N.J. Div. of Child Prot. & Permanency v. A.B. (In re A.F.)

• Decision Date: 21 December 2017
• Docket Number: 077664,A–27 September Term 2016
• Citation: 231 N.J. 354,175 A.3d 942
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. A.B., Defendant–Appellant. In the Matter of A.F., Minor.
• Court: New Jersey Supreme Court

231 N.J. 354

175 A.3d 942

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent,

v. A.B., Defendant–Appellant.In the Matter of A.F., Minor.

A–27 September Term 2016

077664

Supreme Court of New Jersey.

Argued September 26, 2017

Decided December 21, 2017

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

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

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

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

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

JUSTICE TIMPONE delivered the opinion of the Court.

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

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

I.

We marshal the following facts from the record.

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

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

In October 2012, in response to a call from A.F.'s high school, the caseworker went to the high school and met with A.F. During this meeting, A.F. related that she had been staying with various friends since leaving home. A.F. indicated that she had previously returned home to reconcile with A.B. and that they had gone together to the school to have A.F. reinstated. During the conference with the school's Management Crisis Team, A.F. and A.B. got into an argument, and A.B. "made statements that she was close to kicking [A.F.] out of her home." Near the end of the conference, A.F. expressed that she had "no intention of returning to her mom's home," and in fact did not.

Later that day, the caseworker discovered that A.F. and her infant son were staying with a friend, L.V., whose residence lacked electricity. The caseworker attempted to gain entry to the residence to assess its suitability for a young runaway and her infant. She was refused entry. The caseworker immediately conveyed to A.B. her apprehensions regarding the safety of A.F. and her infant son, as well as the suitability of A.F.'s living arrangement. A.B. voiced concern but was "still not willing to allow the children to come back and reside with her," emphasizing "she was not willing to take [A.F.] back" given that A.F. "was very disrespectful."

A.B. asserted that she lived with her sister, J.F., who owned the apartment and was unwilling to allow A.F. back into the home "as well." A.B. could think of no one else with whom A.F. could stay. She was also unwilling to consent to an order of emergency removal for A.F. The Division resorted to an emergency removal process and placed A.F. and her son in a resource home. The Division then filed a verified complaint in the Family Part of the Superior Court, Chancery Division, seeking continued legal custody of A.F. At an order to show cause hearing, the court determined that the Division's removal was proper and that the Division would retain custody of A.F. The court later continued the Division's custody of A.F.

On February 19, 2013, the court conducted a fact-finding hearing to determine whether A.B. abused, neglected, or willfully abandoned A.F. within the meaning of Title 9, N.J.S.A. 9:6–8.21 to -8.73. As a preliminary matter, defense counsel objected to the admission of embedded hearsay in the form of statements attributed to J.F., A.B.'s sister, within the Division's referral, reports, and documents. The court sustained that objection.

At the fact-finding hearing, the Division's caseworker was its only witness. During the Law Guardian's cross-examination of the caseworker, the Law Guardian asked if J.F. ever told her that "she was not willing to let A.F. stay in her house." Defense counsel objected on the basis of inadmissible hearsay; the judge sustained the objection. During the defense's summation, the Division objected when defense counsel attempted to reference J.F.'s refusal to allow A.F. into her home. The judge similarly sustained the objection on hearsay grounds. During defense counsel's cross-examination of the caseworker, the Division objected when defense counsel intimated that J.F. refused to allow A.F. back into the apartment, arguing that it was not a proper question for that witness to answer. The judge sustained the objection.

In an oral decision rendered on the record, the judge determined that A.B. neglected A.F. in violation of subsections (4)(a) and (5) of N.J.S.A. 9:6–8.21(c), explaining that "refusing to allow a 16 year old child into her home who has an infant herself would be gross negligence. It's just reckless disregard for the safety of her child."

A divided Appellate Division panel affirmed in an unpublished opinion. The panel majority rejected A.B.'s contention that a finding of abuse or neglect under N.J.S.A. 9:6–8.21(c)(4) could not be sustained because A.F. was not actually harmed in any way, reasoning that "the statute makes expressly clear that actual impairment of the child is not required to support a finding of neglect." The panel majority similarly dismissed A.B.'s argument that the judge failed to make an explicit finding that A.F. was in imminent danger as defined by N.J.S.A. 9:6–8.21(c)(4). "[T]he risks inherent in barring a sixteen-year-old child from the family home without arranging any alternative source of shelter or support are obvious," the majority observed.

The panel majority affirmed the judge's finding of willful abandonment under N.J.S.A. 9:6–8.21(c)(5), holding that the record contained substantial and credible evidence that A.B. willfully abdicated any responsibility for her daughter. The panel majority found support for that finding in evidence that A.B. refused to permit A.F. to return home despite being informed by the Division that A.F.'s living arrangement was ill-advised, as well as A.B.'s failure to make other arrangements for A.F.'s care and support.

Lastly, the panel majority rebuffed the dissent's argument that A.B.'s due process rights were violated by the suppression of hearsay testimony concerning J.F.'s alleged refusal to allow A.F. back into the apartment. The panel majority noted that the judge had discretion to determine the credibility of the evidence adduced at the fact-finding hearing and found no error in the judge's conclusion that the hearsay testimony regarding A.B.'s sister was unreliable.

The dissenting panel member disagreed with the majority's refusal to consider evidence of the sister's ownership of the apartment and her decision not to re-admit A.F., contending that the caseworker's testimony on the matter was competent, material, and relevant evidence.

The dissent further took issue with the panel majority's finding of abuse or neglect, reasoning that even if A.B. had precluded A.F. from returning home, that act does not justify an abuse or neglect finding because there was neither evidence of actual harm to A.F. nor the threat of harm. The dissent noted that A.F. ran away on other occasions and each time returned home unscathed.

The dissent further disputed the panel majority's finding of abandonment under the statute. The dissenting panelist maintained that abandonment required a finding that a parent must exhibit a willful forsaking of her parental responsibilities, whereas A.B. gave no indication that she intended to permanently bar her daughter or was abdicating her parental rights and duties.

A.B. appealed to this Court as of right. See R. 2:2–1(a)(2). We granted leave to Legal Services of New Jersey (LSNJ) to appear as amicus curiae.

II.

A.

A.B. advances three arguments on appeal and urges this Court to reverse the decision of the panel majority. First, she asserts that it was error to exclude hearsay testimony alleging that her sister J.F. was instrumental in...