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New Jersey Division of Child Protection and Permanency v. T.U.B.

Superior Court of New Jersey, Appellate Division

May 22, 2017

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
T.U.B., Defendant, and J.E.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.I.B., a Minor.

          Argued April 24, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-164-14.

          James Gentile, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gentile, on the briefs).

          Michelle Cort-Hourie, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Cort-Hourie, on the briefs).

          James A. Louis, Deputy Public Defender, argued the cause for minor C.I.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Danielle Ruiz, Designated Counsel, on the briefs; Mr. Louis and Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

          J. David Pollock argued the cause for amicus curiae John J. Gibbons Fellowship in Public Interest and Constitutional Law at Gibbons, P.C. (Gibbons P.C., attorneys; Lawrence S. Lustberg and Mr. Pollock, on the brief).

          Before Judges Sabatino, Currier and Geiger.

          OPINION

          SABATINO, P.J.A.D.

         This appeal by a father from a final judgment terminating his parental rights in a Title 30 guardianship case raises an important and recurring legal issue of statutory construction. The issue is whether the special evidentiary provision for Title 9 cases codified at N.J.S.A. 9:6-8.46(a)(4), allowing the admission of certain hearsay statements by children about corroborated allegations of abuse or neglect, likewise applies in Title 30 guardianship cases involving the termination of parental rights. That hearsay exception reads, in pertinent part, as follows:

In any hearing under this act, including an administrative hearing held in accordance with the 'Administrative Procedure Act, ' P.L. 1968, Ci. 410 (C. 52:14B-1 et seq.), . . . (4) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.

         For the reasons that follow, we conclude that the plain meaning of this statutory provision confines the use of this special pathway for the admission of hearsay by children to Title 9 proceedings and does not extend to Title 30 guardianship trials involving the termination of parental rights. We reach this conclusion mindful that this hearsay exception has been mistakenly applied at times in the past in some Title 30 termination proceedings, albeit apparently without the benefit of the rigorous legal analysis and advocacy that have been provided to us by counsel in this appeal. We are also mindful that the Legislature retains the ability to adopt a curative amendment to Title 30 to extend the hearsay exception in N.J.S.A. 9:6-8.46(a)(4) to future termination proceedings, if it chooses to do so in the wake of this opinion.

         The trial court in this case impermissibly relied upon hearsay statements by children that it admitted, over objection, under N.J.S.A. 9:6-8.46(a)(4) . The hearsay involved allegations of sexual abuse that were later in part recanted by one of the non-testifying child declarants. The trial court accepted the truth of those allegations, which were not directly corroborated by independent admissible proof that defendant did, in fact, sexually assault the girls.

         The evidential error appears to have affected the trial court's assessment of whether the Division of Child Protection and Permanency ("the Division") met its burden of proof on prongs one, two, and four of the termination criteria under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We therefore vacate the final judgment with respect to those three prongs, and remand for the trial court to reconsider its decision without reference to or reliance upon the sexual abuse hearsay. We affirm, however, the court's discrete findings with respect to prong three concerning the provision of services and the absence of other suitable relatives to serve as caretakers.

         I.

         This case hinges upon the trial court's admission and reliance upon highly inculpatory hearsay statements of two nonparty female minors, J.H. ("Jenny") and S.C. ("Sandy"), [1] who did not testify at the Title 30 guardianship trial. The girls alleged that acts of sexual abuse were committed against them by defendant J.E.C. during a time frame when defendant and his minor son C.I.B. ("Calvin") were living in their household with the girls' mother, defendant's girlfriend, T.C.

         The Background

         Calvin was born in May 2008. His biological mother is T.U.B., and his biological father is defendant. T.U.B. is the biological mother of eight additional children with other fathers. Defendant himself has two other children, one of whom is an adult. Neither of his other children lived with him at the times relevant to this case, and they are not the subject of this litigation.

         Before Calvin's birth, the Division had received several reports of parental abuse and neglect of T.U.B.'s children in her house. In November 2 007, the Division conducted an emergency "Dodd" removal[2] of five of T.U.B.'s children from her home. The Division received a sixth referral in May 2008 concerning T.U.B. shortly after Calvin was born, but allowed Calvin to remain in her home while she was offered services.

         About a year later, in May 2009, T.U.B. brought Calvin to live with defendant and his paramour T.C, because T.U.B. was unable to continue to keep Calvin in her mother's apartment. The parents entered at that time into a case plan with the Division, agreeing that Calvin would remain in defendant's physical custody. Not long after that, defendant was granted temporary physical custody of Calvin, with T.U.B.'s consent.

         Eventually, in May 2010, T.U.B. voluntarily surrendered her custodial rights over Calvin. Meanwhile, Calvin continued to reside with defendant, T.C., T.C.'s two daughters, Jenny and Sandy, and her minor son.[3]

         The Two Girls' Allegations of Sexual Abuse

         In the latter part of 2010, Jenny, who was then eleven years old, reported to a teacher that defendant had been sexually abusing both her and her sister Sandy on multiple occasions over a period of several years. Upon learning of these allegations, the Division arranged a psychosexual evaluation of defendant by a psychological expert, Barry A. Katz, Ph.D.

         In his written report from 2010 based on the Division's files, Dr. Katz noted there were "significant and extensive contradictions in [Jenny's] reporting regarding the abuse." Jenny initially reported that she had been raped by defendant. However, she later informed a caseworker that defendant had "touched [the] inside of her panties." She separately told hospital staff that he had only touched her over her clothing and that nothing further had happened. In addition, Dr. Katz noted that both Sandy and Jenny's father had denied Jenny's claims that defendant had also molested Sandy and that the two girls had fled T.C.'s home to go to Jenny's father's house. Moreover, medical evaluations of the girls revealed no signs of bruising, trauma, or injury.

         Defendant was not criminally charged with sexual wrongs or any other offenses. However, the Division administratively substantiated him for sexual molestation of Jenny. He denied, and continues to deny, engaging in any sexual abuse of Jenny or Sandy.

         Dr. Katz stated in his 2010 report that there was "no reliable data ... to indicate that [defendant was] a current risk of sexually acting out on a child." Based on the information then available to him, Dr. Katz found "insufficient evidence to conclude that [defendant] was a danger to a child in his care." By way of qualification, Dr. Katz did comment that "[a]dditional data would be helpful and relevant to increasing the accuracy of [his] assessment." That information could include details of the family's past involvement with the Division, results of diagnostic evaluations of the children, details of defendant's criminal history, and a copy of Jenny's personal journal in which she had reportedly discussed the abuse.

         In May 2012, the Division received a referral reporting that a physical altercation had taken place at T.C.'s home between defendant and Sandy's biological father, T.J. T.J. informed Division investigators that he had struck defendant because he had been told that defendant had molested the girls. The Division accordingly interviewed Sandy and Jenny, both of whom claimed in their interviews to have been sexually abused by defendant.

         Proceedings in the Family Part and Related Developments

         In June 2012, a judge in the Family Part awarded the Division the care and supervision, but not custody, of T.C.'s children. Defendant was ordered to stay out of T.C.'s home. The court apparently was not aware that Calvin was also residing in T.C.'s home at the time.

         On June 22, 2012, the Division received a referral from an East Orange police officer, stating that she had responded to T.C.'s home where T.U.B. had gone to take physical custody of Calvin. The officer had taken T.C. and Calvin to the police station because T.U.B., who had not seen Calvin for more than a year, was demanding custody, and defendant's whereabouts were then unknown. T.U.B. reported that she had received a message on social media about the fight between T.J. and defendant. T.U.B. further claimed that she had seen messages between defendant and Sandy. The messages indicated to T.U.B. they were in a relationship, and that Sandy had been pregnant and had an abortion.[4]

         The Division at that point conducted a Dodd removal of Calvin from T.C.'s residence. It took that action because (1) defendant's whereabouts were unknown, (2) T.C. was not the legal guardian of Calvin, and she had an open case with the Division, and (3) T.U.B. did not have residential custody of Calvin, had a significant history herself with the Division, and had care and custody of only three of her eight biological children.

         Four days later, the Division filed a complaint for custody of Calvin, which the Family Part granted. The judge ordered weekly supervised visitation with Calvin for all defendants, including T.C. The Division referred defendant to a supervised visitation program at Reunity House in East Orange. That program included weekly therapeutic supervised visitation and weekly parenting skills group sessions. The Division also offered transportation.

         In August 2012, Calvin was evaluated at the Metro Regional Diagnostic and Treatment Center ("RDTC") at Children's Hospital of New Jersey. The RDTC reported that Calvin was "developmentally delayed in communication skills, fine motor skills, problem solving skills, and personal social skills." The RDTC also noted that Calvin's resource parent had reported he displayed "significant emotional and behavioral problems including temper tantrums, defiance, and oppositionality."

         In September 2012, Calvin was again evaluated by the RDTC, which concluded he exhibited "[s]low growth - possible failure to thrive." The RDTC recommended that Calvin continue to see a nutritionist, and that defendant participate in the visits and receive parenting skills training to "improve [Calvin's] eating behaviors and food intake, " and to work on disciplinary skills.

         In November 2012, the scheduled date for a fact-finding hearing, the Division requested that the Title 9 allegations be withdrawn and the matter go forward instead under Title 30. The Family Part consequently ordered that the matter "proceed pursuant to Title 30 as child welfare concerns exist[ed] and the family [was] in need of . . . services." The court advised counsel that at the next hearing it would "consider whether [Calvin] should be immediately placed with [T.C.]."

         On November 13, 2012, the Division received a report that defendant was then living at T.C.'s house, despite the court's outstanding order prohibiting him from doing so. However, the girls, T.C.'s son, T.C., and defendant all denied that he was residing there. During its investigation, the Division learned that Jenny was not registered for school. T.C. was accordingly substantiated for educational neglect.

         A week later, the Division received a second referral, which reported that defendant had been residing in T.C.'s home for over a month. Although T.C, Jenny, and Sandy denied that defendant was living there, T.C.'s son privately told a Division supervisor, Ines Perez-Nin, that defendant had been staying at the home two nights a week. Because defendant had been court-ordered to remain out of T.C.'s home, the children were accordingly removed by the Division from T.C.'s care on November 26, 2012.

         The following day, Perez-Nin interviewed Jenny and Sandy. Both girls confirmed to her that defendant had been residing in T.C.'s home. In addition, Jenny stated to Perez-Nin that defendant had been sexually abusing her since she was seven years old. Sandy, meanwhile, told Perez-Nin that she had been having sex with defendant three to four times per week. Sandy further revealed that she had become pregnant the previous year, and that defendant had taken her to get an abortion.[5]

         Additional Expert Evaluations

         The Division thereafter referred defendant for an evaluation by Dr. Mark Singer, a licensed psychologist, in April 2013. During that evaluation, defendant "denied ever engaging in inappropriate sexual contact with any minor [or] taking any minor for any medical procedure related to termination of pregnancy." Dr. Singer recommended that defendant complete parenting skills training, and that he also participate in individual therapy.

         In addition, the Division referred defendant for a psychosexual reevaluation, which was again performed by Dr. Katz in July 2013. In his updated 2013 report, Dr. Katz noted that when asked if he had taken Sandy for a medical procedure, defendant stated that he had taken her to a hospital, and the doctor there told him that she had a cyst on her ovary and surgery was performed the same day. Defendant told Dr. Katz that he had taken Sandy for surgery because T.C. could not drive, and she was watching her other children and Calvin. He also admitted signing the medical consent form, even though he was not Sandy's guardian.

         Dr. Katz noted in his reevaluation that there was "sufficient evidence to conclude that there [were] concerns regarding the risk that [defendant] may pose to a child in his care." Further, he stated that "[if] the children's reports [were] accurate, then it would indicate that [defendant was] a moderate risk offender."

         Dr. Katz considered defendant to be "a lower risk to a child in the community, but a higher risk to a child placed in his care." He acknowledged that additional data would be relevant to increasing the accuracy of his assessment, including a criminal history for defendant, a copy of Jenny's journal, and relevant hospital records for the children. Dr. Katz recommended that defendant not have unsupervised visitation until such additional data was collected and reviewed, and that defendant engage in therapy with a professional competent in treating sexual offenders.

         The trial court ordered defendant to comply with the recommendations from Dr. Katz's psychosexual reevaluation. However, defendant resisted doing so, arguing that the Division had not provided sufficient proof of the sexual abuse allegations.

         Defendant was discharged from the Reunity House program for inconsistent attendance. He also missed numerous parenting skills classes. In addition, defendant was inconsistent in attending supervised visits with Calvin, and he eventually stopped visits altogether. At a family team meeting in April 2014, defendant did agree to comply with parenting skills classes, individual therapy, and supervised visitation. Again, he did not follow through.

         Meanwhile, Calvin's resource parent withdrew her interest in adopting him after having initially expressed interest in doing so. The Division consequently changed its plan for Calvin to "select home adoption, " anticipating the possibility that a different adoptive parent or family might materialize.[6]

         Although T.U.B. temporarily sought custody of Calvin, that effort ultimately failed when she lost her housing, and she, too, did not visit him. At an October 2014 permanency hearing, the trial court consequently approved the Division's plan to terminate the parental rights of both defendant and T.U.B.

         The Guardianship Trial and Defendant's Hearsay Objections

         The lengthy guardianship trial took place over ten intermittent trial days from February 2 015 through January 2016. The Division presented expert testimony from Dr. Elizabeth M. Smith, a licensed psychologist, and Dr. Katz. The Division also presented factual testimony from caseworker Emerald Irby and supervisor Perez-Nin, who recounted the Division's investigation and efforts concerning Calvin and the family. The alleged victims of sexual abuse, Jenny and Sandy, did not ...


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