Opinion
DOCKET NO. A-5808-11T1
05-10-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. N.M., Defendant-Appellant. IN THE MATTER OF J.K., JR., and JO.K., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth A. Harrigan, Designated Counsel, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-224-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth A. Harrigan, Designated Counsel, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant N.M., the mother of J.K., Jr. ("James"), appeals the trial court's determination after a fact-finding hearing that she abused or neglected her infant James in violation of N.J.S.A. 9:6-8.21(c)(4). The court adopted the contentions of the Division of Youth and Family Services ("the Division") and the Law Guardian that defendant had negligently entrusted James to his father, J.K. ("the father"), while she was at work, resulting in the father severely injuring James, inflicting upon him skull fractures. Applying our limited scope of review of the judge's findings, we affirm the findings of abuse or neglect. We also sustain the judge's evidentiary rulings that are challenged on appeal.
We use fictitious names for the children mentioned in this opinion.
I.
The proofs at the November 29, 2011 fact-finding hearing established the following facts, which are substantially undisputed and which are mainly the subject of disagreement as to their legal significance.
Defendant gave birth to James on May 5, 2010. She is not married to James's father, her boyfriend at the time. Neither defendant nor the father apparently have any other older children.
On June 10, 2010, the Bayonne Police Department notified the Division about its receipt of a telephone call from defendant, in which she reported that the father had choked her, thrown her to the ground, and shaken their one-month-old baby, James. As a result of this reported incident, defendant obtained a Temporary Restraining Order ("TRO") for domestic violence against the father but did not pursue a final restraining order. In her TRO application, defendant indicated that the father had threatened to kill both defendant and James.
After a physical examination on June 10, 2010, James was found to be uninjured from that particular incident. The Division investigated the matter and learned that defendant had since separated from the father and moved in with James's maternal grandmother, V.K. The Division closed the case in November 2010, based upon V.K.'s representation that her daughter and her grandson had relocated to South Carolina. In fact, defendant had returned to New Jersey in September 2010 and moved back in with V.K. Defendant then obtained her own apartment in New Jersey in early October 2010. The father then moved back in with her, after he was ejected from his own father's residence.
Defendant herself reported that she went to North Carolina.
On Sunday, November 7, 2010, defendant went to work and left James in the care of the father. At the time, James was six months old. After defendant headed to work, the father brought James to the apartment of James's paternal grandmother, B.G., to see if she would watch the baby for him. When the father arrived at B.G.'s apartment, B.G. apparently told him that she was sick and unable to watch James. The father then decided to leave James at the apartment of a neighbor of B.G.'s. Shortly thereafter, the neighbor's ten-year-old daughter informed B.G. that James was crying "non-stop." B.G. called V.K. about the situation, who, in turn, called defendant at work.
Defendant left work and went home to meet V.K., who had picked James up from the neighbor's apartment. Defendant observed that James was crying continually and that his coloring was red. Since both defendant and the father had recently been sick, she believed that James' fussy behavior was due to the possibility of him having caught their cold.
The next day, Monday, November 8, 2010, defendant observed that James continued to act oddly. She described James as "fussy" throughout the whole day on Monday, noting that he would not go to sleep and not take his usual bottle that day. James eventually fell asleep around 2:00 p.m. that afternoon. Around the same time, defendant went to work, leaving James with the father.
When defendant returned home from work on Monday around 11:30 p.m., James was sleeping, which the mother considered unusual. Later that night, James vomited when the father gave him a bottle.
Defendant does not specifically recall James vomiting on Monday night after she returned home from work. However, the father apparently reminded her that she was in the room when it happened.
On Tuesday, November 9, 2010, defendant noticed a red mark on James's forehead, and that his complexion also was red. She gave James two bottles that morning, the contents of which he vomited. Defendant telephoned V.K. multiple times to let her know that something was wrong with the baby. That afternoon, defendant and V.K. attempted to take James to the pediatrician, but the pediatrician's nurse turned them away allegedly due to medical coverage issues. Defendant then took James to the Emergency Room at Bayonne Medical Center for an evaluation, at around 5:17 p.m. James was transferred to the pediatric intensive care unit at St. Peter's Hospital ("St. Peter's") around 9:37 p.m. that night.
On Wednesday, November 10, 2010, a referral was called into the Division's Child Abuse Hotline, advising of James's injuries. It was reported that the injuries were non-accidental and suspicious.
Workers from the Division's Special Response Unit ("SPRU") went to St. Peter's and learned that James had suffered a subdural hematoma on the left side of his brain and a skull fracture. Additionally, there was evidence of retinal hemorrhaging in James's left eye and two smaller retinal hemorrhages in his right eye.
Later that evening, at approximately 8:50 p.m. the Division's SPRU Workers met with defendant and the father, in the company of Hudson County Prosecutor's Office Special Victims Unit ("SVU") personnel. The parents apparently surmised at that time that James had been injured on Sunday, November 7, 2010, when the father had left the child in the care of B.G.'s neighbor. The joint interview of the parents was stopped once it was learned that B.G.'s neighbor had a history of sexual abuse of a minor. Detective Grace Garces of the Prosecutor's Office then conducted separate individual audiotaped interviews of each parent. The Division's SPRU workers were also present during these individual interviews.
The father told the SVU detectives during his interview that he had babysat James on Monday, November 8, 2010, while defendant was at work. The father stated he had James in a car seat next to him, as he played video games that day. He described James as being fussy, but added that James usually "shuts up" when given a bottle. The father also stated that James had been vomiting, crying, and not acting normally on Monday night.
In her own interview, defendant similarly told investigators that James was not "acting right" on Monday, as he was fussy all day and did not take his usual naps. Defendant stated that she was not aware that James had thrown up on Monday night, but acknowledged that he vomited multiple times on Tuesday morning. She claimed she was unaware of anyone hurting her son, being under the impression that something must have happened to him Sunday night when he was at B.G.'s neighbor's apartment.
Defendant admitted to the SVU detectives that she had lied when she called the police in June 2010 regarding the domestic violence incident. According to defendant, she was not holding James at the time the father choked her, and the father had not injured the baby. Defendant claimed she made these allegations in 2010 out of spite, because she did not then want the father seeing James anymore. Defendant also stated that she thought "because [the father] went after me, so I figured, eventually he would try to go after the baby."
On November 16, 2010, the Division filed a verified complaint in the Family Part seeking care and custody of James, following an emergency removal. The trial court approved the child's removal, finding that it was necessary to avoid imminent danger to him because of his serious injuries that were still under investigation.
This is known as a "Dodd removal," pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
On November 18, 2010, the father was arrested by Hudson County police, pursuant to a warrant previously issued in connection with the June 10, 2010 domestic violence incident. At the SVU, the father then gave a post-arrest taped confession to Detective Joseph Chesseri, in which he admitted to choking defendant on June 10, 2010, as well as injuring James on November 8, 2010 by tossing the child into his car seat from an approximate height of two feet.
On November 30, 2010, defendant gave a second interview at the SVU. Detective Garces conducted the first twenty minutes of the interview, which was videotaped. Before this interview began, the detective placed defendant under oath and read her Miranda rights, which defendant acknowledged that she understood both orally and in writing. Defendant did not request counsel.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was first questioned about the domestic violence incident that occurred in June 2010. She admitted that during that incident, the father choked her three times and threw her to the ground, and that the third time he choked her she was holding the baby in her lap. The attack stopped when the baby's paternal grandfather intervened.
Defendant stated that, at the time of the June 2010 domestic violence incident, the father was not interested in James, but that she believed he progressively "got better" thereafter with the baby. Defendant stated:
Although the video recordings played for the trial court were not transcribed, we have attempted to repeat defendant's quoted oral statements as accurately as possible after listening to the tapes.
The fact that this [recent injury to James] happened, I'm kind of shocked, but I'm kind of not shocked. Do you know what I mean? It's like, he's our son, you know, like I would never hurt that baby, and the fact that somebody would, and him of all people, it like kills me. You know what I mean? Like, it's like I could have made better choices in my life and I didn't. I'm sorry.Defendant admitted that she had lied about the domestic violence incident the last time she had talked to the detective because she knew that the father would be a suspect. She explained that she was trying to protect him, and, referring to James's injuries, that she did not think he was capable of doing something like this.
Detective Garces then asked defendant questions about the father and his relationship with James. Defendant responded that she was never suspicious that the father would lose his temper around the baby, but admitted that he was not "the best" father. Defendant told the detective that the father would get annoyed when he had to watch James, because he wanted to do other things, such as be with his friends. Defendant recalled that once in October 2010 the baby had a black eye after the father had watched him. According to defendant, the father had explained to her that the black eye had been innocuously caused from him bumping the baby's head when taking him out of the car seat.
After approximately twenty minutes into the interview, Detective Garces left the room and reappeared with a Lieutenant Spirito, who had been watching the interview from outside the room. The lieutenant questioned defendant on various topics, including the domestic violence incident from June 2010, the father's past actions, and friends and family members that had regular contact with James. Defendant told the lieutenant that the father was not James's regular babysitter, and that he would only watch the baby "once in a while."
The lieutenant's first name is not indicated in the appellate record.
At the end of the interview, defendant stated:
There [were] a couple of incidents with [the father] where he would get violent with me when we first started dating, like back a while ago. But he wasn't violent, it [was] just like he'd push me, shove me.
. . . .
Sometimes with the baby, he would get like aggravated. Like I would yell at him about this but he would like scream.
. . . .
[H]e only did that in the beginning when the baby was first born.
. . . .
He was mistreating the baby so it was another reason why I left.
On December 10, 2010, at the hearing in the Family Part on the return of the Order to Show Cause, the court ordered that James was to remain in the Division's custody, at least until the investigation of James's injuries was completed. The court also granted defendant liberal supervised visitation of James, at a facility known as Hudson Cradle.
Meanwhile, on May 29, 2011, defendant gave birth to another son, Jo.K. ("Jonah"), with the same father. The Division conducted an emergency Dodd removal of Jonah, and amended its complaint accordingly in the Family Part to include Jonah. The trial court approved Jonah's removal because the significant injuries to his older brother were still unexplained. In August 2011, defendant began weekly supervised visitations with James in her home.
The fact-finding hearing on the abuse and neglect allegations against defendant and the father took place on November 29, 2011. The court considered various exhibits admitted generally without objection including James's medical records from various providers, the Division's screening summary, the SPRU response summary, the June 2010 TRO, SVU investigation reports, the father's judgment of conviction, and other items. The court also considered defendant's videotaped interviews over certain objections by defense counsel.
Defendant made certain hearsay objections to portions of the screening summary and the SPRU response summary, but does not press those objections on the present appeal.
Following the admission of the documentary exhibits, the father stipulated that he had abused and neglected James. As part of his stipulation, the father admitted that on November 8, 2010, he had thrown James into a car seat, causing him to suffer brain injuries. The father also acknowledged that on July 26, 2011, he had pled guilty to aggravated assault of James in connection with the November 8, 2010 incident. The father was sentenced to four years of imprisonment.
After the father's stipulation, the trial proceeded solely against defendant, on a theory that she had negligently entrusted James to the father. The Division presented testimony from Detective Garces, who indicated that she interviewed defendant on November 10, 2010 at St. Peter's and then a second time on November 30, 2010 at the SVU. Both videotaped interviews were played in full during the hearing. Detective Garces explained that the November 30 interview occurred after the father had been arrested, to ascertain whether defendant had knowledge of the assault or if she had previously lied to the investigators about the father's conduct.
After a portion of the November 30 interview tape was played, defendant's counsel objected based upon relevancy. Defense counsel argued that the second interview was not relevant to the circumstances surrounding defendant's decision to have the father babysit James. The court overruled the objection, finding that the interview was indeed relevant to the charges of endangering the child by knowingly placing him with a person who had a history of wrongful behavior.
Several minutes after the videotape presentation resumed, defense counsel renewed the relevancy objection. The court again rejected defendant's position, finding that the line of questioning was "very probative" with respect to defendant's credibility as to who watched the baby, when, and how often.
Defense counsel thereafter objected a third time to the relevancy of the interview after defendant discussed James's November 10, 2010 hospitalization. The court overruled this objection as well, noting that the questions being posed on the tape related to defendant's knowledge of the father's abusive tendencies, i.e., what she knew and what she should have known.
Defendant did not testify on her own behalf at the fact-finding hearing. She only called the father, who briefly testified. No experts appeared for either party, although the court had the benefit of the information presented in the child's medical records.
Upon considering the proofs, the trial judge, Hon. Lois Lipton, J.S.C., concluded that the Division had established defendant's abuse or neglect of James by a preponderance of the evidence. More specifically, Judge Lipton was persuaded that defendant had neglected James, within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), by permitting the father to care for him while she was at work thus placing James at risk of injury, when defendant knew or should have known that the father was prone to violence.
In her oral decision, Judge Lipton observed that defendant's recorded statements reflected that she had reason to have serious concerns about the father, and that she therefore should have never left the baby in the father's care. The judge noted that defendant's acknowledgment that the father was not the "normal [baby]sitter" for the baby corroborated the Division's theory that defendant had such concerns about him as a caregiver. Additionally, the judge pointed out that, by defendant's own account, the father had not shown much care about James, was often not home, and was not generally involved in the baby's life.
Judge Lipton also found it significant that the father had previously exhibited violence towards defendant and the baby in June 2010, and that there had been a warrant out for his arrest. In addition, the judge found it "clear" that defendant was aware of the father's violent tendencies, as she had felt the need to leave him immediately following the domestic violence incident in June 2010.
Based upon these findings, the trial court entered a final judgment on November 29, 2011, finding defendant liable for the abuse or neglect of her son. Several months later in March 2012, the trial court returned legal and physical custody of James and Jonah to the mother. The Title 9 litigation was closed in the trial court on June 7, 2012. This appeal followed.
On July 5, 2012, the trial court approved a second removal of James and Jonah from the care of defendant, based on allegations that defendant had become involved with a boyfriend who refused to provide the Division with any identifying information and who subsequently sexually assaulted defendant in front of her children. We do not consider those allegations in connection with the present appeal.
II.
Defendant argues that the trial court's finding of abuse and neglect must be reversed because there is no substantial credible evidence in the record to support that finding. She further argues that the trial court erred in admitting into evidence her videotaped November 30, 2010 interview and the related supplemental investigation report from the prosecutor's office. We reject those contentions.
Title 9 is a comprehensive statute that addresses conduct of abuse or neglect that harms or endangers a child. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 18 (2013). An overarching purpose of Title 9 is to protect children "who have had serious injury inflicted upon them" and ensure they are "immediately safeguarded from further injury and possible death[.]" N.J.S.A. 9:6-8.8(a). The statute's primary concern is the safety and protection of the children and "not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).
In a Title 9 case, the court must conduct a fact-finding hearing to determine whether a child has been abused or neglected. N.J.S.A. 9.6-8.44. The Division must prove by a preponderance of the evidence that the child is abused or neglected and "only competent, material and relevant evidence" can be admitted. N.J.S.A. 9:6-8.46(b)(2). If the court finds abuse or neglect, it may order further relief and direct the Division to provide appropriate services to protect the child and rehabilitate family life. A.L., supra, 213 N.J. at 19 (citing N.J.S.A. 9:6-8.50(d), (e)).
Germane to the present context, N.J.S.A. 9:6-8.21(c)(4) provides, in relevant part, that an abused or neglected child is:
a child 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, as herein defined, to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting orThe Supreme Court has explained that a parent's "failure to exercise a minimum degree of care" does not require an intentional act, but rather encompasses "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 177-78. Conduct is considered to be wanton or willful if it is done with reckless disregard for the safety of others. Id. at 179. As long as the act that causes injury is done intentionally, the actor is liable for the foreseeable consequences of such actions, regardless of whether the actor actually recognizes the highly dangerous character of his conduct. Ibid.
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[.]
Defendant argues that the fact-finding order against her must be reversed since there is not substantial credible evidence in the record to support the trial court's conclusion that she abused or neglected her child. In particular, defendant claims that the court incorrectly recited the facts relating to the June 2010 domestic violence incident. Additionally, defendant argues that the Division presented no evidence to show that she was aware that the child would suffer harm if left in the father's custody.
Among other things, defendant asserts that the trial judge incorrectly stated on the record that the baby had been thrown to the ground during the incident. However, the trial judge thereafter corrected herself in her bench ruling, noting that only defendant had been thrown to the ground.
Having considered defendant's claim of insufficiency of the evidence, in light of the applicable law and the record as a whole, we affirm Judge Lipton's finding, substantially for the reasons expressed in the judge's November 20, 2011 bench decision. Our appellate review of a trial court's findings of fact is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Moreover, family courts have special expertise on matters involving the welfare of children and "'appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Unlike this court, the Family Part judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "has '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. E.P., 196 N.J. 88, 104 (2008). The trial judge's findings may not be disturbed unless they are so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Defendant has failed to meet this substantial burden.
There is more than an ample basis in the record to sustain the trial judge's reasonable finding that defendant neglected her young son James by permitting him to be left alone with the father. Although the exact chronology of the June 2010 domestic violence incident is somewhat disputed, it is clear from defendant's own statements that the father choked her at least two times that day, and at least once while she was holding the baby in her lap. In reaction to that violent incident, defendant left the father and moved to North Carolina with the baby, indicating that she was aware of the risk that the father's behavior had posed to her and her child.
It is also apparent that defendant knew the father was immature, irresponsible, and easily annoyed by having to take care of his son. During her second interview, defendant stated "the fact that this happened, I'm kind of shocked, but I'm kind of not shocked." Defendant also acknowledged that the father was rarely home and was not "the best" father. Defendant further admitted that the father would only babysit when she could not get another sitter, indicating that she had concerns about him.
After spending only a few weeks away from the father in North Carolina, defendant moved back to New Jersey, and eventually permitted the father to move back in with them, despite having previously obtained a restraining order against him. Defendant's inappropriate decision-making ultimately resulted in James suffering grave injuries, inflicted by the father. The trial court reasonably perceived that she had failed to take adequate precautions to assure her child's safety. There was no contention that defendant was in an emergency situation, or that she would have lost her job if she had stayed home with her infant.
Although we have empathy for defendant and understand why she ideally would want her son's father to have a future relationship with him, the trial court's rational conclusion that defendant had failed to guard her son adequately against the risks of violent harm should not be disturbed. There is substantial credible evidence in the record supporting a finding that defendant failed "to exercise a minimum degree of care" to protect the child from "unreasonably inflicting . . . harm, or substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4). Defendant's conduct in entrusting her infant to his violent father rationally may be viewed as "grossly or wantonly negligent." G.S., supra, 157 N.J. at 178.
We likewise reject defendant's evidentiary contentions. To be sure, the evidence relied on by the Division in a Title 9 fact-finding hearing must be "competent, material and relevant." N.J.S.A. 9:6-8.46. Additionally, Title 9 fact-finding hearings must be conducted with formality and adhere to fundamental evidentiary rules. See N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008). Even so, we accord substantial deference on appeal to the trial judge's evidentiary rulings, and generally do not interfere unless those rulings amount to a denial of justice. N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012).
Here, the trial judge reasonably found that the information elicited from defendant during her November 30, 2010 interview was relevant. See N.J.R.E. 401. The questioning appropriately related to past incidents, including the June 2010 domestic abuse episode, which is relevant to defendant's awareness of the risk in placing her son with his father. Likewise, the questioning related to how often defendant left James with the father as well as defendant's rationale for leaving the baby with him. That questioning was relevant to whether it was prudent of defendant to leave this young child with his violence-prone father. Similarly, the questioning pertaining to events leading up to and immediately after James' hospitalization, particularly the interactions that defendant had with the father, are relevant to defendant's mindset at the time she entrusted the child to him. Moreover, the probative value of this relevant proof was not substantially outweighed by considerations of prejudice. N.J.R.E. 403.
Defendant further argues for the first time on appeal that the November 30, 2010 interview and the accompanying supplemental investigation report detailing that interview should not have been admitted into evidence because they allegedly violated her constitutional and statutory rights. We disagree.
Defendant first asserts in this regard that the November 30, 2010 interview violated N.J.S.A. 9:6-8.36, which provides, in relevant part, that statements made to Division workers by a potential respondent during a preliminary conference may not be admitted into evidence at a subsequent fact-finding hearing. Defendant's invocation of this provision is misguided for two reasons. First, by its own terms, N.J.S.A. 9:6-8.36 only pertains to statements made in preliminary conferences that occur prior to the filing of a Title 9 complaint. Ibid. The November 30, 2010 interview of defendant was conducted after the Title 9 case was well underway. By the time that interview occurred, the Division had already filed a verified complaint and the trial court had issued an order to show cause on November 16, 2010. Since the November 30, 2010 interview session was not a preliminary conference, N.J.S.A. 9:6-8.36 does not preclude the admission of any statements made by defendant in the interview. Additionally, N.J.S.A. 9:6-8.36 is inapplicable to the interview because defendant was not interviewed by Division workers; rather, she was interviewed at the Hudson County Prosecutor's Office by two SVU investigators.
Since defendant was not interviewed by Division workers in the November 30, 2010 interview, we do not need to discuss the functional role that a Division caseworker plays during the investigative stages of a Title 9 case. See State v. Buda, 195 N.J. 278, 306-08 (2008).
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Next, defendant argues that her Sixth Amendment rights under the Confrontation Clause were violated because the Division did not call the lieutenant that had also interviewed her in the November 30, 2010 session as a witness at the fact-finding hearing. Defendant's reliance upon the Confrontation Clause in this setting is improper. Title 9 abuse and neglect proceedings are civil actions, not criminal prosecutions, and as such, the Sixth Amendment right to confrontation does not attach to them. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2009). Moreover, the focus of Title 9 is the protection of abused and neglected children, not a parent's rights to custody. As our Supreme Court has previously explained, providing additional criminal prosecution safeguards to parents in Title 9 proceedings would improperly shift the focus of the proceeding away from the statute's primary goal. See N.J. Div. of Youth & Family Servs. v. P.Z., 152 N.J. 86, 112 (1997) (declining to "tip the balance by requiring additional protections for the parents of abused children to be imported from our criminal jurisprudence into Title Nine proceedings").
Defendant also claims that the failure of the lieutenant to testify at the fact-finding hearing violated her due process rights. This argument is equally unavailing. Had defendant felt the need to cross-examine the lieutenant about her interview, she was free to subpoena that individual. Since defendant did not seek to compel the appearance of the lieutenant or object on this basis when the videotape was played for the trial judge, she cannot now complain about the fairness of the proceedings in that respect. See M.C. III, supra, 201 N.J. at 339-42 (applying the doctrine of "invited error" to preclude a parent's evidentiary arguments on appeal against the Division that were not raised in the trial court).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION