Opinion
DOCKET NO. A-2750-11T3
02-19-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. B.S., Defendant-Appellant, and L.S., Defendant-Respondent. IN THE MATTER OF J.S., a minor.
Howes & Howes, attorneys for appellant (W. Timothy Howes, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens, Deputy Attorney General, on the brief). L.S., respondent pro se. Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.S. (Sandra Tataje, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-131-12.
Howes & Howes, attorneys for appellant (W. Timothy Howes, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens, Deputy Attorney General, on the brief).
L.S., respondent pro se.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.S. (Sandra Tataje, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant B.S. appeals from the Family Part's February 6, 2012 order, following a fact-finding hearing, determining defendant abused and neglected his child J.S. (Jane) by failing to properly secure her in a child safety seat, recklessly disregarding her safety by operating his car in a manner that placed the child in substantial risk of harm, and striking the child with his cell phone during a traffic stop in which he repeatedly disobeyed the police officers' directions. He primarily challenges the trial court's finding that this conduct constituted abuse and neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services (Division) met its burden of proving abuse and neglect, as does defendant's wife, L.S. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by Judge Frances A. McGrogan in her comprehensive written opinion of February 6, 2012.
This is a fictional name for ease of reference.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Although L.S. was named as a defendant in the Division's complaint for care and supervision of Jane, no allegations of abuse and neglect were asserted against her.
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I.
At the January 27, 2012 fact-finding hearing, the Division presented the following witnesses: Detective Walter Haase, Sergeant Patrick Forrest, and Police Officers Charles Mulligan and Gregory Rucker of the Teaneck Police Department, Division supervisor Cecilia Sanchez, and Jane's mother, L.S. Defendant did not testify and produced no witnesses.
L.S. and defendant have one child, Jane, who was four-years old at the time of the incidents involved in this case. Defendant and L.S. are involved in "a contentious divorce." After they separated, defendant continued to reside in New York and L.S. moved to Bergen County. The couple agreed to bifurcate the divorce proceedings, placing jurisdiction over the divorce and financial issues in the Bergen County Family Part in New Jersey, and the custody and parenting time issues in the Bronx County Supreme Court in New York. Judge Bonnie J. Mizdol presided over New Jersey matters and Justice La Tia W. Martin presided over the New York matters.
In 2011, transfers of custody between the parents took place at police stations. On the morning of September 7, 2011, defendant arrived at the Teaneck Police Station to pick up Jane. That day, the child's maternal grandmother, M.S., was dropping off the child at the police station at L.S.'s request.
Detective Haase testified he was at the police station that morning in an unmarked police vehicle and observed M.S. "somewhat suspiciously" walking through the parking lot. M.S. was looking at the police cars, which drew Detective Haase's attention, so he approached her to make sure she was alright. M.S. told the detective she was concerned defendant had not properly buckled Jane into her child safety seat when he took the child.
Detective Haase saw defendant in his car. The detective drove toward defendant's vehicle as defendant began to drive towards him. Both cars stopped and Detective Haase got out of his police vehicle with his "badge exposed, I put my hand up, I ordered him to stop." Defendant failed to comply. He waved at the detective and "accelerated into the driveway towards Teaneck Road."
Detective Haase returned to his car and pursued defendant "with the lights and sirens on[.]" Defendant stopped his car in an area where it was "exposed to southbound traffic on Teaneck Road." He then got out of his car and began filming Detective Haase with a cell phone, which he held up over his head. Because defendant's car was in danger of being struck by traffic, the detective ordered him "numerous times" to get back in his car and pull it over to the curb line. Defendant refused to do so until after Officer Rucker arrived as back up. Soon thereafter, Sergeant Forrest, the "road supervisor," also reported to the scene.
Once defendant moved his car to a safe position, he again got out and began filming the officers. Detective Haase "ordered him numerous times to return to the vehicle, to get back in the vehicle for his safety because he was standing in a lane of traffic." Defendant refused.
By this time, Officer Mulligan had arrived at the scene. Officer Mulligan is certified as a child seat safety technician. He saw that the child seat was improperly positioned in the center of the back seat of the car. The officer went inside the car and found the seat was not secure and could be moved from side to side. The shoulder straps were very loose, and the clip between Jane's legs was not fastened. Officer Mulligan repositioned the seat and secured it properly. He spoke to Jane while he checked the seat and did not observe any injuries or redness on her face.
Detective Haase testified defendant continued to be uncooperative and he called the detective "an asshole." The detective issued defendant two summonses for not having the child seat properly installed and for failing to follow a police officer's instructions.
After Detective Haase gave defendant the summonses, defendant remained uncooperative, but he eventually got back into his car. Officer Mulligan testified defendant then pulled away from the curb into the path of another vehicle, causing that other vehicle to cross the double yellow lines "into the oncoming lane of traffic." Defendant went down the road about half a block "and pulled a U-turn into oncoming traffic to go in a northerly direction on Teaneck Road almost causing another crash."
As defendant drove back toward the officers, Officer Mulligan walked across the street and "indicat[ed] for him to stop." Defendant stopped. However, Officer Rucker testified defendant "immediately got out of the car and . . . ran around to the passenger side and at that time he opened the passenger side door." According to Officer Rucker, the officers "did not know what he was reaching or going for[.]" The officers ran to the passenger side of the car and Detective Haase grabbed defendant by "his belt buckle" and the officers pulled him from the car. Officer Rucker testified defendant's "body never fully got in the car - - like he was reaching for something and when we pulled him out of the car, he had a cell phone in his hand." The officers took the cell phone away from him.
The officers attempted to explain to defendant that his actions were unsafe for Jane, but Officer Rucker testified defendant told Detective Haase "I did it intentionally you asshole." Detective Haase and Officer Mulligan each again checked on Jane. The child appeared nervous. However, they did not observe any marks or abrasions on the child's face. None of the officers observed defendant touching the child in any way during this encounter. Detective Haase issued two more summonses to defendant for careless driving and for making an illegal U-turn.
Later that morning, defendant went to the Division's Bergen Central local office with Jane. He told the supervisor he wanted to file a report regarding M.S., L.S. and the Teaneck police officers. The supervisor noticed that Jane had a bruise and red swelling under her left eye and on her cheek. Division Supervisor Sanchez testified that, when defendant was questioned by caseworkers, he stated
that in the course of dealing with the Police there was a time where he was trying to photograph or record [Jane] because she apparently was upset and when the Police Officer approached him, when [defendant] swung his arm, he hit the left side of her face with his hand or phone.A caseworker photographed the injury. As set forth in the Division's written report, at first, Jane told the worker the injury was "just a rash." When the worker told the child it was not a rash, Jane replied that she did not know how she received the injury. She then said, "'I hit myself.'" By this time, representatives of the Bergen County Prosecutor's Office had arrived. The Division caseworkers also spoke to the officers who had been involved in the incident. The Division decided to implement a safety protection plan for Jane. The plan required that all of defendant's contact with Jane be supervised. The caseworker called L.S. to ask her to come to the local office to pick up Jane.
When he learned of the Division's plan, defendant began filming the caseworker with his cell phone. When the worker attempted to leave the room, Sanchez testified defendant stood in front of the door, preventing it from opening, and continued to attempt to film the worker. Sanchez stated the worker "started yelling for the people outside so they can come in and get her." Defendant then stepped away from the door. The supervisor contacted the local police, who came and escorted defendant out of the building. L.S. testified the child was not bruised when she dropped her off that morning with M.S. to take to the transfer point at the police station. When she arrived to pick up the child at the Division office, Jane said defendant had hit her with his phone. During a forensic interview conducted two months later on November 2, 2011, Jane reiterated that defendant had struck her with a cell phone while he was in the car.
II.
On September 21, 2011, the Division filed a Verified Complaint for Care and Supervision of Jane pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The initial hearing was also held that day. On September 20, the Division supervisor called defendant to advise him that the hearing would be held on September 21 and gave him the name of the judge who would be handling the matter. The caseworker who testified at the hearing also called defendant on the morning of the hearing and left him a voicemail advising him of the hearing time and place. Defendant did not appear at this hearing.
Judge Peter J. Melchionne found "adequate notice was given to the . . . father to be here today, both yesterday and today[.]" He further found that Jane "requires care and supervision of the Division and further that [defendant's] contact with the child should be supervised by the Division or Division[-]approved supervisor[.]"
On September 26, 2011, Judge McGrogan denied defendant's motion to dismiss the Division's complaint. The judge exercised emergency jurisdiction over the custody and parenting time issues pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to - 95. She found Jane had a significant connection with New Jersey and it was necessary to protect her on an emergent basis as a result of the Division's allegations that the child would be irreparably harmed if returned to defendant's custody. The judge ordered that defendant's contact with the child be supervised at all times. Pursuant to N.J.S.A. 2A:34-68(d), Judge McGrogan communicated with Justice Martin in New York concerning the ongoing proceeding.
Defendant then attempted to file a motion to dismiss the Division's complaint with Judge Mizdol, who was handling the divorce proceedings. Judge Mizdol referred the motion to Judge McGrogan, who treated it as a motion for reconsideration. The judge denied defendant's motion on October 12, 2011. Supervised parenting time was continued.
Defendant retained counsel and several case management conferences were held. The parties consented to release all of the Division's records to an evaluator appointed by Justice Martin in New York. On December 16, 2011, Judge McGrogan denied defendant's motion to stay all custody and parenting time issues involved in the case. The judge again found New Jersey had jurisdiction and she continued to apprise her counterpart in New York, Justice Martin, of all developments.
On January 12, 2001, Judge McGrogan granted L.S.'s motion to suspend defendant's parenting time with Jane because he had transported the child from New Jersey to Riverdale, New York alone in his car. The judge rejected defendant's explanation that he had interpreted the court's orders "to permit him to drive with the child alone in the car, as long as the designated supervisor drove next to him on the highway." The judge found defendant's testimony was "disingenuous" and he "was well-aware of the court order requiring supervision while the child was in his care, and that it was impossible to supervise his contact with the child from another vehicle." The judge ordered the Division to supervise defendant's contact with Jane, twice weekly for two hours.
Following the January 27, 2012 fact-finding hearing, Judge McGrogan issued a comprehensive written opinion setting forth her findings of fact and conclusions of law. She concluded the Division met its burden of proving by a preponderance of the evidence that defendant had abused and neglected Jane through his actions on September 7, 2011, which resulted in the child sustaining a bruise under her eye.
The judge reviewed each of the incidents that occurred that day. While she noted that many individuals "do not understand how to secure a child safety seat to the car," the judge found defendant
showed reckless disregard for [Jane's] safety by not securing her in the car seat. Any reasonable person should know that placing the harness over the child without locking it and failing to secure the five-point harness to the seat would place the child at substantial risk of harm in a moving vehicle. In addition, the child's unsecured placement in the middle rear seat of [defendant's] vehicle left her at risk of being propelled through the vehicle in an accident. This, the Court finds, is more than mere neglect, but rises to gross and wanton neglect of the child.
Defendant's deliberate actions in driving his car in an unsafe manner only heightened the risk of harm to Jane. The judge explained:
The Court is concerned regarding the manner in which [defendant] operated the motor vehicle with the child in the car. He
stopped in the line of traffic on a busy roadway and exited the vehicle. He refused to move the car out of the line of traffic. This also placed the child at significant risk of substantial harm.
[Defendant] then entered the roadway in a manner that nearly caused a collision. He then purposefully made an illegal U-turn, again nearly causing a collision. His admission that he acted "intentionally" shows reckless disregard for [Jane's] safety, ignoring what a reasonable person would understand as a dangerous risk.
The judge noted that the Division "question[ed] the etiology of the child's facial injury[,]" because none of the police officers observed defendant making any physical contact with the child at the scene and there was no bruise apparent when they checked on the child's safety. However, the judge concluded that
[e]ven if [defendant's] account of accidentally striking the child with his cell phone while leaning into the car is accepted, . . . this is an act of abuse or neglect under the statute . . . Rather than comply with police officers' commands, [defendant] entered the vehicle to retrieve his cell phone. The police officers' fear that [defendant] was reaching for a dangerous object and their reaction to pull him from the vehicle were both reasonable. [Defendant's] choice to disobey the officers and enter the car and place his cell phone in proximity to the child's face led to an unintended injury. This conduct is more than an unfortunate mistake but rather supports a finding that [defendant] failed to exercise a minimum degree of care under the circumstances and that [defendant's] own
agenda was more important to him than his child's safety.
On February 6, 2012, the judge entered an order in conformity with her written opinion. She relinquished emergency jurisdiction over custody and parenting time matters involving the child to Justice Martin in New York and provided her with a copy of the decision and court order. Judge McGrogan also ordered that
[u]ntil further order of [the New York court], and based upon [her] findings that [defendant] demonstrated exceedingly poor judgment when operating a motor vehicle with [Jane] in the car, [defendant] shall be restrained from driving a vehicle with [Jane] present. His contact with the child shall be supervised at all times until further court order.The judge then dismissed the matter without prejudice. This appeal followed.
III.
On appeal, defendant challenges the trial judge's finding that he abused and neglected his child. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. 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 we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
In pertinent part, 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").
In determining 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). In V.T., we recognized that "the elements of proof are synergistically related. Each proven act of neglect has some affect on the [child]. One act may be substantial or the sum of many acts may be substantial." Id. at 329-30 (alteration in original) (internal quotation marks and citation omitted). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).
In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.
Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support Judge McGrogan's finding that defendant engaged in a course of deliberate conduct that placed Jane at imminent risk of substantial harm and which finally resulted in her sustaining an injury. Defendant began by failing to properly secure the child in her child safety seat. When M.S. summoned the police to ensure Jane was safely restrained in the car, defendant ignored the detective's order to stop and, instead, attempted to leave the parking lot. When the detective succeeded in pulling him over, defendant left the car parked in an unsafe position in the path of traffic, left his child in the car, and exited the vehicle. He was only concerned with videotaping the officers who responded and left his child in harm's way.
After Officer Mulligan properly secured the child in her safety seat, defendant abruptly drove across a lane of traffic, causing another car to cross the double yellow lines to avoid striking him. He narrowly avoided another accident when he made an illegal U-turn and came back toward the officers. Defendant told the officers his actions were intentional. The fact that an accident did not occur does not lessen the magnitude of defendant's conduct. V.M., supra, 408 N.J. Super. at 235-36.
Most significantly, defendant's deliberate action in exiting the vehicle during the second stop, running around to the passenger side, and entering the vehicle caused the police officers, fearing for their and Jane's safety, to pull him from the vehicle. It was at this point defendant alleges Jane was "accidentally" struck by his cell phone. However, defendant's intent is not relevant. G.S., supra, 157 N.J. at 175. In his zeal to continue to film the officers, he put into motion the chain of events that caused his daughter to be bruised. The end result of defendant's deliberate actions was that Jane sustained an injury under her left eye.
Under the totality of the circumstances presented, we are satisfied the judge fully assessed the reliability and competency of the testimony heard, and properly weighed the documentary evidence presented, in finding that abuse and neglect as defined in Title Nine occurred. We perceive no basis to disturb the judge's determination.
Defendant argues the Family Part should not have taken jurisdiction of this case because he and his wife had stipulated that issues of custody and parenting time were to be determined in the Bronx County Supreme Court. We disagree.
The Family Part clearly had jurisdiction in this matter. N.J.S.A. 2A:34-68a provides that "[a] court of this State has temporary emergency jurisdiction if the child is present in this State and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." This statute plainly applied to the facts of this case. Defendant's deliberate decision to forego consideration of Jane's safety in favor of initiating and prolonging a confrontation with police officers who were trying to assist the child, created an emergency situation where immediate action was needed to remove the child from defendant's care in order to ensure her safety and prevent further injury to her.
Contrary to defendant's contention, Judge McGrogan did not act in a vacuum and did not disregard the fact there was an ongoing action in New York. As required by N.J.S.A. 2A:34-68d, the judge kept in regular contact with Justice Martin of the Bronx County Supreme Court and Justice Martin expressed agreement with how the matter was being handled in the Family Part.
Defendant's remaining contentions also lack merit. He complains the initial hearing in this matter on September 21, 2011 was held without proper notice to him. However, Judge Melchionne took testimony on the notice issue and found that defendant had been told on September 20, and again on September 21 of the date, time and location of the hearing. This finding was amply supported by the record and we find no basis to disturb it.
Defendant contends the judge erred in failing to review the video he made during the incidents occurring on September 7, 2011. However, defendant never presented the video as an exhibit at the fact-finding hearing.
Finally, defendant argues the judge should not have restricted his contact with Jane prior to dismissing the case. However, in view of defendant's deliberate disregard for Jane's safety and the injury caused to her, we conclude the judge reasonably prohibited defendant from driving the child in a car and prudently ordered that his contact with Jane remain supervised until further court order in the pending action in the Bronx County Supreme Court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION