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New Jersey Division of Child Protection & Permanency v. C.W.

Superior Court of New Jersey, Appellate Division

March 27, 2014

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
C.W., Defendant-Appellant. IN THE MATTER OF I.N.W., a minor

Submitted February 12, 2014.

Approved for publication March 27, 2014.

Page 246

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-339-12.

Joseph E. Krakora, Public Defender, attorney for appellant ( Robert H. McGuigan, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent ( Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea R. Fonseca-Romen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.N.W. ( Lisa M. Black, Designated Counsel, on the brief).

Before LIHOTZ, MAVEN and HOFFMAN Judges.

Page 247

[435 N.J.Super. 134] OPINION

[435 N.J.Super. 135] LIHOTZ, J.A.D.

We address the requisite procedures Family Part judges must follow to protect a defendant's due process rights when a child's testimony is sought in a protective services action. We hold that in any proceeding filed pursuant to N.J.S.A. 9:6-8.21, when a defendant objects to utilizing an alternative to the child's in-court testimony, the judge must adhere to the statutory procedures outlined in N.J.S.A. 2A:84A-32.4, prior to allowing in camera testimony of a child-witness.

In this matter, defendant C.W. appeals from two Family Part orders entered in this Title Nine action initiated by plaintiff, the Division of Youth and Family Services

Page 248

(Division).[1] The first order under review was filed on April 20, 2012, following trial, and included the judge's findings that C.W.'s daughter, I.N.W., was an abused or neglected child pursuant to N.J.S.A. 9:6-8.21, and C.W. " failed to provide a minimum degree of care for the child due to her drinking problem." [2] The second order, filed on August 15, 2012, placed I.N.W. in the custody of her adult sibling, awarded custody of her younger sibling to a paternal relative, and concluded the litigation. On appeal, C.W. challenges the sufficiency of the evidence and argues the trial judge erred in grounding her factual findings upon then seventeen-year-old I.N.W.'s in camera interview. Although the procedure followed in this matter did not conform to the requirements of N.J.S.A. 2A:84A-32.4, defendant did not object to the use of the alternate procedure. Further, the evidence of record, after excluding I.N.W.'s in camera statements, amply supports the judge's findings of abuse and neglect. Accordingly, [435 N.J.Super. 136] we conclude C.W.'s due process rights were not impinged and affirm.

At trial, the Division chose to admit documentary evidence, without objection from defendants or the Law Guardian. This included six multi-page exhibits containing: prior Division records beginning in 1996, substantiating incidents of abuse or neglect by C.W.; Division case notes and reports, redacted by agreement, recording the Division's investigation of the instant referral and interviews regarding the alleged assault of I.N.W. by C.W. and K.R.; and a report prepared by the Gloucester Township Police Department (GTPD) documenting the investigation of the alleged assault by C.W. and K.R., along with photographs depicting I.N.W.'s injuries. The Division offered no witnesses. Neither C.W. nor K.R. testified. However, K.R. presented testimony from his brother and a friend who were present in the home when the subject altercation occurred. At the close of evidence, the trial judge spoke to I.N.W. in chambers, while counsel and the parties listened, as the interview was broadcast into the courtroom. Prior to the interview, the judge had requested all parties to submit questions to be posed to the child.

These facts are found in the exhibits admitted into evidence. The GTPD contacted the Division on the evening of December 2, 2011, when sixteen-year-old I.N.W. appeared at the police station with her adult sibling. I.N.W. reported C.W. and K.R. had physically assaulted her at a time when the two had been drinking.

Family Services Specialist Demetrius Briggs and another Division caseworker responded. The Division's case notes recited the information obtained from the police station interviews of I.N.W. and her older sibling. At that time, Briggs also recorded his observations of I.N.W.'s physical appearance, stating she had " several scratches" on her face, including " a scratch on the left cheek approximately an inch and a half [sic] long; a linear abrasion approximately three inches long on the right side of her neck; an abrasion on the back/left side of her neck; and bruising [435 N.J.Super. 137] on the left jaw area." A police officer photographed I.N.W.'s injuries.

Page 249

In her interview with Briggs, I.N.W. stated when she returned home from school, C.W. and K.R. had been drinking. She stated " everyday" C.W. and K.R. drink " beer and vodka" before she and her sibling return home from school and " both become very angry when they drink[]."

C.W. and her youngest child began joking, but the banter turned into an argument when C.W. " suddenly became irritated and started yelling," purportedly because I.N.W. began laughing. I.N.W. intended to go to the library and may have " called her mother crazy," as she left the residence. C.W. followed I.N.W. outside and " began hitting her while her back was turned." C.W. pushed I.N.W. to the ground and " continued to punch and hit her, knocking her into the chair on the porch." I.N.W. " reported as she was on the ground, her mother grabbed her by the throat and was strangling her." I.N.W " grabbed [C.W.]'s wrists," in an attempt to try to remove her hands from her neck. When C.W. released I.N.W., she got up and ran to her friend's home and never returned. I.N.W. also told Briggs of an earlier incident when K.R. struck her. Ultimately, I.N.W.'s older sibling was called and drove her to the police station.

That night, Briggs and his co-worker went to the home, accompanied by the GTPD investigating officers. Briggs removed I.N.W. and her younger sibling from their parents' care and placed them in a resource home. N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. Thereafter, the Family ...


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