Opinion
DOCKET NO. A-5047-13T1 DOCKET NO. A-5296-13T1
01-04-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.V., Defendant-Appellant, and J.H., Defendant. IN THE MATTER OF X.V., A.V., and T.V., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno and Vernoia. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-483-13 and FN-07-484-13. Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
A.V. appeals from orders entered by the Family Part on October 31, 2013, finding that she abused or neglected her three minor children. We reverse.
We employ initials to protect the identities of the parties.
I.
We briefly summarize the relevant facts. A.V. is the mother of X.V. and two other children. At the time of the incident which precipitated these events, A.V. was the primary caretaker of X.V. only, and her other two children were living primarily with other family members. Previously, A.V. had resided with her boyfriend, A.C., her sister, G.L., and A.C.'s daughter, J.C.
A.V. came to the attention of the Division of Child Protection and Permanency on June 23, 2013, following a report by the local police department. According to the police, A.C. reported that A.V. struck J.C., who was three years old at the time. A.C. said that, although he did not witness the incident, J.C. told him that A.V. struck her and showed him "two marks on her face and scratches."
According to A.C., on the night this incident occurred, A.V. had returned home intoxicated after working a night shift at a dancing establishment. A.C. also told the police that A.V. had punched and slapped him, and he was afraid of her. After A.C. filled out the paperwork for a temporary restraining order, the police visited the couple's residence to serve A.V. with the order.
During this visit, A.V. stated that she was J.C.'s caretaker, but denied striking her. The police noticed that the home was in disarray, with clothing strewn about and J.C.'s toys apparently damaged. The police report stated that A.V. admitted she threw A.C.'s clothing out of the window and damaged J.C.'s toys. A.V. was arrested and charged with harassment and criminal mischief.
Following A.V.'s arrest, the Division opened an investigation and one of its workers visited the couple's residence. In an interview with the Division's worker, A.C. stated that on the night of the incident, he and A.V. argued upon her return from work, and she slapped J.C. while A.C. was out of the room. J.C. also told the Division's worker that A.V. had slapped her. The worker noted that he "observed two marks on [J.C.'s] face," and took a photograph of the injury.
The worker later interviewed A.V. in jail. She explained that she took care of J.C. while A.C. was at work. According to A.V., the police had previously been called to the residence for fights between A.C. and herself, which were sometimes physical. A.V. stated that A.C. had been at odds with her for a few days due to her unwillingness to lend him money. She admitted that she was intoxicated on the night in question. She denied striking J.C., and stated "I would never hurt a child." The Division's investigation revealed another instance in which a final restraining order had been issued against A.V.
At trial, A.V. denied ever making this statement and claimed that she had not been intoxicated.
The Division also interviewed X.V. and J.C. X.V. reported that when A.V. consumes beer, "she fights with dad and falls down." Another one of A.V.'s children said that A.V. drinks before work in order to become "more flexible." J.C. stated that A.V. slapped her while she slept, and that she was afraid of A.V. The Division removed X.V. from the home and placed him in foster care, because it was not able to find a caretaker for him while A.V. was incarcerated.
The Division determined that the allegation that A.V. had struck J.C. was supported by the investigation and photograph. The Division noted that it was unclear whether alcohol had played a role in the incident. The Division concluded that A.V. could have avoided arrest by behaving more appropriately, and that her actions exposed X.V. to "substantial risk of harm." Services were recommended to aid A.V. in her parenting skills.
On June 26, 2013, the Division filed orders to show cause and verified complaints in the trial court, seeking custody, care and supervision of A.V.'s three minor children. One complaint pertained to X.V. The other complaint related to the other two children. The Division did not seek such relief regarding J.C. After a June 26, 2013 hearing, the court granted the Division's application. The trial court ordered A.V. to comply with the Division's services.
II.
On October 31, 2013, the court conducted a fact-finding hearing on the Division's allegation of abuse or neglect. The Division presented testimony from the police officer who served A.V. with the temporary restraining order; the worker who investigated the referral; and D.G., J.C.'s mother. D.G. testified that A.V. is a "violent old bitch" who becomes unruly when intoxicated. D.G. also stated that A.V. was kind to her daughter at times, but she was mean to J.C. at other times. In addition, D.G. recalled an instance in which A.V. purportedly swung at her while she was holding J.C. in her arms.
In response, A.V. called her sister G.L., who testified that she was home during the incident and heard some arguing, but did not hear anything suggesting that J.C. was slapped. G.L. stated that she awoke to find A.V. and A.C. arguing over whether or not A.V. had struck J.C.
A.V. testified on her own behalf. She said that, on the night of the incident, she was upset because A.C. had come to her workplace to bother her, and because strangers were at the couple's residence when she had been working. A.V. stated that A.C. had taken her money. She was not angry but was "disappointed because [A.C.] never did that before."
A.V. admitted that she threw A.C.'s clothing out of the window, but denied damaging J.C.'s toys. A.V. again insisted that she never struck J.C. She said J.C. had maliciously fabricated the claim. A.V. acknowledged, however, that she sometimes had physical altercations with A.C. She claimed that, during one such altercation, she had to defend herself with a fork, because A.C. is substantially larger than she is.
At the conclusion of the hearing, the Family Part judge issued an oral decision. The judge found that, based on the "totality of the circumstances," A.V. was responsible for the abuse or neglect of her three children. In support of his finding, the judge cited J.C.'s injury, the history of domestic violence in the home and A.V.'s use of alcohol. The judge determined that, under these circumstances, the children had been harmed and/or placed at risk of harm. The judge memorialized his decision in two orders dated October 31, 2013. One order found abuse or neglect as to X.V. The other order found abuse or neglect as to the other children.
Thereafter, the Division reported to the court that A.V. had been cooperating and had relocated to suitable housing. At the final compliance review hearing, the Division informed the court that A.V. had made substantial progress and there were no remaining "child welfare concerns." As a result, the court entered orders returning custody of X.V. and partial custody of the other two children to A.V., and terminated the litigation. These appeals followed. They were never consolidated.
III.
On appeal, A.V. argues that the trial court's orders finding abuse or neglect must be reversed because they are not supported by legally sufficient facts. The Law Guardian for the children also argues that the evidence presented at the fact- finding hearing was insufficient to establish that A.V. abused or neglected the children.
"Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Our deference to the trial court's fact-finding is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, we owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm'n of Manalapan, 140 N.J. 366, 378 (1995).
Title Nine "governs the adjudication of abuse and neglect proceedings." G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.21 to -8.73). Title Nine provides that an abused or neglected child is
a child less than 18 years of age whose parent . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than 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 . . . (4) or 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, as herein defined, to exercise a minimum degree of care . . . .Any determination as to whether the children were abused or neglected "must be based on a preponderance of the evidence and [] only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
[N.J.S.A. 9:6-8.21(c)(emphasis added).]
Here, the Family Part judge determined that A.V.'s three children were abused or neglected. The judge noted that A.V. had struck another child in her care. The judge found that A.V.'s children had been exposed to domestic violence and drinking, which created a substantial risk to the children. The judge noted that there was a volatile relationship between A.V. and A.C., and on the night of the incident which formed the basis for the Division's complaint, A.V. allowed her anger "to get the better of her."
According to the judge, A.V.'s anger caused her to do "things" she would not ordinarily do. The judge observed that A.V.'s drinking may have been "a precipitating factor." The judge found the testimony of the Division's worker that A.V. slapped J.C. to be credible, noting that "the child had marks on her face."
We are convinced, however, that the judge's factual findings do not support the conclusion that A.V.'s children were abused or neglected as that term is defined in N.J.S.A. 9:6-8.21(c). We note initially that there is no evidence that A.V. caused physical injury to the three children who are the subject of this litigation. Furthermore, there is no claim that A.V. created or allowed the creation of a substantial risk of the sort of serious physical injury mentioned in the statute.
Rather, the Division claimed that as a result of A.V.'s failure to exercise the minimal degree of care, her children's physical, mental or emotional condition has "been impaired or is in imminent danger of being impaired." N.J.S.A. 9:6-8.21(c)(4). The judge found that the Division had established that A.V.'s children were abused or neglected because they had been exposed to domestic violence, drinking, and "[what was] going on in that home." We conclude, however, that the evidence was legally insufficient to support that conclusion.
The phrase "minimum degree of care" in N.J.S.A. 9:6-8.21(c)(4) "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178 (citing Miller v. Newsweek, 660 F. Supp. 852, 858-59 (D. Del. 1987)). Furthermore, "[c]onduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).
"[A]ctions taken with reckless disregard for the consequences also may be wanton or willful." Ibid. (citing McLaughlin, supra, 56 N.J. at 305; Egan v. Erie R.R. Co., 29 N.J. 243, 254-55 (1959)). If an act or omission is done intentionally, it is irrelevant whether the actor recognized "the highly dangerous character" of the conduct. Ibid. (citing McLaughlin, supra, 56 N.J. at 305). "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995); McLaughlin, supra, 56 N.J. at 305).
In this case, the judge found that A.V. had struck J.C., a three-year old child. A.V. argues that that the judge erred by accepting the child's statement, which was initially reported to her father and recounted by the Division's worker at trial. We disagree.
N.J.S.A. 9:6-8.46(a)(4) provides that a child's out-of-court statement is admissible in an abuse or neglect proceeding. The child's statement, however, must be corroborated to support a finding of abuse or neglect. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div. 2014). In this case, the child's statement was corroborated by the red marks on the child's face. The child's statement also was corroborated by her mother's observation of the marks on the child's face.
Nevertheless, there is no evidence of any substantial risk of harm to the physical, mental or emotional conditions of A.V.'s three children. X.V. was home when A.V. slapped J.C. The other children may also have been home at the time. They did not, however, witness the incident. There also is no evidence that A.V. ever struck her own children, and no reported concerns about their health or well-being. Furthermore, there is no indication that J.C. required any medical attention as a result of A.V.'s actions.
The judge also relied upon evidence that there were domestic disputes between A.V. and A.C. in the home, which at times became physical. There was, however, no evidence that A.V.'s children suffered any physical or emotional harm, or were at risk of such harm, because they were exposed to incidents of domestic violence. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-24 (App. Div. 2004) (holding that, absent evidence of physical or emotional harm to the child, a caretaker's failure to shield a child from observing acts of domestic violence does not constitute abuse or neglect), certif. denied, 182 N.J. 426 (2005).
In addition, the judge relied upon evidence that A.V. drank alcoholic beverages. X.V. and another one of A.V.'s children reported to the Division's worker that they were aware of A.V.'s drinking. X.V. said that when A.V. drinks beer she fights with his father and "falls down." The other child said that A.V. drank before working because it makes her "more flexible."
However, there was no evidence that A.V. had a drinking problem, or that her drinking led to dangerous behavior that endangered the children. Indeed, the Division did not show that A.V.'s inebriated condition was due to some "grossly negligent or reckless act." N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 257 (App. Div. 2012). Here, the judge did not make any explicit finding as to the level of A.V.'s intoxication when she struck J.C., and there is nothing in the record indicating that A.V. had been grossly negligent or reckless in consuming alcohol that evening or at any other time.
Accordingly, we reverse the trial court's October 31, 2013 orders finding that A.V. abused or neglected her three children, and direct that A.V.'s name be removed from the central registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION