Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

New Jersey Division of Child Protection and Permanency v. A.B.

Supreme Court of New Jersey

December 21, 2017

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
A.B., Defendant-Appellant. IN THE MATTER OF A.F., Minor.

          Argued September 26, 2017

         On appeal from the Superior Court, Appellate Division.

          Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender Parental Representation, attorney; T. Gary Mitchell, Deputy Public Defender, of counsel, and Clara S. Licata, of counsel and on the briefs).

          Sara M. Gregory, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (Christopher S. Porrino, Attorney General, attorney; Andrea S. Silkowitz, Assistant Attorney General, of counsel, and Joyce Calefati Booth, Deputy Attorney General, on the brief).

          Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for respondent A.F. (Joseph E. Krakora, Public Defender Law Guardian, attorney; Melissa R. Vance, on the brief).

          Mary M. McManus-Smith argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Mary M. McManus-Smith, Melville D. Miller, Jr., and Jeyanthi C. Rajaraman, on the brief).

         TIMPONE, J., writing for the Court.

         In this appeal as of right, the Court considers determinations that defendant A.B. abused or neglected A.F., her sixteen-year-old daughter; that A.B. willfully abandoned A.F.; and that remarks attributed to A.B.'s sister, J.F., were subject to suppression as embedded hearsay.

         Sixteen-year-old A.F. and her infant son lived with her biological mother, A.B., in an apartment owned by A.B.'s sister, J.F. On October 2, 2012, the New Jersey Division of Child Protection and Permanency (the Division) received a referral that A.F. had run away with her infant son in September 2012. The Division dispatched a caseworker to interview A.B. at her apartment. A.B. disclosed that A.F. had run away several days earlier when A.B. took away A.F.'s laptop and cellphone as punishment for being suspended from school. The caseworker went to the high school and met with A.F. During this meeting, A.F. related that she had been staying with various friends since leaving home. A.F. indicated that she had previously returned home to reconcile with A.B. and that they had gone together to the school to have A.F. reinstated. Near the end of the conference, A.F. expressed that she had "no intention of returning to her mom's home, " and in fact did not.

         Later that day, the caseworker discovered that A.F. and her infant son were staying with a friend, L.V., whose residence lacked electricity. The caseworker attempted to gain entry to the residence to assess its suitability for a young runaway and her infant. She was refused entry. The caseworker immediately conveyed to A.B. her apprehensions regarding the safety of A.F. and her infant son, as well as the suitability of A.F. 's living arrangement. A.B. voiced concern but was "still not willing to allow the children to come back and reside with her." A.B. asserted that she lived with her sister, J.F., who owned the apartment and was unwilling to allow A.F. back into the home "as well." A.B. could think of no one else with whom A.F. could stay. She was also unwilling to consent to an order of emergency removal for A.F. The Division placed A.F. and her son in a resource home.

         The Division then filed a verified complaint in the Family Part of the Superior Court, Chancery Division, seeking legal custody of A.F. The court conducted a fact-finding hearing to determine whether A.B. abused, neglected, or willfully abandoned A.F. Defense counsel objected to the admission of embedded hearsay in the form of statements attributed to J.F., A.B.'s sister, within the Division's referral, reports, and documents. The court sustained that objection. During the Law Guardian's cross-examination of the caseworker, the Law Guardian asked if J.F. ever told her that "she was not willing to let A.F. stay in her house." Defense counsel objected on the basis of inadmissible hearsay; the judge sustained the objection. During the defense's summation, the Division objected when defense counsel attempted to reference J.F.'s refusal to allow A.F. into her home. The judge similarly sustained the objection on hearsay grounds. The judge determined that A.B. neglected A.F. in violation of subsections (4)(a) and (5) of N.J.S.A. 9:6-8.21(c), explaining that "refusing to allow a 16 year old child into her home who has an infant herself would be gross negligence. It's just reckless disregard for the safety of her child."

         A divided Appellate Division panel affirmed. The panel majority rejected A.B. 's contention that a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4) could not be sustained because A.F. was not actually harmed in any way. "[T]he risks inherent in barring a sixteen-year-old child from the family home without arranging any alternative source of shelter or support are obvious, " the majority observed. The panel majority affirmed the judge's finding of willful abandonment under N.J.S.A. 9:6-8.21(c)(5), holding that the record contained substantial and credible evidence that A.B. willfully abdicated any responsibility for her daughter: A.B. refused to permit A.F. to return home despite being informed by the Division that A.F. 's living arrangement was ill-advised and failed to make other arrangements for A.F. 's care and support. Lastly, the panel majority found no error in the judge's conclusion that the hearsay testimony regarding A.B.'s sister was unreliable.

         The dissenting panel member disagreed with the majority's refusal to consider evidence of the sister's ownership of the apartment and her decision not to re-admit A.F., contending that the caseworker's testimony on the matter was competent, material, and relevant evidence. The dissent further took issue with the panel majority's finding of abuse or neglect because there was neither evidence of actual harm to A.F. nor the threat of harm. The dissent further disputed the panel majority's finding of abandonment under the statute because A.B. gave no indication that she intended to permanently bar her daughter or was abdicating her parental rights and duties. A.B. appealed to the Court as of right. See R 2:2-1(a)(2).

         HELD: The Division met its burden of proof concerning A.B.'s abuse or neglect of A.F. under N.J.S.A. 9:6-8.21(c)(4). The Court finds insufficient proof of willful abandonment under N.J.S.A. 9:6-8.21(c)(5) and reverses on that issue. The hearsay evidence was properly suppressed.

         1. The hearsay statements at issue were the subject of objection and were excluded early in the proceedings. Importantly, it was defense counsel who objected at the commencement of the fact-finding hearing to "any hearsay statements from. . . [IF.]." The Court has long recognized the doctrine of invited error, which operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error. A.B. succeeded in having the trial court take a certain course of action; she cannot now condemn the very determination for which she advocated merely because the consequences of that determination have proved unfavorable, (pp. 14-16)

         2. Hearsay may not be admitted into evidence unless it falls into a recognized exception. When a hearsay statement contains another hearsay statement, the embedded hearsay must independently fall within one of the exceptions to be admissible. Here, J.F.'s purported refusal to allow A.F. to return to the apartment was referenced in documents about which the caseworker was asked. Although the documents themselves benefitted from an exception to the hearsay rule, it was not an abuse of the trial court's discretion to find that the remarks within those reports attributed to J.F.-who did not testify-were hearsay within hearsay that did not fall within an independent exception. Thus, even absent invited error, the judge did not abuse her discretion in excluding the hearsay statements, (p. 17)

         3. To prove abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(a), the Division must establish by a preponderance of the evidence that: (1) the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired; and (2) the impairment or imminent impairment results from the parent's failure to exercise a minimum degree of care. A.F. was sixteen years old and caring for a premature infant. When A.F. 's school became aware that she had run away, the school referred the issue to the Division. The Division then asked A.B. to contact them pertaining to A.F.; A.B. never did so. Only later did A.B. concede that she was unaware of A.F. 's whereabouts. The caseworker then unearthed that A.F. was living in a residence lacking electricity, so she visited the home to determine its adequacy. When the caseworker concluded that the home was unsuitable, she implored A.B. to sign an emergency removal or to allow the children to return home; A.B. refused both entreaties. A.B. failed to exercise the minimum degree of care. That failure placed A.F.'s physical, mental, and emotional condition in imminent danger of becoming impaired. The Court affirms the panel majority's finding of A.B. 's abuse or neglect of A.F. per N.J.S.A. 9:6-8.21(c)(4). (pp. 17-22)

         4. In Lavigne v. Family & Children's Society, the Court set forth the standard required for the State to prove abandonment under N.J.S.A. 9:6-8.21(c)(5) as "any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." 11 N.J. 473');">11 N.J. 473, 480 (1953). The facts here do not support that A.B.'s conduct amounted to a "settled purpose" to forego her parental rights. The dissent suggested several factors from the record indicating that A.B. had no intention of abdicating her parental rights and duties: A.B. periodically permitted A.F. back into the dwelling; A.B. accompanied A.F. to school to help her get reinstated after suspension; and A.B., upon receiving her own housing, permitted A.F. to return to live with her. The Court reverses the finding of the panel majority and holds that the State did not meet its burden in proving that A.B. willfully abandoned A.F. per N.J.S.A. 9:6-8.21(c)(5). (pp. 22-24)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ- VINA, and SOLOMON join in JUSTICE TIMPONE's opinion.

          OPINION

          TIMPONE JUSTICE.

         This case comes before us as a matter of right from a divided Appellate Division panel. The panel majority upheld the trial court's determinations that defendant A.B. abused or neglected A.F., her sixteen-year-old daughter; that A.B. willfully abandoned A.F.; and that remarks attributed to A.B.'s sister, J.F., were subject to suppression as embedded hearsay. The dissenting panelist disagreed with all three determinations.

         We now affirm the panel majority's judgment that the New Jersey Division of Child Protection and Permanency met its burden of proof concerning A.B.'s abuse or neglect of A.F. We find, however, insufficient proof of willful abandonment and therefore reverse on that issue. We also find that the hearsay evidence was properly suppressed.

         I.

         We marshal the following facts from the record.

         Sixteen-year-old A.F. and her infant son lived with her biological mother, defendant A.B., in an apartment owned by A.B.'s sister, J.F. A.F. and A.B. had a tumultuous relationship, which spurred the incidents that resulted in this case.

         On October 2, 2012, the New Jersey Division of Child Protection and Permanency (the Division) received a referral that A.F. had run away with her infant son in September 2012. The referral included concerns that A.F. smoked marijuana, consumed alcohol, and exhibited inadequate parenting. The Division dispatched a caseworker to interview A.B. at her apartment, where she told the caseworker she had been having difficulty with A.F., who was very disrespectful. A.B. disclosed that A.F. had run away with her infant son several days earlier when A.B. took away A.F.'s laptop and cellphone as punishment for being suspended from school for cursing at a teacher. A.B. tried to reach A.F. by cellphone but, when she refused to answer, A.B. cancelled A.F.'s cellphone service.

         In October 2012, in response to a call from A.F.'s high school, the caseworker went to the high school and met with A.F. During this meeting, A.F. related that she had been staying with various friends since leaving home. A.F. indicated that she had previously returned home to reconcile with A.B. and that they had gone together to the school to have A.F. reinstated. During the conference with the school's Management Crisis Team, A.F. and A.B. got into an argument, and A.B. "made statements that she was close to kicking [A.F.] out of her home." Near ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.