RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1018-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.R.B.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF J.R.B., Jr.
and M.B.,
Minors.
_____________________________
Submitted May 23, 2017 – Decided June 30, 2017
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Family Part,
Docket No. FN-09-0351-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mary Potter, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Joyce
Calefati Booth, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Melissa R.
Vance, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendant J.R.B. appeals from an August 7, 2013 order finding
that he abused or neglected his two minor children when he was
arrested and incarcerated on a charge of distributing narcotics.
We reverse because there was insufficient evidence to establish
that defendant's alleged actions placed his children at
substantial risk of harm.
I.
The claims of abuse or neglect against J.R.B. (Jerry) 1 arose
from his arrest on April 1, 2013. Jerry and M.L. (Martha) lived
together with their two children, J.R.B., Jr. (Junior), a son born
in November 2009, and M.B. (Margaret), a daughter born in February
2013. In early 2013, Martha, the children, and Jerry were sharing
an apartment with another adult couple, C.P. (Carol) and J.Z.
(Jay).
On April 1, 2013, Jerry and Martha went to New York City,
leaving Junior and Margaret in the care of Carol and Jay. At that
1
To protect privacy interests and for ease of reading, we use
fictitious names for the parties, their children, and the
roommates. See R. 1:38-3(b)(12).
2 A-1018-15T2
time, Junior was three years old and Margaret was approximately
five weeks old.
While in New York City, Jerry and Martha were arrested by
agents of the Federal Bureau of Investigation (FBI) and charged
with distribution of narcotics. Both Jerry and Martha were
incarcerated in New York City. They informed the FBI agents that
their children were at their apartment in Jersey City.
Accordingly, an FBI agent contacted the Jersey City Police
Department (JCPD) and requested a welfare check on the children.
Late in the evening of April 1, 2013, two JCPD officers and
an FBI agent went to the apartment. The officers were greeted by
Jay, who informed them that he and Carol were looking after both
children. After entering the apartment, the officers observed two
pit bulls and noted the smell of animal waste. The officers also
saw that the apartment was extremely cluttered, unkempt, and dirty.
The officers found both children in the apartment and they
observed that the children appeared to be in good health.
Nevertheless, the officers decided to take the children for
evaluations at the Jersey City Medical Center (JCMC). Subsequent
medical exams revealed that both children were physically healthy,
but Junior was hyperactive and he did not respond to oral
communications.
3 A-1018-15T2
The officers also contacted the Division of Child Protection
and Permanency (Division), and a Division worker came to the JCMC.
After learning that the parents were incarcerated, and after the
worker was unable to contact the roommates or any identified
relative, the Division conducted an emergent removal of the
children. Thereafter, the Family Part approved that removal and
granted the Division temporary custody of the children.
On April 5, 2013, a Division worker met with and interviewed
Jerry. Jerry had been released from jail, but he was under "house
arrest" at his mother's home in New York. Jerry informed the
Division worker that he, Martha, and their children lived in an
apartment with Carol and Jay. He explained that Jay was a close
friend of Martha and he had known him for at least five years.
Under questioning by the Division worker, Jerry admitted that
he had previously sold drugs "on occasion." He also stated that
he had no criminal record, but he acknowledged that on April 1,
2013, he had been arrested and charged with selling drugs. Jerry
also informed the Division worker that for the past five to six
years, he had used crystal methamphetamine approximately once a
week. He denied, however, that he ever used drugs in the presence
of the children or had drugs in the home.
The Division worker also interviewed Martha, who was being
held at the Metropolitan Correctional Center in New York. Martha
4 A-1018-15T2
denied ever selling or using drugs. She also denied ever seeing
Jerry use drugs in her presence. While acknowledging that she
suspected Jerry used drugs, she stated that she never saw Jerry
high on drugs while he was caring for the children.
Martha also explained that the home was unkempt because they
had moved into the apartment two months before, and she was
recovering from a caesarean section during the delivery of
Margaret. Martha also stated that Carol and Jay had known both
children since the children were born.
A fact-finding hearing was conducted on August 7, 2013. The
Division presented three witnesses: two caseworkers and a JCPD
police officer who had participated in the welfare check on the
children. The Division also submitted documentary evidence,
including a certified copy of the indictment against Jerry and
Martha and the corresponding federal docket sheet. The indictment
was admitted for the limited purpose of confirming that there were
charges filed against Jerry and Martha. Neither Jerry nor Martha
testified at the hearing and they did not call any witnesses or
submit any documents.
After considering the evidence, the Family Part concluded
that the Division had proven that both Jerry and Martha had abused
or neglected their children. The judge made separate findings
concerning Jerry and Martha.
5 A-1018-15T2
With regard to Jerry, the court relied on his admission of
using and selling drugs and reasoned "that it's more likely than
not . . . that he was [engaging] in the sale of drugs on April [1,
2103]." The court then held that "the Division has met its burden
of proof that on the date he was arrested for selling drugs[,] he
placed his children at risk of harm due to his [] arrest." The
court also found that Martha had abused or neglected the children.
Following the fact-finding hearing, the court conducted a
series of compliance reviews. Jerry and Martha underwent drug
treatment. Ultimately, in February 2015, the children were
returned to the custody of their parents and the litigation was
terminated in September 2015.
Jerry now appeals the finding of abuse or neglect. Martha
did not appeal. The Division opposes Jerry's appeal and the Law
Guardian, who represents the children, supports the Division's
position, arguing that there was a preponderance of evidence
establishing that Jerry abused or neglected his children.
The Division sought to supplement the record with documents
showing the dispositions of the criminal charges against Martha
and Jerry. Jerry opposed that motion and cross-moved to supplement
the record with other information. We denied both motions to
supplement the record.
6 A-1018-15T2
II.
Our standard of review is well settled. We are bound by the
trial court's factual findings if supported by sufficient credible
evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 577-78 (App. Div. 2010). We accord particular
deference to the Family Part's fact-finding because of the court's
special expertise in family matters, its "feel of the case[,]" and
opportunity to assess credibility based on witnesses' demeanor.
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
Nevertheless, "our review is less constricted when the 'focus
is not on credibility but alleged error in the trial judge's
evaluation of the underlying facts and the implications to be
drawn therefrom.'" N.J. Div. of Youth & Family Servs. v. S.H.,
439 N.J. Super. 137, 144 (App. Div.) (quoting N.J. Div. of Youth
& Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.),
certif. denied, 180 N.J. 456, 852 (2004)), certif. denied, 222
N.J. 16 (2015). We also owe no deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 9:6-8.21(c)(4), states that an abused or neglected
child includes:
7 A-1018-15T2
[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 . . . to exercise a
minimum degree of care . . . (b) in providing
the child with proper supervision or
guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof . . . .
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)). The statute requires a
court to consider harm or risk of harm to the child, as opposed
to the intent of the abuser, because "[t]he main goal of Title 9
is to protect children." G.S. v. Dep't of Human Servs., 157 N.J.
161, 176 (1999). The phrase "minimum degree of care" means conduct
that is "grossly or wantonly negligent, but not necessarily
intentional." Dep't of Children and Families v. T.B., 207 N.J.
294, 305 (2011). "There exists a continuum between actions that
are grossly negligent and those that are merely negligent. The
parent's conduct must be evaluated in context based on the risks
posed by the situation." Id. at 309.
A court "need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect." N.J.
Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013)
8 A-1018-15T2
(quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
"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."
Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b)). "Whether a parent or
guardian has failed to exercise a minimum degree of care is to be
analyzed in light of the dangers and risks associated with the
situation." G.S., supra, 157 N.J. at 181-82.
Jerry argues that the Family Part committed two errors by (1)
applying an incorrect legal standard in finding abuse or neglect,
and (2) admitting and relying on the indictment and federal docket
sheet, as well as the embedded hearsay in those documents. Jerry
also argues that he cannot be found to have abandoned his children
or to have placed them in an unsafe home because the Family Part
made no such findings.
Initially, we dispose of the last argument. The Division
concedes that the Family Part did not make any findings that Jerry
abandoned or placed his children in an unsafe environment. Indeed,
the Division acknowledges that the finding of abuse or neglect
against Jerry relates only to his alleged engagement in the
distribution of narcotics.
We, therefore, focus on whether there was sufficient proof
that Jerry engaged in the distribution of narcotics and whether
that alleged action placed his children in substantial risk of
9 A-1018-15T2
harm. We reverse because the Division failed to establish by a
preponderance of evidence that Jerry distributed narcotics or that
that alleged activity placed his children at substantial risk of
harm.
On April 1, 2013, Jerry was arrested and charged with
possession with intent to distribute methamphetamine, a controlled
dangerous substance. On June 24, 2013, Jerry was indicted on one
count of conspiracy to possess and distribute methamphetamine.
Accordingly, at the time of the fact-finding hearing, Jerry had
only been charged with a crime and the Division submitted no proof
that he actually committed the crime.
The Family Part relied on Jerry's admission that he had
previously sold drugs and that he had previously used crystal
methamphetamine to conclude "that it's more likely than not" that
Jerry engaged in the sale of illegal drugs on April 1, 2013. That
conclusion was not supported by substantial credible evidence in
the record. An indictment is not proof that a crime has been
committed. State v. Orecchio, 16 N.J. 125, 133-35 (1954).
Instead, "[a]n indictment is evidence only of the fact that a
charge has been made; it in no [way] establishes the truth of the
charge or the presence of sufficient legal proof thereof." Id.
at 132.
10 A-1018-15T2
Moreover, Jerry's admission to a Division worker that he had
previously sold drugs on other occasions did not constitute
sufficient evidence for the court to draw the conclusion that
Jerry sold drugs on April 1, 2013. In a Title 9 proceeding, a
parent or guardian's past criminal acts can be relevant and
admissible, but only to determine the risk of harm to the children.
N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551,
573. Indeed, N.J.R.E. 404(b) prohibits a fact finder from using
evidence of prior criminal acts to find that a person had acted
in conformity with the disposition to commit a criminal act. See
Id. at 571 (App. Div. 2010) ("[T]he rule is one of 'exclusion'
rather than 'inclusion' and should be used to exclude evidence of
other crimes, civil wrongs, or acts when such evidence is 'offered
solely to establish the forbidden inference of propensity or
predisposition.'" (quoting State v. Nance, 148 N.J 376, 386
(1997))).
We find no fault with the admission into evidence of the
indictment or the federal docket sheet. N.J.S.A. 9:6-8.46(a)(3)
allows admission into evidence "of any condition, act,
transaction, occurrence or event relating to a child in an abuse
or neglect proceeding . . . [as] proof of that condition, act,
transaction, occurrence or event" if it meets the prerequisites
for admission as a business record. The indictment and the docket
11 A-1018-15T2
sheet, however, merely established that Jerry had been charged
with a crime. In this case, they did not establish proof that a
crime had been committed.
The Division also failed to prove by a preponderance of
evidence that the children were placed at substantial risk of
harm. Even if Jerry had distributed narcotics or conspired to
distribute narcotics, that action, on its own, did not present a
substantial risk of harm to the children. The children were not
present at the time that Jerry allegedly distributed the
methamphetamine. Indeed, Jerry was in New York City and the
children were in the care of Jerry's adult roommates in New Jersey.
Further, despite Jerry's admission to past drug use, he also
stated that he had never used drugs in front of the children or
had drugs in the home. As we have previously held, "not all
instances of drug ingestion by a parent will serve to substantiate
a finding of abuse or neglect." N.J. Div. of Youth & Family Servs.
v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011). The Division
must demonstrate that the children were at substantial risk of
harm. N.J.S.A. 9:6-8.21(c)(4)(b). Here, there was no showing
that the children were at risk, much less a substantial risk.
The Division argues that the children were at risk because
Jerry's actions could result in his arrest. Thus, according to
the Division, Jerry ran the risk of not being available to care
12 A-1018-15T2
for his children if he was incarcerated. The problem with that
argument is that the Division presented no evidence to support
that contention. Here, it was undisputed that the children were
in the care of Jerry's adult roommates when Jerry was arrested and
incarcerated. The Division further concedes that it did not
present evidence to show that Jerry abandoned the children or that
the children were left with improper caregivers.
In short, the Division failed to establish by a preponderance
of evidence that Jerry abused or neglected his children. There
was no competent evidence to establish that Jerry had distributed
narcotics or conspired to distribute narcotics. Just as
importantly, there was no nexus between the alleged act of
distribution and a showing of substantial risk of harm to the
children. Accordingly, any designation that Jerry abused or
neglected his children because of his arrest and incarceration in
April 2013 must be vacated.
Reversed.
13 A-1018-15T2