Opinion
DOCKET NO. A-2530-14T2
07-01-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.N.C., Defendant-Appellant. IN THE MATTER OF C.C. and N.C., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth Burke, Designated Counsel, on the briefs. Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-459-13. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth Burke, Designated Counsel, on the briefs. Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant A.N.C. appeals the Family Part's October 1, 2013 finding that she abused or neglected her two young children, C.C. and N.C., by leaving them home unsupervised. The children were eight and five years old, respectively, at the time of the incident that forms the basis of this appeal. Defendant argues that the trial court's finding is not supported by the evidence presented at the fact-finding hearing because her actions were "merely negligent." Defendant further asserts that the court improperly relied on "past conduct" that presented only a possibility of "imminent harm" and "uncorroborated hearsay" statements of her children. The Division of Child Protection and Permanency (Division) and the children's Law Guardian join in opposing the appeal. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
Initials are used to protect the privacy of those involved. See R. 1:38-3(d)(12).
The children's father, G.B., who resided in North Carolina, was not accused of abuse or neglect. Although he actively participated in the proceedings and was represented by counsel at all times, he served solely as a dispositional party.
I.
We derive the following facts from the record. At approximately 6:00 p.m. on June 4, 2013, in Irvington, C.C. and N.C. were found by a neighbor locked outside of the building where they lived in a second-floor apartment. The neighbor flagged down a New Jersey State Trooper in the vicinity and reported that the children were wandering around outside unsupervised. The Trooper contacted the Irvington Police Department, and Patrolman Michael Walker responded. After being let into the building by a third-floor tenant, Officer Walker went into the children's unlocked apartment to look for an adult, but found no one.
When Officer Walker asked the children what happened, the children explained that they were left home while their mother went to work. The children told Officer Walker that their mother told them not to go outside and not to open the door for anyone. While inside the apartment, Officer Walker noted that there was no home phone and little food in the house. Officer Walker transported the children to police headquarters and contacted the Division.
Officer Walker also tried to contact defendant telephonically with a telephone number provided to him by the landlord, but found that the phone number was no longer in service.
Division caseworker Sophia Dupont (Dupont) responded to police headquarters at 7:25 p.m. and took custody of the children. While speaking to the children, Dupont learned that they lived with their mother, but noted that the children were unable to give their accurate ages, and that C.C. could not name the school he attended. The Division effected a Dodd removal, which was later approved by the Family Part. The children were initially placed in a resource home, pending placement with their paternal grandmother.
A Dodd removal refers to the emergency removal of a child from the home without a court order pursuant to the Dodd Act. The Act, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
At the fact-finding hearing conducted on September 30 and October 1, 2013, Dupont and Division Investigator, Melinda Farakan (Farakan), testified for the Division. In addition, the Irvington Police Department Incident Report and the Division Investigation Summary, both dated June 4, 2013, were admitted into evidence without objection. Defendant and her brother, S.B., testified on defendant's behalf.
On September 23, 2013, the scheduled fact-finding hearing was adjourned at the Division's request. Instead, the court conducted a compliance review, during which defendant provided the Division with a list of caretakers for the children as requested.
Dupont testified that when she asked the children how they ended up outside, the children told her that once C.C. came home from school, their mother left for work, leaving them home alone with instructions to not "open the door" or "leave . . . the house." The children explained that if they left the house, "they would get a whooping." When asked whether another adult was there with them, the children replied in the negative and told Dupont that their mother routinely left them home alone.
Upon further questioning, Dupont discovered that the children could not provide any contact information for relatives, did not know where their mother worked, and did not know what to do in the event of an emergency. Dupont also testified that, when she arrived at police headquarters, the children appeared disheveled and unkempt. Their clothing was stained and N.C.'s hair was uncombed. According to Dupont, the children told her that N.C. had eaten a chicken patty earlier, but that C.C. had not eaten. The children explained that they did not eat without their mother being home.
Dupont transported the children to Newark Beth Israel Hospital for a physical examination. While at the hospital, although C.C. consumed a large meal, consisting of one and a half hamburgers, vegetables, cookies, graham crackers, milk and apple juice, he still complained about being hungry. Dupont also testified that during their physicals, the physician found possible cigarette burn marks on N.C.'s back. The marks were described as large patches of scarring as well as several smaller circular burn marks going down her spine.
Both children denied ever being burned with a cigarette.
Dupont learned that defendant reported to the Irvington Police Department at approximately 11:15 p.m. inquiring about her children. After placing the children at a resource home, Dupont arrived at defendant's apartment at approximately 1:00 a.m. the following morning to interview her. According to Dupont, defendant denied leaving her children home alone and claimed that she had left them in the care of her brother, S.B., before heading off to work for the day. Defendant told Dupont that she worked from 8:00 a.m. to 8:00 p.m. and that she left for work that morning at approximately the same time that C.C. left for school.
Curiously, defendant was unable to provide Dupont with any contact information for S.B., explaining that he did not have a telephone and that she had kicked him out of the house for leaving the children alone. Defendant admitted to Dupont that S.B. had left the children alone in the past for a short period of time and that S.B. was "not reliable at times," but explained that she had no other resource.
During the in-home interview, Dupont confirmed Officer Walker's report that there was no food in the home. In addition, upon inquiring about the marks on N.C.'s back, defendant told Dupont that the large mark was a surgical scar from treatment of a hemangioma. However, defendant was unable to explain the smaller circular marks on N.C.'s back.
A birthmark commonly referred to as a "strawberry."
Farakan received the case at 9:10 a.m. on June 5 and was aware from Dupont's earlier interview of defendant that the children's uncle was supposedly responsible for watching them. Farakan testified that when she interviewed the children and asked them specifically if their uncle was watching them, they replied that he was not and that they were home alone. According to Farakan, the children also told her that they were repeatedly left home alone, and received "whoopings" when they were bad. Farakan also corroborated Dupont's description of the children's appearance as disheveled and unkempt. In addition, C.C. told Farakan that he did not eat every day, but that N.C. sometimes did.
Farakan testified that as soon as she received the case, she verified that although defendant had a previous history with the Division, all prior allegations were unfounded.
Farakan interviewed defendant at her mother's house in East Orange at approximately 5:10 p.m. on June 5. During the interview, defendant reiterated that she did not leave her children home alone but rather in the care of her brother. When asked about the lack of food in the home, defendant explained that she had lost her debit card and was waiting for the new card to arrive in the mail in order to replenish the food supply. Defendant told Farakan that, in the interim, there was enough food for one day of meals in the house consisting of "chicken nuggets" and "[o]odles of [n]oodles."
Defendant testified on her own behalf reiterating that she had left her children with her twenty-six-year-old brother, S.B., who had lived with her and the children for approximately four months prior to the incident. According to defendant, in exchange for staying with her, S.B. was responsible for caring for the children and cleaning the house. Defendant admitted that S.B. had no phone and her phone was shut off at the time of the incident.
According to defendant, as a single mother, she worked twelve-hour shifts from 8:00 a.m. until 8:00 p.m. as a home health aide to support her family, and she traveled approximately two hours utilizing public transportation to get to and from work. Defendant explained that on the day in question, she was running late and left for work at 7:45 a.m., leaving the children in the care of her brother. According to defendant, when she left for work, S.B. was getting C.C. ready for school and N.C. was still asleep. Once dressed for school, S.B. normally took C.C. to the front porch to catch the bus.
Defendant testified that she was unaware that anything had happened until she left work at 8:00 p.m. and arrived home to an empty house at 10:00 p.m. According to defendant, she inquired about the whereabouts of her children and her brother with her landlord, and called her mother with a borrowed phone, all to no avail. Finally, she went to the police station out of concern and learned that her children were in the custody of the Division and that caseworkers would come to her home to interview her, prompting her to return home to await their arrival.
According to defendant, before speaking with the caseworkers, S.B. returned to the apartment at about midnight seemingly "high and exhausted and [acting] as if . . . he didn't care about anything." Defendant stated that she was enraged about him leaving the children unattended, and threw him out of the apartment. She testified that the two later reconciled, and he was now ready to testify to what he had done.
During the Division's case, Farakan testified that defendant denied using any illicit substances.
Defendant also testified that the children's statements to the caseworkers were not reliable because the children were confused. Defendant explained that C.C. has cognitive and speech delays, lacks comprehension, and does not communicate well. According to defendant, C.C. does not always understand everything and is "basically a parrot . . . he doesn't really think everything out logically on his own."
Defendant explained that her admonition to her children to not open the door was simply an overarching rule in their house, one that she had to reiterate to C.C. daily. According to defendant, C.C. required constant supervision because he had a tendency to do irrational things out of curiosity, such as jumping out of a window or climbing on a chair in order to unlock the door and "go roaming around."
Defendant also explained the source of the strawberry mark on N.C.'s back, but claimed that she did not know where N.C. could have acquired any other marks, as she "would never hurt [her] children [under] any circumstances." Defendant admitted to the lack of food in the apartment but attributed it to her losing her debit card. Defendant also admitted not having a home phone or a working cell phone at the time in question.
On cross-examination, defendant denied that she had told the caseworker that S.B. was unreliable or that he had left the children alone in the past. Instead, defendant claimed that she told the caseworker that S.B. merely went out onto the front porch. Defendant also denied having testified moments before on direct examination that her brother had come home "high," claiming instead that her brother had come home "hot."
S.B. testified on defendant's behalf. Contrary to defendant's testimony, he testified that he had been living with defendant, C.C., and N.C. for about eight months, not four. According to S.B., in exchange for him staying with them, he was responsible for watching the children, cooking, and cleaning. S.B. testified that he was watching the children on the date in question but stated that defendant left for work prior to 7:00 a.m., not 7:45 a.m. as she had testified.
According to S.B., after he got C.C. off to school, and while N.C. was still sleeping, he left the apartment at about 11:30 a.m., to go to the store to get cigarettes, and then just "drifted off[,]" ending up in East Orange. S.B. testified that when he eventually returned that night at about midnight, defendant was crying and told him to "get out." S.B. also testified that this was the first time he had ever left the children alone. On cross-examination, S.B. admitted not having a working telephone but denied smoking marijuana that day.
Following summation, the court issued an oral opinion from the bench, finding that the Division had demonstrated by a preponderance of the evidence that defendant left her children home alone, with no food, no phone and unkempt, and that her actions constituted abuse and neglect. The court reasoned:
It seems clear to me that these children were clearly left alone. And despite what [defendant] says and her brother's story[,] it just doesn't make sense. Nobody just walks out on . . . four and eight year old children and . . . leaves them alone. It just doesn't make any sense.
I think the brother is clearly trying to help. But the children . . . didn't say the uncle was watching them. They said he didn't even live there. . . . [I]f he was living there for eight months they didn't know their uncle is there? A member of the household, had no idea . . . that he was there? I mean this story's incredible. There's no phones. The kids were clearly not in very good shape when they were found. Clearly left alone. They said this was . . . not an unusual event for them. There's no food left for them.
We have an unreliable caretaker [whose] story is totally incredible too. And he takes off to get cigarettes and doesn't show up for ten hours -- for nine hours, eleven hours later. . . . [T]here's no phone, there's no phone number. The kids aren't left anything. There's no emergency backup.
There's no concern at all for these children whatsoever.
They weren't cared for well. There were medical issues involved. There was the clothes they were wearing, the way they were kept. No food in the house. It just shows a total, an absolute disregard for the needs of these children and abandonment of these children . . . and irresponsibility.[]
After the court ruled, defendant lost her composure in the courtroom and urged the court to "sign the kids over to [her] mother [because she was] not about to go through this torment in [her] life." Her attorney removed her from the courtroom to try to calm her down. Once defendant returned to the courtroom, at the Division's request, the court ordered her to undergo anger management counseling and submit to a urine drug screen, prompting further outbursts by defendant and ultimately resulting in her asking to be excused from the proceedings. Following placement with their paternal grandmother, the children were to be placed with their maternal grandmother while defendant resided there, essentially effectuating reunification. However, as a result of defendant's courtroom outbursts, legal and physical custody of the children was transferred to their father in North Carolina following completion of an expedited home assessment. After defendant completed the court ordered services, the children's father and defendant participated in court ordered mediation, resulting in a consent agreement returning the children to defendant's custody in New Jersey at the end of the school year. Thereafter, the litigation was terminated by order dated December 12, 2014.
On January 23, 2015, defendant appealed the court's ruling, raising the following arguments:
POINT I
THE FINDING OF ABUSE AND NEGLECT SHOULD BE REVERSED BECAUSE [A.N.C.'s] DECISION TO LEAVE HER CHILDREN WITH AN UNRELIABLE CARETAKER WAS MERELY NEGLIGENT.
POINT II
THE FINDING OF ABUSE AND NEGLECT SHOULD BE REVERSED BECAUSE THE LOWER COURT'S DECISION WAS BASED ON PAST CONDUCT THAT [A.N.C.] CORRECTED BY THE FACT-FINDING.
POINT III
THE LOWER COURT'S DECISION SHOULD BE REVERSED BECAUSE IT IS NOT SUPPORTED BY CREDIBLE RELIABLE EVIDENCE.
A. THE LOWER COURT IMPROPERLY RELIED ON UNCORROBORATED HEARSAY STATEMENTS OF THE CHILDREN (Not raised below).
B. THE DOCTRINE OF INVITED ERROR DOES NOT PRECLUDE [A.N.C.] FROM RAISING THE POINT ABOVE.
II.
Our scope of review on appeal is narrow. "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence'" in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We accord particular deference to a Family Part judge's fact-findings "[b]ecause of the Family Part's special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We recognize that the judge had "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [and had] a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). When the issue presented turns on a legal conclusion derived from the family court's factual findings, however, this court accords no deference. N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." P.W.R., supra, 205 N.J. at 33. The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); see also N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). The trial court in turn determines whether the child is abused or neglected by "the totality of the circumstances." Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 401 (App. Div. 2014).
N.J.S.A. 9:6-8.21(c)(4) provides that an "abused or neglected child" means an individual under the age of eighteen
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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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[.]The statute does not require that the child experience actual harm, and, in the absence of actual harm, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
The abuse or neglect standard is satisfied when the Division demonstrates that a parent "has failed to exercise a minimum degree of care." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. Thus, it is "grossly or wantonly negligent, but not necessarily intentional," conduct that falls below the "minimum degree of care" required to hold the parent liable. Id. at 178 (citation omitted).
The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Conduct is willful or wanton if the actor has "knowledge that injury is likely to, or probably will, result" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant[,]" and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences[.]" Id. at 179.
Also, "the elements of proof are synergistically related" and "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329-30 (App. Div. 2011) (citation omitted). However, if an isolated act "appears to be aberrational," labeling the parent a child abuser may be inappropriate. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), appeal dismissed, 208 N.J. 355 (2011). See also N.J.A.C. 10:129-7.5(b)(3) (recognizing the isolated or aberrational nature of the conduct as a mitigating factor when determining if abuse or neglect is established).
In this case, under the totality of the circumstances, we affirm the court's finding of abuse and neglect because it is supported by adequate, substantial, and credible evidence in the record. The judge found that defendant abused and neglected her children by failing to provide proper supervision as well as adequate food and clothing. In so doing, the judge found sufficient evidence to establish both actual harm and substantial risk of harm. In finding that defendant's conduct caused actual impairment, the judge noted that the children were not "cared for well," as evidenced by the children's statements about infrequent meals, the paucity of food in the home and C.C.'s ravenous appetite at the hospital. Moreover, the children's unkempt appearance reflected weeks of inattention rather than an isolated instance of neglect.
Further, defendant herself acknowledged the inherent dangers in leaving her young children home alone, by referencing C.C.'s tendency to do irrational things, such as unlocking the door to roam around outside, as occurred here. By defendant's own admission that C.C. required constant supervision, she demonstrated that her actions constituted, at the very least, "gross negligence." Moreover, by virtue of the children's statement that defendant left them alone routinely and the absence of a working phone in the apartment in the event of an emergency, the judge correctly found that defendant's conduct posed a substantial risk of imminent harm.
Defendant contends that the court erred as a matter of law in determining that leaving her children with S.B. qualified as abuse and neglect. Defendant relies on Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294 (2011), and N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009), to support her argument that her actions constituted mere negligence, rather than the gross or wanton negligence required to trigger the proscriptions of N.J.S.A. 9:6-8.21(c)(4).
Defendant's argument misconstrues the import of the judge's ruling. The judge rejected defendant's testimony that she left her children in the care of her brother and dismissed S.B.'s attempt to corroborate his sister's account. Simply put, the judge did not believe that defendant left her children in the care of her brother, but, rather, that she left her children unattended. In evaluating defendant's and S.B.'s credibility, the judge considered the fact that the children never mentioned an uncle, although defendant and S.B. claimed he lived with them; that defendant contradicted herself and her brother while testifying; and that S.B. provided no real explanation for his absence.
Notably, defendant contradicted herself by initially describing S.B. as "high" when he arrived at her apartment during her direct examination, but, moments later, denying that statement on cross examination and asserting instead that she had described S.B. as "hot." There were also inconsistencies between defendant's and S.B.'s testimony as well as the sheer improbability of S.B.'s account. Specifically, defendant claimed that, notwithstanding a lengthy commute, she left for work at 7:45 a.m. for an 8:00 a.m. shift, while S.B. testified that defendant left for work before 7:00 a.m. Further, S.B. claimed that he left the apartment at 11:30 a.m., leaving N.C. sleeping and having sent C.C. off to school, which would mean that C.C. could not have been let back into the apartment after school. Indeed, the more plausible account was the children's account that once C.C. came home from school, defendant left for work, leaving them home alone with instructions to not "open the door" or "leave . . . the house." The judge's assessment of the witnesses' credibility is supported by the record and entitled to our deference. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
Defendant contends that since her children were not at imminent risk of harm at the time of the fact-finding hearing, the judge erroneously based the finding of abuse and neglect solely on her past conduct. She points to our decision in N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif. granted, 220 N.J. 41 (2014), and appeal dismissed and remanded for reh'g, 223 N.J. 160 (2015), and asserts that even if there was evidence that the children were at risk of harm at the time of the incident that prompted the Title 9 proceeding, she had rectified the basis for the Division's involvement by the time of the fact-finding hearing by partially completing services and providing the Division with a list of caretakers for the children.
Our Supreme Court recently considered such an argument in N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166 (2015). In E.D.-O., the Court explicitly rejected the notion that courts should consider the substantial risk of harm that children face at the time of an abuse or neglect proceeding; rather, the Court held that trial courts should focus on the substantial risk of harm that children faced at the time of the incident giving rise to the Title 9 proceeding. Id. at 187-90. We accordingly reject defendant's argument to do otherwise.
In E.D.-O., the Court did make clear that "[f]ocusing on a parent's conduct at the time of the incident to determine if a parent created an imminent risk of harm to a child does not preclude ever considering the risk of harm posed by a parent at the time of the hearing[,]" in fashioning a disposition "based on current circumstances." Id. at 189. In this case, the court correctly suspended a dispositional hearing to permit further supervision and remediation in light of defendant's courtroom outbursts urging the court to remove the children from her custody and refusing to participate in services or drug screens. --------
Defendant also argues for the first time on appeal that the court improperly relied on the uncorroborated hearsay statements made by her children to the caseworkers. Defendant claims that the statements provided only possible evidence that she had left her children alone in the apartment, rather than in the care of her brother as she and S.B. had testified. Given the significance of those statements, and under this court's holding in N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155 (App. Div. 2003), defendant argues that the court should have conducted an in camera interview of one or both of the children, particularly since the children's inability to state their accurate ages, or where their mother worked or where C.C. attended school belied the reliability of their statements.
Defendant argues that the doctrine of invited error should not bar her from raising this issue for the first time on appeal. Defendant asserts that application of the doctrine would cause a fundamental miscarriage of justice, rather than simply harmless error. In M.C. III, defense counsel failed to object to the admission of various documents at an abuse and neglect fact-finding hearing, and, on appeal, defendant argued that the documents were improperly admitted into evidence. M.C. III, supra, 201 N.J. at 332. The Supreme Court invoked the doctrine of invited error, reasoning that defendant's failure to object "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling." Id. at 341. The Court concluded that "on appeal, [defendant] may not protest the admission of the documents after he agreed to their admission at trial." Id. at 332.
In this case, in the absence of an objection to the children's statements, the same result obtains, but even if the invited error doctrine does not dispose of defendant's argument, the court did not err. In L.A., the trial court denied the mother's request for an in camera interview with her twelve-year-old daughter, whose statements made to a Division worker formed the basis of several findings of fact made by the trial court in determining that her mother had abused and neglected her. L.A., supra, 357 N.J. Super. at 160-62, 168-70. This court reversed the trial court's finding of abuse and neglect, holding that the daughter's statements were uncorroborated by any credible evidence and improperly admitted at the fact-finding hearing. Id. at 167. The court determined that inasmuch as "[t]rial judges have broad discretion in abuse and neglect cases . . . to conduct a private examination of a child[,]" an in camera interview with the daughter was "critical because, with her prior statement excluded, the finding of abuse and neglect is thinly supported." Id. at 168-69 (citing N.J. Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 7 (App. Div.), certif. denied, 91 N.J. 572 (1982)).
In this case, the children's statements were admissible and an in camera interview was unwarranted. Pursuant to N.J.S.A. 9:6-8.46(a)(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." Thus, a child's uncorroborated hearsay statement, although admissible, "may not be the sole basis for a finding of abuse or neglect." P.W.R., supra, 205 N.J. at 33. Here, the children's statements were neither uncorroborated nor the sole basis for the court's findings. Although the judge did acknowledge the children's statements to the caseworkers that their uncle did not live with them and was not watching them on the day in question, the judge based his findings in large part on the fact that the children were found wandering around outside unsupervised and the explanations given by defendant and her brother were incredulous.
Moreover, the children's statements were sufficiently corroborated. In N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61 (App. Div. 2014), this court held that circumstantial evidence may corroborate out-of-court statements admitted into evidence in an abuse and neglect fact-finding hearing "so long as it provides some support for the out-of-court statements." Id. at 67. In this case, the fact that the children were found unsupervised corroborated their statements to the caseworkers that they were left alone. Likewise, the children's repetition of their mother's admonition not to open the door to anyone, which was corroborated by defendant's own testimony, provided additional support for the children's statements. Further, the paucity of food in the apartment and C.C.'s ravenous appetite at the hospital corroborated the children's statements regarding their nourishment and their disheveled and unkempt appearance objectively evidenced neglect. Thus, ample circumstantial evidence sufficiently corroborates the children's statements to justify the court's limited reliance and uphold the court's finding of abuse and neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION