Opinion
DOCKET NO. A-3095-13T4
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.B., Defendant-Appellant, and D.P., Defendant. IN THE MATTER OF D.P., JR., a Minor.
Cecilia M.E. Lindenfelser, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lindenfelser, on the brief). Thomas Ercolano, III, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Ercolano, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minor D.P., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-100-13. Cecilia M.E. Lindenfelser, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lindenfelser, on the brief). Thomas Ercolano, III, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Ercolano, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minor D.P., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief). PER CURIAM
Defendant B.B. appeals from the December 3, 2012 fact-finding order, memorializing the family court's determination that B.B. abused and neglected her child. We conclude from our review of the record that the competent, material and relevant evidence is sufficient to sustain the court's findings. We affirm.
B.B is the mother of a son, Danny, born in 2004. On August 26, 2012, at midnight, the Division of Child Protection and Permanency (Division) received a referral concerning defendant. Sergeant Massimino of the Irvington police department responded to the call and observed a large group of people gathered in a courtyard and "what sounded like a female screaming out [of] the window." He then saw defendant "screaming" profanities to the crowd in a "very argumentative" manner. Sergeant Massimino went into the building and saw defendant holding Danny while she yelled out of the window. He described her as being incoherent and out of control. Defendant then placed herself in front of the child blocking police from reaching him. The officer described the child as "hysterical." Defendant's eyes looked "wild" and though Sergeant Massimino "didn't smell alcohol[,]" he "had a lot of experience with dealing with people that use narcotics, and that was the impression [he] had."
We use a pseudonym for the child to protect his identity.
Defendant told Sergeant Massimino: "you're not taking my son. You're not taking me. You're not taking my son." The chaotic scene continued for thirty minutes during which defendant continued to act aggressively and all attempts to calm her down failed. At one point, B.B. took nine one dollar bills and shoved them into her son's mouth, using her finger to push the money completely inside.
Sergeant Massimino testified that he grabbed the child's mouth and told defendant to remove the money, which she did. He stated that Danny looked "very fearful. He . . . didn't know what was going on. He just . . . was totally shocked." Emergency services and Sergeant Massimino examined the child to "make sure that his airway was clear and everything like that." Sergeant Massimino "was totally shocked" stating that he "had never in all [his] experience seen anything like that . . . ."
The officer concluded defendant was in crisis and in need of medical help. Even after she was handcuffed, defendant continued to be "extremely combative." She had to be lifted up by several officers and physically carried down the stairs in order to take her to the ambulance. The child was a witness to all of his mother's actions. The officer said Danny "was upset" and "held on to" to his mother "until we physically had to move his arms off of her. And he went kicking and screaming." That evening Danny was placed in his grandmother's care.
On August 29, 2012, the Division filed an Order to Show Cause and Verified Complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The Division presented evidence as to the above described incident and defendant's refusal to comply with her mental health treatment. The court determined that the removal of the child from the home was necessary as defendant was "not compliant with mental health medication and treatment, is engaging in fights in front of the child and is misusing legal substances and abusing illegal substances . . . ."
At the fact-finding hearing on December 3, 2012, the Division presented caseworker Shanika Calder. She testified that beginning in 2010, the Division had referred defendant for mental health and substance abuse services. She explained that defendant had admitted to using marijuana since the age of fifteen and using alcohol as a substitute for her medication. In her own testimony, B.B. also admitted that she used cigarettes laced with PCP and was diagnosed with depression and bipolar disorder. Initially, defendant complied with the Division's services and the case was closed in August 2011. However, in June 2012, the Division received another referral regarding defendant and she admitted she had stopped taking her medication six months earlier. The Division again referred her for treatment for her hallucinations and inability to control violent behavior. Defendant stopped attending her mental health treatments in July and August 2012.
When Calder visited defendant at the hospital on August 26, 2012, defendant "became disruptive, threatening to hit anyone in the face without provocation." The hospital records reported defendant's statement that she drank at least a pint of vodka that day and noted that she had an "[a]ltered mental state."
Sergent Massimino was also called as a witness and testified as to his personal observations on August 26, 2012 as described above.
Finally, the Division presented evidence as to the interview conducted of Danny after the incident. The child was "very upset" because he was worried about his mother to the point he could not sleep. The Division concluded that it had removed Danny from defendant's care, as it was concerned about defendant's inability to take her medication and her anger issues that put her child at "substantial risk of harm."
Defendant also testified at the fact-finding hearing. B.B. explained that on the day in question, there was a birthday party and the adults began drinking. Defendant asserted that she "was not heavily intoxicated." She said she heard a man yelling at her son after the child's football hit his car. She stated she sent Danny inside with a friend and then "kind of lost it" with the man and they had a physical altercation.
With regard to shoving money into Danny's mouth, defendant testified:
I do remember putting the money in my son's mouth. I might not have been in the best state of mind . . . my first thing was to make sure my son [was] okay. In this day and age money makes the world go around. I wanted my son if he wanted anything to be able to have it.
So I was giving him the money, and in my mind, which I might not have been thinking was the best case scenario but no one can take this money from him if it's in []his mouth. The money was not shoved in his mouth. It was nothing of that sort. I would never cause my son any bodily harm. I would never hurt my son period. I might have put him in a situation to where as though it could have been something different because of the police situation.
Defendant conceded that she was "defiant" and "combative" with the police because she "did not want to be separated from [her] son."
The judge rendered an oral decision finding defendant abused or neglected her child. The judge found:
a person who is involved in front of their child . . . in screaming out the window and yelling at the neighborhood, and having and taking alcohol into their system and not allowing police officers to be around, and shoving money in your child's mouth, and allowing the child to suffer horrible experiences because of the emotional trauma of watching this sort of thing and screams of you're not going to take my child, you're not going to take me. And having your child wrapped arms around, clearly, and that's, we believe, the mother exposed her child to an extreme risk of harm, and there's no question.
The judge found Sergeant Massimino credible and explained that "his testimony seems to be very consistent" and "all makes sense." The judge found defendant's testimony "problematic," especially with regard to her timeline of the events.
As the judge was making his findings and delivering his ruling, defendant interrupted him using foul language and eventually left the courtroom. The judge noted this instance was "a demonstration of her inappropriate activity."
The court found that defendant's
conduct, in it of itself, is a clear cut case of . . . abuse and neglect because of
the kinds of things that could have flowed from that . . . . Not just the physical injury of shoving money in someone's mouth, of which she completely admits that she did, dollars into her son's mouth.
But . . . also, you know, the emotional trauma of holding onto his mother of worrying about the police trying to take everyone away.
I'm satisfied the Division has made their case.
The court memorialized its findings in a written order, stating that "[defendant] chose not to comply with her mental health therapy and medication to address her mental health issues . . . ." The court ordered that Danny remain in the Division's custody and that B.B. comply with substance abuse treatment, counseling and psychological and psychiatric assessments.
Several compliance hearings took place over the next year and at a permanency hearing on August 5, 2013, the judge approved the Division's plan to reunite defendant with her son within three months so long as she complied with required mental health treatments. On October 28, 2013, the judge entered an order transferring legal and physical custody of the child to defendant. The court's final compliance hearing on February 4, 2014 resulted in the termination of all litigation and with legal and physical custody of Danny to be maintained by defendant. This appeal followed.
The scope of our review of a trial court's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Particular deference should be given to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. 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 the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In using that standard we find no basis to disturb the trial court's conclusion that Danny was abused and neglected, as defined in N.J.S.A. 9:6-8.21(c).
We first address defendant's contention that the evidence was insufficient to establish, by a preponderance of the evidence, that she abused and neglected her child. Specifically B.B. contends that the Division did not present expert testimony to establish that she suffered from a mental illness that prevented her from adequately parenting her child. Similarly, defendant argues the Division failed to prove by a preponderance of the evidence that the child's witnessing the events of August 26, 2012 caused him emotional harm.
"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. 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 an abused or neglected child as defined [by statute].'" Id. 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[.]
[N. J.S.A. 9:6-8.21(c)(4).]
Although "minimum degree of care" is not defined in the statute, the Supreme Court has construed the term as signifying gross negligence or reckless conduct that disregards safety for others. N.J. Div. of Youth & Family Servs. v. G.S., 157 N.J. 161, 179 (1999); N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 298 (2011). To elaborate, "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181.
In deciding 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 (citation omitted).
Here, the trial court properly relied on the totality of the circumstances to determine that the Division had met its burden. The judge noted defendant's history of substance abuse and her refusal to comply with the Division's referral for mental and substance abuse treatment.
Moreover, the trial judge properly considered Sergeant Massimino's credibility and testimony. The officer had personally observed the events. The judge's findings that defendant was abusing illegal and legal substances and not in compliance with prescribed mental health treatment were not conclusions requiring expert testimony. Because expert testimony is only required when the testimony is beyond the ken of the average finder of fact, the Division was not required to present an expert. N.J.R.E. 702; Torres v. Shripps Inc., 342 N.J. Super. 419, 430 (App. Div. 2001).
We do not find that expert testimony is needed to determine that shoving paper money into a child's mouth constitutes abuse and neglect. Nor is an expert required in order to determine that becoming involved in a physical altercation with a neighbor after consuming alcohol in the presence of a child constitutes abuse and neglect. Expert testimony is not needed to find abuse and neglect in a situation where an incoherent and out of control mother is screaming from her apartment window resulting in the police being called to the scene all in front of her hysterical and fearful child. The totality of these actions placed the child at risk of emotional and physical harm.
Based on our review of the record and the applicable legal standards, we conclude the evidence presented during the fact-finding hearing conducted on December 3, 2012 is sufficient to support the determination that B.B. abused or neglected her child and we therefore affirm the trial court's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION