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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff–Respondent, v. E.S. Defendant–Appellant, M.R.A., Defendant. IN RE: J.A., a minor.

DOCKET NO. A–2367–10T1

    Decided: February 17, 2012

Before Judges Baxter and Nugent.Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the briefs). Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel;  Jennifer Jaremback, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Hector Ruiz, Designated Counsel, on the brief).

Following a fact-finding hearing in this Title Nine action, the Family Part determined defendant E.S. had abused or neglected her son, J.A. E.S. appeals from the June 16, 2010 confirming order, arguing the Division of Youth and Family Services (DYFS or the Division) presented insufficient evidence to sustain the court's finding.   Specifically, E.S. challenges the sufficiency of the evidence that she abused or neglected J.A. by leaving him with his father and her husband, M.R.A., when M.R.A.'s ability to function was so impaired by his use of crack cocaine that he posed a risk to J.A.'s health and safety.   E.S. also contends the court improperly admitted hearsay evidence at the fact-finding hearing.

Having considered E.S.'s arguments in light of the record and the applicable law, we conclude the trial court's decision was supported by sufficient credible evidence.   We also conclude the trial court did not abuse its discretion by admitting into evidence the Division's investigation report.   Accordingly, we affirm.


The events that culminated in the Division removing J.A. from E.S. and M.R.A. occurred over two days, January 28 and 29, 2010.   By then, E.S., who had immigrated to America from Honduras in 1989, had been married to M.R.A. for over fourteen years and their child, J.A., was four years old.   On the morning of January 28, 2010, while M.R.A. was taking J.A. to preschool, E.S. telephoned an employee of the preschool and told him she and J.A. were fearful of M.R.A. According to E.S., M.R.A. was emotionally abusive and controlling, yelled and cursed in front of J.A., smoked crack cocaine all night, and was violent when he came down from his high.   E.S. also said she could not speak freely in front of M.R.A. The preschool employee referred the matter to the Division, and intake worker Victoria Torrado, accompanied by another DYFS worker, interviewed the school employee and J.A.

During the interviews, the preschool employee recounted what E.S. had told him during their telephone conversation and added that M.R.A. occasionally picked up J.A. from school, had never “been under the influence,” and had not appeared to be under the influence when he dropped J.A. off earlier that day.   The employee expressed concern about J.A., who had been diagnosed with attention deficit hyperactivity disorder, had made a troubling statement to the child study team, and had on several occasions become physically violent with school staff.

J.A. told Torrado that his parents fought, “daddy yells at mommy ․ for nothing,” he, J.A., and “mommy” are scared when “daddy yells at mommy,” and E.S. and M.R.A. had a “fight” that morning.   He said M.R.A. never hit him, but did not know if “daddy” hit “mommy.”   J.A. did not know what drugs were, but said “daddy smokes white.”   Torrado asked if E.S. worked and J.A. laughed and replied, “no, daddy works.”

When E.S. arrived at the school to pick up J.A., Torrado interviewed her.   In response to Torrado speaking Spanish, E.S. said she spoke perfect English and preferred it so that everyone present would understand what was going on.   E.S. said M.R.A. had smoked crack cocaine for at least twenty-five years, his behavior was out of control, and DYFS needed to do something about it.   E.S. also said that when M.R.A. smoked crack in the bedroom at night, E.S. would sleep with J.A. in the child's room.   Torrado asked if M.R.A. was ever high around J.A., to which E.S. responded, “yes.”   After explaining to E.S. that the Division could offer social services to help E.S. “maintain on her own” and could place E.S. and her son in a shelter, Torrado asked E.S. if she would be willing to leave home with J.A. E.S. said she would be willing to leave in March when she expected to start working, but she declined to leave immediately.   She also declined to seek a restraining order against M.R.A.

While Torrado was interviewing E.S., M.R.A., who had been waiting in the car, came into the room to see what was taking so long.   At the same time, J.A., who was elsewhere, had another violent outburst during which he kicked and threatened school staff members.   He was taken to the hospital for a psychiatric evaluation and discharged later that night.1

When Torrado learned of J.A.'s discharge she went to E.S.'s house with another Division worker and several police officers.   Although the house was dark when they arrived, they waited and eventually saw a light go on.   Torrado knocked on the door and attempted to telephone E.S., but no one answered the door and E.S. did not answer her phone, so Torrado returned the next day and spoke to E.S. and M.R.A.

When Torrado asked E.S. if M.R.A. had used crack cocaine the night before, E.S. did not respond directly, but said M.R.A. was “not that bad” and smoked crack only every month or so.   E.S. also said she made sure that J.A. had no access to M.R.A.'s drugs;  she left J.A. alone with M.R.A. only when she went to church;  and that occasionally M.R.A. drove J.A. to school but never when M.R.A. was high.   Torrado never specifically asked E.S. if M.R.A. “parented” J.A. when M.R.A. was under the influence of drugs.   Nevertheless, Torrado thought E.S. was minimizing the problem.

Following those events, the Division filed a notice of emergency removal and removed J.A. from his parents on January 29, 2010.   Four days later, on February 2, 2010, the Division filed a verified complaint and an order to show cause.   At a hearing that same day, M.R.A. admitted he had a substance abuse problem and would test positive for drugs.   Representing that he would move out of the family home and “ha[d] already engaged himself in drug treatment,” M.R.A. agreed to continue with his drug treatment program, undergo a psychological evaluation, engage in domestic violence counseling, and attend supervised visitation sessions with his son.

Torrado testified and recounted the events and interviews that took place on January 28 and 29, 2010.   E.S. testified she had been a preschool teacher for thirty years.   Nonetheless, she sometimes had difficulty understanding English, and Torrado had misunderstood her during the interview at J.A.'s preschool.   Had E.S. known DYFS would not have removed J.A. if she had applied for a restraining order against M.R.A., she would have done so.

After considering the testimony of Torrado and E.S., and finding that E.S. had been evasive, the court concluded that J.A.'s best interests would be served by placing him under the Division's care, control and supervision.   The court reasoned that M.R.A. and E.S.'s history of domestic violence;  M.R.A.'s substance abuse in E.S.'s presence;  M.R.A.'s out-of-control, emotionally abusive and vulgar verbal behavior in front of J.A.;   and E.S.'s failure to protect J.A. by leaving home or seeking a restraining order, created an ongoing risk of harm to J.A.'s life, safety or health.   The court ordered M.R.A. to leave the family home by February 7, 2010, and provided for the parents' supervised visitation with J.A. The court also ordered M.R.A. to submit to drug evaluation and drug abuse treatment;  ordered M.R.A. and E.S. to submit to psychological evaluations and domestic violence counseling;  and ordered that J.A. undergo evaluation for his emotional outbursts.

On February 17, 2010, the return date of the order to show cause, the court ordered that J.A. continue under DYFS's custody, care and supervision and that M.R.A. and E.S. continue with supervised visitation, counseling and evaluation.

Five weeks later, at the March 24, 2010 case management review hearing, the court returned custody of J.A. to E.S. and also ordered M.R.A., E.S. and J.A. to continue to participate in various services.   On June 16, 2010, the court conducted a fact-finding hearing 2 in which it considered the testimony of Torrado, M.R.A., and E.S., and admitted into evidence the Division's “Screening Summary” and “Investigation Summary.”   At the inception of the fact-finding hearing, M.R.A. stipulated to the following:

Q. [By M.R.A's counsel to M.R.A.] Okay. And you had admitted previously in court that you had a drug problem, to wit cocaine, is what you were using;  is that right, sir?

A. Yes.

Q. Okay. At times when you utilized cocaine, were you alone with your son?

A. Yes.

Q. Okay. And so, when you were serving in your role as a parent for your son, you ended up—you were utilizing cocaine;  correct?

A. Yes.

Q. And, when you were utilizing that cocaine—parenting time and so forth, you were at times under the influence of the cocaine, is that correct?

A. Yes.

Q. Okay. And, therefore, obviously, if you were under the influence of the cocaine, that could have impaired your judgment or created some type of—of—danger to the child;  is that right?

A. Oh, sure—

Q. Okay.

Caseworker Torrado testified to the events that took place on January 28 and 29, 2010, as set forth above.   M.R.A. admitted he had used cocaine, denied he had ever used it around J.A., and maintained he had corrected his mistake with DYFS's assistance.   Although he had voluntarily moved out of his house, he had continued to support his wife and child.

M.R.A. explained that he used cocaine in his bedroom late at night, usually after J.A. was asleep.   When he was “high” he would be in his room while J.A. slept with his mother.   By the time J.A. was ready for school, M.R.A. had not smoked cocaine for six to eight hours, and though the drug was probably still in his system, he did not feel anything and had regained his focus.   When asked if he was high when J.A. woke up in the morning, M.R.A. explained that the “high” didn't last that long, but he was high in the sense that the drug was probably still in his system.

Although admitting to using cocaine on a monthly basis, possibly every couple of months, M.R.A. adamantly denied using it either in front of J.A. or when he was alone with J.A. while E.S. attended church.   His testimony about driving while high was inconsistent;  he initially insisted he never drove while high, then conceded he had driven J.A. to school while under the influence, but asserted he had never had an accident or been stopped by the police when J.A. was in the car.

E.S.'s testimony varied from her statements to Torrado.   According to E.S., M.R.A. had smoked crack for twenty-five years and for the entirety of their fourteen year marriage;  his “pattern” was to stop for a year, “come back for three months, and then ․ stop[ ] long enough.”   E.S. finally telephoned the preschool employee because she was having difficulty sleeping due to her concern about M.R.A.'s behavior and because she could not continue to bear the “disagreement in [her] marriage.”

E.S. never witnessed M.R.A. use drugs in front of J.A. M.R.A. drove J.A. to and from school because E.S. could not drive, but she always went with him.   Although E.S. would leave J.A. alone with M.R.A. when she went to church, and occasionally when she went to the supermarket, she always made sure that M.R.A. “was fine.”   She maintained that because she had known M.R.A. fourteen years, she could tell the difference between his personality when he was under the influence of drugs and his personality when he was sober.   She insisted she never left J.A. alone with M.R.A. when M.R.A. was under the influence of drugs.

E.S. also testified that since the Division's intervention, she had become happy again.   Her marriage had improved after she and M.R.A. began attending counseling sessions and “domestic violence [training,] and since M.R.A. had been attending programs for his drug problem.”

Following the hearing, the court found by a preponderance of the evidence that E.S. knew M.R.A. was getting high using cocaine and knew she was leaving J.A. with M.R.A. when M.R.A. was under the influence of cocaine.   The court did not find E.S. credible.   Noting that E.S. seemed to have changed her position two or three times with the Division and in court, the court found that E.S. minimized her responsibility in creating a foreseeable risk for her child by allowing the child to be in the care of his father while M.R.A. was “under the influence.”

The court asked rhetorically where the child was during the “past excesses” that built up and resulted in E.S. reporting M.R.A. to the school, and commented that E.S. was married for fourteen years to “this problem ․ and the child is now five years old.”   Finding that E.S.'s lack of responsibility toward J.A., including having to sleep in his bed to provide protection for him, put the child at risk, the court concluded that E.S. had placed the child at risk of harm by lack of supervision.

Immediately after rendering its decision, the court conducted a compliance review hearing and ordered E.S. and M.R.A. to attend marriage counseling after completing the domestic violence program.   The court also ordered that J.A. undergo a neuropsychological evaluation and therapy.   Finally, the court commended E.S. and M.R.A. for their “wonderful job in working together for the benefit of their child.”

On September 22, 2010, the court issued an order terminating the litigation because J.A. had resumed living with his parents and the conditions that had resulted in J.A.'s removal had been remediated.   This appeal followed.


E.S. raises the following issues for our consideration:


A.  The Trial Court Impermissibly Expanded The Legal Definition of Child Abuse And Neglect As Set Forth In N.J.S.A. 9:6–8.21(c)(4)(b) and G.S.

B. The Trial Court Lacked An Adequate Factual Foundation to Conclude that J.A. Had Been Harmed or Was In Imminent Danger of Being Harmed.


It is beyond dispute that “[p]arents have a constitutionally protected right to maintain a relationship with their children.”  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).   That right is not entirely unrestricted and “must be balanced against the State's parens patriae responsibility to protect the welfare of children.”  N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citations omitted).   Title Nine is a comprehensive legislative scheme designed to accomplish that objective.  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346 (2010).

In a Title Nine case, the court must decide at the fact-finding hearing the crucial issue of “whether the child is an abused or neglected child.”   N.J.S.A. 9:6–8.44. The Division “must prove that the child is ‘abused or neglected’ by a preponderance of the evidence, and only through the admission of ‘competent, material and relevant evidence.’ ”  N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6–8.46(b)).  Title Nine defines an “abused or neglected child” as

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 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[.]

[N.J.S.A. 9:6–8.21(c)(4)(b).]

As the Supreme Court has explained, a parent's failure to exercise a minimum degree of care requires more than negligence but not intentional conduct:

The phrase “minimum degree of care” denotes a lesser burden on the actor than a duty of ordinary care.   If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable.   The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton.   Therefore, we believe the phrase “minimum degree of care” refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

[Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177–78 (1999)).]

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result.  G.S., supra, 157 N.J. at 178.   “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others.”  Id. at 179.

Our review of a trial court's decision that a parent has abused or neglected a child is limited.  Cesare v. Cesare, 154 N.J. 394, 411 (1998).   Family courts deciding the profound issues involving the welfare of children have special expertise and “appellate courts should accord deference to family court factfinding.”  Id. at 413.   We give particular regard to the family judge's “opportunity to make first-hand credibility judgments about the witnesses who appear on the stand” and his or her “ ‘feel of the case.’ ”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293).

We will not disturb a Family Part judge's findings of fact and conclusions of law unless “convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.”  Cesare, supra, 154 N.J. at 412 (internal quotation marks and citation omitted).   Nevertheless, “[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With those principles in mind, we turn to E.S.'s first argument that the trial court's findings were not supported by substantial credible evidence.   In light of the contradictory statements and testimony given by M.R.A. and E.S., the outcome of the fact-finding hearing was entirely dependent upon the court's credibility determinations.   Giving those determinations the regard they are due because of the trial court's opportunity to observe the witnesses and develop a “feel of the case,” E.P., supra, 196 N.J. at 104, we find no reason to disturb the trial court's judgment.   The trial court's findings of fact and conclusions of law are not manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence, nor do they offend the interests of justice.  Cesare, supra, 154 N.J. at 412.

According to E.S., M.R.A. had smoked crack for twenty-five years, smoked crack in their bedroom at night, and became violent when he came down from his high.   She described M.R.A. as being out of control.   Notably, E.S. told Torrado that M.R.A. had been high around J.A., J.A. said that his father smoked “white,” and M.R.A. admitted that he had been under the influence of crack while parenting J.A. E.S. also acknowledged leaving J.A. in M.R.A.'s care when she went to church and occasionally when she went to the grocery store.   M.R.A. confirmed that he had been high when alone with J.A. while E.S. went to church.

M.R.A. also admitted that at times he had been under the influence of crack when he had driven J.A. to school.   His testimony contradicted E.S.'s testimony that she always made sure M.R.A. had come down from his high before driving J.A. to preschool.

From those facts, the court determined that E.S. knew M.R.A. was getting high using cocaine and knew she was leaving her child with M.R.A. when he was high.   The court specifically noted in its decision that M.R.A. was sometimes under the influence when driving J.A. to school.   Finally, the court found that E.S. was minimizing the risk to J.A. and minimizing her own responsibility.   The court's determinations were amply supported by the facts derived from the testimony and the court's credibility determinations.  Cesare, supra, 154 N.J. at 411–12.

E.S. relies upon New Jersey Division of Youth and Family Services v. S.S., 372 N.J.Super.   13 (App.Div.2004), certif. denied, 182 N.J. 426 (2005), to support her argument that the trial court's determination was not supported by substantial credible evidence.  S.S. is distinguishable.   There, we confronted the issue of whether

under the facts of this case, a battered wife can be found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked by his father and because, after the attack, the wife initially sought to remain in the violent relationship.

[Id. at 15.]

In reversing the trial court's finding of abuse and neglect, we observed there was no evidence in the record that emotional harm to the child had resulted from his witnessing domestic abuse.  Id. at 22.   We noted:

No witness stated as a matter of fact that evidence of emotional injury to the child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbance, or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty.   All evidence indicates that the child remained a happy, healthy, emotionally secure twenty-one-month-old baby.   Further, no psychological evidence was introduced to support, even as a general matter, a causal relationship between witnessing domestic violence and emotional distress in the young, and no expert sought to balance any harm found to exist as the result of domestic violence with evidence of emotional harm arising as the result of the removal so as to permit an assessment of whether removal served the best interests of the child.

[Id. at 22–23]

We concluded that “these evidential gaps [were] fatal to the underpinnings of the court's conclusion that appellant abused her child.”  Id. at 23.

E.S. correctly points out that the Division presented no expert testimony that linked J.A.'s behavior to domestic violence.   However, unlike S.S., here the trial court did not reach its determination based upon the impact of domestic violence on J.A.'s behavior.   Instead, the trial court based its determination on E.S. tolerating M.R.A.'s substance abuse at times in front of J.A., leaving J.A. with M.R.A. when M.R.A. was high, and permitting M.R.A. to drive J.A. to school while M.R.A. was under the influence of crack cocaine.

E.S. maintains the trial court's “presumption” that M.R.A. drove J.A. to school while M.R.A.'s driving ability was impaired was unsupported by expert testimony and without evidential support.   It is true the Division produced no expert testimony describing the effect of crack cocaine use on an individual's ability to drive.   Nevertheless, M.R.A. had used crack cocaine for twenty-five years and admitted to driving J.A. to school while “under the influence.”   E.S. told Torrado during the school interview that M.R.A.'s conduct was out of control and that he was violent when coming down from his highs, and J.A. told Torrado during the interview at the preschool that E.S. and M.R.A. had fought that very morning.   Those testimonial facts and the reasonable inferences to be drawn from them support the trial court's determination and refute E.S.'s assertion that the court merely presumed M.R.A. drove J.A. to school while M.R.A. was impaired.


We turn to point II in which E.S. contends the trial judge improperly admitted into evidence the Division's investigation report and thus relied upon incompetent and inadmissible hearsay evidence.   Though acknowledging that competent evidence in such reports may be admissible under Rule 5:12–4(d) and N.J.R.E. 803(c)(6), E.S. argues the report was improperly admitted into evidence for two reasons:  first, Torrado did not record the events described in the report at or near the time she observed them, as evidenced by her approval of the report on March 8, 2010, more than a month after the events occurred;  second, no one signed the report.

N.J.S.A. 9:6–8.46 authorizes a court in a Title Nine proceeding to admit into evidence any writing “made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any ․ public or private institution or agency.”   See also R. 5:12–4(d) (authorizing the Division to “submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants”).   Under N.J.R.E. 803(c)(6),

a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that “the writing [was] made in the regular course of business,” the writing was “prepared within a short time of the act, condition or event being described,” and “the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.”

[M.C. III, supra, 201 N.J. at 347 (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]

Contrary to E.S.'s argument, the Division presented evidence that Torrado prepared the report at or near the time she observed the events she recorded.   Laying the foundation for the report's admissibility, the Division's attorney specifically asked Torrado if she prepared investigative reports “at or about the time you complete an investigation,” to which Torrado responded in the affirmative.

Although counsel's question could have been more specific, and may have been inadequate to authenticate the report had the investigation been conducted over a longer period of time, we find no error in the trial court's ruling admitting the report into evidence.  “[A] trial court's evidentiary rulings are ‘entitled to deference absent a showing of an abuse of discretion․’ ”  State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).   As such, “an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.”  Ibid. (internal quotation marks and citations omitted).   The record does not demonstrate that the court's ruling was so wide of the mark that a manifest denial of justice resulted.

We also reject E.S.'s argument challenging the report's admissibility because neither Torrado nor her supervisors signed it.  N.J.R.E. 803(c)(6) does not require that a business record be signed.   Responding to E.S.'s objection that the report had not been signed, the trial court ruled that E.S. could cross-examine Torrado on that point, implicitly ruling the absence of a signature affected the weight to be given to the document, not its admissibility.   The trial court did not abuse its discretion in so ruling.

There is another reason we reject E.S.'s argument that the trial court committed reversible error by admitting the Division's report into evidence.   The Division sought to have the report admitted into evidence near the end of Torrado's direct examination.   By then, Torrado had testified about the significant events of her investigation.   The events recorded in the report merely duplicated her testimony.   E.S. does not identify any event in the report that was not explained by Torrado during her testimony, but was nevertheless relied upon by the trial court in rendering its decision.   Stated differently, there is no evidence that the trial court relied upon either incompetent evidence or inadmissible hearsay embedded in the report.



FN1. The record does not disclose whether this specific outburst was related to the domestic dispute between E.S. and M.R.A..  FN1. The record does not disclose whether this specific outburst was related to the domestic dispute between E.S. and M.R.A.

FN2. The purpose of a fact-finding hearing is “to determine whether the child is an abused or neglected child․”  N.J.S.A. 9:6–8.44..  FN2. The purpose of a fact-finding hearing is “to determine whether the child is an abused or neglected child․”  N.J.S.A. 9:6–8.44.


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