Opinion
DOCKET NO. A-4539-12T1
07-21-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.S., Defendant-Appellant, and F.C., Defendant. IN THE MATTER OF S.S. and E.S., Minor-Respondents.
Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Matthew D. Lane, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.S. and E.S. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket FN-09-440-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Matthew D. Lane, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.S. and E.S. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
In this appeal, we consider the sufficiency of the evidence and the judge's finding of abuse/neglect as defined by N.J.S.A. 9:6-8.21(c)(4)(b). Because of the absence of evidence that the child in question was actually harmed or, at the time of the hearing, in imminent danger of becoming impaired, we reverse.
Defendant A.S. is married to F.C. (Fiona); they and their two children - S.S. (Steven) and E.S. (Edward) - moved from Ecuador to the United States in 2009. On April 16, 2012, defendant quarreled with Fiona because she was watching Spanish soap operas, which defendant believed were inconsistent with the teachings of their religion. The record suggests that defendant went to cut the cable wires to the television, and that Steven, then seventeen-years old, moved to intervene. What thereafter occurred was disputed.
All names used are fictitious.
Edward was not in the room at the time.
In this Title Nine proceeding, the Division of Child Protection and Permanency (the Division) presented the statements made by family members to various authorities regarding this event. Based on out-of-court statements obtained from Fiona and Steven, the Division asserted that defendant grabbed Steven by the neck and in the struggle defendant scratched Steven's arm. Through statements given by defendant to a Division caseworker - defendant did not testify - he asserted that Steven "jumped on him and [defendant] grabbed him by the shirt and told hi[m] to go away." Defendant explained to the Division caseworker that he was "trying to teach his family how to live a life without observing [this] type of television."
Police responded to the family home, but no arrests were made and no criminal charges brought. Fiona refused to pursue a domestic violence action or to even speak with a domestic violence response team member, although she later applied for a temporary restraining order.
The parents entered into a plan with the Division, and evaluations were conducted in May and June 2012. The Division commenced this Title Nine action on June 8, 2012. The following month, Fiona and the children returned to Ecuador; defendant remained in the United States.
The Division declined to proceed further with the action insofar as it sought a finding against Fiona. The allegations against defendant were examined at a one-day hearing on January 29, 2013. The Division presented three witnesses - the Division caseworker who took statements from the family members, the Division's psychological expert, and the police officer called to the family home on April 16, 2012. Neither defendant nor any other family member testified. After hearing the argument of counsel, the trial judge stated she was unable to determine, by a preponderance of the evidence, what actually occurred on April 16, 2012:
[T]he only fact really in controversy is whether [defendant] grabbed [Steven] by the neck or pulled his shirt. I don't think it matters. In the heat of an argument sometimes things happen. It's unclear how he got a laceration on his arm, it's possible both happened. I can't find by a preponderance of the evidence what happened. There was an altercation that got somewhat physical. There was no injury or serious injury. It's unclear how the laceration occurred. I can't even find by a preponderance of the evidence that [defendant] caused that mark on the arm because there's no description of how it happened.The judge, however, found from the reports in evidence "a pattern of verbal domestic violence and some history of physical domestic violence in the home." And, although the judge recognized that a child's witnessing of domestic violence is not necessarily sufficient to substantiate abuse/neglect, see N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2004), the judge relied on the Division expert's testimony that Steven's observation of domestic violence in the past had caused him "fear, worry and anxiety," and "a feeling of self-blame because of an inability to protect . . . his mother and negate the violence."
After further dispositional proceedings, the Division requested the termination of the action in April 2013. With the termination of the action, defendant filed this appeal, arguing:
I. THE TRIAL COURT'S FINDING AGAINST A.S. IS NOT SUPPORTED BY A PREPONDERANCE OF CREDIBLE EVIDENCE AND MUST BE REVERSED.We reverse.
II. THERE IS NO VALUE IN PLACING A.S.'S NAME ON THE CENTRAL REGISTRY. HE DOES NOT POSE A RISK TO THE GENERAL PUBLIC OR OTHER CHILDREN.
We recently clarified what the Division must show in cases where, as here, there is "no evidence of actual harm." N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 409 (App. Div. 2014). That is, we considered in M.C. the meaning of "abused or neglected" in N.J.S.A. 9:6-8.21(c)(4)(b), focusing on that part of the statute which defined an abused or neglected child as one "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired[.]" 435 N.J. Super. at 416 (quoting and emphasizing N.J.S.A. 9:6-8.21(c)(4)). We held that in cases resting only on imminent danger of impairment:
[t]his statutory language plainly requires an evaluation of the present danger. Thus, prior parental conduct posing a risk of harm in the past that did not materialize is pertinent to imminent danger only to the extent that it is probative of current danger.We further recognized in M.C. that, "in determining whether a child 'is in imminent danger,' risk demonstrated by past conduct should be assessed in light of actions since taken to address prior dangerous parenting — for example, parental action that has eliminated a previously existing danger of impairment before the risk materialized." Ibid.
[Id. at 418 (emphasis added).]
Here, the evidence upon which the trial judge relied — when she ruled on January 29, 2013 — related to: the event that occurred on April 16, 2012; the evaluations conducted in May and June 2012; and unspecified assertions of family members concerning past domestic violence in the home. The expert's opinion regarding the impact on Steven caused by these past events was based on his evaluation of Steven in May 2012. The record also reveals, as noted above, that Fiona and the two children returned to reside in Ecuador in July 2012, while defendant remained here. And Steven's eighteenth birthday occurred two weeks after the trial judge's ruling. See N.J.S.A. 9:6-8.21(c)(4) (an abused or neglected child must be "under the age of eighteen years"). Although the record is not clear as to whether or how defendant engaged in resources that may have eliminated the perceived danger, other circumstances as to which there is no dispute — the family's move to Ecuador without defendant, and Steven's attaining the age of eighteen — were not addressed or considered by the judge in assessing whether Steven was then, in January 2013, in "imminent danger" of impairment.
Steven was born on February 16, 1995. Edward is five years younger than Steven. The judge, however, did not find Edward, who was not present during the April 16, 2012 event, to be an abused or neglected child.
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We, thus, conclude that the Division failed to demonstrate Steven was an abused or neglected child because, at the time of the hearing, there was no reason to conclude he was then in imminent danger of becoming impaired.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION