Ibid. (citation omitted). In contrast, by calling defendant as a witness and questioning her, the law guardian acted as a legal advocate -- the exact role a law guardian is permitted, and moreover required, to play. No error occurred here.

The judgment of the trial court is reversed; the order finding that defendant abused and neglected her child is vacated; and the Division is directed to remove defendant's name from the Child Abuse Registry.

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