                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4545-12T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,            APPROVED FOR PUBLICATION

     Plaintiff-Respondent,               December 23, 2014

v.                                      APPELLATE DIVISION


R.W.,

     Defendant-Appellant.
___________________________________

IN THE MATTER OF M.W. and
Z.W., minors.


         Submitted October 22, 2014 – Decided December 23, 2014

         Before Judges Alvarez, Waugh, and Carroll.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Camden County, Docket No. FN-04-437-11.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Chanima K. Odoms, Designated
         Counsel, on the briefs).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent (Melissa H. Raksa,
         Assistant Attorney General, of counsel;
         Jeffrey   S.   Widmayer,  Deputy   Attorney
         General, on the brief).

         Joseph E. Krakora, Public Defender, Law
         Guardian, attorney for minors (Linda Vele
         Alexander,  Designated  Counsel,  on  the
         brief).
       The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

       Defendant R.W. appeals from a July 11, 2011 Family Part

order entered in a Title Nine1 proceeding finding that she abused

and neglected her infant,2 born February 2011, as defined in

N.J.S.A.    9:6-8.21(c)(4)(b).          We     now   reverse,      concluding    that

R.W.'s use of marijuana on one occasion, while accompanied by

her    child,   did    not    establish       that   she   placed    the   child    in

imminent danger or at substantial risk of harm.

       Plaintiff      New    Jersey   Division       of    Child    Protection     and

Permanency (Division) effectuated an emergent removal3 of R.W.'s

child when she was incarcerated as a parole violator on March

29, 2011.       The Division's verified complaint, filed two days

later, stated that R.W. and her family had a "long history with

the Division."         Because eighteen-year-old R.W. "was no longer

welcome to reside with her adoptive parents" and had been in the

care of the Division for an unspecified number of years, the




1
    N.J.S.A. 9:6-8.21 to -8.73.
2
  The father's identity was unknown when the trial court entered
its order.
3
  N.J.S.A. 9:6-8.28(a)(2) authorizes the                     Division to remove
children "to avoid imminent danger to                        the child's life,
safety[,] or health."



                                          2                                 A-4545-12T3
Division placed her and her child in the Capable Adolescent

Mothers Program (CAM).

    The complaint alleged:

                The Division was informed that [R.W.]
           had admitted to smoking marijuana on March
           28, 2011[,] at CAM.        The CAM staff had
           reportedly made several efforts to assist
           [R.W.]   in    developing   life    skills   and
           parenting skills, but had been unsuccessful.
           It was further reported that [R.W.] had
           exhibited poor parenting skills, as she had
           been   observed    yelling,    cursing[,]    and
           screaming at [her infant].          [R.W.] also
           reportedly left [the infant] alone in the
           room or with staff for extended periods of
           time.   Due to [R.W.'s] overall behavior and
           lack of compliance at CAM, it was determined
           that she had violated her parole.          There
           were   also    concerns   with    [R.W.]   being
           verbally    aggressive    towards    the   staff
           members at CAM and her refusal to comply
           with a psychological evaluation. Therefore,
           on the afternoon of March 29, 2011, her
           parole officer arrived at the CAM facility
           to remove [R.W.] and to take her to the
           Hayes Correctional Facility.

The record includes no information regarding R.W.'s parole, or

her original offense.

    R.W. failed to appear for the fact-finding hearing, during

which    the   Division   presented       no     witnesses   and    moved   into

evidence only two exhibits.           P-1, a document described as a

"Court    Report,"   summarized   the          current   status    of   services

extended to R.W.




                                      3                                 A-4545-12T3
    P-2, the crucial exhibit and sole basis for the judge's

finding   of   abuse   and   neglect,   was   the   "Screening   Summary"

prepared by a Division worker about the incident.         It stated:

           Report advises that [eighteen] year old
           [R.W.] is a parolee and was placed in [CAM]
           by [the Division]. She is the mother of [a
           one] month old [] who is also a resident at
           CAM.     [R.W.] has admitted to smoking
           marijuana while the baby was with her in the
           community on [March 28, 2011].

           CAM staff have made several efforts to
           assist [R.W.] in developing life skills and
           parenting skills to no avail.     [R.W.] has
           exhibited poor parenting skills when dealing
           with her child.      She has been observed
           yelling, cursing and screaming at her baby.
           [R.W.] has also left the baby alone in the
           room or with staff for extended periods of
           time.

           Since   [R.W.]'s    behavior   and  overall
           compliance with CAM is an important aspect
           in the conditions of her parole, she has []
           violated [her parole]. On [March 29, 2011,]
           at approximately 1:00[ p.m.], her parole
           officer arrived at the facility to remove
           [R.W.] from CAM.       [R.W.] is currently
           detained and [the child] remains at CAM
           awaiting [Division] placement.

    During the fact-finding, the Division's attorney advised

the court that it could not prove that R.W. left the child "in

her room alone" or otherwise engaged in inappropriate behavior

toward her baby or toward CAM staff.          Instead, the agency would

rely exclusively on the statements in the Screening Summary,




                                    4                            A-4545-12T3
"that she was using substances while caring for the child."      The

Law Guardian did not object.

    When asked if she objected to a "Title [Nine]          finding"

based on the documents, R.W.'s attorney merely explained that

her client had been a minor in earlier protection cases, but was

now an adult with "her own child" and "using" drugs.       Counsel

added that she did not know why her client was absent and that

"she's somewhat complying with some services."       She did not

object to the Screening Summary's admission.

    The trial judge then rendered his decision from the bench:

                 All right.     [The] [c]ourt certainly
            appreciates those issues, but the [c]ourt
            does find that mom, here the defendant,
            failed to properly care for her child by
            using illegal substances, causing her to
            lack the capability or the capacity to
            properly maintain this child.    The use of
            the substances, and the [c]ourt finds cause
            the inadequate supervision, but I understand
            the inadequate supervision was not proven by
            leaving the child alone, but because of the
            use of the —— being under the influence of a
            controlled dangerous substance, that caused
            her to be in a position of not properly
            caring for the child.

                 So the finding is clearly by the
            substantial weight of the evidence. And []
            the [c]ourt sustains . . . the Division's
            position at this time.

    After the fact-finding hearing, the litigation continued.

R.W. had a second child, and the matter was dismissed on April

19, 2013.    Although not relevant to the issues addressed in this



                                 5                         A-4545-12T3
decision, it is undisputed that both children were later placed

with a family member.

       Documents       prepared      by   Division       staff        are     admissible

pursuant      to     Rule    5:12-4(d),        "provided      [they]        satisfy     the

requirements of the business records exception [to the hearsay

rule], N.J.R.E. 803(c)(6) and 801(d)."                     N.J. Div. of Youth &

Family    Servs.      v.    M.G.,   427   N.J.    Super.      154,    173    (App.    Div.

2012).        But    Rule    5:12-4(d)    by     its   very    terms      requires     the

Division to meet the foundational requirements for admission of

"Records of Regularly Conducted Activity," N.J.R.E. 803(c)(6).

       The business record exception includes:

              [a] statement contained in a writing or
              other record . . . made at or near the time
              of observation by a person with actual
              knowledge or from information supplied by
              such a person, if the writing or other
              record was made in the regular course of
              business . . . unless the sources of
              information . . . indicate that it is not
              trustworthy.

              [N.J.R.E. 803(c)(6).]

       That    the     Screening      summary      contained         at     least     three

out-of-court statements —— R.W.'s alleged admission to a CAM

worker who allegedly repeated it to the Division worker who

wrote the report —— is not in and of itself the problem.                                See

N.J.R.E. 805; Konop v. Rosen, 425 N.J. Super. 391, 402 (App.

Div.     2012)      (each     hearsay-within-hearsay            statement       may     be




                                           6                                    A-4545-12T3
admitted     so    long    as    the    basis          for    admission            is    separately

considered as to each).                Turning to the most-remote statement

first,      R.W.'s     admission        that           she        was        using       drugs     is

"trustworthy"        because      it    was        against         her        penal       interest,

exposing her to "criminal liability" as a result of potential

parole violation consequences.                N.J.R.E. 803(c)(25).

      The    evidentiary        problem       arises          from       the       CAM     worker's

narrative to the Division worker.                       That statement could not be

assessed     for    trustworthiness.               See       N.J.R.E.         803(c)(6).            We

cannot even discern from the narrative whether the CAM worker

who   repeated      R.W.'s      statement         to    the       Division         was     the    same

person who originally heard it.                         In other words, absent any

foundation, the judge should have ruled                             this portion of the

Screening     Summary      inadmissible,           recognizing               his    inability      to

assess   its       trustworthiness.            See       N.J.R.E.            803(c)(6);          M.G.,

supra, 427 N.J. Super. at 174.

      R.W.'s       attorney,      however,         appeared             to     accede       to    the

documents' admission.            Thus the Division was deprived "of the

opportunity to overcome any objection," and the trial court was

deprived     "of     the   necessity      to       make       a    ruling          based    on    the

arguments presented by both sides."                      N.J. Div. of Youth & Family

Servs. v. M.C. III, 201 N.J. 328, 341 (2010).                                      In New Jersey

Division of Youth & Family Services v. M.D., we reiterated the




                                              7                                             A-4545-12T3
importance of a defendant's understanding the meaning of, and

consequences flowing from, stipulations to abuse and neglect.

417 N.J. Super. 583, 609-16 (App. Div. 2011).                        In such cases, a

defendant    is    "waiving     her   right    to       a   hearing       at   which    [the

Division] must prove abuse and neglect by a preponderance of the

evidence[.]"       Id. at 617-18.

    We      take    this    opportunity       to    caution         trial      judges     in

contested     cases     who     render     fact-findings           based       solely     on

documentary submissions, particularly in the affected parent's

absence.    Unquestionably, Rule 5:12-4(d) makes Division documents

admissible    when     they     contain   "reports          by    staff    personnel     or

professional consultants."            But trial judges must nonetheless

fully assess the evidential issues inherent in the Division's

submission of documents which include statements by others than

Division     workers       or   experts.           In       any   event,       had     every

requirement of the Rules of Evidence been met, R.W.'s conduct

was nonetheless insufficient for a finding of abuse or neglect.

    The Division relied exclusively on the Screening Summary's

statement that R.W. "admitted to smoking marijuana while the

baby was with her in the community on [March 28, 2011]."                                 The

summary also discussed R.W. exhibiting "poor parenting skills,"

though the Division did not introduce any proof of such conduct.

The Division's attorney acknowledged it could not demonstrate




                                          8                                       A-4545-12T3
any other relevant behavior and proceeded solely on the basis of

R.W.'s admission that she used marijuana on March 28.

       Our Supreme Court explained in New Jersey Division of Youth

& Family Services v. A.L. that:                    "'Abuse' and 'neglect' are

carefully defined in the law.                   N.J.S.A. 9:6-8.21(c). . . . If

there is no evidence of actual harm, [] the statute requires a

showing of 'imminent danger' or a 'substantial risk of harm'

before a parent or guardian can be found to have abused or

neglected a child."         213 N.J. 1, 8 (2013).                In A.L., a pregnant

mother tested positive for cocaine during delivery.                          Id. at 9.

The baby was born hours later, and his meconium "revealed the

presence of 'cocaine metabolites.'"                      Ibid.     Nonetheless, the

child was born healthy.

       At the fact-finding hearing in A.L., the Division proceeded

in    much   the    same   manner    as   in     this    case,    solely     by     moving

records into evidence.             The trial judge found, based on A.L.'s

cocaine ingestion shortly before the birth of her baby, that she

had    abused      and   neglected    her       child.      The     Court    reversed,

concluding,        among   other    things,       that    the     Division    had       not

presented evidence explaining the meaning of the hospital test

regarding the mother's cocaine ingestion.

       The Court warned judges not to "fill in missing information

on their own or take judicial notice of harm."                      Id. at 28.          The




                                            9                                     A-4545-12T3
Court reminded judges that the "fact-sensitive nature of abuse

and    neglect    cases    turns      on   particularized     evidence."      Ibid.

(citation omitted).         Missing in A.L. was any explanation of the

effect the presence of metabolites would have on the child.

Missing in this case was any explanation of the potential for

harm to the child from R.W.'s marijuana use.

       In her brief, R.W. also refers us to New Jersey Division of

Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div.

2011).     In that case, the trial court found that a father who

had    ingested     cocaine      and       marijuana    before   exercising       his

Division-supervised visitation with his eleven-year-old daughter

had abused and neglected her by virtue of that conduct.                     Id. at

323.     We noted on appeal that the absence of expert testimony

interpreting      his     drug   screen      test   results   (obtained     by   the

Division    at    the     time   of    the    visits)   precluded   any     precise

determination as to the extent that his drug use posed a risk of

harm to his child.          Id. at 331.           In fact, the Division worker

testified that V.T. behaved appropriately at both visits and did

not seem impaired.         Ibid.

       In V.T., we reiterated the societal concern that no child

come under the care of an intoxicated parent.                       Ibid.        This

concern is more pressing where, as here, the child is an infant.

On the other hand, "not all instances of drug ingestion by a




                                             10                            A-4545-12T3
parent   will    serve     to   substantiate       a    finding    of        abuse     or

neglect."       Id.   at    332.         Instead   of    filling        in     missing

information, an understandable response by judges who regularly

witness the evils inflicted on children by their parents' drug

use, judges must engage in a fact-sensitive analysis turning on

"particularized evidence."         A.L., supra, 213 N.J. at 28.

     A.L. and V.T. were both issued after the decision in this

case.    Prior to those decisions, however, N.J.S.A. 9:6-8.46(b)

obliged judges to decide abuse and neglect matters solely on

"competent,     material[,]        and     relevant      evidence."                 These

proceedings are important not only to the children involved, but

also to the parents, and to society as a whole.4

     R.W.'s     single     admission      was   insufficient       to        meet    the

Division's burden of proof.          The circumstances of her ingestion

were not detailed, other than that she was "in the community."

Hence it cannot even be assumed that the baby was solely in her

mother's care when she was intoxicated, and that no one was


4
  A fact-finding hearing's "significant consequences" include:
(1) the potential for a "dispositional order . . . plac[ing] the
child in the custody of a relative or another suitable person
for a substantial period of time[;]" (2) the potential for a
future "Division . . . action to terminate parental rights[;]"
and (3) the Division's recordation of the alleged abuser's name
"into a Central Registry" whose confidential records "may be
disclosed, on written request, to doctors, courts, child welfare
agencies, employers [], and others[.]" A.L., supra, 213 N.J. at
25-26.



                                         11                                   A-4545-12T3
available to attend to the child's needs.                      Furthermore, the

trial    court     knew    nothing   about      the    magnitude,    duration,     or

impact of R.W.'s intoxication.

      A judge's legal conclusions are reviewed de novo:                         when

they are unsupported by competent evidence in the record, they

will be reversed.          Cesare v. Cesare, 154 N.J. 394, 412 (1998);

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.

474, 483-84 (1974).           In this case, the legal conclusion that

R.W. placed her child in imminent danger or at substantial risk

of   harm    was    unwarranted,     as    it    had    inadequate    evidentiary

support.

      Courts need not wait until harm occurs before interceding

to protect children.          In re Guardianship of D.M.H., 161 N.J. 365,

383 (1999); accord N.J. Div. of Youth & Family Servs. v. A.W., 103

N.J. 591, 616 n.14 (1986).             But this is not, for example, an

instance of a parent intentionally leaving an infant unattended in

a home or a car, which is generally treated as prima facie abuse

and neglect because such conduct risks tragic consequences.                       See

N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266,

272 (App. Div.) (upholding termination of parental rights where

defendant had left two young boys alone in a locked basement),

certif. denied, 196 N.J. 347 (2008); State v. M.L., 253 N.J.

Super.      13,    30-31    (App.    Div.       1991)    (upholding     a    child-

endangerment conviction where defendant had left her fifteen-


                                          12                                A-4545-12T3
month-old    unattended     in    her    apartment       for    several    hours),

certif.   denied,   127   N.J. 560      (1992).      Here,      the    trial   judge

"filled in missing information" and took "judicial notice of harm."

A.L., supra, 213 N.J. at 28.

      Finally, the Law Guardian contends on appeal that R.W., by

consuming drugs while on parole, made her child an abused or

neglected child because of the risk she would be incarcerated

and   thus   unavailable.        Parolees     understand        that    they   must

abstain from drug use or else risk incarceration.                     See N.J.A.C.

10A:71-6.4(a)(10),    -7.1,      and    -7.9.       If    the    Law    Guardian's

argument had merit, however, then the mere act of committing a

crime, violating parole, or violating probation, with nothing

more,   would   constitute       an   act    of   abuse    or    neglect.        The

Legislature could not have intended that result when it enacted

the abuse and neglect statute.

      Reversed.




                                        13                                 A-4545-12T3
