NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF

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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. M.C., Defendant–Appellant. IN RE: M.B. and K.B., minors.

DOCKET NO. A–3598–12T1

Decided: March 27, 2014

Before Judges Kennedy and Guadagno. Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Victoria Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.B. and K.B. (Todd Wilson, Designated Counsel, on the brief).

Defendant appeals a February 21, 2013 order declaring that she abused or neglected her daughter, M.B. (Mary), in March 2012.1  Defendant argues that the trial judge's conclusion was not based on substantial credible evidence and that Mary's out-of-court statements were uncorroborated hearsay.   Defendant also argues that the trial judge impermissibly expanded the legal definition of child abuse and neglect.   We disagree and affirm.

I.

The facts are derived from the trial record.   Defendant is the biological mother of two girls, Mary, born in 2005, and K.B. (Kelly), born in 2009.   On March 21, 2012, the New Jersey Division of Child Protection and Permanency (the Division) filed an Order to Show Cause and Verified Complaint for the care and supervision of Mary and Kelly.2  The Division alleged that defendant and her then live-in boyfriend, H.K. (Henry), abused or neglected the girls by exposing them to domestic violence.3  Also named as defendants were Mary's father, D.B. (Daniel), and Kelly's father, F.B. (Fred).4

The Division's complaint was triggered by a March 7, 2012 referral it received from Mary's elementary school.   Mary said to her then first-grade teacher that on the previous night Henry hurt her mother.   Mary stated that Henry “grabbed [defendant] by her neck and put her against the wall.   Mary was crying and wanted to call the police but the phone was in her mother's room and she could not get to [it].”   Consequently, Mary and Kelly hid in their bedroom, where they could hear Henry yelling and hitting defendant.   Mary also reported that on the night of March 5, 2012, Henry pushed defendant down the stairs.

According to Mary, Henry “always screams at [defendant] and hurts her.”   Mary explained that in order to protect the girls from Henry, defendant slept in their bedroom.   She added that Henry had pushed her and Kelly in the past, but did not physically injure them.

On March 8, 2012, a Division caseworker interviewed Mary in the presence of her school counselor.   Mary told the caseworker that defendant and Henry “get into verbal and physical altercations[,]” and repeated what she had seen on March 6. Mary also said that one night in January 2012, she and Kelly saw Henry beating a neighbor.   Mary explained that Kelly's father separated Henry from the neighbor, and that Henry was arrested.   She also stated that her mother “told her not to tell anyone about stuff that goes on at home because the last time [Henry] found out that [defendant] told someone the beating was worse.”

Mary began crying and “stated that she was afraid that [Henry] would harm [defendant].  [She] continued to cry and stated that she was fearful of [Henry].  [Mary] reported that [Henry] had been consuming alcohol;  [she] described [Henry] as going ‘crazy’ when he consumes alcohol.”

Mary also said she had attempted to stop a fight on the evening of March 7, and that Henry pushed defendant into her, causing Mary to fall on the table, leaving a mark on her face.   The caseworker observed a one-inch long linear mark on Mary's cheek.

After the interview, the caseworker spoke with defendant, who denied any domestic violence between her and Henry.   However, she acknowledged the January 2012 incident, and admitted to having verbal altercations with Henry.   Defendant eventually consented to place the girls with their respective fathers, and completed a Safety Protection Plan with the Division.   The Division offered defendant Domestic Abuse and Sexual Assault Intervention Services, but defendant declined.

A fact-finding hearing on the complaint was held on January 8 and February 21, 2013.   The court conducted an in camera interview of then seven-year-old Mary.5 Mary told the judge that Henry was “a little bit weird[,]” and that she did not really like him.   Mary explained that Henry never punished her, and that while her mother and Henry argued at times, she did not remember any of their arguments.   She explained that “[t]hey would just go in [her][m]om's room and argue[,]” but she could not hear anything because she would cover her ears so she did not have to listen to them arguing.   Mary stated that Henry would get loud.

Mary recalled an instance where her mother and Henry were arguing, and she and Kelly went into their room.   She explained that she and Kelly felt nervous, and “Kelly had tears in her eyes.”   Mary stated that they laid in her bed, covered up, and she read Kelly a story.

Mary related the January 2012 incident between Henry and their neighbor.   Mary explained that she saw “[a] little bit of”

the fight and her recollection of the incident matched what she

told the caseworker in March 2012.

Mary's first-grade teacher testified that Mary first told her about issues at home in February 2012.6  She explained that when Mary reported the March 6 incident, Mary was “sobbing.   She was shaking.   Her face was getting red.   Very Very anxious.   Very upset.   Very fearful for her mother.”   However, she did not recall seeing a mark on Mary's face.

Mary's school counselor also testified and recalled that Mary had a “little red mark on her face” during the interview on March 8. She testified that Mary expressed concern for her mother's safety, and her fear of Henry.

Mary's psychologist testified that Mary was “experiencing anxiety symptoms that were affecting how she was feeling.   She had a lot of somatic body complaints over time that had been related to ․ the stress and changes really associated with [the Division's] involvement in relation to changing her primary residence to her dad's house.”

Defendant's neighbors testified about the fight with Henry in January.   Their testimony was generally consistent with Mary's prior statements about the incident.

Defendant's testimony was consistent with her previous reports to the Division.   She claimed there were no instances of domestic violence between her and Henry, and though they argued, she tried her best to avoid arguments in front of the girls.

Defendant also stated that she was pushed down the stairs accidentally in January, and was not seriously injured.   She denied seeing any marks on Mary's face on the morning of March 8 and said that Mary “made up” the stories about Henry drinking and physically abusing her.

At the conclusion of the fact-finding hearing, the Family Part judge found “that the Division ha[d] met its burden by the preponderance of the evidence.”   He found

under Title 9 that those acts and the fact that [defendant] has not acknowledged that there's a problem there and that the problem has been caused for her daughter does constitute gross negligence, because [Mary] was extremely, adversely affected by what happened.

And the fact that [Daniel] and then later on [defendant] joined him ․ in having [Mary] go to a therapist to deal with the issues she was experiencing, even though some of ․ the issues she was experiencing ․ at that point then began to deal with the fact that [Mary] was no longer with her mother ․ on a full-time basis, ․ some of the initial part dealt with ․ the fact that [Mary] has this anxiety from what she's experienced in terms of the domestic violence.

The trial judge further found

that under Title 30 the best interest of [Mary] mandated at the time that this all came down, that the Division step in and be involved, and require that the father be involved in terms of a caretaking role initially, until the Division could ensure that [Henry] was no longer going to be a participant in the children's lives.

With regard to [Kelly], she was not actually harmed, because there is no evidence of—- in fact, almost everybody says that [Kelly] didn't even understand what was going on on January 25 th.   That she was kind of like oblivious[.]

The judge did not “go down the road” of imminent harm stemming from the incident, because he concluded there was sufficient “remediation” by defendant, and thereafter dismissed the litigation.

This appeal followed.

II.

On appeal, defendant argues that the Division did not produce substantial credible evidence to support a finding of neglect because Mary's statements were not corroborated, and that the trial judge misapplied the law in finding that Mary's out-of-court statements were corroborated pursuant to N.J.S.A. 9:6–8.46(a)(4).   She further claims that even assuming the statements were corroborated, the evidence was insufficient to establish that defendant neglected Mary. Defendant also argues that the trial court improperly relied on hearsay allegations made by Mary in finding that she was emotionally abused.   We disagree and affirm.

Our review of the Family Part's factual findings in an abuse and neglect case is limited;  we defer to the court's determinations “ ‘when supported by adequate, substantial, credible evidence.’ ”  N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.Super. 77, 89 (App.Div.2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411–12 (1998)).   The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise.  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342–43 (2010);  Cesare, supra, 154 N.J. at 413.   Unless the trial judge's factual findings are “so wide of the mark that a mistake must have been made[,]” they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance.  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted).

“In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted.”  N.J.S.A. 9:6–8.46(b).  “The fact-finding hearing is a critical element of the abuse and neglect process.”  N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.Super. 155, 166 (App.Div.2003) (citing N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App.Div.2002)).  “The judge, as the fact-finder, is there to ‘determine whether the child is [32] an abused or neglected child as defined [by statute].’ ”  J.Y., supra, 352 N.J.Super. at 264 (citing N.J.S.A. 9:6–8.44).

N.J.S.A. 9:6–8.21(c)(4) defines an “abused or neglected child” as:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian ․ to exercise a minimum degree of care ․ in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[;] ․ or by any other acts of a similarly serious nature requiring the aid of the court[.]

In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances.  N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 329 (App.Div.2011).  “One act may be substantial or the sum of many acts may be substantial.”  Id. at 330 (internal quotation marks and citation omitted).  “The judge's determination has a profound impact on the lives of families embroiled in this type of a crisis.”  J.Y., supra, 352 N.J.Super. at 264–65.   Therefore, “[t]he judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made.”  Id. at 265 (citing N.J.S.A. 9:6–8.50).   Furthermore, “[t]hese factual findings must be supported by evidence admitted during the hearing, which shall be held on the record[,]” and “[a]ll documentary exhibits considered by the court must be clearly identified for appellate review.”  Id. at 265 (citing R. 1:2–3).

“It is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited ability of the abused child to inculpate the abuser.”  N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J.Super. 97, 108 (App.Div.2006).   Due to this difficulty, N.J.S.A. 9:6–8.46(4) provides an exception to the hearsay rule, and allows “previous statements made by the child relating to any allegations of abuse or neglect [to] be admissible in evidence;  provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.”  Id.

In reaching his decision in the case before us, the trial judge recognized that at the hearing, “[Mary] never testified to anything in the nature of any abuse or domestic violence․  She made reports to the teacher.   She made reports to the caseworker[.]  ․ She made reports to [the therapist], but she did not testify as to anything[.]”  However, the judge found the testimony of Mary's teacher, school counselor, therapist, and neighbors, corroborated her story, explaining that Mary's “stories were corroborated ․ in spite of the fact that her own testimony was rather weak․  But a lot of time had passed and that's why we have the rules that we have in terms of testimony and corroboration.”

The trial judge found the neighbors' testimony regarding the January incident credible, despite minor inconsistencies.   He held that their testimony “corroborate[ed] [Mary's] story as to what was occurring upstairs in [defendant's] and [Henry's] home.”

Both ․ the neighbors, spoke about this not being an isolated event.   They did say that there was nothing that happened after January 25 thuntil the time that they relocated ․ [b]ut they had heard prior occasions when there [ ] were arguments.   They said that the worst was on January 25 th that they heard and that's why they were concerned on that date.

With respect to the “scratch” on Mary's cheek, the judge did not “want to get into the issue of whether [Mary] had any physical injury, a scratch on her face, or not[.]”  He was “satisfied that [Mary] had emotional ․ and mental harm by virtue of the incidents that she was seeing in her mother's home.”

While “[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence [,] ․ corroborative evidence need not relate directly to the accused.   By its nature, corroborative evidence ‘need only provide support for the out-of-court statements.’ ”  L.A., supra, 357 N.J.Super. at 166 (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 436 (App.Div.2002)).   Thus, a child's hearsay statement may be admitted into evidence, but, as noted earlier, not be the sole basis for a finding of abuse or neglect.  N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 11 (2011).   Given the trial record, we find no error by the trial judge in his determination to accept the testimony of the Division's other witnesses as corroborative of the testimony of Mary.

We now turn to defendant's claim that the judge's conclusion is not supported in sufficient credible evidence.   We shall briefly set forth additional principles that will guide our analysis.

An essential element in the definition of abuse or neglect, as defined by N.J.S.A. 9:6.8–21(c)(4)(b), is “the probability of present or future harm” to the child.  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);  Div. of Youth & Family Servs. v. C.H., 414 N.J.Super. 472, 482 (App.Div.2010).   Harm cannot be presumed in the absence of evidence of its existence or potential.   S.S., supra, 372 N.J.Super. at 28.

The burden to prove a probability of past or future harm to a specific child is met by proof that the child suffered physical, mental or emotional impairment or the risk thereof as a result of the parent's actions.   See Doe v. G.D., 146 N.J.Super. 419, 430 (App.Div.1976).   Without “proof of the ‘probability of present or future harm’ ․ an essential element in the definition of abuse or neglect[ ]” is missing.  N.J.S.A. 9:6.8–21(c)(4)(b);  See S.S., supra, 372 N.J.Super. 13.

In S.S., a parent who was subjected to domestic violence by her spouse was found by the trial court to have abused her twenty-one-month-old baby, who was in her arms while her husband repeatedly attacked her for one hour.  Id. at 19–21.   We reversed the trial court's decision.  Id. at 13.   We found significant the fact that the caseworker reported no sign of physical or emotional harm to the child, and the trial court did not find any present harm or potential of harm to the child.  Id. at 19–21.   In addition, no witness testified that the child appeared emotionally injured.  Ibid. Thus, we held that witnessing abuse, without more, is insufficient to show that it “ha[s] a present or potential negative effect on [a] child sufficient to warrant a finding of abuse.”  Id. at 26.

In finding that the Division had not met its burden of demonstrating harm to this particular child, we emphasized that we could not simply “take judicial notice of the fact that domestic violence necessarily begets emotional distress or some other psychic injury in child witnesses.”  Id. at 25.   But see N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super.   (App.Div.2010) (distinguishing S.S. and finding sufficient evidence of present or potential harm to the child where expert testimony was presented about both parents' mental conditions, and evidence that the child suffered from aggressive behavior and developmental delays due to his parents' psychological defects).

Although expert testimony is not required to show harm, there still needs to be “an adequate presentation of actual harm or imminent danger” to the child.   N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 28–29 (2013).

The record developed here supports the trial judge's finding of abuse and neglect as to Mary. The testimony of various witnesses established that Mary suffered emotional harm as a result of witnessing domestic violence.   Moreover, the trial judge was entitled to reject defendant's testimony and explanation.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion.  R. 2:11–3(e)(1)(E).

Affirmed.

FOOTNOTES

1.  FN1. We use fictitious names for the individuals.

2.  FN2. Though she was named in the original complaint, the judge did not find Kelly was abused or neglected because she was too young to understand the circumstances alleged in the verified complaint.   See infra.

3.  FN3. Henry is not a party to this appeal.

4.  FN4. Daniel and Fred are also not parties to this appeal.

5.  FN5. Prior to the interview, the parties submitted questions to the judge to ask Mary.

6.  FN6. On cross-examination, she explained that she did not call the Division when Mary first came to her in February because she believed the police were handling the matter.   She called in March, however, because she was concerned for Mary's safety.

PER CURIAM

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