Opinion
DOCKET NO. A-4605-10T4
03-08-2012
NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES, Plaintiff-Respondent, v. A.L. and A.W., Defendants, and B.T., Sr., Defendant-Appellant. IN THE MATTER OF: J.T. and B.T., Jr., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Somerset County, Docket No. FN-18-194-09.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant B.T., Sr., appeals from an order finding that he neglected his children, J.T. and B.T., Jr., by placing them at substantial risk of harm, and a second order requiring defendant to cooperate with the services arranged by the Division of Youth and Family Services (DYFS), including substance abuse treatment, individual counseling for anger management, medication management, and parenting skills training. Defendant was also restrained from the home of the children but permitted twice weekly supervised visits with them. The judge also directed defendant and the mother of the children to participate in couple's counseling.
On appeal, defendant argues that the evidence submitted by DYFS does not support a finding that he harmed his children. He also contends that the fifteen-month delay between filing the complaint and the fact-finding hearing deprived him of due process by interfering with his parental relationship with his daughter, J.T. Finally, he argues that his name should be removed from the Central Registry because the finding of neglect is not supported by the evidence.
As noted by the trial judge, the facts are largely undisputed. The principle issue is whether defendant's actions on March 1, 2009, exposed the children to such harm that a judge could find he neglected his children in accordance with N.J.S.A. 9:6-8.21. The judge held defendant's three and one-half year old daughter "clearly . . . was impacted" by her knowledge that defendant took a knife, held it to his throat and threatened to take his life and that of his children and their mother. The judge further found that defendant's statements and J.T.'s knowledge of those statements "exposed her to substantial risk of harm . . . ." We disagree.
B.T., Sr., and A.L. had lived together for some time before March 1, 2009. They are the parents of J.T., and defendant believed he was the father of B.T., Jr. Sometime before March 1, defendant heard comments that caused him to question his paternity of B.T., Jr. On March 1, A.L. informed him that he was not the father of the boy.
During the afternoon of March 1, A.L., defendant and the children were in the car. A.L. was driving and the couple argued. At some point, defendant put his hands on the wheel of the car. Initial reports stated defendant grabbed the steering wheel. Defendant did not deny that he put his hands on the steering wheel, but stated that he did so because A.L. was driving too fast and he was trying to get her attention to slow down. A.L. testified that defendant quickly took his hands from the wheel. There was some dispute whether the car swerved. It is undisputed that defendant told A.L. that he would kill A.L., the children and himself if B.T., Jr., was not his biological child.
When they returned to the home they shared, defendant went to the kitchen, took a knife, went to the bathroom and held the knife to his throat. Once again, defendant threatened to kill himself, A.L. and the children. A.L. insists that J.T. did not see her father take the knife, hold the knife to his throat, or hear his spoken threat. The record reveals, however, that his daughter learned about the incident because she was able to recount it to a DYFS caseworker. In response to questions posed by the DYFS caseworker who responded to the house, J.T. stated that she was not frightened of her father but was scared in the car. At trial, the testifying DYFS caseworker, who had no personal knowledge of the case, reported that "[t]he worker asked if she was scared. And that was the term she used. And [J.T.] said, yes, she was." The testifying DYFS caseworker also stated "I believe [J.T.] did not see her father touch the steering wheel," and did not tell the DYFS caseworker that she heard her father threaten her mother.
A.L. also insisted that she never believed defendant would harm her or the children. She was, however, concerned that he would harm himself. Defendant is a veteran of military service in Iraq, was recovering from injuries sustained there, and was facing possible return to the war zone. He was later diagnosed with post-traumatic stress disorder, he has received treatment and services through the Veterans Administration, and the family has been reunited.
Defendant argues that DYFS failed to adduce sufficient evidence to establish that he neglected his daughter by causing emotional harm to her. He further contends that the delay between initiation of the Title 9 proceeding and its conclusion, as well as the agency's failure to produce a witness with personal knowledge of the circumstances, denied him due process of law.
DYFS filed a complaint on March 10, 2009, seeking care and supervision of J.T. and B.T., Jr., due to the incidents of March 1. A fact-finding hearing did not occur until June 18, 2010. This hearing is designed to elicit evidence to determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44. The State is required to prove that the parent has committed an act of abuse or neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46. If DYFS meets its burden of proof, the court enters a finding of abuse or neglect, and then enters a dispositional order. N.J.S.A. 9:6-8.50.
As a threshold matter, factual findings that undergird a trial court's judgment should not be disturbed unless "'they are so wholly insupportable as to result in a denial of justice,'" and must "be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (internal quotation marks omitted) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about the witnesses" who testify). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.
We are not persuaded that the testimony of a DYFS caseworker with no personal knowledge of the case undermines the finding of neglect. To be sure, the DYFS caseworker acted simply as a reporter, and N.J.S.A. 9:6-8.46b(2) requires DYFS to support its case by "competent, material and relevant evidence"; however, Title 9, the Rules of Evidence, and court rules permit DYFS to utilize case reports, medical records and reports from professionals who have examined or treated the parties to prove its case. N.J.S.A. 9:6-8.46a(3); N.J.R.E. 803(c)(6), and 801(d); R. 5:12-4(d). The central issue in this case is whether the events of March 1 can be considered neglect as a matter of law.
N.J.S.A. 9:6-8.21c defines the term "abused or neglected child." It provides in pertinent part:
a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other thanThe focus of the Title 9 scheme is protection of the child from serious harm, emotional or physical, or the threat of such harm. N.J.S.A. 9:6-8.8; G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999). The plain language of section 8.21c permits accidental injuries to form the basis of a neglect finding and the intent of the parent is irrelevant, G.S., supra, 157 N.J. at 176, as long as DYFS proves that the parent did not exercise the minimal degree of care due to the child, id. at 181. Mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 305 (2011); G.S., supra, 157 N.J. at 177-78.
accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ . . . .
[N.J.S.A. 9:6-8.21c (emphasis added).]
Neglect cases are fact sensitive. N.J. Div. of Youth & Family Servs. V. P.W.R., 205 N.J. 17, 33 (2011). As noted by the Court in P.W.R., "[m]any reported cases are idiosyncratic." Ibid. Cases in which only risk of harm created by an act or omission of a parent as the basis of a neglect complaint are particularly fact sensitive. For example, we held that a finding of neglect was unfounded against a mother who allowed her three year old and five year old sons to return to their home from a nearby playground while she stayed in the play area. N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 160-62 (App. Div. 2009). On the other hand, in New Jersey Division of Youth & Family Services V. R.M., 411 N.J. Super. 467, 481 (App. Div.), certif. denied, 203 N.J. 439 (2010), in the context of a discussion whether a mother qualified for a suspended judgment disposition, we noted that the mother had created a substantial risk of harm to her children when "[she] had used drugs and alcohol at a time when she was caring for her young children and there was a strong basis to conclude that she would have driven with them under those circumstances had she not been prevented from doing so." See also N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (holding that a father who placed his ten-month old child on a bed without rails next to a hot radiator was grossly negligent).
In addition, a judge cannot presume harm simply by a child's status as a witness to an act. In New Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13, 26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), we held that
We thus cannot assume (as did DYFS and the Family Court judge) that the present case was one in which witnessing domestic abuse had a present or potential negative effect on the child sufficient to warrant a finding of abuse . . . .
We emphasized in J.L. that "the standard is not whether some potential for harm exists," but whether the conduct "'recklessly creates a risk of serious injury to the child.'" 410 N.J. Super. at 168-69 (quoting G.S., supra, 157 N.J. at 181). In J.L., the mother's conduct "caused, at most, transitory upset to the older child, . . . " and there was no evidence of lasting harm. Id. at 169. By contrast, in R.M., we considered the contemplated act of driving while intoxicated as the epitome of a reckless act that creates a serious risk of injury to the children in the car. 411 N.J. Super. at 481.
Here, we have no doubt that J.T. was upset, and possibly scared, when she heard her parents arguing in the car. She also told the DYFS caseworker that she was not frightened of her father when she learned about the knife incident. We would be remiss, however, if we did not note that the evidence of the child's fright is the product of a wholly suggestive question posed by a DYFS caseworker to J.T. See State v. Michaels, 136 N.J. 299, 320-21 (1994). Furthermore, there is no evidence that her fright had any lasting impact on her. The record is barren of any instance in which the child recounted these incidents or engaged in behavior suggestive of emotional upset or of any competent evidence that these incidents may form the basis for present or potential emotional harm. In fact, the record is replete with evidence that J.T. missed her father, had no fear of him, and wanted to spend more time with him.
Further, she resided in a home in which her mother completely discounted the possibility of any threat of harm to herself or her children by defendant. Therefore, the child was not exposed to endless reminders of the incidents.
In conclusion, we hold that this record does not contain competent evidence to support a finding of neglect, and the admissible evidence does not support a finding of neglect as a matter of law. As in S.S., we emphasize that "harm cannot be presumed in the absence of evidence of its existence or potential." 372 N.J. Super. at 28. We, therefore, reverse the finding of abuse, and further direct that defendant's name be removed from the Central Registry.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION