Opinion
DOCKET NO. A-0557-14T3
02-04-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.R., Defendant-Appellant. IN THE MATTER OF A.C., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ellen L. Buckwalter, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.C. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-90-12. Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ellen L. Buckwalter, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.C. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant E.R. appeals from an August 1, 2012 order finding that she abused or neglected her daughter, A.C. (Amy). The court found that defendant physically and emotionally abused Amy, then eleven years old, by restricting her access to food, clothing and toys; confining her to a cold bedroom; isolating her from other family members; and openly treating her with disdain. Defendant argues we should reverse the trial court's finding because the trial court failed to make an express finding that defendant's conduct rose to gross negligence or worse; and the trial court failed to require expert testimony to establish emotional harm. The Division of Child Protection and Permanency (Division), and the Law Guardian oppose the appeal.
We are satisfied that the court's findings are supported by sufficient, substantial, credible evidence in the record. In particular, the court expressly found that defendant failed to exercise a minimum degree of care by deliberately abusing her daughter. Moreover, the trial judge correctly found that expert testimony was not required to establish that defendant's actions caused Amy emotional harm. We therefore affirm.
I.
The Division presented three witnesses at the fact-finding hearing: Amy's aunt and defendant's sister, R.R. (Rita); Division family specialist Yvette Garner; and Amy herself. Amy testified by closed circuit television in the judge's chambers; the judge asked questions proposed by counsel. The Division also introduced into evidence a screening summary, pertaining to the initial report of abuse received on January 13, 2012; and the investigation summary prepared by Garner. Defendant did not testify, nor did she present any other witnesses. We discern the following facts from this record.
Amy was born in Mexico in 2000. Defendant moved to the United States without Amy, who was raised by her grandmother. Amy's father apparently also lived in Mexico, but the Division was unable to ascertain his whereabouts. Defendant married E.M. (Edgar), and they had two boys, S.M. (Sam) and E.M., Jr. (Junior). At age eight, Amy entered the United States and joined her mother, step-father, and step-brothers. Also living in the household were defendant's sister, Rita, her husband, and their two children.
Rita testified that Amy was a happy child when she first arrived. But that changed approximately a year after her arrival. The relationship between defendant and Amy soured. Rita testified that Amy and defendant did not talk to each other or interact as mother and daughter. Defendant would often scold Amy. Amy testified that her mother became jealous of Rita, who took care of Amy during late afternoon and evenings, while defendant was at work. Amy called Rita and defendant "Mommy," which irritated defendant.
At some point after Amy's arrival in the household, the relationship between defendant and Edgar became estranged. Defendant at one point believed that Edgar inappropriately touched Amy, but Amy and Edgar both denied that such an incident occurred. The Division investigated and found the allegation to be unfounded. Edgar briefly left the home, but returned. He told Garner he wanted to be with his sons. Between 2008 and 2011, the Division investigated multiple allegations of abuse or neglect of Amy, finding all unfounded. Prior to the most recent referral, defendant shared a bedroom with Amy; Edgar shared a bedroom with his two sons; and Rita's family occupied a third bedroom.
The Division first became involved with Amy's family on June 23, 2008, following a report of sexual abuse against Amy by an unknown perpetrator. There were subsequent referrals made on October 8, 2009 (neglect), April 5 2010 (physical and emotional abuse), and January 5, 2012 (physical abuse) — all alleging defendant was the perpetrator; and on May 24, 2011, alleging Edgar sexually abused Amy. The Division concluded that all these prior allegations were unfounded.
Rita called the Division on January 13, 2012. She described an incident that occurred on January 7, 2012, when she called police to the home. As Rita returned home with her two children, she heard screaming and crying and called 911. She alleged that defendant had hit Amy and pulled her hair. Rita alleged that defendant confined Amy to her room for the entire weekend and was not permitted to leave for food. Rita described prior incidents of physical abuse. She expressed concern about Amy's welfare because Rita's family intended to move from the home soon.
Garner investigated, conducting interviews with Amy, defendant, Edgar, Rita, as well as some of the children in the household. She substantiated physical abuse, and effectuated a Dodd removal. The Division filed its verified complaint on January 18, 2012. The same day, the court found that defendant psychologically abused Amy by confining her in her room alone, feeding her once a day on weekends, depriving her of family activities, and hitting her without cause. The court entered an order to show cause, granting the Division care and custody of Amy.
Amy testified at the fact-finding hearing that for a three month period preceding the 911 call, defendant confined her to her bedroom on weekends, and that she was not permitted to leave the room except to eat dinner or use the restroom. Amy stated that her mother told her "that [Amy] had [her] time to be happy . . . during the week and that Saturdays and Sundays [she] had to stay in [her] room so that [defendant] could be happy with [Amy's] brothers." In her interview with Garner, Amy alleged that her mother told her, "I gave you life and I will take it from you." Amy also alleged that defendant accused Amy of ruining defendant's life.
Amy stated her mother excluded her from family activities. This apparently spanned a much longer period of time. Amy alleged she was left home alone while her mother took her step-brothers out to shop, to play, or to attend church. In her interview with Garner, Amy said that her mother would buy toys and clothing for her brothers, but not for her.
Amy testified about the incident that prompted the 911 call. Defendant learned that Amy had told a social worker at school about her confinement to her bedroom. Amy testified:
[Defendant] came and say, like, oh, why you went and told the social worker I was treating you like that. And then, like, she started hitting me and saying, like, I came and ruin her life and . . . if DYFS took . . . my brothers from her it all will be all my fault.Amy alleged her mother hit her with a belt; pulled her hair; and ultimately threw a phone at her, telling her to call the police. At that point, Rita entered the home, and called 911.
Amy recounted a prior instance when her mother hit her with a belt, and tried to cover her mouth with a shirt to stop her from screaming and crying. Amy stated that her mother would tell her "if they take you away I'm going to curse you wherever you go," and that she only cared for her brothers, not her. In her interview with Garner, Amy also discussed the incident that occurred between her and her stepfather. According to Garner's report, Amy said that while she was lying in bed, her step-father repeatedly asked her if she loved him and playfully grabbed the covers off her. She yelled at him to give her the blanket as she wanted to go to sleep. Defendant entered the room and concluded that Edgar had inappropriately touched Amy, which Amy denied.
At the fact-finding hearing, Rita admitted she did not witness the physical abuse of Amy. Regarding the January 7, 2012 incident, Rita said she saw defendant throw the phone on the sofa. Rita testified that defendant claimed that Amy hit her, but Amy denied doing so. Rita heard about the prior episodes from Amy, and observed scratch marks after the incident in which defendant tried to silence Amy with a towel. Rita testified that as early as three years prior, defendant verbally mistreated Amy. Rita testified that defendant and Amy did not talk "like a mother and daughter talk." Rita's attempts to intervene strained the relationship between Rita and defendant, and prompted defendant to treat Amy worse.
Rita confirmed that defendant shunned Amy, and had recently confined her to the bedroom for extended periods during the weekend. Amy would emerge for food once a day. Rita testified that defendant said she did not want to see Amy's "big face".
Rita also testified that defendant kept almost all of Amy's belongings in the basement. Gifts from family members for Amy were also kept in the basement. Rita said that the only clothes defendant bought for Amy were her school uniform and undergarments.
According to Garner, Rita stated that "her sister is sick in the mind and she is afraid that she may hurt [Amy]." She stated that "her sister['s] self-esteem is low and she thinks that no one loves her and that she [(Rita)] wants to steal the love of her children, but that is not true."
Garner's interviews of Edgar and the four other children in the home were memorialized in the Special Response Unit (SPRU) report admitted into evidence. Edgar stated that defendant "locked up [Amy] and hit her," although he admitted he did not witness defendant strike Amy. He acknowledged that defendant treated Amy differently from her brothers, and confirmed that defendant permitted Amy to leave her room only once a day, to eat, and otherwise only to use the bathroom. Edgar said he tried to stop defendant from mistreating Amy, but defendant told him to mind his own business, because Amy was not his child. Edgar denied ever touching Amy inappropriately. He said Amy always called him "daddy," and he felt like a father to her. Edgar said he had been estranged from defendant for two years, because of defendant's infidelity.
Defense counsel did not object to the embedded hearsay in Garner's report. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 466-67 (App. Div. 2014) (hearsay embedded within otherwise admissible Division records must meet other hearsay exceptions). --------
Junior and Sam were seven and five years old, respectively, when Garner interviewed them. Junior said Amy and defendant got along "not so good," and that sometimes they did not talk to each other. He did not respond to Garner's other questions about the home situation and the mother-daughter relationship. Sam was more forthcoming. He said defendant pulled Amy's hair; Amy did not talk to defendant; the police came to the house because defendant hit Amy; and his mother is not nice to Amy because Amy is bad.
Rita's two boys, A.B. (Anthony) and C.B. (Christopher), confirmed that defendant mistreated Amy, but differed on details. Christopher stated defendant was not nice to Amy, but defendant did not smack her. Anthony stated that defendant hit Amy for no reason; called her "stupid"; and made her stay in her room and Amy "d[id]n't eat."
Although defendant did not testify, her version of events was incorporated in Garner's report. She denied hitting Amy, and pointed out that Amy had no marks or bruises on her body. She also denied depriving her daughter of food. With respect to the incident the previous week, when Rita called the police, defendant asserted that Amy had attacked her, and that she was defending herself.
When asked if she confined Amy to her bedroom on weekends, allowing her to leave only to eat dinner or use the bathroom, defendant stated that she sent Amy to her room because Amy does not speak to anyone. After some initial hesitation, defendant stated that Amy is permitted to leave the bedroom and to eat whenever she wanted, but that Amy chose to eat only once a day. She also stated that she seldom saw Amy because Amy went to school during the day, and defendant worked at night.
Garner wrote, "[Defendant] stated that her sons are safe and that the only problem she is having is with her daughter." When Garner informed defendant that the Division would be removing Amy from the home, defendant began to cry — not because she was losing Amy, but because she feared the Division would also remove her two sons. When asked if she was concerned about Amy being removed, defendant stated, for at least the third time that night, that "maybe [Amy] can be with her [aunt]." While Amy prepared to leave the home, defendant asked her if she was happy that the Division would take her brothers away from defendant, although the boys were not removed.
When caseworkers asked defendant if Amy had a winter coat (she was wearing only a thin fleece at the time), defendant went to the closet and retrieved a black winter coat with the tags still on it. As Amy left the home, defendant told her that she did not love her.
Garner testified at the fact-finding hearing about her investigation and interviews, as set forth above. The worker also stated that the home was cold and everyone in the home wore winter jackets, except for Amy, who was shivering in a summer tank top and a summer weight fleece. Garner observed that Amy's bedroom was cold, and did not have a space heater like the other rooms in the house, although defendant asserted one was available.
In a thorough oral opinion, Judge Camille M. Kenny reviewed the trial evidence in detail and made the following findings:
While this case does not fit neatly or exclusively into a category, for example, of inadequate shelter, food, or clothing or of corporal punishment, the Division presented competent evidence that each of these occurred in some measure. These factors coupled with the demonstrated severe emotional abuse and alienation of the child by her mother caused the child to be abused and neglected. It appears likely that were
it not for the ministrations of her aunt, [Amy] would have suffered even greater physical harm in addition to the emotional abuse.
. . . .
I find that the Division has met its burden in establishing that the child was abused. Each of the Division's witnesses testified credibly as to [Amy's] confinement to her room for at least a month prior to the removal and her repeated unwarranted abuse by her mother who made [Amy] the scapegoat for all of her problems.
While the defense notes that no psychologist testified as to Amy's emotional condition, it does not take an expert to know that a child who was treated as [Amy] was is abused. [Amy] herself testified to her . . . emotional distress at being essentially abandoned by her mother while she observed her mother kindly treat her siblings and complain to those little boys about [Amy's] shortcomings.
In fact, it appears that the defendant deliberately came to choose this type of abuse, emotional abuse, withholding of food, withholding of clothing, [gifts], and toys rather than any excessive corporal punishment falsely believing it would insulate her from DYFS involvement.
Isolation, confinement, scapegoating, limited food and clothing, and the absence of love and affection, all of these have been amply demonstrated by the Division. I am satisfied by a preponderance of the evidence that the Division has met its burden to demonstrate that the child was abused or neglected within the meaning of the statute through her mother's actions.
II.
We accord deference to the Family Part's fact-finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We shall uphold the court's fact findings if supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We defer to a trial court's fact finding because the judge has had the opportunity to observe witnesses, weigh their credibility, and develop a "feel of the case." Id. at 293 (internal quotation marks and citation omitted). However, we will set aside a ruling that is "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011) (quoting M.M., supra, 189 N.J. at 279).
We also accord no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts. . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
"The main goal of Title 9 is to protect children. . . ." G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). Whether a parent has failed to exercise a minimum degree of care "is fact-sensitive and must be resolved on a case-by-case basis." Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 192 (2015). Courts undertaking this analysis "must avoid resort to categorical conclusions." Id. at 180 (citing Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011)). 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). "[T]he elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of the acts may be 'substantial.'" Id. at 329-30 (quoting Dep't of Children & Families v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011)).
Applying this standard of review, and having considered defendant's arguments in light of the record and applicable principles of law, we affirm substantially for the reasons set forth in Judge Kenny's decision. Judge Kenny considered the totality of circumstances in concluding that the sum of defendant's acts constituted abuse and neglect. Defendant's arguments on appeal require only brief additional comment.
A child is abused or neglected if the child's
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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted 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 of the court. . . .
[N. J.S.A. 9:6-8.21(c)(4).]
As set forth in the statute, "[t]o find abuse or neglect, the parent must 'fail . . . to exercise a minimum degree of care.'" E.D.-O., supra, 223 N.J. at 179 (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). This requires conduct that is at least grossly negligent. G.S., supra, 157 N.J. at 178. To satisfy that standard, conduct must be willful or wanton, but not necessarily intentional. Ibid. "Willful or wanton" conduct is "done with the knowledge that injury is likely to, or probably will, result." Ibid.
We find no merit to defendant's argument that the trial court erred by failing to specify whether defendant's actions were merely negligent, grossly negligent, or reckless. Defendant misplaces reliance on various cases in which the Court found that a defendant's conduct was merely negligent, and therefore did not satisfy the "minimum degree of care" standard. In this case, Judge Kenny did not distinguish between negligent and grossly negligent conduct, because she expressly held that defendant's conduct was deliberate. In short, the court found that defendant intended to make her daughter miserable.
We also discern no error in the trial court's determination that expert testimony was not necessary. The Court has clearly stated that expert testimony is not essential in abuse or neglect actions, stating: "To be clear, we do not require expert testimony in abuse and neglect actions. In many cases, an adequate presentation of actual harm or imminent danger can be made without the use of experts." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 29 (2013). Defendant deliberately shunned and isolated Amy in her own home; conspicuously treated her less favorably than her step-brothers; physically abused her; and accused her of ruining her life. As Judge Kenny succinctly stated, it does not take an expert to determine that Amy was subjected to psychological abuse.
Defendant misplaces reliance on N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005); and P.W.R., supra. We held in S.S., supra, that an expert was necessary to assess the psychological impact on a twenty-month old child present during acts of domestic violence. 372 N.J. Super. at 22-23. However, Amy was not an infant who may have been unaware of the significance of the events around her. Amy was between nine and eleven years old during defendant's course of conduct. Rita testified that Amy's sunny outlook was erased by her mother's treatment. Also, P.W.R. is not a case in which expert testimony was required. Rather, the Court simply noted that the Division had failed to show, through expert or lay testimony, that a child suffered harm by restricted contact with her grandfather. P.W.R., supra, 205 N.J. at 39.
In sum, we affirm the trial court's fact-finding order that defendant abused or neglected her daughter.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION