Opinion
DOCKET NO. A-0622-14T4 DOCKET NO. A-0623-14T4
06-07-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.S. and B.T., Defendants-Appellants. IN THE MATTER OF Z.S., A.S., J.S., and V.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant E.S. (Cary L. Winslow, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant B.T. (Ingrid A. Enriquez, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Nicole C. Lister, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-672-13. Joseph E. Krakora, Public Defender, attorney for appellant E.S. (Cary L. Winslow, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant B.T. (Ingrid A. Enriquez, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Nicole C. Lister, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants E.S. and B.T. appeal from a January 13, 2014 Family Part order entered following a fact-finding hearing at which the court determined defendants had abused or neglected their four young children. The court found defendants had inflicted excessive corporal punishment and failed to adequately supervise their two daughters and two sons. The Division of Child Protection and Permanency (the Division) and the Law Guardian oppose the appeals. Having considered the record and determined the trial court's findings concerning excessive corporal punishment are supported by sufficient credible evidence on the record as a whole, we affirm that part of the order. We reverse that part of the order finding defendants abused or neglected the children by failing to adequately supervise them.
The Division filed a verified complaint and order to show cause on May 7, 2013, the day after case workers executed a Dodd removal of the children from their parents. Following a hearing on May 8, the court upheld the removal, ordered the children continue under the Division's care and supervision, placed the children in the legal custody of their paternal grandparents, permitted defendants supervised visitation, and ordered defendants undergo psychological evaluation and other services.
A Dodd removal is an emergency removal of a child without a court order pursuant to N.J.S.A. 9:6-8.29, part of the "the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
On the return date of the order to show cause, the court ordered that the children continue under the Division's care and supervision, and remain in the custody of their paternal grandparents. The court also ordered defendants to complete various services. Thereafter, following intervening case management review hearings, the court conducted a fact-finding hearing on January 13, 2014.
The Division presented no witnesses at the fact-finding hearing. It introduced as exhibits a Court Report, the Division's Screening Summary and Investigative Report, and photographs. We derive the following facts from the investigative report.
The record identifying the Division's proofs is conflicting. The fact-finding order states the court "considered the testimony of Division caseworker Charlene Edwards, [B.T.] and [E.S.], and the following exhibits, Court Report as P-1; 9-7 Division Incident Report as P-2; photos of the defendant's home P-3." The hearing transcript contains the testimony of no Division witness. Defendants and two witnesses called by defendants testified. The hearing record also reflects the following response from the Division's attorney after the court announced "[t]his is, of course, a fact-finding": "Yes, today is scheduled for a fact-finding, Your Honor. The exhibits were submitted, I believe, at the last hearing. There are also photographs. . . . The Division is seeking a Title 9 against both parents, and the Division rests on those exhibits submitted." The transcript of the "last hearing" reflects no discussion concerning the submission of exhibits. Although both defendants cite the Division's attorney's remarks for the proposition the Division relied on the testimony of its caseworker and exhibits previously submitted at the Dodd hearing, no party has cited to the record where exhibits were submitted, and the fact-finding hearing transcript does not reflect the Division's moving exhibits into evidence. Nonetheless, the appellate record includes a court report bearing a handwritten notation, "P-1," and a sticker on the Screening Summary's first page bearing the printed notation, "People's Exhibit" followed by the handwritten number, "2." The Screening Summary is followed by the Division's Investigation Summary, which is followed by photographs. Defendants apparently do not dispute either the content of the exhibits or the trial court's consideration of them.
On May 6, 2013, after the Division received an anonymous referral, one of its caseworkers drove to defendants' home. Defendants had four children: two daughters, ages seven and six, and two sons, ages five and two. When the worker arrived at defendants' home, she observed the two-year-old outside, unsupervised, for approximately ten or fifteen minutes. She approached the home, engaged the child, and saw that his hands were filthy, his face was covered with dirt, his nose was running, and dried mucus covered his shirt. As the worker approached a side door with the child, E.S. greeted her, but started cursing and yelling when she identified herself. E.S.'s face was red, he was holding a large cup, "and he appeared to be under the influence." He stormed into the house and told B.T. to handle the situation "because he is tired of this." E.S. continued to yell and curse, and the caseworker noticed the children "were fearful and frightened." B.T. permitted the caseworker to interview the children.
The caseworker first interviewed the oldest child, who said she did not feel safe "much" because her mother and father "keep fighting." She feared her parents. "She dropped her head and started crying, she told the worker that they are always fighting and yelling and that it makes her want to run[ ]away." When the caseworker asked the child if she and her siblings get disciplined, the child said they "get hit" by "mommy and daddy." When asked where, the child responded "everywhere," including the face, eyes, nose, arms, bottom, and legs. When asked if she had any marks, the child displayed "faint black and blues on the front of her right shin[] area." She told the worker her mother and father smacked her on the legs.
The child recounted the events of an argument the previous Saturday night that ended when her father threw her mother's purse into a fire that was burning outside in the yard. The child also told the caseworker her father drank beer "a lot," she had seen him drunk, and when drunk, he wants to hit people. She recalled an incident when her father threatened her mother with a knife because her mother would not give her father the car keys.
Lastly, the oldest child said she and her siblings had, at times, been left unsupervised. Four or five times a week, she was left to watch her younger brothers and sister.
The caseworker then interviewed the next oldest child, who said she felt safe at home. When asked if she was afraid of anyone, the child replied "sometimes," but said she was not afraid of her mother and father. She said her parents disciplined the children by smacking them. She showed the caseworker her wrist, explaining that her father would twist her wrist. The caseworker noted the child's wrist appeared to be puffy and slightly swollen, with redness and slight scabbing. The child also said her parents would make the children sit in a chair for "time-out" as a form of punishment.
The child confirmed her parents sometimes left the children alone for a long time. She also said her parents fought a lot, and both parents drank, sometimes got drunk, and acted silly when drunk, like clowns. Additionally, she recounted the argument her parents had when her father threw her mother's purse into the fire. The child also told the caseworker there were guns in the house.
The third child told the caseworker he felt safe and did not feel afraid. He said his daddy smoked cigarettes, and he responded "yes" when asked if anyone in the home drank, but did not go into detail about who drank. He also said there were guns in the house. Asked about punishment, the child said his mommy and daddy hit him and his siblings "everywhere" with open hands, never with objects. Asked if he ever had marks or bruises, he said yes and pointed to his wrist. The caseworker noticed his wrist was slightly pink and had "slight old scabbing." The child also said his parents punished him by making him sit in a chair for a "time-out."
When the caseworker tried to interview the two-year-old, he was climbing on the fence and would not speak to her. When the worker "got down eye to eye with him . . . he started to kick dirt towards the worker". She did not attempt to further question him.
The Division removed the children from their home. During the drive to Youth Consultation Service (YCS), one of the children told the caseworker E.S. had hit the older brother in the face multiple times until his nose bled. Her brother got hit for taking four popsicles from the freezer. B.T. was asleep during the incident. B.T. was often asleep, and one day while she was sleeping, the children went to the park alone.
The children's injuries were documented by a YCS nurse. One of the daughters had scratches on her left arm, skin burns on her wrists, and "multiple scratches and bruises on bilateral lower extremities." The other daughter had "[m]ultiple bruises bilateral shin." One son had a healing scratch on his right shin area, fresh scratches on his cheeks, and a bruise and scar on the back of his right leg. The other brother had healing scratches on his mid-forehead, and bruises on "bilateral extremities."
The day after the removal, the caseworker interviewed defendants. They generally denied their children's allegations about corporal punishment, claiming they only smacked the children on their bottoms and gave them "time-outs" when they misbehaved. E.S. said he occasionally grabbed the children's wrists to keep them from kicking and screaming. Defendants admitted they drank occasionally, but denied being drunk; admitted they allowed the children to go to the park unsupervised but only when someone could keep their eye on them; and acknowledged the children had scratches and bruises, but claimed such injuries were caused by activity such as bike riding or by another sibling. Defendants denied possessing guns in their home. They also generally denied leaving the children alone unsupervised. E.S. said the side door to the house was open the day of the removal when the worker observed the youngest child in the yard.
