Opinion
DOCKET NO. A-1414-13T3
04-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.S. and C.H., Defendants, and A.W., Defendant-Appellant. IN THE MATTER OF J.S., K.S., and Z.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Chanell Branch, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-285-12. Joseph E. Krakora, Public Defender, attorney for appellant (Chanell Branch, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
On April 26, 2012, a Family Part judge found defendant A.W. (Tom) abused his infant son Z.S. (Sam), born in May 2010, during a domestic violence incident with Sam's mother (Mary). Tom was not the father of the other children living with Mary at the time, who were then aged five and three. The Law Guardian joins with the Division in opposing Tom's appeal. We affirm.
The children were later placed with a resource family upon their removal from Mary's home. On August 7, 2013, a permanency order was entered approving the Division of Child Protection and Permanency's (Division's) plan changing the goal from reunification to adoption. The Title 9 proceedings were therefore dismissed and Title 30 litigation begun seeking to terminate parental rights.
I
The family first came to the Division's attention in 2010, when several unsubstantiated referrals were made. The Division filed the disputed abuse and neglect complaint against the parents arising from an October 9, 2011 domestic violence incident. During the fact-finding hearing, Lula Green, the permanency worker assigned to the family, testified that she interviewed Mary on October 18, 2011, and that Mary reported that Tom had punched her in the face while she was holding Sam. After a physical altercation with Mary's boyfriend, Tom agreed to leave the home but asked to kiss Sam goodbye. When Mary bent towards Tom with the baby in her arms, he punched her in the face and ran. Afterwards, he threw bottles at the windows of the apartment where the family lived, breaking two of them, even though he knew all of the children were in the home at the time. Green observed that when interviewed, Mary appeared to be in pain, but the Division was unable to obtain hospital records confirming Mary's claim that she had actually suffered a fractured jaw from the punch.
Green also testified that the five-year-old child said she yelled at Tom not to hit her mother while she was holding Sam. The child added that she told Tom "not to hit her mother because her mother was trying to keep him out of jail." The child confirmed that Tom broke windows in the home. Green could not locate Tom to interview him.
Mary also told Green about an earlier domestic violence incident in September 2011, during which she claimed Tom had injured her. As a result of those injuries, she dropped Sam on some stairs in her home. Mary called an ambulance to obtain medical attention for the baby.
The Division also proffered the testimony of a police officer regarding the October incident. The officer observed that when he interviewed Mary, the side of her face appeared swollen. He reported that Mary said she ran up the stairs while holding Sam in order to escape from Tom, and that as she was trying to close the door, Tom struck her in the face. She also "brought to [his] attention" two broken windows which she claimed Tom had smashed during the incident. Tom presented no witnesses or evidence and did not testify.
The trial judge found that the Division's proofs were "basically uncontroverted[,]" that the caseworker and the officer were credible, and that their testimony, including Green's description of the five-year-old's statements, corroborated Mary's report of the incident. The judge concluded, therefore, that the Division had met its burden of establishing "a substantial risk of harm . . . [and] abuse and neglect under the appropriate statute."
Tom raises the following as points of error for our consideration:
I. THE TRIAL COURT'S DECISION MUST BE REVERSED AS THE RECORD LACKS SUBSTANTIAL CREDIBLE EVIDENCE TO SUPPORT A FINDING OF ABUSE AND NEGLECT
A. The trial court's finding should be reversed because specific facts were not cited establishing any actual or
emotional injury to the children due to the domestic violence incident.
II
The heart of Tom's contentions on appeal is that the judge lacked "substantial credible evidence to support a finding of abuse and neglect." When reviewing decisions made in an abuse or neglect case, this court accords deference to the trial judge's findings of fact and credibility determinations "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 quotation marks and citation omitted). This significant deference is accorded to the trial court's fact-finding and credibility determinations "because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal citations omitted). "Only when the trial court's conclusions are so clearly mistaken or wide of the mark should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted).
Title 9 outlines the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The purpose of Title 9 is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when 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 . . . 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 similarly serious nature requiring the aid of the court[.]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).
[N.J.S.A. 9:6-8.21(c)(4)(b).]
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) (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
In this case, Tom does not explain the reason the trial judge's findings of fact and credibility determinations are not entitled to our deference. Although he points out that the explanation Mary provided to the Division worker diverged in minor details from that which she gave the police officer, the discrepancies do not make her statement incredible. On essential points, Mary recounted the events in precisely the same manner to both witnesses. The incident was corroborated by her five-year-old child. The appearance of Mary's face and the broken windows observed by both witnesses also substantiated the incident. The trial court's conclusions thus appear to be solidly grounded.
Tom's challenge on appeal goes further, however, as he next asserts that the Division failed to establish that Sam's "physical, mental or emotional condition has been impaired or [was] in imminent danger of becoming impaired." See N.J.S.A. 9:6-8.21(c)(4). Specifically, in the absence of any actual harm to Sam, Tom asserts that the statutory requirement has not been met because the child was not exposed to any substantial risk of harm.
We agree with Tom 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." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (citing to N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)). Just because domestic violence does not automatically equate to abuse or neglect, does not mean that certain instances of domestic violence cannot create a risk of imminent harm to a child sufficient for the Division to establish abuse or neglect by a preponderance of the evidence. The Division has met its burden in this case.
The incident in this case was more than just an act of domestic violence which a child passively witnessed or overheard. Tom's conduct exposed Sam to the imminent risk of numerous harms. To punch or forcefully strike the face of someone who is holding a baby, obviously, exposes that child to the risk of being struck as well. Likewise, assaulting an individual holding an infant makes it likely that the child will be dropped and suffer the attendant injuries that flow from a fall. Additionally, smashing the windows of Mary's home while she and the children were inside exposed Sam to the risk of imminent harm within the meaning of the statute.
Tom's conduct in and of itself placed Sam at risk of imminent harm. Unlike the more frequently occurring domestic violence situation, Sam was exposed to far more than the hypothetical emotional consequences faced by a child that witnesses conflicts between parents. Sam could have been struck, dropped, or cut by flying glass. Tom did not refute that these events occurred.
A "court need not wait to act until a child is actually irreparably impaired[.]" S.S., supra, 372 N.J. Super. at 24 (internal quotation marks and citation omitted). Sam was fortunate, given his father's conduct, that he was not injured. Sam's good fortune, however, does not spare Tom from our conclusion that the Division, by a preponderance of the evidence, proved he placed the child at risk of imminent harm.
The record supports the Family Part judge's fact-finding and conclusion of law. The Division clearly met its burden by the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION