Opinion
DOCKET NO. A-0350-13T4
01-21-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.A., Defendant-Appellant. IN THE MATTER OF D.S., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Kathryn E. Talbot, Deputy Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.S. (Rachel E. Seidman, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-0084-13. Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Kathryn E. Talbot, Deputy Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.S. (Rachel E. Seidman, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant A.A. (the "mother") appeals from a March 7, 2013 order finding that pursuant to N.J.S.A. 9:6-8.21c(4)(b), she abused and neglected her daughter (the "child") by exposing the child to domestic violence. We reverse the finding of abuse or neglect on the part of the mother.
The child was born in 1999.
The mother does not appeal from the part of the order that finds the mother and child are in need of the Division's services pursuant to Title 30, and as such, that part of the order remains in place.
I.
A caseworker with the Division of Child Protection and Permanency (the "Division"), the Division's sole witness, testified at the fact-finding hearing. We discern the following facts from the evidence adduced at the hearing.
The mother lived with her paramour and the child. The paramour has a drinking problem resulting in violent behavior. The caseworker investigated a referral regarding a series of domestic violence attacks witnessed by the child. The caseworker learned that the mother and the paramour had an argument about money (the "incident"), resulting in the paramour threatening to burn their house down. The mother called the police because the incident between her and the paramour had been escalating.
The police arrived at the house and arrested the paramour. The paramour returned to the house the next morning and punched the mother in her face. He left the home, returned, and chased the mother up the stairs. The mother barricaded herself and the child in the child's room to protect them. The paramour entered the room wielding a knife and the child attempted to defend the mother but was not injured. The mother and the child left the home and stayed overnight at a shelter.
The mother and child returned to the home the next day, but the caseworker and the mother agreed upon a safety plan for the child, whereupon the child would stay with her paternal grandmother. The mother initially decided to stay in the home, but the following day, she obtained a temporary restraining order against the paramour and returned to the shelter.
The mother voluntarily dismissed the restraining order before the court conducted a final hearing. In the course of the caseworker's investigation, it became apparent that the child had been exposed to other acts of violence perpetrated by the paramour on the mother. For example, several months before the incident, the paramour punched the mother in the face giving her a black eye.
The judge rendered a twenty-five page written decision in support of the order under review. In his written opinion, the judge found the testimony of the caseworker to be credible and determined that
Part of the judge's written decision pertains to the Division's Title 30 claims against the paramour and the father of the child. The father and the paramour have not participated in the mother's appeal.
[the paramour's] physically violent behavior in the home on a daily basis for months impaired [the child's] emotional, mental and physical well being. That was at least grossly negligent conduct. The incident[,] that directly included [the child,] was intentional conduct. [The child] was not just at a risk of harm, but [the child] has [directly] suffered harm from enduring such an unhealthy, abusive and controlling figure as [the paramour].
[The mother] knew [that the paramour] was physically violent. The [caseworker] advise[d the mother] to keep her daughter with her. . . . [But the mother] put her relationship with [the paramour] above [the child].
On appeal, the mother argues that the Division produced insufficient evidence to support a finding of abuse and neglect. She maintains that she protected the child by removing the child from the home and seeking counseling for herself. The mother contends that the judge ignored her efforts to break the chain of domestic violence. The mother also attacks the credibility of the caseworker's final investigative summary.
The Law Guardian "takes no position as to the Title 9 finding" of abuse and neglect.
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II.
We begin by noting that we accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). A reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal citation and quotation marks omitted).
Here, the Division presented no evidence that the child was physically abused by the mother, nor did it present any evidence that the child suffered emotional abuse as a result of observing the domestic violence. Therefore, the judge's findings that the child was harmed by exposure to the domestic violence, or that there existed a threat of harm to the child because of the mother's actions, are unsupported by the evidence adduced at the hearing.
Pursuant to N.J.S.A. 9:6-8.21c(4)(b), an "abused or neglected child" means an individual under the age of eighteen years
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.Our Supreme Court has defined "minimum degree of care" to proscribe "grossly or wantonly negligent" conduct that need not be intentional for the actor to be held liable. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). A parent "fails to exercise a minimum degree of care when [the parent] is aware of the dangers inherent in a situation," but "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny," as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b). It is well-settled that while the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
Pertinent to abuse and neglect cases involving exposure to domestic violence, we have previously addressed the issue of whether a battered mother can be "found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked . . . ." Id. at 15. We determined that the "potential harm to the mental or emotional condition of the child resulting from observing the abuse" could not justify a finding of abuse or neglect by itself. Id. at 22; accord N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (noting "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs"). Rather, there must be some evidence of
emotional injury to child . . . either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity,
clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated . . . with stress, distress[,] or emotional difficulty.
[S .S., supra, 372 N.J. Super. at 22.]
Here, the trial judge found that S.S. is inapplicable to this case because the mother "persistently engage[d] in relationships with men who commit domestic violence." We disagree. The issue before the trial judge in S.S., and here, is whether the child suffered, or was at risk of suffering, harm because of the mother. Just as in S.S., there was no evidence presented to the trial judge here that the child suffered from the requisite harm required to support a finding of abuse or neglect.
Unlike S.S., which involved a two-year-old infant, the child in this case was thirteen years old with no reported limitations on her cognitive or expressive abilities. According to the Division caseworker, the child did well in school prior to and after observing the domestic abuse, was "comfortable and happy" when living with her grandmother, and the mother and child have a good relationship. The child expressed a strong desire to live with her mother, but not to live in a home with the paramour. The Division presented no evidence of physical or emotional abuse inflicted by the mother on the child.
Even where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013). This does not exist here. The mother called the police and had the paramour arrested. The paramour returned home, engaged in additional acts of domestic violence, which forced the mother and child to a shelter. Although the mother and child returned home the next day, a safety plan between the Division and the mother for the child was put in place. The mother subsequently returned to the shelter as well.
Lastly, we noted in S.S. that we cannot assume witnessing domestic abuse has a "present or potential negative effect on the child sufficient to warrant a finding of abuse against . . . the battered victim" because of the effect of such a finding on the domestic violence victim. S.S., supra, 372 N.J. Super. at 26. The mother in this case, who did nothing more than report an act of domestic violence, now faces inclusion in the Central Registry of substantiated abusers which limits employment prospects and other opportunities. Ibid. Moreover, "the potential for inclusion in the [Central] Registry may serve as a disincentive to mothers who would otherwise report instances of domestic violence to the police." Id. at 28. To find the mother guilty of abuse and neglect for reporting domestic violence and attempting to break the cycle of violence against her would "stigmatiz[e] the innocent[,]" which makes "little practical sense." Id. at 27 (internal citation and quotation marks omitted).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION