Dcpp v. E.K.A., in the Matter of J.M., R.P., and R.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0791-24

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

E.K.A.,

Defendant-Appellant,

and

R.P.,

Defendant.

________________________

IN THE MATTER OF J.M.,

R.P., and R.P., minors.

________________________

Submitted January 6, 2026 – Decided March 27, 2026

Before Judges Sumners and Augostini.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FN-14-0031-24.

Jennifer Sellitti, Public Defender, attorney for appellant

(Adrienne Kalosieh, Assistant Deputy Public Defender,

of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent (Donna Arons, Assistant Attorney General,

of counsel; Michelle McBrian, Deputy Attorney

General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian,

attorney for minors J.M., R.P., and R.P. (Meredith

Alexis Pollock, Deputy Public Defender, of counsel;

Neha Gogate, Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant E.K.A. appeals from the trial court's June 28, 2024 order that

she abused or neglected J.M. (Jan), 1 R.P. (Rita), and R.P. (Reese) pursuant to

N.J.S.A. 9:6-8.21(c)(4). Because we conclude the judge's fact-finding decision

was not supported by sufficient credible evidence in the record and is

inconsistent with the applicable law, we reverse.

1

We use fictitious names to preserve the privacy and confidentiality of the

parents and children. R. 1:38-3(d)(12).

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I.

Defendant is the biological mother of Jan born in 2014, Rita born in 2018,

and Reese born in 2019. R.P. (Roger) 2 is the biological father of Rita and Reese;

the biological father of Jan is unknown.

Defendant was arrested on August 15, 2023, after she allegedly "led police

on a vehicle pursuit which spanned four or five towns," "ran over someone's

foot," and collided with two vehicles at a traffic light. Defendant first "str[uck]

a police officer from a road stop [in Parsippany and] then spe[]d from the scene."

Boonton Detective Brian G. Walinski attempted to stop her in a Walgreen's

parking lot, but she "accelerated and proceeded south on Myrtle Ave[nue],"

which prompted the detective to activate his lights and sirens and pursue her.

Defendant then collided with two uninvolved vehicles at a traffic light on

Wootton Street. The detective and other officers pursued her and unsuccessfully

attempted to stop her at Taco Bell, but she "proceeded over the curb and front

lawn of Taco Bell, continuing west on R[ou]t[e] 46." Eventually, defendant

stopped her car because she had run out of fuel and "jumped into the back seat

with her three children."

2

Roger did not appeal the abuse determination.

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3

Defendant was arrested for eluding the police, N.J.S.A. 2C:29-2B, and

was issued multiple motor vehicle citations for fictitious plates, N.J.S.A. 39:3-

33; leaving scene of accident involving property damage, N.J.S.A. 39:4-129(b);

driving when license suspended, N.J.S.A. 39:3-40; failure to report accident,

N.J.S.A. 39:4-130; and reckless driving, N.J.S.A. 39:4-96.

Following defendant's arrest, the New Jersey Division of Child Protection

and Permanency (Division) conducted an emergency removal of the children on

August 15, 2023, and placed them in a resource home. On August 17, the trial

court upheld the removal as necessary and appropriate because no caregiver was

available for the children at the time of defendant's arrest. The children's

maternal grandmother assumed care of the children on August 18. On

November 2, defendant consented to Division provided services and waived her

right to a Title 30 trial.

The trial court conducted a Title 9 fact-finding trial on June 7, 2024.

Division intake worker Stephanie Santana testified for the Division about its

investigation of the August 15, 2023 incident. Santana referred to the police

report, stating:

[Defendant] was borderline psychotic and she was

being chased through four to five towns. It was

reported that she ran over someone's foot. And when

the police was following her, she would not stop. At

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some point, the police ended up breaking in the window

to the car and that's how they were able to speak to

[defendant].

Santana testified that defendant's mother reported that defendant had

"mental health concerns" and "must have had a breaking point" during the

pursuit. The ten-year-old Jan informed Santana "that her mother may have had

a headache at some point. She didn’t know if her mother took medication." Jan

described that "the police [were] following them . . . [b]ut . . . couldn't remember

details as to what happened because she was sleeping the entire time." Santana

did not obtain any information from Jan's younger siblings, Rita or Reese.

Santana also testified about her interview with defendant:

So [defendant] denied . . . the allegations of being

chased by the police. However, she did say that she did

not stop for the police because she was not going to be

a victim of police brutality. And then she did report to

me that the officers were pointing guns at her. And she

asked me to see the cameras of when she ran over

someone as well.

....

She denied running over anyone's foot.

According to the Division's records, defendant "reported that at no point

did the police turn on their sirens and pull her over; they were just following

her." Defendant described that she was in the back of the car with her children

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when the police tried to break the car window. Additionally, she stated that her

"children w[e]re in the car when the police pointed the guns at her . . . [and] that

the children were crying and scared." Defendant denied any mental health

diagnoses or taking any medication. As result of its investigation, the Division

established defendant for neglect, risk of harm, and inadequate supervision

towards Jan, Rita, and Reese.

The trial court denied defendant's hearsay objections regarding the

admissibility of the police report. The Division contended that it relied on the

police reports in assessing the "impact to the children" and "why the children

were removed." In response, defendant argued that the police reports should not

be admitted without testimony from the police officers. Defendant noted that

the police report failed to identify defendant as the driver or the officers involved

in apprehending defendant:

Your Honor, I cannot even imagine how many layers of

hearsay we have in this case. We have somebody

writing that something was fictitious. We don't have

any identification. We don't have the people who were

[there] on the . . . the day of the incident involved in

this. And this is . . . I don't know, [y]our Honor.

After considering the parties' arguments, the trial court admitted the police

report under the business records exception "only as prima facie evidence, which

. . . is rebuttable" but noted that "if the only evidence is this police chase . . . it

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would be a deprivation of the confrontation clause to make a finding of any kind

without the other side's ability to cross-examine." The court also reasoned that

authentication of the report was not required because the Division provided a

certification from the Documents Director at the Boonton Police Department

and that it would accept counsel's written summations as to the admissibility of

the police reports. There was no eyewitness testimony confirming the

allegations of defendant's driving conduct as set forth in the police report. And

because the eluding charge and motor vehicle summonses had not been resolved

at the time of the fact-finding hearing, their disposition did not support the trial

court's ruling.

On June 28, 2024, the trial court issued a written order finding by a

preponderance of the evidence that defendant abused or neglected her children

pursuant to N.J.S.A. 9:6-8.21(c)(4). Thereafter, on October 3, 2024, the court

issued a written order terminating litigation because the "children remain in the

home" and "conditions had been remediated" with defendant. The court ordered

that defendant retain legal custody of Jan, Rita, and Reese.

Defendant appealed.

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II.

Our review of a trial court's finding of abuse or neglect is guided by well -

established principles. "[W]e accord substantial deference and defer to the

factual findings of the Family Part if they are sustained by 'adequate, substantial,

and credible evidence' in the record." N.J. Div. of Child Prot. & Permanency v.

N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth &

Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014)). "Indeed, we recognize that

'[b]ecause of the family courts' special jurisdiction and expertise in family

matters, [we] should accord deference to family court factfinding.'" N.J. Div.

of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (first alteration in

original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

However, "if the trial court's conclusions are 'clearly mistaken or wide of

the mark[,]' an appellate court must intervene to ensure the fairness of the

proceeding." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 226-27

(2010) (alteration in original) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P.,

196 N.J. 88, 104 (2008)). Additionally, we owe no deference to the trial court's

legal conclusions, which we review de novo. Amzler v. Amzler, 463 N.J. Super.

187, 197 (App. Div. 2020); N.J. Div. of Child Prot. & Permanency v. D.C.A.,

474 N.J. Super. 11, 24 (App. Div. 2022).

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"The Division bears the burden of proof at a fact-finding hearing and must

prove present or future harm to a child by a preponderance of the evidence."

N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013) (citing N.J.S.A.

9:6-8.46(b)). The Division must sustain that burden "through the admission of

'competent, material and relevant evidence.'" N.J. Div. of Youth & Fam. Servs.

v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). In making a

determination of abuse and neglect, the trial court should base its decision on

the totality of the circumstances. N.J. Div. of Youth & Fam. Servs. v. V.T., 423

N.J. Super. 320, 329 (App. Div. 2011). In an abuse or neglect proceeding, due

process warrants some level of confrontation right, as long as the court

"prevent[s] further victimization or traumatization of young children" who are

witnesses. N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130,

142 (App. Div. 2014).

A parent subjects his or her child to abuse or neglect when:

[the child’s] physical, mental, or emotional condition

has been impaired or is in imminent danger of being

impaired as the result of the failure of his parent or

guardian . . . to exercise a minimum degree of care (a)

in supplying the child with adequate food, clothing,

shelter, education, medical or surgical care though

financially able to do so or though offered financial or

other reasonable means to do so, or (b) in providing the

child with proper supervision or guardianship, by

unreasonably inflicting or allowing to be inflicted

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harm, or substantial risk thereof, including the

infliction of excessive corporal punishment; or by any

other acts of a similarly serious nature requiring the aid

to the court.

[N.J.S.A. 9:6-8:21(c)(4).]

To sustain an abuse determination under subsection (a) or (b), the Division

must show that: "(1) the child's physical, mental, or emotional condition has

been impaired or is in imminent danger of becoming impaired; and (2) the

impairment or imminent impairment results from the parent's failure to exercise

a minimum degree of care." N.J. Div. of Child Prot. & Permanency v. A.B., 231

N.J. 354, 369 (2017). "In the absence of actual harm, a finding of abuse and

neglect can be based on proof of imminent danger and substantial risk of harm."

A.L., 213 N.J. at 23. A court "need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." In re Guardianship of

D.M.H., 161 N.J. 365, 383 (1999). Imminent means "threatening to occur

immediately; dangerously impending . . . [or] about to take place" and

"imminently dangerous" is "reasonably certain to place life and limb in peril."

N.J. Div. of Child Prot. & Permanency v. B.P., 257 N.J. 361, 376 (2024)

(quoting Black's Law Dictionary 494, 898 (11th ed. 2019)).

For the second factor, mere negligence does not trigger the statute. Dep't

of Child. & Fams. v. T.B., 207 N.J. 294, 305-07 (2011); G.S. v. Dep't of Human

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Servs., 157 N.J. 161, 177-78 (1999). "Rather, the failure to exercise a minimum

degree of care 'refers to conduct that is grossly or wantonly negligent, but not

necessarily intentional.'" N.J. Div. of Child Prot. & Permanency v. S.G., 448

N.J. Super. 135, 144 (App. Div. 2016) (quoting T.B., 207 N.J. at 305). Willful

or wanton negligence "implies that a person has acted with reckless disregard

for the safety of others," is "done with the knowledge that injury is likely to, or

probably will, result," and "can apply to situations ranging from slight

inadvertence to malicious purpose to inflict injury." G.S., 157 N.J. at 178-79

(internal quotations omitted); see Fielder v. Stonack, 141 N.J. 101, 124 (1995).

If an act is intentional, then "whether the actor actually recognizes the highly

dangerous character of her conduct is irrelevant" and "[k]nowledge will

[automatically] be imputed to the actor." G.S., 157 N.J. at 178. Overall, a

court's assessment of a parent failing to exercise a minimum degree of care is "a

difficult one," T.B., 207 N.J. at 309, and must be "'analyzed in light of the

dangers and risks associated with the situation,'" id. at 306 (quoting G.S., 157

N.J. at 181-82).

As for hearsay involving reports and records, N.J.S.A. 9:6-8.46(a)(3)

allows admission of Division records "of any condition, act, transaction,

occurrence or event relating to a child in an abuse or neglect proceeding . . . [as]

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proof of that condition, act, transaction, occurrence or event" if it satisfies the

business records exception to hearsay. N.J. Div. of Child Prot. & Permanency

v. J.D., 447 N.J. Super. 337, 347 (App. Div. 2016) (alteration in original).

"However, hearsay embedded in such records must satisfy a separate hearsay

exception." Ibid. Moreover, the business records exception doesn't require that

the custodian or qualified witness testify prior to the admission of the report; the

foundation may be established through certification of the report. Gunter v.

Fischer Scientific American, 193 N.J. Super. 688, 692 (App. Div. 1984); see

M.C. III, 201 N.J. at 346.

III.

On appeal, defendant contends that the trial court: (1) lacked sufficient

evidence to find that she abused or neglected her children and (2) erred in relying

on the police reports as corroborating evidence of abuse because the reports were

inadmissible hearsay.

The Division only relied upon the testimony of caseworker Santana, who

described her interview with defendant and the police report's assertion.

Defendant merely told Santana that "she did not stop for the police because she

was not going to be a victim of police brutality." Defendant did not tell Santana

how she was driving to avoid the police and denied running over a police

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officer's foot. It was Santana's reference to the police report that provided the

damning details that defendant was driving erratically through multiple towns,

with her children in the backseat, causing the police to draw their guns on her

and her children.

The trial court misapplied its discretion in admitting the police reports as

evidence of defendant's driving conduct over her objection. See State v. Prall,

231 N.J. 567, 580 (2018) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins.

Co., 202 N.J. 369, 383-84 (2010)) (holding a trial court's evidentiary rulings are

viewed "under the abuse of discretion standard because, from its genesis, the

decision to admit or exclude evidence is one firmly entrusted to the court's

discretion."). Although much of the police report is admissible under the

business records exception under N.J.R.E. 803(c)(6), the trial court did not

determine how the embedded statements satisfied a separate hearsay exception.

See J.D., 447 N.J. Super. at 347 ("hearsay embedded in [police] records must

satisfy a separate hearsay exception"). By admitting the police report as

corroborating evidence of abuse or neglect, defendant was not afforded the

opportunity to confront her accusers, the police. Under the circumstances, the

police or someone else who witnessed defendant's driving should have testified.

Because there was no admissible evidence establishing that defendant acted with

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willful or wanton negligence and with reckless disregard for the safety of her

children, to support a finding of abuse or neglect, we are constrained to reverse

as the admission of the police report was "clearly capable of producing an unjust

result." R. 2:10-2.

Reversed.

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