Opinion
DOCKET NO. A-4437-12T1
04-22-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.A., Defendant-Appellant, and M.A., Defendant. IN THE MATTER OF: J.A., A.A., H.A., H.A., H.A., M.A., J.A., B.A., A.A., G.A., J.A. AND K.A., Minors-Respondents.
Joseph E. Krakora, Public Defender, attorney for appellant (Fabiola Ruiz-Doolan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent the Division (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-143-12. Joseph E. Krakora, Public Defender, attorney for appellant (Fabiola Ruiz-Doolan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent the Division (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant H.A. (Father) appeals from a Family Part fact-finding that he abused or neglected his eight-year-old autistic son, H.A., by failing to intervene when M.A. (Mother) inflicted excessive corporal punishment on the child. We affirm.
I.
On July 25, 2011, H.A.'s summer school teacher noticed a bruise on his arm, and sent him to the school nurse. The nurse asked H.A. "if there is any place else that hurt," and the child lifted his shirt to show fifteen criss-crossing lines of bruises spanning his back. The bruises "appear[ed] to be from a belt" and were "criss crossed on the back." H.A. also had faded bruises on his left arm and upper right arm. The Division was called, and caseworker Jonnese Arrington was dispatched to the school. Arrington was advised that the parents were Spanish-speaking, and thus Arrington asked Celeste Rodriguez, another Division worker, to accompany her in case a translator was needed. They met Mother at the school, along with police officers.
H.A. was taken to a nearby hospital for further evaluations. Arrington spoke to H.A. in English. When asked how he got the bruises, H.A. eventually told Arrington that he had left his home for most of the day on July 23, 2011, and did not return until 8 p.m. H.A. stated that when he arrived home, Mother beat him with an extension cord while Father stood right there and yelled at him. H.A. said Father did not physically discipline him on July 23. However, H.A. said that in the past, Father had struck him with a stick, and that Mother had used a "belt, stick and electrical cord" to punish him.
At the hospital, Arrington attempted to speak with Mother but, because Mother did not speak English, Rodriguez had to translate the conversation. Mother reported that she had twelve children, and was seven to eight months pregnant with a thirteenth. According to the Division's report, when Mother was advised that the Division was investigating allegations of physical abuse, she explained that "her son will turn into a criminal and the cops will kill him so she decided to beat him herself." Mother freely admitted to physically disciplining her children, again emphasizing that she must discipline them "before the police kill" them. Despite admitting that the extent of H.A.'s beating was due to her anger in the moment, Mother denied any remorse for striking him because H.A. "feels he could do what he wants" and "feels as though she and [her] husband [are] a joke." Mother also conceded that she no longer gives H.A. his autism medication, claiming that it caused his blood pressure to drop too low, and that she "would rather deal with his behavior than give him the medicine." When asked if Father disciplined the children, Mother stated that "[h]e is soft and does not hit the children, I do, all he does is talk." Mother said that Father was present during the abuse, and was yelling at H.A. as she hit him.
Arrington also spoke with Father with Rodriguez translating at the family's home. Arrington testified that Father provided the following version of events. Father reported that when H.A. returned home, H.A. was left to "sit on the porch for a while to think that they weren't going to open the door." H.A. knew he was in trouble, so when the door was eventually opened, he ran towards the street and was nearly struck by a car. When he came back to the porch, Mother "began hitting him" with a "switch," a disciplinary tool consisting of a tree branch with leaves on it. Father said he was present during the beating incident and that he was "standing there yelling at [H.A.] while [Mother] was hitting [H.A.]." H.A. was then told to go to bed and was given an aspirin because the bruises were already becoming apparent. Father said he "was aware of the marks" on H.A. because he was present when the abuse occurred, and could see the "marks" on H.A.'s back.
After Dr. John Hooge examined H.A. at the hospital and determined his bruises were consistent with physical abuse, the Division conducted an emergency removal of H.A. pursuant to N.J.S.A. 9:6-8.29 because he was a targeted victim of abuse.
On July 27, 2011, the Division filed for an order to show cause granting custody, care, and supervision of H.A. and the eleven other minors. The motion court signed the order to show cause. It found the emergency removal of H.A. was required due to "imminent danger to the child(ren)'s life, safety or health," as Mother had "admitted to the physical abuse" that "caused severe bruises on his body" and Father "witnessed the beating and did not intervene." The court also noted that "based on the investigation and the mother's . . . consistent outbursts during this proceeding [ ] this appears to be a product of a philosophy of discipline."
A fact-finding hearing was held on September 23, 2011. Mother entered into a stipulation admitting that she struck H.A. with a tree branch. The family court found this to be "excessive corporal punishment, and . . . abuse."
Father did not enter into a stipulation and the court proceeded with the fact finding hearing as to him. Division workers Arrington and Jacqueline Cascante, who was subsequently assigned to the case, testified for the Division. Rodriguez had been listed on the Division's pre-trial letter as a potential witness, but she was not present at the hearing.
Arrington's "investigative summary" was admitted into evidence as P-1. See N.J.S.A. 9:6-8.46(a)(3). The summary chronicled H.A.'s statements, which were admitted without objection. See N.J.S.A. 9:6-8.46(a)(4). The summary also related her conversations with Father and Mother. Counsel for Father objected to any testimony by Arrington with respect to Father's statements. Counsel argued that because Arrington does not speak Spanish, she did not directly speak with Father, but instead spoke to the interpreter Rodriguez who spoke with Father.
The family court overruled the objection, finding that Rodriguez was an interpreter and the issue was not one "of admissibility," but rather one of "weight as to whether . . . she accurately translated what was said." The court overruled counsel's objection that the testimony of Arrington constituted "double hearsay." The court advised counsel that if he wanted Rodriguez to testify about the conversations she translated, he could call her as a defense witness. Arrington proceeded to testify to Father's statements at the hospital.
Cascante testified to the following. She was fluent in Spanish, and spoke with Mother and Father. Cascante testified that "[b]oth parents stated that they were home, that [Father] was home" and that Father's responses confirmed he was home at the time of the abuse.
The family court ultimately did not find that Cascante's testimony added anything "on the specific issue of whether [Father] was present."
Once the Division rested its case at 4:45 p.m., counsel for Father requested to call Rodriguez as his first witness. However, Father's attorney had not subpoenaed her himself, explaining he "assumed that she would be available." Rodriguez was telephoned, but she had already gone home for the day at 4:30 p.m. The family court noted that Rodriguez had been available in the building "[a]ll day," and if counsel "wanted to call her today [he] could have," and that it was counsel's responsibility to produce his witnesses. The court encouraged counsel move forward with his next witness, Father, but counsel declined to call Father "out of turn." Counsel was advised by the court, "[y]ou are going to call him now or you're going to call nothing else." Nevertheless, counsel refused to move forward.
The family court deemed counsel's decisions to refuse to call Father before Rodriguez and move forward with the hearing to be "strategic." The court stressed that "[t]oday is the day of the hearing" when the court was available. It then declared that "[p]roofs [were] closed," and issued an oral decision.
The family court found there was "ample evidence" that excessive corporal punishment was inflicted upon H.A. and that Father failed to intervene. The court credited Arrington's testimony, finding the statements taken through Rodriguez to be "clearly understandable." It further found that those statements were corroborated by H.A.
The family court's September 23, 2011 written order found that Father "was present during the excessive corporal punishment found by this [c]ourt to have been imposed upon the child . . . and that the unrebutted evidence indicated [Father] continued to yell at the child, and did nothing to stop [Mother] from administering that excessive corporal punishment." The court concluded Father had thus committed abuse or neglect under N.J.S.A. 9:6-8.21.
After all of the children had been returned home and an order terminating the litigation was issued, Father filed a notice of appeal, challenging the finding of abuse or neglect.
II.
On appeal, Father first asserts that his actions do not constitute abuse or neglect as defined by N.J.S.A. 9:6-8.21, and that the family court's decision was not supported by substantial credible evidence. In order for the Division to satisfy its evidentiary burden in a Title Nine proceeding, "'[t]he evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010).
We generally must defer to the factual findings of a trial court "'because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 294 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)). Trial courts are in "a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of DMH, 161 N.J. 365, 382 (1999)).
Furthermore, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Accordingly, a reviewing court will not disturb a family court's abuse or neglect findings as long as they are "supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007 ) .
The family court's factual findings are overturned only when "they are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quotation marks omitted). We must hew to that limited standard of review.
III.
Parents have a fundamental, constitutionally protected right to raise their children. G.M., supra, 198 N.J. at 397. However, this protection "is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
To prevent abuse or neglect, the Division may bring an action under N.J.S.A. 9:6-8.21 to -8.73 (Title Nine). G.M., supra, 198 N.J. at 397. Pursuant to Title Nine, an "abused or neglected child" is defined as a child who is less than eighteen years of age,
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, as herein defined, 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.The family court found Father abused or neglected H.A. because he failed to exercise a minimum degree of care in providing proper supervision, as he allowed Mother to inflict excessive corporal punishment on H.A.
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
Title Nine does "not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002). What constitutes excessive corporal punishment is "fact sensitive;" however, "the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of" a parent's actions evidences excessive corporal punishment. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33, 35-36 (2011).
It is undisputed that the beating inflicted on H.A. qualifies as excessive corporal punishment. Mother's act of repeatedly striking H.A. with an object caused serious injuries to the eight-year-old, including significant bruising. The severity of H.A.'s resulting injuries was so great that the motion court remarked, "since I have been a judge, this has been one of the most significant and severe injuries suffered by a child at the hands of their mother."
Father freely admitted to Dr. Samiris Sostre during a psychological evaluation that Mother used excessive force against the children, and he defended the discipline by saying "in his country it was typical." Indeed, H.A. related that Mother would beat him with belts, sticks, and electrical cords on numerous occasions, and Father had struck him with a stick.
Father nonetheless argues that this beating was an isolated incident. In support of this, Father points to Cascante's testimony at the order to show cause hearing, in which she stated she believed the beating of H.A. was an "isolated incident." However, no such evidence was admitted at the fact-finding hearing. In any event, even if the corporal punishment administered against H.A. was a one-time-occurrence, a "single incident of violence against a child may be sufficient to constitute excessive corporal punishment," N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), appeal dismissed, 208 N.J. 355 (2011), particularly when it results in physical injuries such as bruises, scars, lacerations fractures, P.W.R., supra, 205 N.J. at 36. See also N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 146 (App. Div. 2015).
Father contends there was no credible evidence that he was home during the abuse. However, the family court heard and credited testimony from Arrington that Mother, Father, and H.A. all stated that Father was home and present during the abuse. Father also asserts that even if he was home during the abuse, he was not an active participant in the abuse. However, Father admitted, and H.A. corroborated, that Father was standing by Mother, encouraging the abuse by yelling at H.A. while Mother struck the child with an object at least fifteen times. In any event, the statute makes clear that "allowing . . . the infliction of excessive corporal punishment" can constitute abuse or neglect. N.J.S.A. 9:6-8.21(c)(4)(b). Father did exactly that by failing to intervene to protect H.A. from Mother. Father's failure to provide proper supervision placed his son in "imminent danger" and "substantial risk" by allowing Mother to inflict such serious injuries. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013).
Father contends he did not fail to provide a minimum degree of care because his inaction was mere negligence, and did not amount to gross negligence or recklessness. "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). A parent may be found to have failed to exercise the minimum degree of care if he "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." Id. at 181. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Id. at 178.
Thus, Father's act of watching and yelling at H.A. during Mother's intentional abuse — which he encouraged — rises to "wanton and willful" conduct, because Father did not protect H.A. even though he was aware of the danger to H.A. from the beating which was likely to cause — and in fact resulted in — substantial injuries. Indeed, Father saw not only the severity of the beating but also the resulting bruising. Accordingly, the evidence presented at the fact-finding hearing was sufficient to justify an abuse or neglect determination. The family court's finding was not "so wide of the mark" to warrant interference by this court. F.M., supra, 211 N.J. at 448.
IV.
Father argues the family court improperly admitted Arrington's testimony because it constituted "hearsay within hearsay," as Arrington testified to the statements by Father that Rodriguez translated. A trial court's decision on the admissibility of evidence is ordinarily "'reviewed under an abuse of discretion standard.'" N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div. 2010) (quoting State v. Darby, 174 N.J. 509, 518 (2002)).
Father does not challenge Arrington's testimony with regard to Mother's statements.
In a hearing to determine abuse or neglect under N.J.S.A. 9:6-8.21, "'only competent, material and relevant evidence may be admitted.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (quoting N.J.S.A. 9:6-8.46(b)(2)). "In matters involving abuse and neglect of children, the New Jersey Rules of Evidence [apply but] are supplemented by statute and court rule." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003); N.J.R.E. 101(a)(2). A proceeding that is "conducted with . . . [a] general lack of adherence to fundamental evidentiary rules" is inadequate. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 268 (App. Div. 2002).
Pursuant to N.J.R.E. 801(c), "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is "not admissible except as provided by [the New Jersey Rules of Evidence] or by other law." N.J.R.E. 802.
Here, Arrington testified to out-of-court statements made by Father and translated by Rodriguez, which constitute hearsay within hearsay. However,
[a] statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.We therefore examine each layer of hearsay to see if it falls within an exception to the hearsay rule. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010).
[N.J.R.E. 805.]
A.
Father's statements to Rodriguez were indisputably statements by a party opponent. A statement by a party opponent is "[a] statement offered against a party which is: (1) the party's own statement, made either in an individual or in a representative capacity[.]" N.J.R.E. 803(b). An admission under N.J.R.E. 803(b)(1) qualifies as "competent evidence." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 358 (2013). Father's statements to Rodriguez thus fall within an exception to the rule against hearsay under N.J.R.E. 803(b). Konop v. Rosen, 425 N.J. Super. 391, 407 (App. Div. 2012).
B.
The next layer of our "double hearsay" analysis is to ascertain whether Rodriguez's translation to Arrington also falls within a hearsay exception. We rule it falls within the exception for present sense impression, N.J.R.E. 803(c)(1).
A present sense impression is a "statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." Ibid. Here, Rodriguez's translations were statements of observation, description, or explanation of what Father said. Rodriguez made her translation of Father's statements to Arrington while or immediately after she perceived him making those statements. See State ex rel. J.A., 195 N.J. 324, 336-38 (2008). Rodriguez had no "opportunity to deliberate or fabricate" what Father was saying because she was translating the conversation in the moment. Accordingly, her translations were thus admissible under the present sense impression exception in N.J.R.E. 803(c)(1).
In finding Rodriguez's translations are admissible, we do not adopt the reasoning offered by the Division. The Division cites N.J.R.E. 604, which states that the "judge shall determine the qualifications of a person testifying as an interpreter. An interpreter shall be subject to all provisions of these rules relating to witnesses and shall take an oath or make an affirmation or declaration to interpret accurately." Rule 604 thus addresses interpreters translating in court proceedings. However, Rodriguez was not translating in an official capacity in the courtroom, and thus her statements to Arrington do not fall within the purview of N.J.R.E. 604.
We find Father's statements and Rodriguez's translation of those statements each fall within an exception to the hearsay rule. Accordingly, their admission was not an abuse of discretion.
V.
Father also contends he was denied the "opportunity to test the reliability of the Division's evidence" because he did not have the opportunity to cross-examine Rodriguez. Father argues that Arrington's testimony relating Rodriguez's translations violated his due process right to confront a hostile declarant. Father did not raise a constitutional claim below, however, and must show plain error.
Under the United States and New Jersey constitutions, an "accused" has the right "to be confronted with the witnesses against him" in "criminal prosecutions." U.S. Const., amend VI; N.J. Const., art. I, ¶ 10. However, a Title Nine child protection proceeding is not a criminal prosecution to which those constitutional provisions are applicable. See Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467-68 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 252-53 (App. Div. 1989), certif. denied, 121 N.J. 614 (1990). Moreover, "[w]e have found no case in any jurisdiction that has extended Crawford [v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)] to a civil [] proceeding where the burden of proof is less than beyond a reasonable doubt." In re Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004); see, e.g. Commonwealth v. Given, 808 N.E.2d 788, 794 & n.9 (Mass. 2004) (Crawford is not applicable to civil proceedings), cert. denied, 543 U.S. 948, 125 S. Ct. 366, 160 L. Ed. 2d 264 (2004).
Thus, we need not address the federal criminal cases considering whether under Crawford a defendant has a right to confront an interpreter, United States v. Charles, 722 F.3d 1319, 1327 (11th Cir. 2013), or whether a "defendant and an interpreter are treated as identical for testimonial purposes if the interpreter acted as a 'mere language conduit,'" United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012).
Although the "'Sixth Amendment right to confrontation is not applicable in civil proceedings, due process guarantees civil litigants a measure of confrontation'" of crucial witnesses such as the child victim whom the litigant cannot call as a witness. N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 142 (App. Div. 2014) (quoting A.B. v. Y.Z., 184 N.J. 599, 604 (2005)). Here, as the family court noted, Father had the opportunity to call Rodriguez as a witness if he wished to question her, but he failed to subpoena her or even to contact her or request her presence at the hearing. A party's failure to "subpoena additional witnesses" is insufficient to present a "due process violation." Ruroede, supra, 214 N.J. at 358. Under Ruroede, it is not a due process violation where the party had the opportunity to call or subpoena other witnesses, but simply did not. Thus, no violation of a due process right to confrontation occurred in the present case.
In any event, the interpreter merely interpreted Father's alleged statements, which he was free to take the stand and deny. Moreover, those statements were not the only evidence of Father's role, which was also detailed by H.A. and corroborated by Mother. Accordingly, Father has failed to carry his "burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998).
VI.
In his appellate brief, Father notes in passing that the family court denied his request for an adjournment to call Rodriguez at a later date, and in his conclusion states that there was no compelling reason why the case could not have been adjourned. We decline to address this argument improperly presented "at the end of [his] brief without a separate point heading, in violation of Rule 2:6-2(a)(5)." Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011), certif. denied, 207 N.J. 190 (2011); Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 553 (App. Div. 1999). Father's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION