New Jersey Superior Court, Appellate Division - Published Opinions Decisions 2017
THOMASG LECHLER v. 303 SUNSET AVENUE CONDOMINIUM ASSOCIATION, INC.
Date: December 29, 2017
Docket Number: a1095-16
Date: December 29, 2017
Docket Number: a1095-16
JOHN WATSON v. NEW JERSEY DEPARTMENT OF THE TREASURY
Date: December 29, 2017
Docket Number: a5627-15
Date: December 29, 2017
Docket Number: a5627-15
DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.J.R.
Date: December 11, 2017
Docket Number: a3884-15 WHIPPLE, J.A.D. Defendants C.J.R. (Cindy1) and C.R.A. (Charles) appeal from an April 27, 2016 judgment of guardianship terminating their parental rights to their three biological children, A.A.R. (Anne), C.L.A. (Claire), and C.A. (Chip). Because the trial court erred in giving preclusive effect, in the guardianship proceeding, to the prior finding of abuse and neglect based upon the burden shifting provisions of Title Nine, we reverse and remand for a new guardianship trial. I. We discern the following relevant facts from the record. On February 18, 2014, Charles and Cindy brought Chip to his 1 All names used herein are pseudonyms, both for ease of reference and to protect the identity of the parties. By doing so we mean no disrespect to the parties. 2 A-3884-15T1 primary care physician because two days earlier, they heard and felt a popping sensation when picking up Chip for feeding. The doctor referred them to the emergency room where an X- ray revealed one, and possibly two, fractured ribs. The emergency room doctor reported the matter to the Division of Child Protection & Permanency (the Division) as a precaution. During the course of the Division's investigation, Cindy denied allowing anyone else to care for Chip, and denied having anyone else in the home besides herself, Charles, her other two children, and her two nieces. Charles also reported no one but himself and Cindy cared for Chip, the other children were not permitted to handle Chip on their own, and he had never witnessed the other children harm Chip. On February 19, 2014, the Division consulted with Dr. Monica Weiner, M.D., of the Metro Regional Diagnostic and Treatment Center. Based on the initial consultation and Dr. Weiner's review of Chip's medical records, the Division requested Cindy bring her children to the hospital for medical examinations. While at the hospital, Cindy again denied knowing how Chip was injured. On February 20, 2014, Chip underwent a skeletal survey, revealing four rib fractures; on February 21, 2014, a head CT scan was performed, revealing head trauma. The other children showed no signs of abuse or neglect. 3 A-3884-15T1 The Division conducted an emergency removal of the children and placed them in resource homes. On February 24, 2014, the Division filed an order to show cause and verified complaint, and the children were placed in the custody, care, and supervision of the Division. The court granted Charles and Cindy weekly supervised visitation. On February 25, 2014, Chip received an MRI, revealing brain contusions and subdural hematomas. Dr. Weiner, in her report to the Division's dated April 9, 2014, opined that the rib fractures could not be the result of a birth injury based on "the x-rays findings alone." Further, [p]osterior rib fractures can be caused when the chest is forcefully squeezed. They can also occur from a direct impact to the ribs. Both [Cindy] and [Charles] have stated that they were [Chip's] only caregivers and cannot provide an explanation for the fractures. Based on the information currently available, the fractures must be considered to be the result of physical abuse until proven otherwise. Regarding the brain contusions and hematomas, Dr. Weiner opined, [p]arenchymal contusions of the brain with subdural hemorrhages are caused by head trauma. A shaking mechanism could cause the findings seen in [Chip], and could have also caused the posterior rib fractures. Therefore, abusive head trauma must be considered as a likely cause of the brain injuries. Brain contusions are also a rare complication of birth trauma. As the exact 4 A-3884-15T1 timing of [Chip's] brain findings cannot be determined, birth trauma as an explanation for the brain injuries cannot be completely ruled out. On July 11, 2014, the Family Part judge entered an order continuing the custody, care, and supervision of the children with the Division, continuing the supervised visitation with Charles and Cindy, and requiring them to comply with services provided by the Division. Additionally, the judge conducted a fact-finding hearing, resulting in a finding of abuse against Cindy and Charles. The Division offered services to Charles and Cindy, in the form of parenting skills classes, psychological evaluations, couples therapy, and individual therapy. Both parents completed all recommended services. Additionally, Charles underwent a substance abuse evaluation, which concluded he was not in need of substance abuse treatment. On October 3, 2014, Anne, Claire, and Chip were returned to their parents' custody. On November 18, 2014, an ambulance brought Chip to the hospital. Cindy reported Chip had been listless and not eating well, and she had gone upstairs to give her daughters a bath when Charles called to tell her Chip was "breathing funny," at which point she went downstairs and witnessed Chip having a seizure. She reported that a few weeks earlier Chip had fallen to the floor from a sitting position and hit his head. A CT 5 A-3884-15T1 scan revealed subdural hematomas in the form of bleeding in the frontal and right temporal area of the brain, and an eye exam revealed "extensive multi-layered retinal hemorrhages." The emergency room doctor reported the incident to the Division, indicating Chip's injuries were consistent with abuse. On November 19, 2014, the Division executed another removal of all children in the household, placing them with the same resource families. Dr. Weiner prepared another report for the Division, and found, "[Chip's] previous brain contusions and subdural hemorrhages had resolved by July 2014 and were not the cause of the current findings. There were no infectious, metabolic, hematologic, or other organic medical causes found for the intercranial and eye injuries, leaving recent trauma as the remaining explanation." She went on to state, [s]ubdural hemorrhages can be caused by an acceleration-deceleration ("shaking") mechanism with or without impact or by impact alone. The acute appearance of the subdural hemorrhages on [Chip's] CT scan, plus [Chip's] sudden onset of symptoms, suggests that head trauma occurred within a few days of [Chip] presenting to University Hospital on 11/18/14. No accidental or other trauma was reported which would explain the subdural and retinal hemorrhages. At this time, no reasonable medical or other explanation has been 6 A-3884-15T1 provided which would account for [Chip's] injuries and they must be considered to be the result of physical abuse, specifically abusive head trauma, until proven otherwise. There is now evidence for two additional episodes of unexplained head trauma leading to additional injuries. Head injuries are the number one cause of morbidity and mortality due to child abuse and returning [Chip] to the environment in which these injuries occurred put him at risk for further severe injury or death. On December 12, 2014, Chip was discharged from the hospital and placed with his previous resource home. In March 2015, the Division recommended continued services for Cindy and Charles, in the form of therapy, parenting skills, and visitation. Both parties completed all required services. On March 17, 2015, the Division sent a letter to counsel for Charles and Cindy. The letter alerted defendants that the Division intended to ask the court to take judicial notice of the previous fact-finding order and "the Division is requesting that the court make a finding of abuse against [Charles and Cindy] by clear and convincing evidence." If the court elects to make such a finding, the Division informed, "it will have a preclusive effect on any subsequent guardianship proceeding." The letter concluded, "the Division, upon establishing its prima facie case against [Charles] and [Cindy], intends to request 7 A-3884-15T1 that the Court shift the burden of proof to them to prove their non-culpability with respect to the injury sustained by [Chip]." On April 10, 2015, the parties appeared for a fact-finding hearing. As the above letter warned, the Division sought a finding by clear and convincing evidence against Cindy and Charles for Chip's injuries. The Division presented Dr. Weiner and the Division caseworker as witnesses. The caseworker testified about the Division investigations and the removal of the children from defendants’ care. Dr. Weiner testified, as an expert witness, about the injuries sustained by Chip in both February and November, and her opinions as to the cause of the injuries. Specifically, consistent with her medical report, she testified Chip's injuries were likely caused by shaking, and that neither Cindy nor Charles provided alternate explanations to account for the injuries. The doctor testified that a fall from a sitting position onto a hardwood floor would not be sufficient to cause Chip's injuries. At the close of this hearing, the judge2 found, the case law is clear . . . the Division has made a prima facie case where the burden shifting would come into play in that there were two caretakers, the mother and the father that apparently were admitted to the caseworker to be the primary caretakers of 2 The same family court judge has presided over this case from its inception through the judgment of guardianship. 8 A-3884-15T1 the child. And, therefore, the burden shifting would apply to this case. The hearing continued on April 30, 2015, and Cindy testified about the trip to the hospital with Chip in November, what the doctors told her about his injuries, and about the fall in which he was sitting up and hit his head on the floor. There were no other accidents where Chip hurt his head, neither she nor Charles had ever used corporal punishment on Chip, and she had never observed Claire, Anne, or her nieces roughhousing or harming Chip. Furthermore, the only times another person was Chip's caretaker during the relevant time period,3 was one night in which Chip's resource parents babysat for him, and a second day where Cindy's mother babysat for him. The defense put forth no expert witnesses. The judge issued a decision from the bench saying, "I found Dr. Weiner to be extremely credible and experienced" and "there's still no explanation . . . how this could have occurred other than abuse and neglect." Further, he stated, "an explanation that the child fell over from it sitting on the floor on its side and caused these type of horrendous injuries . . . is just not believable or credible." The court concluded, 3 The testimony did not involve the February 2014 incident, as the parties had asked the court to take judicial notice of the July 11, 2014 fact-finding where Cindy and Charles were found to have been the cause of Chip's February injuries. 9 A-3884-15T1 "I'm satisfied the Division has proven its case by clear and convincing evidence that there was abuse and neglect in this particular case which caused these injuries . . . as to both defendants." In May 2015, Dr. Sean Hiscox, Ph.D., an expert for the Division, issued a report recommending the Division change the case goal from reunification to termination of parental rights and adoption. In June 2015, the court approved the Division's plan of termination of parental rights followed by adoption for Claire, Anne, and Chip. In August 2015, the Division filed a complaint for guardianship, and the court issued an order terminating the Title Nine litigation. Charles and Cindy continued to participate in services provided by the Division, including individual therapy and several psychological evaluations. Charles "presented as cooperative and conversational." He "appeared to benefit from the supportive nature of the therapy" and "expressed understanding of the seriousness of the situation[]," but he "denied wrongdoing in both instances." The reports, provided by the therapists, indicated that "at the beginning of treatment, [Cindy] presented as viewing therapy as 'pointless' and 'unnecessary,' but later came to view it as helpful and useful." At the close of her therapy, the therapist opined, "[Cindy] 10 A-3884-15T1 might benefit from additionally family therapy," whether the eventual plan was reunification or termination. In September, Cindy requested, and the court granted, a separate visitation schedule from Charles, as they had separated. Between November 2015 and January 2016, Dr. Carolina Mendez, Ph.D., evaluated Cindy, Charles, Anne, Claire, Chip, and the respective resource parents individually and in combinations. The purpose of these evaluations was to assess the parenting ability of Charles and Cindy, the nature and quality of the bonds between the children and their biological parents, and the bonds between the children and the resource parents. She also reviewed medical records, Division records, and all previous psychological evaluations. During their evaluations, Charles and Cindy asserted they were no longer in a relationship, and were no longer living in the same residence. Again, neither parent had an explanation for the injuries sustained by Chip. The bonding evaluation between Chip, his biological parents, and his resource parents, showed that while Chip "has developed relationships with all of the adults, the relationship he has developed with his resource parents is deeper and more meaningful than the relationship he has with his biological parents." Dr. Mendez opined, "[Chip] would likely have a deeper 11 A-3884-15T1 reaction to losing the relationship he has with his resource parents than losing the relationship he has with his biological parents." She concluded, he "has already begun to solidify his attachment to his resource parents, as they have been consistent parental figures in this child's life shy of six weeks. Therefore, it is recommended that [Chip] maintain the relationship he has with his resource parents." The bonding evaluation between Anne, Claire, their biological parents, and their resource parent showed they were attached to both sets of parents. Dr. Mendez opined, "[s]hould they lose any of these relationships, they are likely to have a negative reaction to the loss. However, . . . maintaining the relationship with the resource parent would mitigate the harm caused by the loss of the relationship with their biological parents." Dr. Mendez acknowledged the reverse was also true, that maintaining the relationship with the biological parents would mitigate the harm from the loss of the resource parents. However, there were additional risk factors to staying with the biological parents, since Chip's injuries were still unexplained. Overall, Dr. Mendez concluded, "[Claire, Anne, and Chip] clearly require consistency and permanency, . . . [and] 12 A-3884-15T1 [t]ermination of parental rights followed by adoption would produce more good than harm." On March 28, 2016, the court conducted an emergent hearing regarding the Division's request for a ruling on the preclusive effect of the April 30, 2015 "clear and convincing" finding. The judge opined, "[New Jersey Division of Youth and Family Services v. R.D., 207 N.J. 88 (2011)] . . . does specify and require that the parties be on notice in the fact-finding prior to the determination." The judge then found, [i]n this particular case, I made the clear and convincing finding with notice to the parties and the opportunity to be heard on those issues, and I think based on that and based on the case law in Division v. R.D., it is a preclusive finding for purposes of the guardianship hearing, and I will so rule that the Division does not need to relitigate the Prong One. That same day, the court issued an order confirming this, and further stated, "the Division has satisfied prong one of the best interest test, that [Chip] was harmed by his parental relationship with [Cindy] and [Charles]." The guardianship trial began on March 30, 2016, continued on April 18 and 20, 2016, and concluded on April 27, 2016. Dr. Andrew Brown, III, Ph.D., testified as expert for Cindy. Dr. Brown had conducted psychological evaluations of Cindy in July and December 2015. He testified that in between the two 13 A-3884-15T1 evaluation dates, Cindy and Charles had separated, were no longer living together, and had separate visitation schedules with their children. He stated, "she underwent fifteen weeks of individual psychotherapy . . . [and] her awareness has improved sufficiently to the point where she should be able to parent and keep her children safe." Dr. Brown further testified that based on testing, in July 2015, for child abuse potential, Cindy did not score in a range indicative of a potential to commit child abuse. He then testified the children were deeply bonded to Cindy, and "that the children would suffer traumatic harm if the relationship . . . was severed with their natural mother." He further testified the resource parents would not be able to mitigate the harm to Chip caused by the separation from his natural mother. Finally, he opined that a kinship legal guardianship, as an alternative to termination of parental rights, would serve the best interests of the children because it would allow for Cindy to remain in contact. Also, adoption caseworker Latoya Bowers testified to the services provided to Cindy and Charles by the Division. She also testified to the unsuccessful efforts of the Division to find relatives who would be appropriate for placement of the children. Further, Ms. Bowers had discussed kinship legal 14 A-3884-15T1 guardianships with the resource parents, who declined in favor of adoption, with continued contact between the children and the biological parents. The law guardian's expert, Dr. Eric Kirschner, Ph.D., testified. Dr. Kirschner conducted bonding evaluations between the children, the resource parents, and the biological parents. He concluded the children were "adequately bonded" to the resource parents, and there was a bond between the children and their biological parents. Nonetheless, he advised the appropriate course of action would be termination of parental rights followed by adoption, because the "multiple instances of life-threatening injuries occurring to a very young child . . . makes it for all intents and purposes . . . impossible to come to a conclusion" that the children could be safely returned to Cindy and Charles. Dr. Kirschner stated, while termination of the parental relationship would cause psychological harm to the children, the "presence of that [resource] parent relationship and bond is able to serve as an offsetting or mitigating factor helping the children to cope with the loss." He concluded termination of the parental rights would not do more harm than good for the children. 15 A-3884-15T1 Cindy took the stand to testify in her defense. She recounted the events leading to the second DODD removal, and how Chip had suffered a minor fall in October 2014, which she did not feel required a hospital visit. She stated it would be safe for her to be reunited with her children because, "I did not hurt my son. I would never hurt any of my children, and . . . I feel that my son got hurt under his father's watch." She explained she separated from Charles in July 2015, for "multiple reasons." She stated she would do "anything and everything" to protect the children if they were returned, and the risk had been removed because she felt the risk was Charles. She concluded her testimony stating, "someone hurt my son. So I can only assume because I didn't see it happen, I can only assume that [Charles] hurt my son." The judge asserted his intentions to not "retry the fact-finding when there's been a finding by clear and convincing evidence" with regard to the first prong of the test under N.J.S.A. 30:4C-15.1(a). Dr. Hiscox testified for the Division, and emphasized his concerns about a non-offending parent even if he or she did not cause the injuries. Dr. Hiscox also disagreed with Dr. Brown's assessment of the risk posed by Cindy. He concluded Dr. Brown based his assessment on the fact that Cindy separated from Charles, and she had "a higher level of insight because she was 16 A-3884-15T1 not minimizing what the problem was." Further, for Dr. Brown to conclude he did not see Cindy as the wrongdoer was "beyond the purview of . . . a forensic psychologist . . . , there's no [psychological] tests or indices . . . that would determine whether somebody engaged in a criminal act or not." On that same date, the trial judge issued his decision. With regards to the first prong of N.J.S.A. 30:4C-15.1(a), the judge stated, this Court really does not need to address the Prong One. I had previously made a ruling by clear and convincing evidence with regard to the abuse and neglect issue . . . and I ruled also that testimony was not necessary since there was established by clear and convincing evidence after the second incident. Despite this, the judge made additional findings under the first prong. He stated he found Dr. Hiscox and Dr. Kirschner to be credible, and did not find the defense expert, Dr. Brown, to be credible. He then stated, you can't discount the fact that there were two horrible life-threatening physical injuries that were unexplainable other than physical abuse to this child, . . . if this doesn't prove continuous risk and continuous harm and the fact that the harm was not dissipated that occurred the first time, I don't know what else could prove this. Additionally, the judge found specifically for the second prong, 17 A-3884-15T1 the risk factors are still exactly the same as they were. There are serious risk factors in here, returning these children to either of these parents, . . . would create a substantial risk, and . . . there's significant and ongoing risk involved here . . . that goes to Prong Two. We haven't alleviated this risk of harm. We don't know where it is and we haven't alleviated, we are still at the same spot. For the third prong, the judge stated, "[the Division] made reasonable efforts [to provide services] but I don't know whether there is any service that would change that situation." For the fourth prong, the judge found the termination of parental rights would not cause more harm than good. He found important that the children had been in resource homes for over two years, and it was really the only home that Chip had ever known. With regard to Anne and Claire, he found credible the testimony that their bond with the resource parents would mitigate any harm caused by the termination of parental rights. Based on the foregoing, the trial judge terminated Charles and Cindy's parental rights, and granted guardianship over the children to the Division. The court granted both parents visitation pending their appeal. The children currently remain and are reportedly happy in their resource homes, which they have been in since their removal in February of 2014. Both sets of resource parents have indicated their intentions to proceed with adoption. These appeals followed. 18 A-3884-15T1 II. Our review of a trial judge's findings and decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We do not reverse the family court's termination decision "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We defer to the trial court's credibility findings and fact-findings because of its expertise in family matters and its ability to develop a "feel of the case that can never be realized by review of the cold record." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted). This court should not disturb these findings unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Parents have a constitutionally protected right to raise their biological children, even if placed in the care of a resource family. In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The State may act to protect the welfare of the children, but this is a limited authority, 19 A-3884-15T1 applying to circumstances where the parent is unfit or the child has been harmed or placed at risk of harm. Id. at 10; N.J.S.A. 30:4C-12; see N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986). To prevail in a proceeding to terminate parental rights, the Division must establish each element of the "best interests test": (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 352, 348 20 A-3884-15T1 (1999). The State must prove each prong of this test by clear and convincing evidence. A.W., supra, 103 N.J. at 612. Additionally, courts may not use presumptions of parental unfitness and any "doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. The first prong of the best interests test focuses on the "endangerment of the child's health and development resulting from the parental relationship." Id. at 348; N.J.S.A. 30:4C- 15.1(a)(1). Defendants argue the trial court erred in applying the fact-finding determination of abuse to satisfy the first prong of the best interest test. Neither defendant objected in the Family Part to this threshold ruling, therefore, we consider it under a plain error standard. Pursuant to Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Charles argues the findings of the trial court are not entitled to this court's deference, because they are "so wide of the mark" as to warrant reversal. Further, Cindy argues the trial court erred in giving the Title Nine fact-finding preclusive effect because the burden-shifting force of N.J.S.A. 9:6-8.46 relieved the State of its burden to prove harm to the 21 A-3884-15T1 child by clear and convincing evidence, as required by Title Thirty. A Title Nine fact-finding, made by clear and convincing evidence, may be given preclusive effect in a later Title Thirty proceeding. However, defendant asserts this is a permissive standard, as "when the underlying finding of abuse, . . . is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights." R.D., supra, 207 N.J. at 105-06 (citations omitted). He asserts that R.D. is distinguishable from the present case because there is no specifically identified perpetrator of abuse against Chip, and therefore the trial court should have chosen not to give the finding preclusive effect. In R.D., the trial court made a Title Nine finding by clear and convincing evidence that the defendant had abused his daughter, and gave these findings preclusive effect in a later Title Thirty proceeding. Id. at 99-100. We affirmed, id. at 104, and the Supreme Court of New Jersey reversed the decision because the defendant had not been placed on adequate notice that the finding could have preclusive effect. Id. at 121-22. The Court established a three-factor test which must be satisfied before a Title Nine fact-finding can be given preclusive effect in a Title Thirty proceeding. Id. at 120-21. 22 A-3884-15T1 First, the Title Nine court must provide advance notice to the parties that, if supported by the proofs, it will make its findings using the higher Title Thirty 'clear and convincing evidence' standard; that notice must be clear and unequivocal, and must fairly and reasonably advise the parties that any Title Nine determinations made under the higher, clear and convincing evidence standard will have preclusive effect in any subsequent Title Thirty proceeding. [Id. at 120.] Second, "the Title Nine court must make clear to the parties that, . . . the determinations made in respect of that interim relief - particularly those concerning harm to the child - may have preclusive effect on the final, permanent relief arising out of a Title Thirty proceeding." Id. at 121. Third, "the Title Nine court must relax the time deadlines and, to the extent necessary, use in the Title Nine proceeding the admissibility of evidence standards applicable to Title Thirty proceedings." Ibid. Here, only two of the three factors were satisfied. The Division sent a letter to defendants stating "the Division is requesting that the court make a finding of abuse against [Cindy] and [Charles] by clear and convincing evidence." This letter gave them clear and unequivocal notice of the higher standard to be applied, and further informed them "[i]f the 23 A-3884-15T1 court makes such a finding, it will have a preclusive effect on any subsequent guardianship proceeding." (Emphasis added). Thus this letter, sent three weeks before the first fact-finding hearing date, satisfied the first prong of the R.D. test as to notice. Next, at the April 10, 2015 fact-finding hearing, the Division restated its request to have the finding made by clear and convincing evidence. The Family Part judge, after two days of hearings and witness testimony, found "the Division has proven its case by clear and convincing evidence that there was abuse and neglect in this particular case which caused these injuries. And I'm satisfied the Division has proven it by clear and convincing evidence as to . . . both defendants." This notice, coupled with the letter which stated a finding by clear and convincing evidence would have preclusive effect on later proceedings, serves to satisfy the second part of the R.D. test. However, the third prong, requiring the use of the "admissibility of evidence standards applicable to Title Thirty proceedings," was not satisfied, because the statutory burden- shifting provision found in Title Nine is not present in Title Thirty. Under Title Nine, proof of injuries sustained by a child or of the condition of a child of such a nature as 24 A-3884-15T1 would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child. [N.J.S.A. 9:6-8.46(a)(2).] Additionally, when there is limited access to a child in a Title Nine litigation, especially an infant, the burden shifts to those with access to prove non-culpability. Matter of D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). As we have said, were this a tort suit brought against a limited number of persons, each having access or custody of a baby during the time frame when a . . . abuse concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, would we not recognize an occasion for invocation of the Anderson v. Somberg4 doctrine? [Ibid.] Under this doctrine, once a prima facie case has been established, the burden shifts, and such defendants are required to come forward and give their evidence to establish non- culpability. See ibid. Here the court found a prima facie case was made out both by the injuries suffered by Chip, and because only Charles and Cindy had access to him. As such, the court 4 Anderson v. Somberg introduced "conditional res ipsa loquitur," where once the prima facie case has been made out, even where more than one explanation exists, defendant bears the burden of rebutting with evidence. Anderson v. Somberg, 67 N.J. 291, 299-300 (1975). 25 A-3884-15T1 shifted the burden to them to show their non-culpability in his injuries. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). However, in Division of Child Protection and Permanency v. T.U.B., we said the plain meaning of N.J.S.A. 9:6-8.46(a)(4) confines its discrete hearsay exception to abuse and neglect cases litigated in Title Nine proceedings, and "is not repeated or incorporated by reference anywhere within Title [Thirty]." 450 N.J. Super. 210, 230 (App. Div. 2017). Moreover, we recognized when Title Nine and Title Thirty were amended in 2005, the evidentiary provisions in N.J.S.A. 9:6-8.46(a) were not extended to Title Thirty proceedings. Id. at 233. Furthermore, the first line of [N.J.S.A. 9:6-8.46(a)] begins with this contextual and limiting phrase: "In any hearing under this act . . . ." By using the prefatory term "this act," the Legislature plainly conveyed that the evidentiary provisions set forth . . . are all special rules intended to override or qualify the general rules of evidence, but for Title Nine proceedings only. [Id. at 230.] In the same vein, we do not read Title Nine or Title Thirty to allow the expansion of the burden-shifting provisions to permit the use of the finding in the current case with 26 A-3884-15T1 preclusive effect in guardianship proceedings, for the reasons set forth above and additionally pursuant to the constitutional considerations stated by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). In Santosky, the United States Supreme Court implicitly warned against shifting the burden to the defendant in a termination of parental rights case by comparing the due process considerations to those present in a criminal prosecution because of the weight and gravity of the interest at stake. 455 U.S. at 754-55. The Court recognized that the State's ability to present a case against a parent is much stronger than the parent’s ability to mount a defense but declined to impose the reasonable doubt standard. Id. at 763. However, the Court explicitly warned, "at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable." Id. at 768. "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 768 (quoting Addington v. Texas, 441 U.S. 418, 427, 99 S. Ct. 1804, 1810, 60 L. Ed. 2d 323, 331-32 (1979)). 27 A-3884-15T1 As such, the trial court's decision to give the Title Nine fact-finding preclusive effect in the Title Thirty proceedings, shifting the burden to defendants, and requiring them to rebut the presumption of abuse and neglect through their own evidence created an unconstitutional asymmetry we consider plain error on a critical question of law warranting reversal. In reaching that conclusion, we are mindful that, before the present appeal, the legal issue had not been previously addressed in a published opinion. III. Charles argues that the trial court wrongfully applied preclusive effect to the entire four-prong test, "effectively act[ing] as a summary judgment determination." Additionally, Charles argues the trial court did not make specific findings under the first and second prong regarding Claire and Anne. We recognize first that the trial court made specific findings under prongs two, three, and four regarding Chip, and there is "substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104. However, these findings are built at least in part upon, and tainted by, the foundation established by the erroneous presumptions made 28 A-3884-15T1 under the first prong.5 As previously stated, the four prongs of the best-interest test "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. We therefore find that reliance by the trial court on prong one was fatal to its determinations under the second, third, and fourth prongs as to Chip. Furthermore, we note the trial court made no specific findings under prongs one or two6 regarding Claire and Anne. While N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent," this does not mean that harm to one child is conclusive proof of harm to another child. The Title Nine findings made by the judge were confined to consideration of whether Chip was abused; there were no explicit findings that either Anne or Claire were abused or neglected. Moreover, the Division 5 While we acknowledge the limited findings made by the trial court under prong one, the fact remains that its overall reliance was on the Title Nine fact-finding hearing, and the effect was to shift the burden to the defendants to prove they were not the source of the harm. 6 The judge made findings under both the third and fourth prongs: that the Division had made reasonable efforts to provide services, and the testimony asserting that Claire and Anne's bond with the resource parents would mitigate any harm caused by the termination of parental rights was credible. 29 A-3884-15T1 caseworker conceded neither was harmed, meaning that any harm attributed to have been visited upon either girl was derived from the harm to Chip. Therefore, the determination of the judge terminating Charles and Cindy's parental rights to Claire and Anne was not supported by sufficient credible evidence, and was in error. We therefore vacate the judgment of guardianship entirely as to Claire and Anne. Furthermore, we believe that going forward from here, the trial court should be allowed to consider each prong in the light of any developments since trial, and shall have the discretion to permit any updated evaluations or discovery that may be warranted. Reversed and remanded for the Family Part to conduct a new trial, to be completed within sixty days. We do not retain jurisdiction. 30 A-3884-15T1
Date: December 11, 2017
Docket Number: a3884-15 WHIPPLE, J.A.D. Defendants C.J.R. (Cindy1) and C.R.A. (Charles) appeal from an April 27, 2016 judgment of guardianship terminating their parental rights to their three biological children, A.A.R. (Anne), C.L.A. (Claire), and C.A. (Chip). Because the trial court erred in giving preclusive effect, in the guardianship proceeding, to the prior finding of abuse and neglect based upon the burden shifting provisions of Title Nine, we reverse and remand for a new guardianship trial. I. We discern the following relevant facts from the record. On February 18, 2014, Charles and Cindy brought Chip to his 1 All names used herein are pseudonyms, both for ease of reference and to protect the identity of the parties. By doing so we mean no disrespect to the parties. 2 A-3884-15T1 primary care physician because two days earlier, they heard and felt a popping sensation when picking up Chip for feeding. The doctor referred them to the emergency room where an X- ray revealed one, and possibly two, fractured ribs. The emergency room doctor reported the matter to the Division of Child Protection & Permanency (the Division) as a precaution. During the course of the Division's investigation, Cindy denied allowing anyone else to care for Chip, and denied having anyone else in the home besides herself, Charles, her other two children, and her two nieces. Charles also reported no one but himself and Cindy cared for Chip, the other children were not permitted to handle Chip on their own, and he had never witnessed the other children harm Chip. On February 19, 2014, the Division consulted with Dr. Monica Weiner, M.D., of the Metro Regional Diagnostic and Treatment Center. Based on the initial consultation and Dr. Weiner's review of Chip's medical records, the Division requested Cindy bring her children to the hospital for medical examinations. While at the hospital, Cindy again denied knowing how Chip was injured. On February 20, 2014, Chip underwent a skeletal survey, revealing four rib fractures; on February 21, 2014, a head CT scan was performed, revealing head trauma. The other children showed no signs of abuse or neglect. 3 A-3884-15T1 The Division conducted an emergency removal of the children and placed them in resource homes. On February 24, 2014, the Division filed an order to show cause and verified complaint, and the children were placed in the custody, care, and supervision of the Division. The court granted Charles and Cindy weekly supervised visitation. On February 25, 2014, Chip received an MRI, revealing brain contusions and subdural hematomas. Dr. Weiner, in her report to the Division's dated April 9, 2014, opined that the rib fractures could not be the result of a birth injury based on "the x-rays findings alone." Further, [p]osterior rib fractures can be caused when the chest is forcefully squeezed. They can also occur from a direct impact to the ribs. Both [Cindy] and [Charles] have stated that they were [Chip's] only caregivers and cannot provide an explanation for the fractures. Based on the information currently available, the fractures must be considered to be the result of physical abuse until proven otherwise. Regarding the brain contusions and hematomas, Dr. Weiner opined, [p]arenchymal contusions of the brain with subdural hemorrhages are caused by head trauma. A shaking mechanism could cause the findings seen in [Chip], and could have also caused the posterior rib fractures. Therefore, abusive head trauma must be considered as a likely cause of the brain injuries. Brain contusions are also a rare complication of birth trauma. As the exact 4 A-3884-15T1 timing of [Chip's] brain findings cannot be determined, birth trauma as an explanation for the brain injuries cannot be completely ruled out. On July 11, 2014, the Family Part judge entered an order continuing the custody, care, and supervision of the children with the Division, continuing the supervised visitation with Charles and Cindy, and requiring them to comply with services provided by the Division. Additionally, the judge conducted a fact-finding hearing, resulting in a finding of abuse against Cindy and Charles. The Division offered services to Charles and Cindy, in the form of parenting skills classes, psychological evaluations, couples therapy, and individual therapy. Both parents completed all recommended services. Additionally, Charles underwent a substance abuse evaluation, which concluded he was not in need of substance abuse treatment. On October 3, 2014, Anne, Claire, and Chip were returned to their parents' custody. On November 18, 2014, an ambulance brought Chip to the hospital. Cindy reported Chip had been listless and not eating well, and she had gone upstairs to give her daughters a bath when Charles called to tell her Chip was "breathing funny," at which point she went downstairs and witnessed Chip having a seizure. She reported that a few weeks earlier Chip had fallen to the floor from a sitting position and hit his head. A CT 5 A-3884-15T1 scan revealed subdural hematomas in the form of bleeding in the frontal and right temporal area of the brain, and an eye exam revealed "extensive multi-layered retinal hemorrhages." The emergency room doctor reported the incident to the Division, indicating Chip's injuries were consistent with abuse. On November 19, 2014, the Division executed another removal of all children in the household, placing them with the same resource families. Dr. Weiner prepared another report for the Division, and found, "[Chip's] previous brain contusions and subdural hemorrhages had resolved by July 2014 and were not the cause of the current findings. There were no infectious, metabolic, hematologic, or other organic medical causes found for the intercranial and eye injuries, leaving recent trauma as the remaining explanation." She went on to state, [s]ubdural hemorrhages can be caused by an acceleration-deceleration ("shaking") mechanism with or without impact or by impact alone. The acute appearance of the subdural hemorrhages on [Chip's] CT scan, plus [Chip's] sudden onset of symptoms, suggests that head trauma occurred within a few days of [Chip] presenting to University Hospital on 11/18/14. No accidental or other trauma was reported which would explain the subdural and retinal hemorrhages. At this time, no reasonable medical or other explanation has been 6 A-3884-15T1 provided which would account for [Chip's] injuries and they must be considered to be the result of physical abuse, specifically abusive head trauma, until proven otherwise. There is now evidence for two additional episodes of unexplained head trauma leading to additional injuries. Head injuries are the number one cause of morbidity and mortality due to child abuse and returning [Chip] to the environment in which these injuries occurred put him at risk for further severe injury or death. On December 12, 2014, Chip was discharged from the hospital and placed with his previous resource home. In March 2015, the Division recommended continued services for Cindy and Charles, in the form of therapy, parenting skills, and visitation. Both parties completed all required services. On March 17, 2015, the Division sent a letter to counsel for Charles and Cindy. The letter alerted defendants that the Division intended to ask the court to take judicial notice of the previous fact-finding order and "the Division is requesting that the court make a finding of abuse against [Charles and Cindy] by clear and convincing evidence." If the court elects to make such a finding, the Division informed, "it will have a preclusive effect on any subsequent guardianship proceeding." The letter concluded, "the Division, upon establishing its prima facie case against [Charles] and [Cindy], intends to request 7 A-3884-15T1 that the Court shift the burden of proof to them to prove their non-culpability with respect to the injury sustained by [Chip]." On April 10, 2015, the parties appeared for a fact-finding hearing. As the above letter warned, the Division sought a finding by clear and convincing evidence against Cindy and Charles for Chip's injuries. The Division presented Dr. Weiner and the Division caseworker as witnesses. The caseworker testified about the Division investigations and the removal of the children from defendants’ care. Dr. Weiner testified, as an expert witness, about the injuries sustained by Chip in both February and November, and her opinions as to the cause of the injuries. Specifically, consistent with her medical report, she testified Chip's injuries were likely caused by shaking, and that neither Cindy nor Charles provided alternate explanations to account for the injuries. The doctor testified that a fall from a sitting position onto a hardwood floor would not be sufficient to cause Chip's injuries. At the close of this hearing, the judge2 found, the case law is clear . . . the Division has made a prima facie case where the burden shifting would come into play in that there were two caretakers, the mother and the father that apparently were admitted to the caseworker to be the primary caretakers of 2 The same family court judge has presided over this case from its inception through the judgment of guardianship. 8 A-3884-15T1 the child. And, therefore, the burden shifting would apply to this case. The hearing continued on April 30, 2015, and Cindy testified about the trip to the hospital with Chip in November, what the doctors told her about his injuries, and about the fall in which he was sitting up and hit his head on the floor. There were no other accidents where Chip hurt his head, neither she nor Charles had ever used corporal punishment on Chip, and she had never observed Claire, Anne, or her nieces roughhousing or harming Chip. Furthermore, the only times another person was Chip's caretaker during the relevant time period,3 was one night in which Chip's resource parents babysat for him, and a second day where Cindy's mother babysat for him. The defense put forth no expert witnesses. The judge issued a decision from the bench saying, "I found Dr. Weiner to be extremely credible and experienced" and "there's still no explanation . . . how this could have occurred other than abuse and neglect." Further, he stated, "an explanation that the child fell over from it sitting on the floor on its side and caused these type of horrendous injuries . . . is just not believable or credible." The court concluded, 3 The testimony did not involve the February 2014 incident, as the parties had asked the court to take judicial notice of the July 11, 2014 fact-finding where Cindy and Charles were found to have been the cause of Chip's February injuries. 9 A-3884-15T1 "I'm satisfied the Division has proven its case by clear and convincing evidence that there was abuse and neglect in this particular case which caused these injuries . . . as to both defendants." In May 2015, Dr. Sean Hiscox, Ph.D., an expert for the Division, issued a report recommending the Division change the case goal from reunification to termination of parental rights and adoption. In June 2015, the court approved the Division's plan of termination of parental rights followed by adoption for Claire, Anne, and Chip. In August 2015, the Division filed a complaint for guardianship, and the court issued an order terminating the Title Nine litigation. Charles and Cindy continued to participate in services provided by the Division, including individual therapy and several psychological evaluations. Charles "presented as cooperative and conversational." He "appeared to benefit from the supportive nature of the therapy" and "expressed understanding of the seriousness of the situation[]," but he "denied wrongdoing in both instances." The reports, provided by the therapists, indicated that "at the beginning of treatment, [Cindy] presented as viewing therapy as 'pointless' and 'unnecessary,' but later came to view it as helpful and useful." At the close of her therapy, the therapist opined, "[Cindy] 10 A-3884-15T1 might benefit from additionally family therapy," whether the eventual plan was reunification or termination. In September, Cindy requested, and the court granted, a separate visitation schedule from Charles, as they had separated. Between November 2015 and January 2016, Dr. Carolina Mendez, Ph.D., evaluated Cindy, Charles, Anne, Claire, Chip, and the respective resource parents individually and in combinations. The purpose of these evaluations was to assess the parenting ability of Charles and Cindy, the nature and quality of the bonds between the children and their biological parents, and the bonds between the children and the resource parents. She also reviewed medical records, Division records, and all previous psychological evaluations. During their evaluations, Charles and Cindy asserted they were no longer in a relationship, and were no longer living in the same residence. Again, neither parent had an explanation for the injuries sustained by Chip. The bonding evaluation between Chip, his biological parents, and his resource parents, showed that while Chip "has developed relationships with all of the adults, the relationship he has developed with his resource parents is deeper and more meaningful than the relationship he has with his biological parents." Dr. Mendez opined, "[Chip] would likely have a deeper 11 A-3884-15T1 reaction to losing the relationship he has with his resource parents than losing the relationship he has with his biological parents." She concluded, he "has already begun to solidify his attachment to his resource parents, as they have been consistent parental figures in this child's life shy of six weeks. Therefore, it is recommended that [Chip] maintain the relationship he has with his resource parents." The bonding evaluation between Anne, Claire, their biological parents, and their resource parent showed they were attached to both sets of parents. Dr. Mendez opined, "[s]hould they lose any of these relationships, they are likely to have a negative reaction to the loss. However, . . . maintaining the relationship with the resource parent would mitigate the harm caused by the loss of the relationship with their biological parents." Dr. Mendez acknowledged the reverse was also true, that maintaining the relationship with the biological parents would mitigate the harm from the loss of the resource parents. However, there were additional risk factors to staying with the biological parents, since Chip's injuries were still unexplained. Overall, Dr. Mendez concluded, "[Claire, Anne, and Chip] clearly require consistency and permanency, . . . [and] 12 A-3884-15T1 [t]ermination of parental rights followed by adoption would produce more good than harm." On March 28, 2016, the court conducted an emergent hearing regarding the Division's request for a ruling on the preclusive effect of the April 30, 2015 "clear and convincing" finding. The judge opined, "[New Jersey Division of Youth and Family Services v. R.D., 207 N.J. 88 (2011)] . . . does specify and require that the parties be on notice in the fact-finding prior to the determination." The judge then found, [i]n this particular case, I made the clear and convincing finding with notice to the parties and the opportunity to be heard on those issues, and I think based on that and based on the case law in Division v. R.D., it is a preclusive finding for purposes of the guardianship hearing, and I will so rule that the Division does not need to relitigate the Prong One. That same day, the court issued an order confirming this, and further stated, "the Division has satisfied prong one of the best interest test, that [Chip] was harmed by his parental relationship with [Cindy] and [Charles]." The guardianship trial began on March 30, 2016, continued on April 18 and 20, 2016, and concluded on April 27, 2016. Dr. Andrew Brown, III, Ph.D., testified as expert for Cindy. Dr. Brown had conducted psychological evaluations of Cindy in July and December 2015. He testified that in between the two 13 A-3884-15T1 evaluation dates, Cindy and Charles had separated, were no longer living together, and had separate visitation schedules with their children. He stated, "she underwent fifteen weeks of individual psychotherapy . . . [and] her awareness has improved sufficiently to the point where she should be able to parent and keep her children safe." Dr. Brown further testified that based on testing, in July 2015, for child abuse potential, Cindy did not score in a range indicative of a potential to commit child abuse. He then testified the children were deeply bonded to Cindy, and "that the children would suffer traumatic harm if the relationship . . . was severed with their natural mother." He further testified the resource parents would not be able to mitigate the harm to Chip caused by the separation from his natural mother. Finally, he opined that a kinship legal guardianship, as an alternative to termination of parental rights, would serve the best interests of the children because it would allow for Cindy to remain in contact. Also, adoption caseworker Latoya Bowers testified to the services provided to Cindy and Charles by the Division. She also testified to the unsuccessful efforts of the Division to find relatives who would be appropriate for placement of the children. Further, Ms. Bowers had discussed kinship legal 14 A-3884-15T1 guardianships with the resource parents, who declined in favor of adoption, with continued contact between the children and the biological parents. The law guardian's expert, Dr. Eric Kirschner, Ph.D., testified. Dr. Kirschner conducted bonding evaluations between the children, the resource parents, and the biological parents. He concluded the children were "adequately bonded" to the resource parents, and there was a bond between the children and their biological parents. Nonetheless, he advised the appropriate course of action would be termination of parental rights followed by adoption, because the "multiple instances of life-threatening injuries occurring to a very young child . . . makes it for all intents and purposes . . . impossible to come to a conclusion" that the children could be safely returned to Cindy and Charles. Dr. Kirschner stated, while termination of the parental relationship would cause psychological harm to the children, the "presence of that [resource] parent relationship and bond is able to serve as an offsetting or mitigating factor helping the children to cope with the loss." He concluded termination of the parental rights would not do more harm than good for the children. 15 A-3884-15T1 Cindy took the stand to testify in her defense. She recounted the events leading to the second DODD removal, and how Chip had suffered a minor fall in October 2014, which she did not feel required a hospital visit. She stated it would be safe for her to be reunited with her children because, "I did not hurt my son. I would never hurt any of my children, and . . . I feel that my son got hurt under his father's watch." She explained she separated from Charles in July 2015, for "multiple reasons." She stated she would do "anything and everything" to protect the children if they were returned, and the risk had been removed because she felt the risk was Charles. She concluded her testimony stating, "someone hurt my son. So I can only assume because I didn't see it happen, I can only assume that [Charles] hurt my son." The judge asserted his intentions to not "retry the fact-finding when there's been a finding by clear and convincing evidence" with regard to the first prong of the test under N.J.S.A. 30:4C-15.1(a). Dr. Hiscox testified for the Division, and emphasized his concerns about a non-offending parent even if he or she did not cause the injuries. Dr. Hiscox also disagreed with Dr. Brown's assessment of the risk posed by Cindy. He concluded Dr. Brown based his assessment on the fact that Cindy separated from Charles, and she had "a higher level of insight because she was 16 A-3884-15T1 not minimizing what the problem was." Further, for Dr. Brown to conclude he did not see Cindy as the wrongdoer was "beyond the purview of . . . a forensic psychologist . . . , there's no [psychological] tests or indices . . . that would determine whether somebody engaged in a criminal act or not." On that same date, the trial judge issued his decision. With regards to the first prong of N.J.S.A. 30:4C-15.1(a), the judge stated, this Court really does not need to address the Prong One. I had previously made a ruling by clear and convincing evidence with regard to the abuse and neglect issue . . . and I ruled also that testimony was not necessary since there was established by clear and convincing evidence after the second incident. Despite this, the judge made additional findings under the first prong. He stated he found Dr. Hiscox and Dr. Kirschner to be credible, and did not find the defense expert, Dr. Brown, to be credible. He then stated, you can't discount the fact that there were two horrible life-threatening physical injuries that were unexplainable other than physical abuse to this child, . . . if this doesn't prove continuous risk and continuous harm and the fact that the harm was not dissipated that occurred the first time, I don't know what else could prove this. Additionally, the judge found specifically for the second prong, 17 A-3884-15T1 the risk factors are still exactly the same as they were. There are serious risk factors in here, returning these children to either of these parents, . . . would create a substantial risk, and . . . there's significant and ongoing risk involved here . . . that goes to Prong Two. We haven't alleviated this risk of harm. We don't know where it is and we haven't alleviated, we are still at the same spot. For the third prong, the judge stated, "[the Division] made reasonable efforts [to provide services] but I don't know whether there is any service that would change that situation." For the fourth prong, the judge found the termination of parental rights would not cause more harm than good. He found important that the children had been in resource homes for over two years, and it was really the only home that Chip had ever known. With regard to Anne and Claire, he found credible the testimony that their bond with the resource parents would mitigate any harm caused by the termination of parental rights. Based on the foregoing, the trial judge terminated Charles and Cindy's parental rights, and granted guardianship over the children to the Division. The court granted both parents visitation pending their appeal. The children currently remain and are reportedly happy in their resource homes, which they have been in since their removal in February of 2014. Both sets of resource parents have indicated their intentions to proceed with adoption. These appeals followed. 18 A-3884-15T1 II. Our review of a trial judge's findings and decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We do not reverse the family court's termination decision "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We defer to the trial court's credibility findings and fact-findings because of its expertise in family matters and its ability to develop a "feel of the case that can never be realized by review of the cold record." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted). This court should not disturb these findings unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Parents have a constitutionally protected right to raise their biological children, even if placed in the care of a resource family. In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The State may act to protect the welfare of the children, but this is a limited authority, 19 A-3884-15T1 applying to circumstances where the parent is unfit or the child has been harmed or placed at risk of harm. Id. at 10; N.J.S.A. 30:4C-12; see N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986). To prevail in a proceeding to terminate parental rights, the Division must establish each element of the "best interests test": (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 352, 348 20 A-3884-15T1 (1999). The State must prove each prong of this test by clear and convincing evidence. A.W., supra, 103 N.J. at 612. Additionally, courts may not use presumptions of parental unfitness and any "doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. The first prong of the best interests test focuses on the "endangerment of the child's health and development resulting from the parental relationship." Id. at 348; N.J.S.A. 30:4C- 15.1(a)(1). Defendants argue the trial court erred in applying the fact-finding determination of abuse to satisfy the first prong of the best interest test. Neither defendant objected in the Family Part to this threshold ruling, therefore, we consider it under a plain error standard. Pursuant to Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Charles argues the findings of the trial court are not entitled to this court's deference, because they are "so wide of the mark" as to warrant reversal. Further, Cindy argues the trial court erred in giving the Title Nine fact-finding preclusive effect because the burden-shifting force of N.J.S.A. 9:6-8.46 relieved the State of its burden to prove harm to the 21 A-3884-15T1 child by clear and convincing evidence, as required by Title Thirty. A Title Nine fact-finding, made by clear and convincing evidence, may be given preclusive effect in a later Title Thirty proceeding. However, defendant asserts this is a permissive standard, as "when the underlying finding of abuse, . . . is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights." R.D., supra, 207 N.J. at 105-06 (citations omitted). He asserts that R.D. is distinguishable from the present case because there is no specifically identified perpetrator of abuse against Chip, and therefore the trial court should have chosen not to give the finding preclusive effect. In R.D., the trial court made a Title Nine finding by clear and convincing evidence that the defendant had abused his daughter, and gave these findings preclusive effect in a later Title Thirty proceeding. Id. at 99-100. We affirmed, id. at 104, and the Supreme Court of New Jersey reversed the decision because the defendant had not been placed on adequate notice that the finding could have preclusive effect. Id. at 121-22. The Court established a three-factor test which must be satisfied before a Title Nine fact-finding can be given preclusive effect in a Title Thirty proceeding. Id. at 120-21. 22 A-3884-15T1 First, the Title Nine court must provide advance notice to the parties that, if supported by the proofs, it will make its findings using the higher Title Thirty 'clear and convincing evidence' standard; that notice must be clear and unequivocal, and must fairly and reasonably advise the parties that any Title Nine determinations made under the higher, clear and convincing evidence standard will have preclusive effect in any subsequent Title Thirty proceeding. [Id. at 120.] Second, "the Title Nine court must make clear to the parties that, . . . the determinations made in respect of that interim relief - particularly those concerning harm to the child - may have preclusive effect on the final, permanent relief arising out of a Title Thirty proceeding." Id. at 121. Third, "the Title Nine court must relax the time deadlines and, to the extent necessary, use in the Title Nine proceeding the admissibility of evidence standards applicable to Title Thirty proceedings." Ibid. Here, only two of the three factors were satisfied. The Division sent a letter to defendants stating "the Division is requesting that the court make a finding of abuse against [Cindy] and [Charles] by clear and convincing evidence." This letter gave them clear and unequivocal notice of the higher standard to be applied, and further informed them "[i]f the 23 A-3884-15T1 court makes such a finding, it will have a preclusive effect on any subsequent guardianship proceeding." (Emphasis added). Thus this letter, sent three weeks before the first fact-finding hearing date, satisfied the first prong of the R.D. test as to notice. Next, at the April 10, 2015 fact-finding hearing, the Division restated its request to have the finding made by clear and convincing evidence. The Family Part judge, after two days of hearings and witness testimony, found "the Division has proven its case by clear and convincing evidence that there was abuse and neglect in this particular case which caused these injuries. And I'm satisfied the Division has proven it by clear and convincing evidence as to . . . both defendants." This notice, coupled with the letter which stated a finding by clear and convincing evidence would have preclusive effect on later proceedings, serves to satisfy the second part of the R.D. test. However, the third prong, requiring the use of the "admissibility of evidence standards applicable to Title Thirty proceedings," was not satisfied, because the statutory burden- shifting provision found in Title Nine is not present in Title Thirty. Under Title Nine, proof of injuries sustained by a child or of the condition of a child of such a nature as 24 A-3884-15T1 would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child. [N.J.S.A. 9:6-8.46(a)(2).] Additionally, when there is limited access to a child in a Title Nine litigation, especially an infant, the burden shifts to those with access to prove non-culpability. Matter of D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). As we have said, were this a tort suit brought against a limited number of persons, each having access or custody of a baby during the time frame when a . . . abuse concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, would we not recognize an occasion for invocation of the Anderson v. Somberg4 doctrine? [Ibid.] Under this doctrine, once a prima facie case has been established, the burden shifts, and such defendants are required to come forward and give their evidence to establish non- culpability. See ibid. Here the court found a prima facie case was made out both by the injuries suffered by Chip, and because only Charles and Cindy had access to him. As such, the court 4 Anderson v. Somberg introduced "conditional res ipsa loquitur," where once the prima facie case has been made out, even where more than one explanation exists, defendant bears the burden of rebutting with evidence. Anderson v. Somberg, 67 N.J. 291, 299-300 (1975). 25 A-3884-15T1 shifted the burden to them to show their non-culpability in his injuries. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). However, in Division of Child Protection and Permanency v. T.U.B., we said the plain meaning of N.J.S.A. 9:6-8.46(a)(4) confines its discrete hearsay exception to abuse and neglect cases litigated in Title Nine proceedings, and "is not repeated or incorporated by reference anywhere within Title [Thirty]." 450 N.J. Super. 210, 230 (App. Div. 2017). Moreover, we recognized when Title Nine and Title Thirty were amended in 2005, the evidentiary provisions in N.J.S.A. 9:6-8.46(a) were not extended to Title Thirty proceedings. Id. at 233. Furthermore, the first line of [N.J.S.A. 9:6-8.46(a)] begins with this contextual and limiting phrase: "In any hearing under this act . . . ." By using the prefatory term "this act," the Legislature plainly conveyed that the evidentiary provisions set forth . . . are all special rules intended to override or qualify the general rules of evidence, but for Title Nine proceedings only. [Id. at 230.] In the same vein, we do not read Title Nine or Title Thirty to allow the expansion of the burden-shifting provisions to permit the use of the finding in the current case with 26 A-3884-15T1 preclusive effect in guardianship proceedings, for the reasons set forth above and additionally pursuant to the constitutional considerations stated by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). In Santosky, the United States Supreme Court implicitly warned against shifting the burden to the defendant in a termination of parental rights case by comparing the due process considerations to those present in a criminal prosecution because of the weight and gravity of the interest at stake. 455 U.S. at 754-55. The Court recognized that the State's ability to present a case against a parent is much stronger than the parent’s ability to mount a defense but declined to impose the reasonable doubt standard. Id. at 763. However, the Court explicitly warned, "at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable." Id. at 768. "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 768 (quoting Addington v. Texas, 441 U.S. 418, 427, 99 S. Ct. 1804, 1810, 60 L. Ed. 2d 323, 331-32 (1979)). 27 A-3884-15T1 As such, the trial court's decision to give the Title Nine fact-finding preclusive effect in the Title Thirty proceedings, shifting the burden to defendants, and requiring them to rebut the presumption of abuse and neglect through their own evidence created an unconstitutional asymmetry we consider plain error on a critical question of law warranting reversal. In reaching that conclusion, we are mindful that, before the present appeal, the legal issue had not been previously addressed in a published opinion. III. Charles argues that the trial court wrongfully applied preclusive effect to the entire four-prong test, "effectively act[ing] as a summary judgment determination." Additionally, Charles argues the trial court did not make specific findings under the first and second prong regarding Claire and Anne. We recognize first that the trial court made specific findings under prongs two, three, and four regarding Chip, and there is "substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104. However, these findings are built at least in part upon, and tainted by, the foundation established by the erroneous presumptions made 28 A-3884-15T1 under the first prong.5 As previously stated, the four prongs of the best-interest test "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. We therefore find that reliance by the trial court on prong one was fatal to its determinations under the second, third, and fourth prongs as to Chip. Furthermore, we note the trial court made no specific findings under prongs one or two6 regarding Claire and Anne. While N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent," this does not mean that harm to one child is conclusive proof of harm to another child. The Title Nine findings made by the judge were confined to consideration of whether Chip was abused; there were no explicit findings that either Anne or Claire were abused or neglected. Moreover, the Division 5 While we acknowledge the limited findings made by the trial court under prong one, the fact remains that its overall reliance was on the Title Nine fact-finding hearing, and the effect was to shift the burden to the defendants to prove they were not the source of the harm. 6 The judge made findings under both the third and fourth prongs: that the Division had made reasonable efforts to provide services, and the testimony asserting that Claire and Anne's bond with the resource parents would mitigate any harm caused by the termination of parental rights was credible. 29 A-3884-15T1 caseworker conceded neither was harmed, meaning that any harm attributed to have been visited upon either girl was derived from the harm to Chip. Therefore, the determination of the judge terminating Charles and Cindy's parental rights to Claire and Anne was not supported by sufficient credible evidence, and was in error. We therefore vacate the judgment of guardianship entirely as to Claire and Anne. Furthermore, we believe that going forward from here, the trial court should be allowed to consider each prong in the light of any developments since trial, and shall have the discretion to permit any updated evaluations or discovery that may be warranted. Reversed and remanded for the Family Part to conduct a new trial, to be completed within sixty days. We do not retain jurisdiction. 30 A-3884-15T1
EDWARD GRIMES v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: December 5, 2017
Docket Number: a1826-15 PER CURIAM The New Jersey Department of Corrections has informally adopted a policy that
Date: December 5, 2017
Docket Number: a1826-15 PER CURIAM The New Jersey Department of Corrections has informally adopted a policy that
STATEOF NEW JERSEY v. DONOVAN WHITE
Date: December 5, 2017
Docket Number: a4778-16 MESSANO, P.J.A.D. In these appeals, now consolidated in a single opinion, we consider for the first time the procedural and substantive provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162- 15 to -26 (the CJRA), that are applicable when a previously released defendant allegedly violates one or more conditions of release imposed by the court. We provide some background. As to A-4778-16 Defendant Donovan White was arrested on January 28, 2017, and charged with second-degree robbery and other offenses. 2 A-4778-16T6 Defendant's score on the public safety assessment (PSA) for both failure to appear (FTA) and new criminal activity (NCA) was five, the second-highest possible score in each category, and Pretrial Services recommended against his release. The State, however, did not move to detain defendant. The judge ordered defendant's release with the conditions that he: refrain from committing any new offense; avoid contact with the victim; report to Pretrial Services every week, alternately in person and by phone; remain on home supervision with an electronic monitoring device (EMD); avoid the location where the robbery occurred; appear for all scheduled court proceedings; and immediately notify Pretrial Services of any change of address, telephone number, or other contact information. The grand jury indicted defendant on May 9, 2017. On May 25, Pretrial Services filed a violation report, indicating that defendant had permitted his EMD to "die" on several occasions and to remain dead for several days by failing to keep it charged. Apparently, the State moved to revoke defendant's release or modify the conditions of release. R. 3:26-2(c).1 On the return date of June 5, 2017, the prosecutor said that in light of his conversation with defense counsel, the 1 The motion is not in the appellate record. 3 A-4778-16T6 State would not seek detention or modification. The prosecutor noted that the EMD had "shorted out," and that defendant had been "forced out" of his mother's home after an argument, which had "led to the bracelet not being charged." Defense counsel argued against any change in conditions under these circumstances, and the judge agreed. The prosecutor indicated, nevertheless, that any further problems would lead to the State's filing another motion to revoke defendant's release. Pretrial Services filed a second violation report on June 21, 2017. It alleged that: defendant's EMD was "dead" on three separate dates after the June 5 hearing; defendant failed to report "for instruction" on the proper use of the device after the hearing and after acknowledging receipt of a message to report; numerous "satellites" detected defendant's presence at various hours at three different locations in Hoboken and Newark; and defendant failed to update his home address. Pretrial Services recommended revocation of defendant's release, and the State moved for that relief. On Friday, July 7, the prosecutor and defense counsel appeared before the judge; defendant was not present. There was some confusion regarding the date set for the revocation hearing, with defense counsel and the prosecutor both indicating that the hearing was set for Monday, July 10. Defense counsel 4 A-4778-16T6 indicated that she had been in touch with defendant, and he intended to be present on Monday and to produce a witness and evidence. Both attorneys agreed to delay the hearing. However, unbeknownst to counsel or the court, defendant reported to Pretrial Services later in the day on July 7, and was told to report to court. He did so. Before the judge, defense counsel explained that instead of reporting to Pretrial Services telephonically as required, defendant had appeared in person because of continued problems with his EMD. Over defendant's objection, the judge immediately considered the State's motion to revoke defendant's release. Defense counsel sought an adjournment, arguing that defendant was not prepared to respond because he had received notice that the motion would be heard on July 10. Defendant intended to call his mother as a witness to confirm that he was residing with her and to address "some of the concerns . . . about the [EMD] being defective," but she was not available to testify until Monday. Defendant also wanted to present evidence from his employer to show that he had been working consistently and that his presence at the three locations cited in the violation report had been work-related. Counsel stressed that in the nearly six months since defendant had been released on conditions, he had not been arrested for a new offense, had not 5 A-4778-16T6 been in contact with the victim, had not been in the area of the offense and had not failed to appear for a court date. The judge agreed that defendant's conduct did not offend "two of the primary goals of pretrial release," which were to guard against the commission of a new offense and the failure to appear in court. However, the judge stated, "the conditions of release are not limited to that. There are certain prophylactic conditions placed upon the accused to provide . . . reasonable assurances that . . . there will be an appearance as required, there will be no new offenses, and there will be no obstruction of justice." The judge noted that Pretrial Services had initially recommended detention based on defendant's PSA score, and that the recommendation established a "prima facie case which would satisfy the finding by clear and convincing evidence that there is [sic] no conditions or combinations of conditions that will reasonably assure the defendant's appearance, the protection of the safety of the community." The judge took note of defendant's prior record; his subsequent indictment, which established probable cause that defendant committed the crimes charged; and the strength of the State's evidence. The judge found that after the June 5 hearing, defendant continued to allow the EMD to die, thus 6 A-4778-16T6 inhibiting Pretrial Services from monitoring his location; failed to report to Pretrial Services on June 14; and was present at the three locations noted in the violation. The judge stated: [E]ssential to the proper functioning of the criminal justice reform is the ability to monitor compliance with release conditions. Despite having the opportunity earlier in response to the first notice of violation, [sic] the information before the Court amply demonstrates by a preponderance that there has been a violation of the home detention provision. And this Court is no longer comfortable with the continued release of [defendant]. And I find by clear and convincing evidence through operation of the prima facie case provision based upon the information set forth in the PSA that there are no conditions or combinations of conditions that will reasonably assure the defendant's appearance, the protection of the safety of the community. The judge entered the July 7, 2017 pretrial detention order from which defendant now appeals. As to A-5364-16 On June 22, 2017, defendant Larry Bostic was charged with five counts of endangering the welfare of children and five counts of invasion of privacy. The State alleged that defendant surreptitiously video recorded female juvenile employees disrobing and changing into work uniforms at defendant's business. Although defendant's PSA scores were two (FTA) and 7 A-4778-16T6 one (NCA), and Pretrial Services had recommended his release on his own recognizance, the judge ordered defendant detained. Defendant appealed, and, on July 24, 2017, a panel of our colleagues vacated the detention order and remanded the matter, concluding that the judge had failed to provide written factual findings in support of the order. The remand hearing took place on August 2.2 With little discussion, the judge ordered defendant's release on "Level 3, monitoring, home detention and a bracelet." He advised defendant that except to go to the doctor, shop for food or come to court, he could not leave his home. The judge ordered defendant to appear at Pretrial Services the next day upon his release from jail.3 He also: ordered defendant to have no contact with the victims; requested the prosecutor to supply the victims' addresses; told defendant that his "bracelet" would "set off an alert" if he entered the 1000-feet "zone of exclusion" around the victims; and ordered defendant to have no contact with anyone under the age of eighteen. 2 Although the transcript of the remand hearing indicates it took place before a different judge, this is an apparent error. The order following remand bears the signature of the same judge who issued the detention order, and he referenced our remand order during the course of the hearing. 3 Even though the charges emanated from Cumberland County, defendant was apparently incarcerated in the Camden County jail. 8 A-4778-16T6 The order of release ostensibly detailed these and other conditions imposed on defendant. However, the order erroneously provided: "Defendant shall come within 1000 feet of any victim inclusion zones." Moreover, the addresses of the victims were not in the order, and the record fails to reveal that those locations were ever provided to defendant prior to his release. As instructed, defendant appeared at Pretrial Services on August 3, 2017. He was immediately taken into custody based upon a violation report, which indicated that the assistant criminal division manager had contacted local police when defendant's EMD demonstrated that he had "failed to remain in his home," was "roaming the city of Vineland most of the day," and had entered a victim exclusion zone for one minute. In the violation report, Pretrial Services wrote that defendant was currently on the highest level of supervision. According to the structure response grid, entering a victim exclusion zone is a major violation as [is] leaving your approved home address. There are no conditions that can be placed on the defendant that will ensure his compliance. The record before us indicates no arrest warrant was issued, and defendant never appeared before a judge until August 9, which was the return date for the State's motion to revoke defendant's release. 9 A-4778-16T6 A different judge presided over the revocation hearing. The prosecutor proffered the violation report from Pretrial Services and a Google map, which she claimed demonstrated that defendant "was essentially moving all around the city of Vineland in violation of his conditions." Defense counsel initially tried to explain that defendant did not know "the location of the victim exclusion zone." She claimed that defendant had gone to the police department a few blocks from his home to retrieve his wallet and keys. Defendant insisted on speaking, so the judge placed him under oath. Defendant said that he had tried unsuccessfully to retrieve his wallet and keys from the local police department, a few blocks from his home. He relied upon an elderly friend to drive him from his home in Vineland to Pretrial Services in Bridgeton. Defendant said that he had no control over the route his friend had taken, and he had no knowledge where any of the five alleged victims lived. The prosecutor's retort was that as the "proprietor of the business . . . it's assumed that [defendant was] probably going to know where these kids are living." The record fails to demonstrate that the prosecutor had complied with the court's earlier request to supply those addresses, or that the pretrial release order actually served on defendant included the victims' 10 A-4778-16T6 addresses or described the parameters of the victim exclusion zones. Referencing the violation report, the judge found that defendant had been in the exclusion zone where two victims lived in the same apartment complex, and that defendant had "failed to remain in [his] home as required." He concluded that defendant was obviously . . . not in compliance and . . . there's no manner in which we can keep [him] in compliance. At this point the State has overcome its burden in establishing that there's no amount of monetary bail, non-monetary conditions or combinations thereof which would ensure that . . . you[ would] appear in court[,] . . . not present a danger to the community[] and . . . not obstruct justice. The detention order indicated that the judge made these findings by clear and convincing evidence. The order also cited the "nature and circumstances of the offense," including defendant's violation of conditions of pretrial release; the weight of the evidence, specifically the violation report and Google map; the risk defendant posed to witnesses and the community; and Pretrial Services' recommendation of detention. Defendant filed this appeal. 11 A-4778-16T6 I. The CJRA "'shall be liberally construed' to effect its purpose: to rely primarily on 'pretrial release by non-monetary means to reasonably assure' that a defendant will 'appear[] in court when required,' will not endanger 'the safety of any other person or the community,' and 'will not obstruct or attempt to obstruct the criminal justice process.'" State v. Robinson, 229 N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162-15). With certain exceptions, or unless the prosecutor moves for pretrial detention, the CJRA requires the court to release a defendant on his personal recognizance or unsecured appearance bond following arrest. N.J.S.A. 2A:162-17(a). Only if those conditions are inadequate "to assure a defendant's return to court and protect both public safety and the integrity of the criminal justice process," may the judge impose "non-monetary conditions that are the least restrictive conditions necessary." Robinson, supra, 229 N.J. at 55 (citations omitted). Compliance "with all conditions of release" is another stated purpose of the Act. N.J.S.A. 2A:162-15. These conditions may include requiring a defendant to refrain from committing another crime, from contacting the alleged victim of the crime, from contacting witnesses named in the release order or subsequent court order, and other non-monetary conditions. 12 A-4778-16T6 N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2) and (3). When a defendant is released on conditions, the court shall, in the document authorizing the eligible defendant's release, notify the eligible defendant of: (a) all the conditions, if any, to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the eligible defendant's conduct; and (b) the penalties for and other consequences of violating a condition of release, which may include the immediate issuance of a warrant for the eligible defendant's arrest. [N.J.S.A. 2A:162-23(a)(1)(emphasis added).] If the court orders a defendant's release subject to conditions, it may subsequently review the conditions on its own motion, or on motion by either party, and may modify the conditions or impose new conditions upon a showing of a material change in circumstances. R. 3:26-2(c)(2). The State may seek revocation of a defendant's release if he or she violates a restraining order or a condition of release, "or upon [the court's] finding of probable cause . . . that the . . . defendant has committed a new crime while on release." N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1). Pending disposition of a motion to revoke release, a defendant shall remain released and "the court shall issue a notice to appear to 13 A-4778-16T6 compel the appearance of the eligible defendant at the detention hearing." N.J.S.A. 2A:162-19(d)(2). At the revocation hearing, the defendant shall be represented by counsel, provided with all discovery, afforded the right to testify and present witnesses, cross-examine witnesses who appear and "present information by proffer or otherwise." R. 3:26-2(d)(2). The CJRA does not set forth the State's burden of proof at the revocation hearing, but Rule 3:26-2(d)(1) provides that the State need only prove the violation of a condition of release by a preponderance of the evidence. However, upon a finding that the eligible defendant while on release has violated a restraining order or condition of release, or upon a finding of probable cause to believe that the eligible defendant has committed a new crime while on release, [the court] may not revoke the eligible defendant's release and order that the eligible defendant be detained pending trial unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that no monetary bail, non-monetary conditions of release or combination of monetary bail and conditions would reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process. 14 A-4778-16T6 [N.J.S.A. 2A:162-24 (emphasis added); see also R. 3:26-2(d)(1).] Thus, N.J.S.A. 2A:162-24 conditions revocation of release and pretrial detention on a finding by clear and convincing evidence that no conditions of release will reasonably assure the three goals of the Act. In other words, even after the State proves a violation, the court must still consider whether under all relevant circumstance, the clear and convincing evidence proffered by the State requires detention. The CJRA does not allow for detention based solely on a finding that the defendant violated the terms of release. Although the CJRA and Rule 3:26-2 are silent regarding the procedure to be followed at a revocation hearing, we conclude that the State's proffer of the Pretrial Services violation report alone may be sufficient to establish, by a preponderance of the evidence, that a violation occurred. We reach this conclusion for several reasons. In State v. Ingram, 230 N.J. 190, 213 (2017), the Court held that at the initial detention hearing under the CJRA, the State may establish probable cause by proffer without producing a live witness. The probable cause standard, which applies to initial detention hearings and revocation hearings based upon the commission of a new offense, and the preponderance standard, which is applicable to revocations based on violations of 15 A-4778-16T6 conditions, are similar in nature and precede the ultimate finding of whether clear and convincing evidence supports detention. Compare State v. Gibson, 218 N.J. 277, 292 (2014) (explaining that probable cause is a well-grounded suspicion that a crime has been committed), with State v. Williams, 93 N.J. 39, 78 (1983) (providing: "Preponderance of evidence . . . is evidence sufficient to generate a belief that the conclusion advanced is likely. It has been stated in terms of reasonable probability.") (citations omitted). Further, the CJRA makes no distinction between a motion to detain filed immediately following arrest or at a subsequent time. See N.J.S.A. 2A:162-19(a) (explaining that a motion to detain may be filed at any time before or after release). Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24 is simply a motion to detain with the added requirement that (1) the State prove probable cause that the defendant committed a new crime, or prove by a preponderance of the evidence that the defendant violated a release term or restraining order; and (2) the nature and severity of the new crime or the violation, in addition to all other circumstances, clearly and convincingly establishes that detention is appropriate. 16 A-4778-16T6 Under the federal release revocation statute, which is somewhat different from N.J.S.A. 2A:162-24, the court may revoke release upon motion by the government if the judge (1) finds that there is — (A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or (B) clear and convincing evidence that the person has violated any other condition of release; and (2) finds that— (A) based on the factors set forth in [18 U.S.C.A. § 3142(g)], there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or (B) the person is unlikely to abide by any condition or combination of conditions of release.[4] [18 U.S.C.A. § 3148(b).] Federal courts take a similar approach and allow the government to prove a release-term violation by proffer. United States v. LaFontaine, 210 F.3d 125, 131 (2nd Cir. 2000); United States v. Aron, 904 F.2d 221, 227 (5th Cir. 1990); United State v. Davis, 4 Unlike the federal statute, the CJRA does not authorize pretrial detention based upon a finding that the defendant is unlikely to abide by any conditions of release. 17 A-4778-16T6 845 F.2d 412, 415 (2nd Cir. 1988). C.f. Ingram, supra, 230 N.J. at 205 (explaining that because the CJRA is similar to its federal counterpart, New Jersey courts should "give careful consideration to the federal case law that interprets the Bail Reform Act," 18 U.S.C.A. §§ 3141 to 3156). Lastly, we reject the argument, explicitly made by White and implicitly made by Bostic, that the State must prove a defendant's violation of a condition of release was purposeful or intentional. Nothing in the CJRA or our Court Rules supports that claim. However, evidence that the violation is the result of inadvertence, negligence or is otherwise excusable is clearly a "relevant circumstance[]" in weighing "the nature and seriousness of the violation," and ultimately whether the evidence clearly and convincingly demonstrates detention is warranted in light of all other relevant circumstances. N.J.S.A. 2A:162-24.5 5 In a somewhat analogous circumstance, our Criminal Code explicitly provides that the State must either (1) establish probable cause that the defendant committed a new crime while on probation, or (2) "inexcusably failed to comply with a substantial requirement imposed as a condition" of probation at a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4) (emphasis added). If the alleged violation is a failure to pay a fine or make restitution, the court must find a willful violation. N.J.S.A. 2C:45-3(a)(4). We note further that VOP hearings must be on written notice to the defendant, who has the right "to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel." (continued) 18 A-4778-16T6 We now apply these basic principles to the facts presented in these two appeals. II. As to defendant White, we first address the judge's reliance in part upon the "no release" recommendation made by Pretrial Services in the PSA generated when defendant was arrested in January. As noted, the State never sought detention at that time, but, in reaching his revocation decision, the judge considered Pretrial Services' recommendation as prima facie evidence sufficient to overcome the presumption of release. R. 3:4A(b)(5). Before us, defendant argues that the prima facie evidence provision only applies to the initial detention decision, and the State contends that the provision is inapplicable to a release revocation hearing because the presumption of release only applies at the initial detention hearing. We disagree with both parties and conclude that, in the circumstances of this case, where the court never made an initial detention decision, (continued) N.J.S.A. 2C:45-4. And, the State may rely on a proffer of evidence or hearsay to meet its burden. State v. Reyes, 207 N.J. Super. 126, 138 (App. Div.), certif. denied, 103 N.J. 499 (1986). We note, however, that the Court recently heard argument as to whether the trial court erred in accepting hearsay testimony that the defendant committed a new offense at the defendant's violation of probation hearing. State v. Noah Mosley, Docket No. A-24-16 (argued November 28, 2017). 19 A-4778-16T6 the judge properly considered Pretrial Services' recommendation as prima facie proof overcoming the presumption of release. Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption of a defendant's release, except for those crimes to which a presumption of detention applies. See N.J.S.A. 2A:162-18(b) (presumption of release); N.J.S.A. 2A:162-19(b)(1) and (2) (rebuttable presumption of detention for certain crimes). The Rule also permits, but does not require, the judge to consider the Pretrial services recommendation against release as prima facie evidence sufficient to overcome the presumption. R. 3:4A(b)(5); see also See State v. C.W., 449 N.J. Super. 231, 262 (App. Div. 2017) (noting consideration of the recommendation as prima facie evidence to rebut the presumption of release is discretionary). N.J.S.A. 2A:162-19(a) provides that a motion to detain may be filed at any time prior to trial, and the Rule does not limit its application to motions filed prior to the initial hearing. We find further reason to reject the State's position in Article 1, paragraph 11, of our Constitution, the amendment that preceded enactment of the CJRA, which provides: "All persons shall, before conviction, be eligible for pretrial release." Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be liberally construed to effectuate the purpose of primarily 20 A-4778-16T6 relying upon pretrial release by non-monetary means to reasonably assure" its goals. We specifically do not address a situation where the court initially rejects the PSA recommendation of "no release" and releases the defendant on conditions.6 In such situations, the CJRA requires the court entering an order "contrary to a recommendation made" in the PSA to explain in writing its decision to release. N.J.S.A. 2A:162-23(a)(2). We recognize that the court's subsequent invocation of Rule 3:4A(b)(5) to surmount the presumption of release raises the very real possibility of inconsistent decision-making following re- litigation of the same or similar issues. See State v. K.P.S., 221 N.J. 266, 276 (2015) ("The law-of-the-case doctrine 'is a non-binding rule intended to prevent relitigation of a previously resolved issue' in the same case.") (citing Lombardi v. Masso, 207 N.J. 517, 538 (2011)). Here, however, the State never sought defendant's detention so the judge never considered 6 We tread carefully because of the Court's pending decision in State v. S.N., Docket No. A-60-16 (argued on September 11, 2017), where the use of Pretrial Services' recommendation of no release as prima facie evidence under Rule 3:4A(b)(5) was raised during argument before the Court, and State v. Hassan Travis, Docket No. A-7-17 (argued on November 29, 2017), where Pretrial Services' recommendation in the context of the Rule was squarely considered. 21 A-4778-16T6 the PSA's recommendation of "no release" prior to the revocation hearing. Defendant White argues that the judge "misapplied the law on revocation of pretrial release," essentially contending that any violations proven during the revocation hearing were insufficient to establish by clear and convincing evidence that detention was required. He underscores that the violations did not include another arrest for a crime, contact with the victim, or appearance at the location of the crime. Further, he appeared at every court proceeding and reported to Pretrial Services as required. In short, he claims that there was no basis to find he posed a risk to the community or the administration of justice, or that he would fail to appear in court when required. We choose not to address those arguments because reversal is required for other reasons that follow, and defendant may renew those and other arguments on the record produced at the remand hearing we now order. As noted, the CJRA requires that a defendant receive proper notice of the revocation hearing. N.J.S.A. 2A:162-19(d)(2). Here, on July 7, both the prosecutor and defense counsel believed the revocation hearing on the State's motion was to take place on Monday, July 10. The judge said the "notice of violation and order" of the court set July 7 as the date. 22 A-4778-16T6 However, the notice of violation in the record, filed in support of the State's motion, does not set the date; the referenced court order is also not in the record. Moreover, the State's notice of motion, which is in the record, was not served on defense counsel until July 6, making it unlikely that the hearing was set for the next day. In short, the record does not reasonably support the conclusion that defendant was on notice that the hearing was to take place on July 7. This is amply borne out by defense counsel's later assertion that defendant mistakenly reported to Pretrial Services on July 7 and only appeared in court because he was told on that day by Pretrial Services to report to court. The failure to provide proper notice was particularly prejudicial in this case because the judge denied defendant's reasonable request to delay the hearing until the following Monday. The judge did not provide an explanation for denying the adjournment request, although we may surmise that he was concerned about defendant's alleged prior violations and the second violations report, filed less than one month after the earlier June 5 court hearing. However, Rule 3:26-2(d)(2) clearly provides that a defendant has the right to call witnesses and present evidence at a release revocation hearing. Here, defendant made clear 23 A-4778-16T6 that he intended to call his mother, who was unavailable on July 7 but would be available on July 10, to explain the problems he continued to have with his EMD and to testify that defendant had returned to her home. He also wished to produce evidence that his work required him to be at certain locations outside of his home, including those detected by satellite. This evidence, if believed by the judge, certainly rebutted the State's evidence regarding "the nature and seriousness of the violation." N.J.S.A. 2A:162-24. We do not suggest that a judge should surrender his or her broad discretion to control the revocation hearing and limit the testimony and evidence that is relevant. However, federal courts have recognized that the government's sole reliance on a proffer at the revocation hearing may affect the probative value and weight of the evidence on the ultimate decision of whether detention is appropriate. See LaFontaine, supra, 210 F.3d at 132 (noting that while the government may proceed by proffer, it usually does not rely solely on a proffer where its request to revoke release is premised upon danger to the community); Aron, supra, 904 F.2d at 227 ("The inability of the defendant to cross-examine a declarant is relevant to the probative value of the proffered evidence . . . ."). It follows that a defendant's ability pursuant to Rule 3:26(d)(2) to call witnesses and 24 A-4778-16T6 produce evidence to rebut the State's revocation proofs has increased significance when the only proof of a violation is the report of Pretrial Services, as it was in this case. The denial of the adjournment under these circumstances was a mistaken exercise of the judge's discretion.7 See C.W., supra, 449 N.J. Super. at 255 ("An appellate court can also discern an abuse of discretion when the trial court fails to take into consideration all relevant factors and when its decision reflects a clear error in judgment.") (citing State v. Baynes, 148 N.J. 434, 444 (1997)). We therefore reverse and vacate the detention order, and remand the matter to the trial court to conduct a new hearing on the State's motion to revoke White's release. Although the CJRA requires a previously released defendant to remain so pending the detention hearing, N.J.S.A. 2A:162- 19(d)(2), we do not order defendant's immediate release in this case. If the State wishes to proceed on its motion to revoke 7 We reject the State's suggestion, made at oral argument, that defendant's challenge to the denial of his adjournment request was not properly before us because it was contained in a footnote in his brief. See Sullivan v. Port Auth. of N.Y. and N.J., 449 N.J. Super. 276, 281 (App. Div. 2017) (explaining that arguments raised in a footnote will not be considered on appeal). In arguing that the evidence did not clearly and convincingly establish that detention was appropriate, defendant repeatedly referenced throughout his brief the contrary evidence that may have been produced, but was not, because the adjournment request was denied. 25 A-4778-16T6 defendant's release, it shall notify the judge and defense counsel forthwith, and the judge shall provide notice and conduct the revocation hearing within ten days of our judgment, or otherwise release defendant subject to appropriate conditions. We do not retain jurisdiction. III. As to defendant Bostic, we initially express grave concerns about the procedures employed prior to the actual revocation hearing. Defendant was arrested when he reported to Pretrial Services for the first time as ordered. He had not committed another crime and there was no outstanding arrest warrant, see N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance of a warrant for the . . . defendant's arrest" for "violating a condition of release"), yet defendant was taken into custody immediately and not brought before a judge for five days. At oral argument before us, the prosecutor could not identify what authority permitted the State to proceed in such fashion, and we can find none ourselves. The CJRA requires that a defendant must be provided with "all conditions . . . to which the release is subject" "in a manner sufficiently clear and specific to serve as a guide for . . . defendant's conduct." N.J.S.A. 2A:162-23(a)(1)(a). There is no evidence that the prosecutor actually supplied the 26 A-4778-16T6 addresses of the victims, as the judge asked her to do, and the actual order, which mistakenly stated, "Defendant shall come within 1000 feet of any victim inclusion zones[,]" does not provide them. In short, nothing in the record demonstrates that Pretrial Services or the State ever supplied defendant with the parameters of the victim exclusion zones. At the revocation hearing, defendant denied any knowledge of the victims' addresses. The State only argued that defendant must have known the victims' home addresses because they worked in his business. Although the judge specifically found that defendant had entered the exclusion zone for two of the victims, the judge did not find that defendant had actually known where or how extensive those zones were. Under these circumstances, the State failed to prove by a preponderance of the evidence that defendant had violated that condition of his release. The judge also found that defendant had violated another condition of his release by "fail[ing] to remain in [his] home as required." In fact, the first judge, on remand, had specifically ordered defendant to report to Pretrial Services, which was located in a town different from defendant's residence, upon his release from jail or the next day if he were released late in the day. Defendant complied by reporting the 27 A-4778-16T6 day after the remand hearing and, in doing so, had to leave his home. The State's proof at the revocation hearing was limited to the Pretrial Services' violation report and the Google Map. The Google map, which is in the record, does not demonstrate that defendant was wandering or "roaming the city of Vineland most of the day," contrary to the assertion in the violation report. Therefore, the State failed to prove by a preponderance of the evidence this second purported violation of a condition of release. On Bostic's appeal, we reverse, vacate the detention order and order his immediate release on appropriate conditions following a hearing, which the Law Division judge shall conduct forthwith. Reversed and remanded in both appeals. 28 A-4778-16T6
Date: December 5, 2017
Docket Number: a4778-16 MESSANO, P.J.A.D. In these appeals, now consolidated in a single opinion, we consider for the first time the procedural and substantive provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162- 15 to -26 (the CJRA), that are applicable when a previously released defendant allegedly violates one or more conditions of release imposed by the court. We provide some background. As to A-4778-16 Defendant Donovan White was arrested on January 28, 2017, and charged with second-degree robbery and other offenses. 2 A-4778-16T6 Defendant's score on the public safety assessment (PSA) for both failure to appear (FTA) and new criminal activity (NCA) was five, the second-highest possible score in each category, and Pretrial Services recommended against his release. The State, however, did not move to detain defendant. The judge ordered defendant's release with the conditions that he: refrain from committing any new offense; avoid contact with the victim; report to Pretrial Services every week, alternately in person and by phone; remain on home supervision with an electronic monitoring device (EMD); avoid the location where the robbery occurred; appear for all scheduled court proceedings; and immediately notify Pretrial Services of any change of address, telephone number, or other contact information. The grand jury indicted defendant on May 9, 2017. On May 25, Pretrial Services filed a violation report, indicating that defendant had permitted his EMD to "die" on several occasions and to remain dead for several days by failing to keep it charged. Apparently, the State moved to revoke defendant's release or modify the conditions of release. R. 3:26-2(c).1 On the return date of June 5, 2017, the prosecutor said that in light of his conversation with defense counsel, the 1 The motion is not in the appellate record. 3 A-4778-16T6 State would not seek detention or modification. The prosecutor noted that the EMD had "shorted out," and that defendant had been "forced out" of his mother's home after an argument, which had "led to the bracelet not being charged." Defense counsel argued against any change in conditions under these circumstances, and the judge agreed. The prosecutor indicated, nevertheless, that any further problems would lead to the State's filing another motion to revoke defendant's release. Pretrial Services filed a second violation report on June 21, 2017. It alleged that: defendant's EMD was "dead" on three separate dates after the June 5 hearing; defendant failed to report "for instruction" on the proper use of the device after the hearing and after acknowledging receipt of a message to report; numerous "satellites" detected defendant's presence at various hours at three different locations in Hoboken and Newark; and defendant failed to update his home address. Pretrial Services recommended revocation of defendant's release, and the State moved for that relief. On Friday, July 7, the prosecutor and defense counsel appeared before the judge; defendant was not present. There was some confusion regarding the date set for the revocation hearing, with defense counsel and the prosecutor both indicating that the hearing was set for Monday, July 10. Defense counsel 4 A-4778-16T6 indicated that she had been in touch with defendant, and he intended to be present on Monday and to produce a witness and evidence. Both attorneys agreed to delay the hearing. However, unbeknownst to counsel or the court, defendant reported to Pretrial Services later in the day on July 7, and was told to report to court. He did so. Before the judge, defense counsel explained that instead of reporting to Pretrial Services telephonically as required, defendant had appeared in person because of continued problems with his EMD. Over defendant's objection, the judge immediately considered the State's motion to revoke defendant's release. Defense counsel sought an adjournment, arguing that defendant was not prepared to respond because he had received notice that the motion would be heard on July 10. Defendant intended to call his mother as a witness to confirm that he was residing with her and to address "some of the concerns . . . about the [EMD] being defective," but she was not available to testify until Monday. Defendant also wanted to present evidence from his employer to show that he had been working consistently and that his presence at the three locations cited in the violation report had been work-related. Counsel stressed that in the nearly six months since defendant had been released on conditions, he had not been arrested for a new offense, had not 5 A-4778-16T6 been in contact with the victim, had not been in the area of the offense and had not failed to appear for a court date. The judge agreed that defendant's conduct did not offend "two of the primary goals of pretrial release," which were to guard against the commission of a new offense and the failure to appear in court. However, the judge stated, "the conditions of release are not limited to that. There are certain prophylactic conditions placed upon the accused to provide . . . reasonable assurances that . . . there will be an appearance as required, there will be no new offenses, and there will be no obstruction of justice." The judge noted that Pretrial Services had initially recommended detention based on defendant's PSA score, and that the recommendation established a "prima facie case which would satisfy the finding by clear and convincing evidence that there is [sic] no conditions or combinations of conditions that will reasonably assure the defendant's appearance, the protection of the safety of the community." The judge took note of defendant's prior record; his subsequent indictment, which established probable cause that defendant committed the crimes charged; and the strength of the State's evidence. The judge found that after the June 5 hearing, defendant continued to allow the EMD to die, thus 6 A-4778-16T6 inhibiting Pretrial Services from monitoring his location; failed to report to Pretrial Services on June 14; and was present at the three locations noted in the violation. The judge stated: [E]ssential to the proper functioning of the criminal justice reform is the ability to monitor compliance with release conditions. Despite having the opportunity earlier in response to the first notice of violation, [sic] the information before the Court amply demonstrates by a preponderance that there has been a violation of the home detention provision. And this Court is no longer comfortable with the continued release of [defendant]. And I find by clear and convincing evidence through operation of the prima facie case provision based upon the information set forth in the PSA that there are no conditions or combinations of conditions that will reasonably assure the defendant's appearance, the protection of the safety of the community. The judge entered the July 7, 2017 pretrial detention order from which defendant now appeals. As to A-5364-16 On June 22, 2017, defendant Larry Bostic was charged with five counts of endangering the welfare of children and five counts of invasion of privacy. The State alleged that defendant surreptitiously video recorded female juvenile employees disrobing and changing into work uniforms at defendant's business. Although defendant's PSA scores were two (FTA) and 7 A-4778-16T6 one (NCA), and Pretrial Services had recommended his release on his own recognizance, the judge ordered defendant detained. Defendant appealed, and, on July 24, 2017, a panel of our colleagues vacated the detention order and remanded the matter, concluding that the judge had failed to provide written factual findings in support of the order. The remand hearing took place on August 2.2 With little discussion, the judge ordered defendant's release on "Level 3, monitoring, home detention and a bracelet." He advised defendant that except to go to the doctor, shop for food or come to court, he could not leave his home. The judge ordered defendant to appear at Pretrial Services the next day upon his release from jail.3 He also: ordered defendant to have no contact with the victims; requested the prosecutor to supply the victims' addresses; told defendant that his "bracelet" would "set off an alert" if he entered the 1000-feet "zone of exclusion" around the victims; and ordered defendant to have no contact with anyone under the age of eighteen. 2 Although the transcript of the remand hearing indicates it took place before a different judge, this is an apparent error. The order following remand bears the signature of the same judge who issued the detention order, and he referenced our remand order during the course of the hearing. 3 Even though the charges emanated from Cumberland County, defendant was apparently incarcerated in the Camden County jail. 8 A-4778-16T6 The order of release ostensibly detailed these and other conditions imposed on defendant. However, the order erroneously provided: "Defendant shall come within 1000 feet of any victim inclusion zones." Moreover, the addresses of the victims were not in the order, and the record fails to reveal that those locations were ever provided to defendant prior to his release. As instructed, defendant appeared at Pretrial Services on August 3, 2017. He was immediately taken into custody based upon a violation report, which indicated that the assistant criminal division manager had contacted local police when defendant's EMD demonstrated that he had "failed to remain in his home," was "roaming the city of Vineland most of the day," and had entered a victim exclusion zone for one minute. In the violation report, Pretrial Services wrote that defendant was currently on the highest level of supervision. According to the structure response grid, entering a victim exclusion zone is a major violation as [is] leaving your approved home address. There are no conditions that can be placed on the defendant that will ensure his compliance. The record before us indicates no arrest warrant was issued, and defendant never appeared before a judge until August 9, which was the return date for the State's motion to revoke defendant's release. 9 A-4778-16T6 A different judge presided over the revocation hearing. The prosecutor proffered the violation report from Pretrial Services and a Google map, which she claimed demonstrated that defendant "was essentially moving all around the city of Vineland in violation of his conditions." Defense counsel initially tried to explain that defendant did not know "the location of the victim exclusion zone." She claimed that defendant had gone to the police department a few blocks from his home to retrieve his wallet and keys. Defendant insisted on speaking, so the judge placed him under oath. Defendant said that he had tried unsuccessfully to retrieve his wallet and keys from the local police department, a few blocks from his home. He relied upon an elderly friend to drive him from his home in Vineland to Pretrial Services in Bridgeton. Defendant said that he had no control over the route his friend had taken, and he had no knowledge where any of the five alleged victims lived. The prosecutor's retort was that as the "proprietor of the business . . . it's assumed that [defendant was] probably going to know where these kids are living." The record fails to demonstrate that the prosecutor had complied with the court's earlier request to supply those addresses, or that the pretrial release order actually served on defendant included the victims' 10 A-4778-16T6 addresses or described the parameters of the victim exclusion zones. Referencing the violation report, the judge found that defendant had been in the exclusion zone where two victims lived in the same apartment complex, and that defendant had "failed to remain in [his] home as required." He concluded that defendant was obviously . . . not in compliance and . . . there's no manner in which we can keep [him] in compliance. At this point the State has overcome its burden in establishing that there's no amount of monetary bail, non-monetary conditions or combinations thereof which would ensure that . . . you[ would] appear in court[,] . . . not present a danger to the community[] and . . . not obstruct justice. The detention order indicated that the judge made these findings by clear and convincing evidence. The order also cited the "nature and circumstances of the offense," including defendant's violation of conditions of pretrial release; the weight of the evidence, specifically the violation report and Google map; the risk defendant posed to witnesses and the community; and Pretrial Services' recommendation of detention. Defendant filed this appeal. 11 A-4778-16T6 I. The CJRA "'shall be liberally construed' to effect its purpose: to rely primarily on 'pretrial release by non-monetary means to reasonably assure' that a defendant will 'appear[] in court when required,' will not endanger 'the safety of any other person or the community,' and 'will not obstruct or attempt to obstruct the criminal justice process.'" State v. Robinson, 229 N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162-15). With certain exceptions, or unless the prosecutor moves for pretrial detention, the CJRA requires the court to release a defendant on his personal recognizance or unsecured appearance bond following arrest. N.J.S.A. 2A:162-17(a). Only if those conditions are inadequate "to assure a defendant's return to court and protect both public safety and the integrity of the criminal justice process," may the judge impose "non-monetary conditions that are the least restrictive conditions necessary." Robinson, supra, 229 N.J. at 55 (citations omitted). Compliance "with all conditions of release" is another stated purpose of the Act. N.J.S.A. 2A:162-15. These conditions may include requiring a defendant to refrain from committing another crime, from contacting the alleged victim of the crime, from contacting witnesses named in the release order or subsequent court order, and other non-monetary conditions. 12 A-4778-16T6 N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2) and (3). When a defendant is released on conditions, the court shall, in the document authorizing the eligible defendant's release, notify the eligible defendant of: (a) all the conditions, if any, to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the eligible defendant's conduct; and (b) the penalties for and other consequences of violating a condition of release, which may include the immediate issuance of a warrant for the eligible defendant's arrest. [N.J.S.A. 2A:162-23(a)(1)(emphasis added).] If the court orders a defendant's release subject to conditions, it may subsequently review the conditions on its own motion, or on motion by either party, and may modify the conditions or impose new conditions upon a showing of a material change in circumstances. R. 3:26-2(c)(2). The State may seek revocation of a defendant's release if he or she violates a restraining order or a condition of release, "or upon [the court's] finding of probable cause . . . that the . . . defendant has committed a new crime while on release." N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1). Pending disposition of a motion to revoke release, a defendant shall remain released and "the court shall issue a notice to appear to 13 A-4778-16T6 compel the appearance of the eligible defendant at the detention hearing." N.J.S.A. 2A:162-19(d)(2). At the revocation hearing, the defendant shall be represented by counsel, provided with all discovery, afforded the right to testify and present witnesses, cross-examine witnesses who appear and "present information by proffer or otherwise." R. 3:26-2(d)(2). The CJRA does not set forth the State's burden of proof at the revocation hearing, but Rule 3:26-2(d)(1) provides that the State need only prove the violation of a condition of release by a preponderance of the evidence. However, upon a finding that the eligible defendant while on release has violated a restraining order or condition of release, or upon a finding of probable cause to believe that the eligible defendant has committed a new crime while on release, [the court] may not revoke the eligible defendant's release and order that the eligible defendant be detained pending trial unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that no monetary bail, non-monetary conditions of release or combination of monetary bail and conditions would reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process. 14 A-4778-16T6 [N.J.S.A. 2A:162-24 (emphasis added); see also R. 3:26-2(d)(1).] Thus, N.J.S.A. 2A:162-24 conditions revocation of release and pretrial detention on a finding by clear and convincing evidence that no conditions of release will reasonably assure the three goals of the Act. In other words, even after the State proves a violation, the court must still consider whether under all relevant circumstance, the clear and convincing evidence proffered by the State requires detention. The CJRA does not allow for detention based solely on a finding that the defendant violated the terms of release. Although the CJRA and Rule 3:26-2 are silent regarding the procedure to be followed at a revocation hearing, we conclude that the State's proffer of the Pretrial Services violation report alone may be sufficient to establish, by a preponderance of the evidence, that a violation occurred. We reach this conclusion for several reasons. In State v. Ingram, 230 N.J. 190, 213 (2017), the Court held that at the initial detention hearing under the CJRA, the State may establish probable cause by proffer without producing a live witness. The probable cause standard, which applies to initial detention hearings and revocation hearings based upon the commission of a new offense, and the preponderance standard, which is applicable to revocations based on violations of 15 A-4778-16T6 conditions, are similar in nature and precede the ultimate finding of whether clear and convincing evidence supports detention. Compare State v. Gibson, 218 N.J. 277, 292 (2014) (explaining that probable cause is a well-grounded suspicion that a crime has been committed), with State v. Williams, 93 N.J. 39, 78 (1983) (providing: "Preponderance of evidence . . . is evidence sufficient to generate a belief that the conclusion advanced is likely. It has been stated in terms of reasonable probability.") (citations omitted). Further, the CJRA makes no distinction between a motion to detain filed immediately following arrest or at a subsequent time. See N.J.S.A. 2A:162-19(a) (explaining that a motion to detain may be filed at any time before or after release). Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24 is simply a motion to detain with the added requirement that (1) the State prove probable cause that the defendant committed a new crime, or prove by a preponderance of the evidence that the defendant violated a release term or restraining order; and (2) the nature and severity of the new crime or the violation, in addition to all other circumstances, clearly and convincingly establishes that detention is appropriate. 16 A-4778-16T6 Under the federal release revocation statute, which is somewhat different from N.J.S.A. 2A:162-24, the court may revoke release upon motion by the government if the judge (1) finds that there is — (A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or (B) clear and convincing evidence that the person has violated any other condition of release; and (2) finds that— (A) based on the factors set forth in [18 U.S.C.A. § 3142(g)], there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or (B) the person is unlikely to abide by any condition or combination of conditions of release.[4] [18 U.S.C.A. § 3148(b).] Federal courts take a similar approach and allow the government to prove a release-term violation by proffer. United States v. LaFontaine, 210 F.3d 125, 131 (2nd Cir. 2000); United States v. Aron, 904 F.2d 221, 227 (5th Cir. 1990); United State v. Davis, 4 Unlike the federal statute, the CJRA does not authorize pretrial detention based upon a finding that the defendant is unlikely to abide by any conditions of release. 17 A-4778-16T6 845 F.2d 412, 415 (2nd Cir. 1988). C.f. Ingram, supra, 230 N.J. at 205 (explaining that because the CJRA is similar to its federal counterpart, New Jersey courts should "give careful consideration to the federal case law that interprets the Bail Reform Act," 18 U.S.C.A. §§ 3141 to 3156). Lastly, we reject the argument, explicitly made by White and implicitly made by Bostic, that the State must prove a defendant's violation of a condition of release was purposeful or intentional. Nothing in the CJRA or our Court Rules supports that claim. However, evidence that the violation is the result of inadvertence, negligence or is otherwise excusable is clearly a "relevant circumstance[]" in weighing "the nature and seriousness of the violation," and ultimately whether the evidence clearly and convincingly demonstrates detention is warranted in light of all other relevant circumstances. N.J.S.A. 2A:162-24.5 5 In a somewhat analogous circumstance, our Criminal Code explicitly provides that the State must either (1) establish probable cause that the defendant committed a new crime while on probation, or (2) "inexcusably failed to comply with a substantial requirement imposed as a condition" of probation at a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4) (emphasis added). If the alleged violation is a failure to pay a fine or make restitution, the court must find a willful violation. N.J.S.A. 2C:45-3(a)(4). We note further that VOP hearings must be on written notice to the defendant, who has the right "to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel." (continued) 18 A-4778-16T6 We now apply these basic principles to the facts presented in these two appeals. II. As to defendant White, we first address the judge's reliance in part upon the "no release" recommendation made by Pretrial Services in the PSA generated when defendant was arrested in January. As noted, the State never sought detention at that time, but, in reaching his revocation decision, the judge considered Pretrial Services' recommendation as prima facie evidence sufficient to overcome the presumption of release. R. 3:4A(b)(5). Before us, defendant argues that the prima facie evidence provision only applies to the initial detention decision, and the State contends that the provision is inapplicable to a release revocation hearing because the presumption of release only applies at the initial detention hearing. We disagree with both parties and conclude that, in the circumstances of this case, where the court never made an initial detention decision, (continued) N.J.S.A. 2C:45-4. And, the State may rely on a proffer of evidence or hearsay to meet its burden. State v. Reyes, 207 N.J. Super. 126, 138 (App. Div.), certif. denied, 103 N.J. 499 (1986). We note, however, that the Court recently heard argument as to whether the trial court erred in accepting hearsay testimony that the defendant committed a new offense at the defendant's violation of probation hearing. State v. Noah Mosley, Docket No. A-24-16 (argued November 28, 2017). 19 A-4778-16T6 the judge properly considered Pretrial Services' recommendation as prima facie proof overcoming the presumption of release. Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption of a defendant's release, except for those crimes to which a presumption of detention applies. See N.J.S.A. 2A:162-18(b) (presumption of release); N.J.S.A. 2A:162-19(b)(1) and (2) (rebuttable presumption of detention for certain crimes). The Rule also permits, but does not require, the judge to consider the Pretrial services recommendation against release as prima facie evidence sufficient to overcome the presumption. R. 3:4A(b)(5); see also See State v. C.W., 449 N.J. Super. 231, 262 (App. Div. 2017) (noting consideration of the recommendation as prima facie evidence to rebut the presumption of release is discretionary). N.J.S.A. 2A:162-19(a) provides that a motion to detain may be filed at any time prior to trial, and the Rule does not limit its application to motions filed prior to the initial hearing. We find further reason to reject the State's position in Article 1, paragraph 11, of our Constitution, the amendment that preceded enactment of the CJRA, which provides: "All persons shall, before conviction, be eligible for pretrial release." Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be liberally construed to effectuate the purpose of primarily 20 A-4778-16T6 relying upon pretrial release by non-monetary means to reasonably assure" its goals. We specifically do not address a situation where the court initially rejects the PSA recommendation of "no release" and releases the defendant on conditions.6 In such situations, the CJRA requires the court entering an order "contrary to a recommendation made" in the PSA to explain in writing its decision to release. N.J.S.A. 2A:162-23(a)(2). We recognize that the court's subsequent invocation of Rule 3:4A(b)(5) to surmount the presumption of release raises the very real possibility of inconsistent decision-making following re- litigation of the same or similar issues. See State v. K.P.S., 221 N.J. 266, 276 (2015) ("The law-of-the-case doctrine 'is a non-binding rule intended to prevent relitigation of a previously resolved issue' in the same case.") (citing Lombardi v. Masso, 207 N.J. 517, 538 (2011)). Here, however, the State never sought defendant's detention so the judge never considered 6 We tread carefully because of the Court's pending decision in State v. S.N., Docket No. A-60-16 (argued on September 11, 2017), where the use of Pretrial Services' recommendation of no release as prima facie evidence under Rule 3:4A(b)(5) was raised during argument before the Court, and State v. Hassan Travis, Docket No. A-7-17 (argued on November 29, 2017), where Pretrial Services' recommendation in the context of the Rule was squarely considered. 21 A-4778-16T6 the PSA's recommendation of "no release" prior to the revocation hearing. Defendant White argues that the judge "misapplied the law on revocation of pretrial release," essentially contending that any violations proven during the revocation hearing were insufficient to establish by clear and convincing evidence that detention was required. He underscores that the violations did not include another arrest for a crime, contact with the victim, or appearance at the location of the crime. Further, he appeared at every court proceeding and reported to Pretrial Services as required. In short, he claims that there was no basis to find he posed a risk to the community or the administration of justice, or that he would fail to appear in court when required. We choose not to address those arguments because reversal is required for other reasons that follow, and defendant may renew those and other arguments on the record produced at the remand hearing we now order. As noted, the CJRA requires that a defendant receive proper notice of the revocation hearing. N.J.S.A. 2A:162-19(d)(2). Here, on July 7, both the prosecutor and defense counsel believed the revocation hearing on the State's motion was to take place on Monday, July 10. The judge said the "notice of violation and order" of the court set July 7 as the date. 22 A-4778-16T6 However, the notice of violation in the record, filed in support of the State's motion, does not set the date; the referenced court order is also not in the record. Moreover, the State's notice of motion, which is in the record, was not served on defense counsel until July 6, making it unlikely that the hearing was set for the next day. In short, the record does not reasonably support the conclusion that defendant was on notice that the hearing was to take place on July 7. This is amply borne out by defense counsel's later assertion that defendant mistakenly reported to Pretrial Services on July 7 and only appeared in court because he was told on that day by Pretrial Services to report to court. The failure to provide proper notice was particularly prejudicial in this case because the judge denied defendant's reasonable request to delay the hearing until the following Monday. The judge did not provide an explanation for denying the adjournment request, although we may surmise that he was concerned about defendant's alleged prior violations and the second violations report, filed less than one month after the earlier June 5 court hearing. However, Rule 3:26-2(d)(2) clearly provides that a defendant has the right to call witnesses and present evidence at a release revocation hearing. Here, defendant made clear 23 A-4778-16T6 that he intended to call his mother, who was unavailable on July 7 but would be available on July 10, to explain the problems he continued to have with his EMD and to testify that defendant had returned to her home. He also wished to produce evidence that his work required him to be at certain locations outside of his home, including those detected by satellite. This evidence, if believed by the judge, certainly rebutted the State's evidence regarding "the nature and seriousness of the violation." N.J.S.A. 2A:162-24. We do not suggest that a judge should surrender his or her broad discretion to control the revocation hearing and limit the testimony and evidence that is relevant. However, federal courts have recognized that the government's sole reliance on a proffer at the revocation hearing may affect the probative value and weight of the evidence on the ultimate decision of whether detention is appropriate. See LaFontaine, supra, 210 F.3d at 132 (noting that while the government may proceed by proffer, it usually does not rely solely on a proffer where its request to revoke release is premised upon danger to the community); Aron, supra, 904 F.2d at 227 ("The inability of the defendant to cross-examine a declarant is relevant to the probative value of the proffered evidence . . . ."). It follows that a defendant's ability pursuant to Rule 3:26(d)(2) to call witnesses and 24 A-4778-16T6 produce evidence to rebut the State's revocation proofs has increased significance when the only proof of a violation is the report of Pretrial Services, as it was in this case. The denial of the adjournment under these circumstances was a mistaken exercise of the judge's discretion.7 See C.W., supra, 449 N.J. Super. at 255 ("An appellate court can also discern an abuse of discretion when the trial court fails to take into consideration all relevant factors and when its decision reflects a clear error in judgment.") (citing State v. Baynes, 148 N.J. 434, 444 (1997)). We therefore reverse and vacate the detention order, and remand the matter to the trial court to conduct a new hearing on the State's motion to revoke White's release. Although the CJRA requires a previously released defendant to remain so pending the detention hearing, N.J.S.A. 2A:162- 19(d)(2), we do not order defendant's immediate release in this case. If the State wishes to proceed on its motion to revoke 7 We reject the State's suggestion, made at oral argument, that defendant's challenge to the denial of his adjournment request was not properly before us because it was contained in a footnote in his brief. See Sullivan v. Port Auth. of N.Y. and N.J., 449 N.J. Super. 276, 281 (App. Div. 2017) (explaining that arguments raised in a footnote will not be considered on appeal). In arguing that the evidence did not clearly and convincingly establish that detention was appropriate, defendant repeatedly referenced throughout his brief the contrary evidence that may have been produced, but was not, because the adjournment request was denied. 25 A-4778-16T6 defendant's release, it shall notify the judge and defense counsel forthwith, and the judge shall provide notice and conduct the revocation hearing within ten days of our judgment, or otherwise release defendant subject to appropriate conditions. We do not retain jurisdiction. III. As to defendant Bostic, we initially express grave concerns about the procedures employed prior to the actual revocation hearing. Defendant was arrested when he reported to Pretrial Services for the first time as ordered. He had not committed another crime and there was no outstanding arrest warrant, see N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance of a warrant for the . . . defendant's arrest" for "violating a condition of release"), yet defendant was taken into custody immediately and not brought before a judge for five days. At oral argument before us, the prosecutor could not identify what authority permitted the State to proceed in such fashion, and we can find none ourselves. The CJRA requires that a defendant must be provided with "all conditions . . . to which the release is subject" "in a manner sufficiently clear and specific to serve as a guide for . . . defendant's conduct." N.J.S.A. 2A:162-23(a)(1)(a). There is no evidence that the prosecutor actually supplied the 26 A-4778-16T6 addresses of the victims, as the judge asked her to do, and the actual order, which mistakenly stated, "Defendant shall come within 1000 feet of any victim inclusion zones[,]" does not provide them. In short, nothing in the record demonstrates that Pretrial Services or the State ever supplied defendant with the parameters of the victim exclusion zones. At the revocation hearing, defendant denied any knowledge of the victims' addresses. The State only argued that defendant must have known the victims' home addresses because they worked in his business. Although the judge specifically found that defendant had entered the exclusion zone for two of the victims, the judge did not find that defendant had actually known where or how extensive those zones were. Under these circumstances, the State failed to prove by a preponderance of the evidence that defendant had violated that condition of his release. The judge also found that defendant had violated another condition of his release by "fail[ing] to remain in [his] home as required." In fact, the first judge, on remand, had specifically ordered defendant to report to Pretrial Services, which was located in a town different from defendant's residence, upon his release from jail or the next day if he were released late in the day. Defendant complied by reporting the 27 A-4778-16T6 day after the remand hearing and, in doing so, had to leave his home. The State's proof at the revocation hearing was limited to the Pretrial Services' violation report and the Google Map. The Google map, which is in the record, does not demonstrate that defendant was wandering or "roaming the city of Vineland most of the day," contrary to the assertion in the violation report. Therefore, the State failed to prove by a preponderance of the evidence this second purported violation of a condition of release. On Bostic's appeal, we reverse, vacate the detention order and order his immediate release on appropriate conditions following a hearing, which the Law Division judge shall conduct forthwith. Reversed and remanded in both appeals. 28 A-4778-16T6
FWDSL& ASSOCIATES, LP v.
Date: December 5, 2017
Docket Number: a5385-15 FISHER, P.J.A.D. Following the Supreme Court's admonition more than fifty years ago that "heir hunting" was of "no social value," Bron v. Weintraub, 42 N.J. 87, 95 (1964), the Legislature amended the applicable statutes in a way that prohibited, as the Court later observed, "anyone from becoming a party to a tax-foreclosure proceeding or from exercising the right to redeem" if that person's interest in the property was "acquired for a nominal consideration," Wattles v. Plotts, 120 N.J. 444, 450 (1990). More recently, the Supreme Court recognized that the Tax Sales Law1 "does not prohibit a third-party investor from redeeming a tax sale certificate" so long as the investor "pays the property owner more than nominal consideration for the property." Simon v. Cronecker, 189 N.J. 304, 311 (2007). Against that backdrop, we reject the foreclosing plaintiff's contention that Cronecker renders unlawful profit-sharing agreements like that formed between the intervenor and the property owners here, as well as its argument that the former only obtained title and a right to redeem by providing the latter with only nominal consideration. 1 N.J.S.A. 54:5-1 to -137. 2 A-5385-15T2 At a 2013 auction, plaintiff FWDSL & Associates purchased a tax sale certificate on Richard and Donna Berezansky's Manville home. After waiting the required two years and paying all accruing municipal taxes, plaintiff filed a foreclosure complaint in October 2015 against the Berezanskys, as well as the State of New Jersey, which possessed a $70,000 judgment against Richard Berezansky. On February 25, 2016, the court entered an order setting the date, time, and place for redemption. The following month, prior to the expiration of the time for redemption, Bandi Property Group – claiming it held title and was a party to a profit-sharing agreement with the Berezanskys – moved to intervene and redeem. In so moving, Bandi first explained how it came to be involved with the property. Bandi claimed it learned from public records that: the "equalized assessed value of the [p]roperty is $314,792.13"; the property was encumbered by approximately $43,000 in tax liens; and the State's $70,000 judgment against Berezansky was the "only other known judgment" with a potential to affect title. Bandi explained it had offered to purchase the property from the Berezanskys and described the discussions leading up to its eventual financial arrangement with the Berezanskys. Because the Berezanskys advised they could not afford to pay off the outstanding tax lien, Bandi proposed a profit-sharing 3 A-5385-15T2 agreement in exchange for Bandi's "satisf[action] [of] all liens and judgments affecting title" and payment to the Berezanskys of $10,000. To obtain clear title, Bandi agreed, by way of a profit- sharing agreement, to "improve the [p]roperty to maximize its resale value" and "cause the property to be sold at a price reflecting the fair market value." Bandi also agreed to give the Berezanskys "a rent-free use and occupancy period through July 2, 2016." Once the property sold, and "certain fixed expenses . . . deducted," the net proceeds would be divided: thirty-five percent to Bandi and sixty-five percent to the Berezanskys. Chancery Judge Margaret Goodzeit concluded, in a thorough and well-reasoned written decision, that the consideration given by Bandi for and the benefits obtained by the Berezanskys from the profit-sharing agreement were not nominal. Plaintiff appeals the order entered in Bandi's favor, arguing, among other things, that the judge should not have found the profit-sharing agreement lawful within the meaning of the legal authorities cited in the opening paragraph of this opinion because: I. THE PROFIT[-]SHARING AGREEMENT MODEL IS CONTRARY TO PUBLIC POLICY. II. THE CONSIDERATION FROM BANDI IS ILLUSORY AND ULTIMATELY PAID FOR BY DEFENDANTS OUT OF THEIR OWN EQUITY. III. IT IS IMPOSSIBLE TO KNOW HOW MUCH 65% OF NET PROCEEDS WILL COME TO, HENCE IT IS 4 A-5385-15T2 IMPOSSIBLE TO CONDUCT A MEANINGFUL NOMINAL CONSIDERATION ANALYSIS. IV. THE OUTCOME IN THIS CASE SHOULD BE CONTROLLED BY WATTLES, AND THE TRIAL COURT ERRED IN CONCLUDING OTHERWISE.[2] We reject these arguments. N.J.S.A. 54:5-89.1 bars a party from intervening in a tax foreclosure action when claiming a right in the property that was acquired "for a nominal consideration." In considering the effect of this statute and the profit-sharing agreement on this foreclosure action, we start by rejecting plaintiff's argument that the Supreme Court has determined that N.J.S.A. 54:5-89.1 renders unlawful all profit-sharing agreements in this setting. To the contrary, the Court recognized that the statute was not designed to bar investors from "helping property owners in desperate need of financial assistance." 189 N.J. at 328. There is nothing contained in the Cronecker decision that limits the form such financial assistance must take or that which it may not take. The focus, instead, must be aimed in the direction of the consideration conveyed. See id. at 330-31. In defining what constitutes nominal consideration, the Court rejected previously-recognized, mathematical approaches, id. at 2 We have renumbered plaintiff's arguments. 5 A-5385-15T2 333-34,3 in favor of "a more flexible, under-all-the-circumstances approach that will keep the focus on the benefit to the property owner facing forfeiture of his land," id. at 334-35. Consequently, the Court directed courts to be "reluctant to strike-down a third- party financing arrangement that will provide some meaningful monetary relief to the property owner." Id. at 335.4 We thus reject 3 The Court rejected both "the so-called percentages test" recognized in Savage v. Weissman, 355 N.J. Super. 429, 439 (App. Div. 2002), and the economic realities test and the windfall profits test discussed in Corestates/N.J. Nat'l Bank v. Charles Schaefer Sons, Inc., 386 N.J. Super. 554, 564-65 (App. Div. 2006). See Cronecker, supra, 189 N.J. at 333-34. In so holding, the Court recognized that "[s]trict mathematical equations cannot address the varying circumstances that may bear on a fair determination of the issue," and emphasized that courts must only ascertain whether the financial arrangement with the intervenor provides the property owner with "some meaningful monetary relief." Id. at 335. 4 We must approach such disputes by recognizing that the contestants – that is, the tax sale certificate holder and the intervenor – pursue the same goal: a lucrative return on their efforts. Id. at 330. Their professed concerns about the municipality's collection of taxes or the property owner's right to freely convey title are certainly of interest to the court and are often served when these market forces are applied. But, in reality, the contestants' interests in those matters are secondary at best to what they are truly after, and we should not be swayed or distracted by either contestant's attempt to seize the moral high ground in such matters. Indeed, if it was actually out to shield the Berezanskys from entities such as Bandi, plaintiff could have taken steps to protect them as well as its own interests. As the Supreme Court noted in Cronecker, the tax sale certificate holder always "control[s] [its] own fate[]." Id. at 329. Plaintiff here, like the plaintiffs in Cronecker, "could have beat [the third-party investor] to the punch and offered to purchase title to the property directly from the owner[]." Id. at 330. 6 A-5385-15T2 the argument that our jurisprudence calls for a blanket rejection of all profit-sharing agreements in this context. The Cronecker Court left no doubt that it is not the nature of the financial arrangement that matters but whether the consideration given to the property owner was only nominal. The Court emphasized that the statute does not "prohibit a third-party investor, who intervenes timely in a foreclosure action, from purchasing the property owner's interest for more than nominal consideration," id. at 331, and that which is "more than nominal consideration" is that which "is not insubstantial under all the circumstances" but rather "an amount, given the nature of the transaction, that is not unconscionable," id. at 335. In defining what the Legislature meant by nominal consideration, the Court referred not only to what has historically been viewed as nominal, such as $25 or $50, but also to the fact that the Legislature had responded to Bron, where the intervenor offered the owner only "one-fiftieth" of the property's value. Id. at 332-33. In assessing the Legislature's intentions in N.J.S.A. 54:5-89.1, the Court ultimately recognized that a court's view of nominal consideration should be "more flexible" and should consider all the circumstances with an eye toward the benefit received by the owners when considering they are "facing forfeiture of [their] land." Id. at 334-35. We take this to require not only a traditional examination 7 A-5385-15T2 of whether the consideration is more than "small" or "trifling," id. at 332, but also an examination of that question from the property owner's standpoint. In this latter respect, we cannot avoid comparing the benefits conveyed by the financial arrangement between Bandi and the Berezanskys and the catastrophic financial impact facing the Berezanskys if their agreement with Bandi is not given effect. Consequently, we agree with the chancery judge that Bandi gave more than nominal consideration; the Berezanskys are far better off with the Bandi agreement than otherwise. In fact, plaintiff concedes that the $10,000 payment provided the Berezanskys with "a real and tangible benefit." That payment alone constitutes more than "nominal consideration" for entry into the profit-sharing agreement, and any doubt about the legal question posed is erased by Bandi's additional obligations to: pay the outstanding approximate $43,000 tax lien; satisfy the State's $70,000 judgment against Richard Berezansky; and allow the Berezanskys with a rent-free, use-and-occupancy period. Although an amount equal to that paid by Bandi to satisfy the tax lien and judgment will be recouped by Bandi from the sale proceeds prior to the sixty-five/thirty-five split – thus offering some support for plaintiff's argument that part of the consideration may appear illusory – the initial $10,000 payment and the use-and-occupancy 8 A-5385-15T2 agreement are certainly real and more than a trifle, and we do not interpret the profit-sharing agreement as allowing reimbursement of those items to Bandi off the top of the sale proceeds.5 To summarize, Bandi's financial obligations are not insubstantial and certainly represent more than nominal consideration. Even though the tax payments, the repairs, and the satisfaction of the $70,000 judgment will be returned to Bandi following the property's sale, their payment prior to the sale constitutes a benefit that exceeds the nominal threshold; indeed, should the property never sell for a profit, the Berezanskys would obtain a considerable benefit from being relieved of the $70,000 judgment.6 And – not to be ignored – the Berezanskys secured a 5 Plaintiff contends that the use-and-occupancy agreement was not free and was at least partially illusory. It argues that the profit-sharing agreement requires a retention of $5000 from the Berezanskys' share of the net proceeds to be released to the Berezanskys only upon the termination of their occupancy; in short, plaintiff claims that the Berezanskys are actually paying for their use and occupancy of the property. We disagree. The provision does call for a $5000 retention, but that stipulation's express purpose was to ensure the Berezanskys' timely departure at the conclusion of the use and occupancy period and also to further answer for any property damages that might occur during that period. So long as the Berezanskys depart when promised without causing any damage to the premises, that $5000 remains theirs. 6 Plaintiff discounts the significance of the obligation to satisfy the $70,000 judgment by arguing "there is no evidence that the State is attempting to enforce [this] judgment." There is no dispute that the judgment exists and is outstanding; being free of this debt can hardly be viewed as something nominal. 9 A-5385-15T2 right to recover sixty-five percent of the net proceeds that would not be available if the Bandi agreement were found ineffectual or unlawful. We are satisfied that the form of the Bandi-Berezansky financial arrangement was not barred by N.J.S.A. 54:5-89.1 as that statute has been interpreted and enforced by our Supreme Court, and that Bandi gave more than nominal consideration in obtaining title and the right to redeem. Affirmed.7 7 During the appeal's pendency, plaintiff moved to strike Bandi's brief and appendix because Bandi included materials outside the trial court record. In response, Bandi cross-moved to supplement the record, and plaintiff opposed that motion. Another panel of the court reserved, leaving those cross-motions for this panel to decide. Because we have decided this appeal solely through consideration of the factual information provided to the trial court, we deny both motions. To be clear, we have denied the motion to supplement; in denying plaintiff's motion, we have not stricken Bandi's brief or appendix but have simply disregarded any materials and arguments based on materials not put before the trial court. 10 A-5385-15T2
Date: December 5, 2017
Docket Number: a5385-15 FISHER, P.J.A.D. Following the Supreme Court's admonition more than fifty years ago that "heir hunting" was of "no social value," Bron v. Weintraub, 42 N.J. 87, 95 (1964), the Legislature amended the applicable statutes in a way that prohibited, as the Court later observed, "anyone from becoming a party to a tax-foreclosure proceeding or from exercising the right to redeem" if that person's interest in the property was "acquired for a nominal consideration," Wattles v. Plotts, 120 N.J. 444, 450 (1990). More recently, the Supreme Court recognized that the Tax Sales Law1 "does not prohibit a third-party investor from redeeming a tax sale certificate" so long as the investor "pays the property owner more than nominal consideration for the property." Simon v. Cronecker, 189 N.J. 304, 311 (2007). Against that backdrop, we reject the foreclosing plaintiff's contention that Cronecker renders unlawful profit-sharing agreements like that formed between the intervenor and the property owners here, as well as its argument that the former only obtained title and a right to redeem by providing the latter with only nominal consideration. 1 N.J.S.A. 54:5-1 to -137. 2 A-5385-15T2 At a 2013 auction, plaintiff FWDSL & Associates purchased a tax sale certificate on Richard and Donna Berezansky's Manville home. After waiting the required two years and paying all accruing municipal taxes, plaintiff filed a foreclosure complaint in October 2015 against the Berezanskys, as well as the State of New Jersey, which possessed a $70,000 judgment against Richard Berezansky. On February 25, 2016, the court entered an order setting the date, time, and place for redemption. The following month, prior to the expiration of the time for redemption, Bandi Property Group – claiming it held title and was a party to a profit-sharing agreement with the Berezanskys – moved to intervene and redeem. In so moving, Bandi first explained how it came to be involved with the property. Bandi claimed it learned from public records that: the "equalized assessed value of the [p]roperty is $314,792.13"; the property was encumbered by approximately $43,000 in tax liens; and the State's $70,000 judgment against Berezansky was the "only other known judgment" with a potential to affect title. Bandi explained it had offered to purchase the property from the Berezanskys and described the discussions leading up to its eventual financial arrangement with the Berezanskys. Because the Berezanskys advised they could not afford to pay off the outstanding tax lien, Bandi proposed a profit-sharing 3 A-5385-15T2 agreement in exchange for Bandi's "satisf[action] [of] all liens and judgments affecting title" and payment to the Berezanskys of $10,000. To obtain clear title, Bandi agreed, by way of a profit- sharing agreement, to "improve the [p]roperty to maximize its resale value" and "cause the property to be sold at a price reflecting the fair market value." Bandi also agreed to give the Berezanskys "a rent-free use and occupancy period through July 2, 2016." Once the property sold, and "certain fixed expenses . . . deducted," the net proceeds would be divided: thirty-five percent to Bandi and sixty-five percent to the Berezanskys. Chancery Judge Margaret Goodzeit concluded, in a thorough and well-reasoned written decision, that the consideration given by Bandi for and the benefits obtained by the Berezanskys from the profit-sharing agreement were not nominal. Plaintiff appeals the order entered in Bandi's favor, arguing, among other things, that the judge should not have found the profit-sharing agreement lawful within the meaning of the legal authorities cited in the opening paragraph of this opinion because: I. THE PROFIT[-]SHARING AGREEMENT MODEL IS CONTRARY TO PUBLIC POLICY. II. THE CONSIDERATION FROM BANDI IS ILLUSORY AND ULTIMATELY PAID FOR BY DEFENDANTS OUT OF THEIR OWN EQUITY. III. IT IS IMPOSSIBLE TO KNOW HOW MUCH 65% OF NET PROCEEDS WILL COME TO, HENCE IT IS 4 A-5385-15T2 IMPOSSIBLE TO CONDUCT A MEANINGFUL NOMINAL CONSIDERATION ANALYSIS. IV. THE OUTCOME IN THIS CASE SHOULD BE CONTROLLED BY WATTLES, AND THE TRIAL COURT ERRED IN CONCLUDING OTHERWISE.[2] We reject these arguments. N.J.S.A. 54:5-89.1 bars a party from intervening in a tax foreclosure action when claiming a right in the property that was acquired "for a nominal consideration." In considering the effect of this statute and the profit-sharing agreement on this foreclosure action, we start by rejecting plaintiff's argument that the Supreme Court has determined that N.J.S.A. 54:5-89.1 renders unlawful all profit-sharing agreements in this setting. To the contrary, the Court recognized that the statute was not designed to bar investors from "helping property owners in desperate need of financial assistance." 189 N.J. at 328. There is nothing contained in the Cronecker decision that limits the form such financial assistance must take or that which it may not take. The focus, instead, must be aimed in the direction of the consideration conveyed. See id. at 330-31. In defining what constitutes nominal consideration, the Court rejected previously-recognized, mathematical approaches, id. at 2 We have renumbered plaintiff's arguments. 5 A-5385-15T2 333-34,3 in favor of "a more flexible, under-all-the-circumstances approach that will keep the focus on the benefit to the property owner facing forfeiture of his land," id. at 334-35. Consequently, the Court directed courts to be "reluctant to strike-down a third- party financing arrangement that will provide some meaningful monetary relief to the property owner." Id. at 335.4 We thus reject 3 The Court rejected both "the so-called percentages test" recognized in Savage v. Weissman, 355 N.J. Super. 429, 439 (App. Div. 2002), and the economic realities test and the windfall profits test discussed in Corestates/N.J. Nat'l Bank v. Charles Schaefer Sons, Inc., 386 N.J. Super. 554, 564-65 (App. Div. 2006). See Cronecker, supra, 189 N.J. at 333-34. In so holding, the Court recognized that "[s]trict mathematical equations cannot address the varying circumstances that may bear on a fair determination of the issue," and emphasized that courts must only ascertain whether the financial arrangement with the intervenor provides the property owner with "some meaningful monetary relief." Id. at 335. 4 We must approach such disputes by recognizing that the contestants – that is, the tax sale certificate holder and the intervenor – pursue the same goal: a lucrative return on their efforts. Id. at 330. Their professed concerns about the municipality's collection of taxes or the property owner's right to freely convey title are certainly of interest to the court and are often served when these market forces are applied. But, in reality, the contestants' interests in those matters are secondary at best to what they are truly after, and we should not be swayed or distracted by either contestant's attempt to seize the moral high ground in such matters. Indeed, if it was actually out to shield the Berezanskys from entities such as Bandi, plaintiff could have taken steps to protect them as well as its own interests. As the Supreme Court noted in Cronecker, the tax sale certificate holder always "control[s] [its] own fate[]." Id. at 329. Plaintiff here, like the plaintiffs in Cronecker, "could have beat [the third-party investor] to the punch and offered to purchase title to the property directly from the owner[]." Id. at 330. 6 A-5385-15T2 the argument that our jurisprudence calls for a blanket rejection of all profit-sharing agreements in this context. The Cronecker Court left no doubt that it is not the nature of the financial arrangement that matters but whether the consideration given to the property owner was only nominal. The Court emphasized that the statute does not "prohibit a third-party investor, who intervenes timely in a foreclosure action, from purchasing the property owner's interest for more than nominal consideration," id. at 331, and that which is "more than nominal consideration" is that which "is not insubstantial under all the circumstances" but rather "an amount, given the nature of the transaction, that is not unconscionable," id. at 335. In defining what the Legislature meant by nominal consideration, the Court referred not only to what has historically been viewed as nominal, such as $25 or $50, but also to the fact that the Legislature had responded to Bron, where the intervenor offered the owner only "one-fiftieth" of the property's value. Id. at 332-33. In assessing the Legislature's intentions in N.J.S.A. 54:5-89.1, the Court ultimately recognized that a court's view of nominal consideration should be "more flexible" and should consider all the circumstances with an eye toward the benefit received by the owners when considering they are "facing forfeiture of [their] land." Id. at 334-35. We take this to require not only a traditional examination 7 A-5385-15T2 of whether the consideration is more than "small" or "trifling," id. at 332, but also an examination of that question from the property owner's standpoint. In this latter respect, we cannot avoid comparing the benefits conveyed by the financial arrangement between Bandi and the Berezanskys and the catastrophic financial impact facing the Berezanskys if their agreement with Bandi is not given effect. Consequently, we agree with the chancery judge that Bandi gave more than nominal consideration; the Berezanskys are far better off with the Bandi agreement than otherwise. In fact, plaintiff concedes that the $10,000 payment provided the Berezanskys with "a real and tangible benefit." That payment alone constitutes more than "nominal consideration" for entry into the profit-sharing agreement, and any doubt about the legal question posed is erased by Bandi's additional obligations to: pay the outstanding approximate $43,000 tax lien; satisfy the State's $70,000 judgment against Richard Berezansky; and allow the Berezanskys with a rent-free, use-and-occupancy period. Although an amount equal to that paid by Bandi to satisfy the tax lien and judgment will be recouped by Bandi from the sale proceeds prior to the sixty-five/thirty-five split – thus offering some support for plaintiff's argument that part of the consideration may appear illusory – the initial $10,000 payment and the use-and-occupancy 8 A-5385-15T2 agreement are certainly real and more than a trifle, and we do not interpret the profit-sharing agreement as allowing reimbursement of those items to Bandi off the top of the sale proceeds.5 To summarize, Bandi's financial obligations are not insubstantial and certainly represent more than nominal consideration. Even though the tax payments, the repairs, and the satisfaction of the $70,000 judgment will be returned to Bandi following the property's sale, their payment prior to the sale constitutes a benefit that exceeds the nominal threshold; indeed, should the property never sell for a profit, the Berezanskys would obtain a considerable benefit from being relieved of the $70,000 judgment.6 And – not to be ignored – the Berezanskys secured a 5 Plaintiff contends that the use-and-occupancy agreement was not free and was at least partially illusory. It argues that the profit-sharing agreement requires a retention of $5000 from the Berezanskys' share of the net proceeds to be released to the Berezanskys only upon the termination of their occupancy; in short, plaintiff claims that the Berezanskys are actually paying for their use and occupancy of the property. We disagree. The provision does call for a $5000 retention, but that stipulation's express purpose was to ensure the Berezanskys' timely departure at the conclusion of the use and occupancy period and also to further answer for any property damages that might occur during that period. So long as the Berezanskys depart when promised without causing any damage to the premises, that $5000 remains theirs. 6 Plaintiff discounts the significance of the obligation to satisfy the $70,000 judgment by arguing "there is no evidence that the State is attempting to enforce [this] judgment." There is no dispute that the judgment exists and is outstanding; being free of this debt can hardly be viewed as something nominal. 9 A-5385-15T2 right to recover sixty-five percent of the net proceeds that would not be available if the Bandi agreement were found ineffectual or unlawful. We are satisfied that the form of the Bandi-Berezansky financial arrangement was not barred by N.J.S.A. 54:5-89.1 as that statute has been interpreted and enforced by our Supreme Court, and that Bandi gave more than nominal consideration in obtaining title and the right to redeem. Affirmed.7 7 During the appeal's pendency, plaintiff moved to strike Bandi's brief and appendix because Bandi included materials outside the trial court record. In response, Bandi cross-moved to supplement the record, and plaintiff opposed that motion. Another panel of the court reserved, leaving those cross-motions for this panel to decide. Because we have decided this appeal solely through consideration of the factual information provided to the trial court, we deny both motions. To be clear, we have denied the motion to supplement; in denying plaintiff's motion, we have not stricken Bandi's brief or appendix but have simply disregarded any materials and arguments based on materials not put before the trial court. 10 A-5385-15T2
GREENBRIAR OCEANAIRE COMMUNITY ASSOCIATION, INC. v. U.S. HOME CORPORATION
Date: November 16, 2017
Docket Number: a2653-16
Date: November 16, 2017
Docket Number: a2653-16
Robert J. Ohea and Michele K. Ohea v. Wyckoff Township
Date: October 16, 2017
Docket Number: 006761-12 This letter constitutes the court opinion after trial in the above-referenced matter challenging the 2012, 2014, 2015 and 2016 tax year assessments on plaintiffssingle-family residence.
Date: October 16, 2017
Docket Number: 006761-12 This letter constitutes the court opinion after trial in the above-referenced matter challenging the 2012, 2014, 2015 and 2016 tax year assessments on plaintiffssingle-family residence.
AIR MASTER & COOLING, INC v. SELECTIVE INSURANCE COMPANY OF AMERICA
Date: October 10, 2017
Docket Number: a5415-15
Date: October 10, 2017
Docket Number: a5415-15
J.S. v. NEW JERSEY STATE PAROLE BOARD September 26, 2017
Date: September 26, 2017
Docket Number: a2203-15
Date: September 26, 2017
Docket Number: a2203-15
BBB VALUE SERVICES INC v. TREASURER, STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY
Date: September 21, 2017
Docket Number: a2973-14
Date: September 21, 2017
Docket Number: a2973-14
JEFFREY SAUTER v. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2
Date: September 13, 2017
Docket Number: a0354-15
Date: September 13, 2017
Docket Number: a0354-15
NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION v. JOSEPH DIVINCENZO
Date: September 8, 2017
Docket Number: a4131-15
Date: September 8, 2017
Docket Number: a4131-15
TJASON S. OLESEN v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: August 31, 2017
Docket Number: a5413-15
Date: August 31, 2017
Docket Number: a5413-15
PATRICIA J. MCCLAIN v. BOARD OF REVIEW DEPARTMENT OF LABOR
Date: August 29, 2017
Docket Number: a4319-15
Date: August 29, 2017
Docket Number: a4319-15
PAUL KAMIENSKI v. STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY
Date: August 16, 2017
Docket Number: a4816-14
Date: August 16, 2017
Docket Number: a4816-14
NORTH JERSEY MEDIA GROUP INC v. STATE OF NEW JERSEY OFFICE OF THE GOVERNOR
Date: August 3, 2017
Docket Number: a3947-14
Date: August 3, 2017
Docket Number: a3947-14
IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/CHARGE RECORDS OF T.B.
Date: August 1, 2017
Docket Number: a1516-16
Date: August 1, 2017
Docket Number: a1516-16
NATHAN GIBSON v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM
Date: July 19, 2017
Docket Number: a2789-14
Date: July 19, 2017
Docket Number: a2789-14
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.K.H.
Date: July 19, 2017
Docket Number: a3684-15
Date: July 19, 2017
Docket Number: a3684-15
MICHAEL ABBOUD v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA
Date: June 21, 2017
Docket Number: a3434-14
Date: June 21, 2017
Docket Number: a3434-14
KATHLEEN LEGGETTE v. GOVERNMENT EMPLOYEES INSURANCE COMPANY quot;GEICO" and DERICK HARRIS
Date: May 30, 2017
Docket Number: a1911-15
Date: May 30, 2017
Docket Number: a1911-15
B.C. v. nEW JERSEY DIVISION OF CHILD PROTECTION and PERMANENCY
Date: May 11, 2017
Docket Number: a4805-15
Date: May 11, 2017
Docket Number: a4805-15
FAIRFAX FINANCIAL HOLDINGS v. S.A.C. CAPITAL MANAGEMENT, L.L.C.
Date: April 27, 2017
Docket Number: a0963-12
Date: April 27, 2017
Docket Number: a0963-12
JACLYN THOMPSON v. BOARD OF TRUSTEES TEACHERS PENSION AND ANNUITY FUND
Date: April 11, 2017
Docket Number: a5028-14
Date: April 11, 2017
Docket Number: a5028-14
N.E. v. STATE OF NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES
Date: April 4, 2017
Docket Number: a3717-13
Date: April 4, 2017
Docket Number: a3717-13
IN THE MATTER OF JOHN RESTREPO DEPARTMENT OF CORRECTIONS
Date: March 27, 2017
Docket Number: a2951-14
Date: March 27, 2017
Docket Number: a2951-14
BRIAN SULLIVAN v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
Date: March 15, 2017
Docket Number: a3506-14
Date: March 15, 2017
Docket Number: a3506-14
DUNBAR HOMES, INC v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN
Date: February 14, 2017
Docket Number: a3637-14
Date: February 14, 2017
Docket Number: a3637-14
ANELLE BRUGALETTA v. CALIXTO GARCIA, D.O STEVEN D. RICHMAN, M.D and PATRICK J. HINES, M.D and CHILTON MEMORIAL HOSPITAL
Date: February 6, 2017
Docket Number: a4342-15
Date: February 6, 2017
Docket Number: a4342-15
IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR COMMUNICATIONS DATA WARRANTS TO OBTAIN THE CONTENTS OF STORED COMMUNICATIONS FROM TWITTER, INC
Date: February 2, 2017
Docket Number: a3651-15
Date: February 2, 2017
Docket Number: a3651-15
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