Opinion
A-2609-20
12-16-2022
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.C. and R.C., Defendants, and G.W., Defendant-Appellant. IN THE MATTER OF R.C. AND A.C., minors.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Beatrix W. Shear, on the briefs). Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Mary L. Harpster, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued October 31, 2022
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0076-20.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Beatrix W. Shear, on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Mary L. Harpster, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, of counsel and on the brief).
Before Judges Whipple and Marczyk.
PER CURIAM
Defendant G.W. (defendant or Greg) appeals from a March 23, 2020 summary finding under N.J.S.A. 30:4C-12 and a November 17, 2020 finding of abuse or neglect under N.J.S.A. 9:6-8.21 after the entry of an order terminating litigation. We dismiss the former and reverse the latter.
We use pseudonyms to protect the identities of the parties pursuant to Rule 1:38-3(d)(12) and for ease of reference. We intend no disrespect in doing so.
Defendant dated A.C. (Audrey) and lived with her and her two children, R.C. (Ross) and A.C. (Annie) for about two years. He is neither child's biological father.
Ross and Annie's biological father, defendant R.C., sexually abused both children and is not allowed to have contact with them. He is not a part of this appeal.
In October 2019, the Division of Child Protection and Permanency (the Division) filed a complaint after the following incidents. In April of that year, defendant punched holes in the walls of fourteen-year-old Annie's bedroom during a verbal argument with Audrey. As a result of the argument, the police were called. Then, that July, Annie and defendant argued over cleaning her room. Annie called the police. On another occasion that same year, Annie called the police again because the two had another argument over cleaning the dishes, during which Greg allegedly threw a pot. In the two-year period prior to Division involvement, the police were called to the house at least five times.
On October 15, 2019, Audrey texted defendant throughout the day, accusing him of cheating on her. When Audrey got home from work, the argument escalated. Defendant began to yell and throw things; he broke a fishing pole against a table. He threatened to turn over their refrigerator so none of them could eat. Defendant also expressed he wanted to kill himself.
At the time of this incident, Ross was living at a sober house. Annie, however, was present during the outburst and made an audio recording. She sent the recording to her therapist, who called the police. When the police arrived, they took defendant to a crisis center due to his threats of self-harm. The officers also called the Division and made a child protective services referral.
Two Division workers arrived at the home and interviewed Audrey and Annie. The Division then instituted a safety protection plan that prevented Greg from contacting Annie and Ross. Audrey would not agree to keep defendant out of the house, so Annie went to stay with her grandparents. A third Division worker interviewed defendant and Audrey the next day. Greg refused to leave the home.
On November 1, 2019, the Division filed a complaint for care and supervision of Ross and Annie under Title 9 and Title 30. N.J.S.A. 9:6-8.21; N.J.S.A. 30:4C-12. The complaint detailed the family's history, focusing on Audrey and defendant's tendency to have verbal arguments, as well as allegations of domestic violence.
The complaint made it clear neither child liked having defendant in the home. According to Audrey, defendant and Ross had once punched each other in the face during an argument. When Greg left for a time to visit his aunt, Annie said she was having "the best week ever."
On November 4, 2019, the court held a hearing to consider the Division's order to show cause and found, due to the mental health issues in the family, and the alleged domestic violence among defendant, Audrey, and possibly Ross, the family would continue to receive care and supervision from the Division to "protect the ongoing health and safety of" the children. Thus, the court required defendant and Audrey to undergo psychological evaluations, anger management classes, and domestic violence counseling. The judge also ordered defendant not to live with Ross and Annie.
Pursuant to the original complaint, a fact-finding hearing was scheduled to take place remotely on March 23, 2020. However, because the Division believed the administrative finding was "non-established," the Division could not go forward with a Title 9 fact-finding hearing, which would require an administrative finding of "substantiated," and instead sought a summary hearing under N.J.S.A. 30:4C-12. However, when the Division's counsel examined Kelly Sutherland, the family's caseworker, about the administrative finding, she testified she believed (though she did not have any records in front of her) that the administrative finding against defendant was "substantiated." The Division decided to go forward with a Title 30 hearing but specified it would "not waive pursuing a Title 9 in the future. "Thus, the court held a Title 30 summary hearing to maintain jurisdiction over the case and continue services to the family.
At the summary hearing, defendant and Audrey were both represented by counsel, but defendant did not appear. By then he was living in South Carolina. Because Sutherland did not know if he was still willing to complete services, a psychological evaluation had not yet been scheduled. The court issued an oral opinion finding Sutherland's testimony credible and determining the family was in need of services under Title 30. Among other things, the court ordered defendant to undergo a psychological evaluation, anger management classes, and domestic violence classes. It also prohibited defendant from entering the home. The court made the finding without prejudice, allowing the Division to seek a Title 9 hearing if necessary.
Finally, on November 17, 2020, after it had been established the finding against defendant was "substantiated," a Title 9 fact-finding hearing was held.Three Division caseworkers testified. The first was Maia Adelman, the worker who responded after the initial October 2019 incident. She recalled the events of that night and her interview with Audrey. Adelman testified Audrey said in her interview defendant had never harmed her or the children. Adelman also said Audrey told her she was not afraid of defendant, but they did fight a lot and would both benefit from services.
By this time, Ross had turned eighteen. Therefore, the court discharged his law guardian from the case.
The Division's next witness was Adelman's fellow caseworker, Jan Pizzuto, who also responded to the scene in October 2019. She interviewed Annie the night of the incident. Pizzuto testified that Annie "was very fearful of" defendant. Annie told her about the fishing pole and refrigerator and showed her the holes in her bedroom and the broken dresser. Pizzuto also testified she saw broken wood on the ground by the refrigerator. Annie said there was an ongoing problem with domestic violence between defendant and Audrey and told Pizzuto she usually stayed in her room or went to her grandparents' when the two would fight. Pizzuto testified on cross examination "there was never a mention of [Greg] physically harming [Annie]."
The last Division witness was Yvonne Briddell, who interviewed Audrey and Greg the day after the incident. Briddell testified defendant confirmed he fought with Audrey the day before, and he went to the hospital afterwards. He also confirmed to her that Annie, who had been upstairs when the incident started, came downstairs during the fight.
Briddell testified about another visit she paid to defendant and Audrey on November 6, 2019. Defendant was the sole adult present when Briddell arrived at the home; Audrey arrived shortly thereafter. Briddell asked them if there were any children in the home at the time. The two admitted Ross was currently in the house, as he had been asked to leave the treatment facility. Briddell testified defendant knew he was in violation of the order that barred him from being in the home at the same time as the children. He claimed he was just at the residence to pick up his belongings before going to South Carolina. When pressed as to why she allowed this to happen, Audrey said defendant did not have anywhere else to go.
Audrey also testified about Briddell's visit on November 6. She said Ross had been accused of stealing while living at the treatment facility, and so "they kicked him out." She could not find anywhere else for him to stay and "had no choice but to bring him home." Defendant was still trying to find a place to stay himself. Audrey testified: "[I]t just happened that all three of us were there. It's not like it was planned that way." Audrey also claimed Briddell's testimony was wrong; Sutherland was the one who found Ross was at the home with defendant, and she was there with them the whole time.
Next, defendant testified as to the events of October 15, 2019: [T]here was no cheating.... I was being accused. I don't like that, and it kept on and kept on. There [were] . . . text messages back and forth [while Audrey] was at work. She came home. There was a verbal argument. She went upstairs. I went into the [downstairs] bedroom to go to sleep. She came back down, because I had stopped answering text messages, and it was a verbal argument.
I got outraged [indiscernible] and I broke my fishing rod against a table in the utility room. And the next thing I know, the cops show up and that's when I found out that [Annie] called, and that there was a recording from upstairs about the argument. ... I guess I sometimes throughout the argument, I might have said I wanted to harm myself, but it was nothing intentional. So they asked me to go to [the crisis hospital] for an evaluation. I went there. I was released within four or five hours.
Defendant clarified on cross-examination that Annie had been upstairs "during the whole incident." He also denied throwing the pot in April 2019. He explained he was arguing with Annie about finishing the dishes; he picked up the pot, told her it had been there for a couple days, and dropped it back into the sink. He said the "next thing [he knew], there [were] three cops at the back door."
Defendant denied physically assaulting Ross and testified he "broke up an altercation between [Ross] and his mom, and . . . dragged him off of his mother." Defendant did admit on cross-examination he punched a hole in Annie's wall in April 2019.
In an oral opinion, the court said: "There's a history, a pattern here, that was laid out by the very testimony on cross-examination by [defendant] that this [c]ourt had a concern with, and understands why there was an order in place; that [defendant] was not to return to the home with the children there."
After determining Greg was a parent or guardian under Title 9, the court found Annie and Ross were abused and neglected children under N.J.S.A. 9:6-8.21(c)(4). It also "[took] note of case law which indicates that the Division . . . and the [c]ourt [do] not have to wait for there to be actual physical harm, but [that] imminent danger of harm" is enough. Though it ruled out any emotional harm to Annie and Ross, it added:
[B]ased on the nature of the damage done to the home, the actions by [Greg] during the course of two years, a pattern of breaking things, certainly there was the imminent danger of physical harm to these children. ....
[The court] finds that even after these two years of this type of behavior by [Greg] in the home and a court order in place that said [Greg] was not to be
there, [Greg] still took it upon himself to go to the home after all of that.
Now, generally, the [c]ourt does not necessarily [find a violation of Title 9] just because there's been a violation of a safety protection plan or even a court order, but there's a history here that concerns this [c]ourt, and a pattern of damage to property. The [c]ourt's concerned about that escalating into something more where other people could have very well gotten hurt, and that is why it does find that the Division has proved by a preponderance of evidence that this is a violation of Title 9, specifically, [of N.J.S.A. 9:6-8.21(c)(4)], there's an imminent danger . . . a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired.
There [were] clear signs that this could have escalated. It didn't, but it certainly was imminent that it could have ....
As a result of the court's November 2020 finding, defendant was placed on the State's Child Abuse Registry. This order also listed:
Ongoing domestic violence incidents in the home resulting in police being called to the home on numerous occasions, [Greg] damaged the home and items in the home. [Greg] had to be transported to crisis due to self-harm statements made during one incident, [Greg] was found to be in the home while [Ross] was present in violation of a court order.
Following this order, a final compliance review hearing was held on April 5, 2021. Defendant was no longer dating Audrey nor intending to move back to New Jersey. He claimed he completed his services. The court therefore terminated the litigation, but kept in place the order prohibiting defendant from having unsupervised contact with the children. This appeal followed.
We defer to the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 41112 (1998). That standard is altered in family part cases "[b]ecause of the family courts' special jurisdiction and expertise in family matters," which obligates us to afford special deference to family court factfinding. Id. at 413. Legal decisions of family part judges, however, are reviewed under the same de novo standard applicable to legal decisions in other cases. Rowe v. Bell &Gossett Co., 239 N.J. 531, 552 (2019).
We first address defendant's appeal of the N.J.S.A. 30:4C-12 summary finding. He argues the March 23, 2020 order must be vacated because he was not a proper defendant and the hearing was conducted without proper notice and with insufficient or incorrect findings. We disagree because the appeal of this order is moot.
"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Fam. Servs. v. A.P., 408 N.J.Super. 252, 261 (App. Div. 2009) (citing Greenfield v. N. J. Dep't of Corr., 382 N.J.Super. 254, 257-58 (App. Div. 2006)). On the other hand, "if a party 'still suffers from the adverse consequences to her caused by [a] proceeding,' an appeal from an order in that proceeding is not moot." Id. at 262 (alteration in original) (quoting Div. of Youth &Fam. Servs. v. G.M., 398 N.J.Super. 21, 51 (App. Div. 2008), affd as modified on other grounds, 198 N.J. 382, 387 (2009)).
Defendant argues the order has adverse consequences because his name is in the Child Abuse Registry. If defendant is in the Child Abuse Registry, it is not due to the March 2020 summary finding order he appeals. As our Supreme Court noted, orders under N.J.S.A. 30:4C-12 "[are] less damaging to parents in that the [C]hild [A]buse [R]egistry, N.J.S.A. 9:6-8.11, is not implicated." N. J. Dep't of Child. &Fams., Div. of Youth &Fam. Servs. v. I.S., 214 N.J. 8, 37 (2013). As in A.P., the order being appealed here "has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect." 408 N.J.Super. at 262-63.
Defendant also contends the Title 30 finding has adverse effects because of the "stigma" of being a family in need of services. This argument is unpersuasive. The orders are confidential. While there may very well be stigma surrounding domestic violence and anger management classes, this is not sufficient to amount to an "adverse consequence" saving the appeal from mootness. Because we cannot undo the services defendant was ordered to attend, we "cannot grant effective relief." N. J. Div. of Youth &Fam. Servs. v. W.F., 434 N.J.Super. 288, 297 (App. Div. 2014). Thus, defendant's appeal of the March 2020 Title 30 summary finding order is moot and we dismiss it.
We now address Greg's appeal of the Title 9 order. Title 9 governs abuse and neglect against children. A.L., 213 N.J. at 18 (citing N. J. Div. of Youth &Fam. Servs. v. P.W.R., 205 N.J. 17, 31 (2011)). Its "paramount concern" is the "safety of the children." N.J.S.A. 9:6-8.8(a). Title 9's purpose, therefore, is "to provide for the protection of children under [eighteen] years of age who have had serious injury inflicted upon them by other than accidental means" and ensure they are "immediately safeguarded from further injury and possible death." Ibid.
To determine if a child has been abused or neglected, the trial court holds a fact-finding hearing. See N.J.S.A. 9:6-8.44. Abuse or neglect is defined in N.J.S.A. 9:6-8.21(c), which reads in pertinent part:
"Abused or neglected child" means . . . (4) . . . a child [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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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 ....
"In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., 213 N.J. at 23. A trial court does not have to "wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). When assessing risk, the court focuses on the risk of harm at the time of the incident in question, not at the time of the fact-finding hearing. See Dep't of Child. &Fams., Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 189 (2015).
"If the court finds abuse or neglect, it may order further relief and direct the Division to provide needed services to protect the child and rehabilitate and improve the family's life." A.L., 213 N.J. at 19 (citing N.J.S.A. 9:6- 8.50(d), (e)).
Defendant argues the trial court improperly made a categorical conclusion that police presence required a finding of abuse. Courts should "avoid resort to categorical conclusions." E.D.-O., 223 N.J. at 181.
The trial court here said: "[H]aving the police come to the house certainly . . . raises the concern that this [c]ourt has for the well-being and safety of [Audrey], but more in particular, of the two minor children." However, the court did not base its decision on the fact that the police were called to their home several times; it merely voiced a concern. It is true the order itself referred to police presence in its findings of fact. Nevertheless, the transcript shows the court did not base its finding of abuse or neglect solely on police presence. Thus, we find defendant's argument unpersuasive.
Defendant also contends the trial court erred in finding "imminent risk of emotional impairment" without expert psychological evidence. However, the court explicitly said "the [c]ourt's ruling out any emotional harm here to these children. No . . . evidence was offered that there was emotional harm to either [Ross or Annie]."
Defendant also argues the trial court relied on hearsay evidence in the form of court reports that were never entered into evidence, though he does not devote more than one paragraph in his brief to this issue.
"[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). The statements "need only be corroborated by '[s]ome direct or circumstantial evidence beyond the child's statement itself.'" N.J. Div. of Child Prot. &Permanency v. A.D., 455 N.J.Super. 144, 157 (App. Div. 2018) (citing N.J. Div. of Child Prot. &Permanency v. N.B., 452 N.J.Super. 513, 522 (App. Div. 2017)). "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth &Fam. Servs. v. L.A., 357 N.J.Super. 155, 166 (App. Div. 2003).
The evidence the court relied on in making its finding, namely the evidence of property damage, was collected from interviews with Annie, which were corroborated by either the eyewitness of the caseworker who interviewed her or defendant's own confession. Therefore, admitting this evidence was not error.
Defendant next argues "[c]onduct that might have occurred but did not take place cannot create 'imminent risk' of impairment of a child's physical, mental, or emotional condition [in accordance with] N.J. S.A. 9:6-8.21(c)(4)." Essentially, he contends the court did not make the necessary finding that defendant's behavior correlates with harm (or a risk of harm) to the children.
The trial court found that Annie and Ross were children "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" in accordance with N.J.S.A. 9:6-8.21(c)(4). The court noted this finding was not based solely on the violation of a safety protection plan or court order, but also "a pattern of damage to property." It said: "There [were] clear signs that this could have escalated. It didn't, but it certainly was imminent that it could have ...."
Defendant argues the trial court "misapplied the statute" by "improperly interpreting it as covering risk that [defendant's] behavior could have escalated to behavior that might have caused actual or imminent harm to the son or daughter." He says "[n]o condition of a child can be impaired or placed in imminent danger of becoming impaired by conduct . . . that did not happen."
The conduct central to the court's finding was defendant's pattern of breaking items around the house when he fought with Audrey. The court heard about the broken fishing pole, Annie's broken dresser, and the holes in Annie's bedroom walls.
Accepting as true that these incidents occurred, the record contains no other evidence to suggest he came close to harming Annie or Ross themselves, whether on purpose or accidentally. In A.L., our Supreme Court noted "the importance of demonstrating some form of actual or threatened harm to a child. "213 N.J. at 25. The court speculated there was risk of harm to Annie, but did not articulate what exactly that harm would be.
We note that reversing the Title 9 order against defendant would likely not put Annie (or Ross, who is an adult now) in any danger. The record shows, defendant now lives in South Carolina and has no intent to return to New Jersey or be around Audrey or her children. Based on this fact and the "significant consequences" that accompany a finding of abuse or neglect-in particular the inclusion of defendant's name on the Child Abuse Registry-we reverse. A.L., 213 N.J. at 25-26 (quoting N.J. Div. of Youth &Fam. Servs. v. N.S., 412 N.J.Super. 593, 619 (App. Div. 2010)).
Based on all the above, we dismiss the appeal of the Title 30 order as moot and reverse the Title 9 order.