Opinion
DOCKET NO. A-2154-13T3
03-24-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.G., Sr., Defendant-Appellant. IN THE MATTER OF J.G., Jr., Minor
Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-161-13. Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant, Jim, appeals from an order entered by the Family Part finding that he abused or neglected his son, Jack, by committing acts of domestic violence against the child's mother and thereby placing the child at risk of harm. We affirm.
We use pseudonyms to protect the identity of the minor and for ease of reference.
We discern the following from the evidence adduced at the fact-finding hearing. Jim is the father of Jack, who was born in 2003. Jack tested positive at birth for barbiturates and methadone, the New Jersey Division of Child Protection and Permanency (the "Division") became involved, and Jack's mother, Mary, was substantiated for drug use. The Division remained involved with the family after numerous referrals, and provided at least four placements of Jack due to drug and alcohol use by both parents.
Mary is now deceased. This appeal was only brought by Jim.
In May 2012, a Division worker spoke with Jack during a home visit. Jack told the worker that he was not happy because Jim became "very violent[,]" and made a drinking motion with his hand. Jack said that his parents argued loudly when Jim drank.
The Division worker visited again in July 2012, and noticed that Mary appeared visibly shaken, had bruises on her cheek and forehead, and had a swollen nose. The worker asked what happened and Mary reported that Jim had beaten her in the bathroom, pushed her on the floor, and knocked her unconscious. Mary said that she had to be transported to the hospital in an ambulance where she was diagnosed with a linear fracture to her cheek bone and multiple facial contusions. Jim was arrested and Mary obtained a temporary restraining order (TRO) granting her sole custody of Jack and restraining Jim from the apartment.
Jack told the Division worker that he had been in his room while his parents argued and he heard a loud thump. Jack went to the bathroom and found Mary bleeding on the floor. She was bleeding from the nose. Jack reported that Jim asked if she was "gone yet[,]" which Jack understood as asking if she was dead. Jack demonstrated his point to the Division worker by making a motion with his finger across his throat. Jack also told the Division worker that his father had punched him in the past.
The Division, concerned about Mary's history of substance abuse, referred her to a treatment program, and put a parent mentor in the home. After Mary failed to comply with her treatment recommendations and Jim was incarcerated, the Division filed a verified complaint for custody of Jack in September 2012.
At the fact-finding hearing the Division worker testified about her interviews with Jack and her observations of Mary's injuries. The Division presented testimony from Solomon Barry, a psychology doctoral candidate, whose qualifications as an expert in the field of clinical psychology were recognized by the court pursuant to N.J.R.E. 702. Barry had conducted a forensic psychosocial evaluation of Jack at Audrey Hepburn House and his evaluation was signed by his supervising licensed clinical psychologist, Dr. Anthony D'Urso, Ph.D.
Dr. D'Urso also gave testimony which the court struck as cumulative.
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Barry testified that Jack told him that he was removed from his parent's custody because of an incident when his father was drunk and hit his mother and Jack found her on the bathroom floor bleeding. Barry opined that while Jack was not diagnosed with Post Traumatic Stress Disorder, he displayed an emotional numbing, a symptom of the disorder. Barry described this as a method to "detach" from what was going on. Numbing of emotions affected Jack's emotional well-being and placed his emotional development at risk, particularly his ability to form attachments. Barry also stated that Jack suffers from recurring nightmares and said he was scared that his father might attack him. Jack disclosed that his father had previously hit him on the arm and the buttocks. Barry also testified that Jack disclosed an incident where his father had used him as a gambling chip in a bar.
The Family Part judge rendered an oral opinion finding that the Division had proven that Jack's exposure to domestic violence had a negative impact upon him and that the Division had satisfied its burden of showing that defendant abused or neglected Jack by a preponderance of the evidence. The court made no findings regarding the punching or gambling incidents as the child's statements were uncorroborated.
On appeal, Jim argues that the Division did not prove abuse or neglect and the child's statements to the evaluator were not corroborated and the symptoms of psychological numbing observed by the evaluator were not proven to have been caused by witnessing domestic violence. In addition, Jim argues that the Division failed to prove that he did not exercise "a minimum degree of care" and that the court mischaracterized evidence and assumed facts not in evidence. We disagree.
Appellate review of a trial court's findings of fact is limited, and "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 ( 1974)). Family courts in particular have "broad discretion because of [their] specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts [is] not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 9:6-8.21(c)(4)(b) defines a child as abused or neglected where 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 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[.]Prior statements by children relating to allegations of abuse or neglect are admissible in these proceedings only if corroborated. N.J.S.A. 9:6-8.46(a)(4). Corroborative evidence in a particular case "need only provide support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002).
The contention that there was no corroborative evidence for Jack's hearsay statements to the evaluator regarding the July 2012 domestic violence incident is unpersuasive. Jack's statements about what he heard and saw were corroborated by the Division worker's observation of bruises and a swollen nose on Mary's face. While some of the child's out-of-court statements were inconsistent and it is not clear the extent to which he observed his father hitting his mother on this occasion, Jack's statements indicate he was exposed to and aware of the domestic violence in the home. The trial court correctly determined that the child's statements were corroborated and admissible prior to any discussion of the impact upon the child.
We have said that "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 . . . [and] exposure of children to a coercive relationship does not by itself prove abuse or neglect." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010) (citing N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004)). However, abuse or neglect in violation of the statute can be established where a child is harmed by such exposure to domestic violence. Id. at 557. The Division has the burden of establishing that such harm has occurred or is likely to occur. S.S., supra, 372 N.J. Super. at 24.
Here, the incident of domestic violence was established by Jack's statements, the Division worker's observations, as well as the entry of the TRO. As required by I.H.C. and S.S., the Division presented additional evidence to demonstrate the harm caused by the child's exposure to the domestic violence. The record supports the trial judge's finding of abuse or neglect because Barry's testimony established that exposure to violence in the home had an impact upon Jack as evidenced by psychological numbing and because Jack expressed fear of his father. We discern no error in the court's determination.
Defendant's remaining arguments concerning the minimum degree of care and alleged deficiencies in the trial court's handling of the evidence are without sufficient merit to warrant discussion in a written opinion. 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