NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
D.E.J., Respondent-Appellant. IN THE MATTER OF A.F.G.E.L., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
Remanded November 13, 2012
Resubmitted June 3, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-354-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.F.G.E.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Sabatino, Fasciale and Maven.
This Title 9 abuse and neglect case returns on appeal, following a remand we directed in November 2012. The remand called for the trial court to reexamine this matter, in light of significant evidentiary issues relating to hearsay factual statements and opinions embedded within documentary evidence that the court had admitted, over defendant D.E.J.'s objection, at the 2010 fact-finding hearing. On remand, the trial court issued a supplemental opinion discussing those evidentiary issues and reiterating its conclusion that defendant had abused and neglected her child, A.F.G.E.L. ("the child"), as the result of defendant's ingestion of drugs during her pregnancy which led the child to test positive for drugs at birth and exhibit withdrawal symptoms.
Defendant now renews her appeal, contending that the trial court's remand opinion continues to misapply principles of evidence and that the findings of abuse and neglect against her thus lack a proper evidentiary foundation. Defendant also relies upon the Supreme Court's recent opinion in New Jersey Department of Children & Families v. A.L., 213 N.J. 1, 22-23 (2013), holding that a mother's drug use during pregnancy and the presence of drugs in an infant's body at birth is not sufficient, in and of itself, to sustain an allegation of abuse or neglect.
Although it continues to appear that portions of the documents admitted at trial contained inadmissible hearsay, we are now satisfied, with the benefit of the court's remand decision, that the record otherwise is sufficient to support the court's ultimate finding of abuse and neglect. The admission of the hearsay in this instance was harmless, as there is sufficient admissible proof that the child suffered from withdrawal symptoms after birth and that the mother's conduct violated the Title 9 statute as it now has been construed in A.L. Consequently, we affirm.
We incorporate by reference the factual and procedural history of this case as set forth in our November 2012 unpublished opinion, New Jersey Division of Youth & Family Services v. D.E.J., No. A-1163-11 (App. Div. Nov. 13, 2012). For ease of reference, we summarize portions of that background. We also recount certain procedural and case law developments that have since occurred.
D.E.J. is the mother of four children, all of whom, including A.F.G.E.L., have been adopted. Aside from the instant circumstances involving A.F.G.E.L., the record indicates without contradiction by defendant, that she was substantiated for abuse or neglect as to two of her other children due to the fact that they had both tested positive for drugs at birth.
Defendant gave birth to A.F.G.E.L. on April 7, 2010 at Englewood Hospital. The next day, after receiving a referral from Englewood that both defendant and her child had tested positive for benzodiazepines, the Division of Youth and Family Services ("the Division") launched an investigation. D.E.J., supra, slip op. at 3.
According to a Division case worker's report, the hospital staff perceived that the child had a feeding intolerance, which the Division's hearsay reports identified as a symptom of withdrawal, and the child was therefore put on a regimen of morphine. The child continued to be treated at the hospital and, as indicated in the Division's case worker's report, was classified as medically fragile. Ibid.
On May 18, 2010, the child was cleared for discharge from the hospital. That same day, the Division conducted an emergency removal without court order pursuant to N.J.S.A. 9:6-8.29 ("the Dodd Act"). The Division then filed an order to show cause with a verified complaint in the Family Part, seeking custody, care, and supervision of the child. That application was heard on May 20, 2012. Both defendant and the child's putative father, F.L.,  appeared in court at that time. The trial court found the removal appropriate, noting that the child had tested positive at birth for drugs and that defendant has a long history of substance abuse. The court granted the Division care and supervision, ...