To refute the information in the Division's records, defendants testified at the fact-finding hearing and presented the testimony of two witnesses. E.S. testified he disciplined the children when they misbehaved either by "smack[ing] their butts or . . . sit[ting] them on a chair." He never left any marks on his children. According to E.S., when the weather was nice the children were always outside riding their bikes or playing ball. He and B.T. played baseball and football with them. He explained that the children sustained the bruises documented by the Division from being outside and playing with each other. He said they were always getting hurt and he adamantly denied twisting their wrists.
E.S. denied ever leaving his children alone. If he went out, his parents would usually watch them. He worked at a fast food restaurant from 11 a.m. to 6 p.m., approximately thirty-two or thirty-three hours each week. B.T. worked a midnight shift. One parent was always home with the children. E.S. also testified he let the three older children go to the park by themselves to ride their bikes on the basketball court, because he did not want them riding in the street. The park was across the street from his home and he could watch them from outside his house.
E.S. denied there were guns in his home. He did not know why the children would say there were guns in the home, but they had to be making up the allegation.
B.T. testified that on the day the Division removed the children, she returned home from work at six-thirty or seven o'clock in the morning, made breakfast for the children, and walked them to the school bus. She denied her older daughter made breakfast for the others. Like E.S., B.T. insisted she punished the children when they misbehaved only by spanking them on the bottom or making them sit in a chair; confirmed the children roughhoused, and rode bikes in the park when her husband was there to watch them; denied there were guns in the house; and further denied she had ever left the children alone, unsupervised. During cross-examination, B.T. testified she worked from 10:00 p.m. to 6:00 a.m. and slept after dinner until 9:00 or 9:30. Thus, she slept three hours per day when she worked.
Defendants presented the testimony of the neighbors who had lived next door for more than ten years. The first neighbor testified her son would play in the yard with defendants' children and defendants' children would sometimes play in the neighbors' yard. She also testified defendants' children are "very active children." She had seen them hit each other with toys, hit her son with toys, and her son hit them with toys. She never saw defendants discipline the children inappropriately, nor did she ever see defendant grab a child's wrist. The neighbor's spouse gave similar testimony, though he also said he had seen defendants' children playing by themselves for a short period of time, while their parents perhaps went to the bathroom or got a drink of water.
The court issued a written opinion, first finding defendants had abused or neglected their children by inflicting excessive corporal punishment:
The appellate record does not include a date-stamped copy of the court's fact-finding order. Although the date in the order is January 13, 2014, the copy bears the stamp "ORIGINAL" followed by a handwritten date of January 30, 2014, initialed by a judge. The court's written opinion does not bear a filed date stamp from the clerk's office. It bears the notation "ORIGINAL" followed by a handwritten date that is difficult to discern.
The [c]ourt finds a preponderance of the evidence supports a Title 9 due to excessive corporal punishment. In the instant case, three of the four children confirmed that they are hit "everywhere" by the defendants, corroborating each other's statements. The same three children had marks on their bodies, ranging from fading bruises to redness and swelling, demonstrating further support for their statements. Defendant father twice stated
he grabs the children's wrists, upon which children "B" and "C" both had visible marks. . . . In total, the statements of children "A", "B" and "C" are corroborated by each other on separate interviews, by physical marks upon each, and the defendant father's own statement that he "grabs" the children's wrists and as such the [c]ourt finds that the children's statements are admissible as a basis for finding of abuse and neglect.
The court also found defendants abused or neglected their children by failing to adequately supervise them:
The Division alleges four instances of inadequate supervision[:] (1) the Worker's observation of child "D" (age 2) playing outside the home unattended for 10-15 minutes, (2) defendants' testimony at trial that they allow the children to play at a park across streets sans supervision, (3) the statements of children "A" and "B" that they are often unsupervised, including visiting a local park alone. As to the last claim, defendant mother testified that she works from approximately 10:00 pm - 6:00 am, upon return to the home readies the children for school, watches the youngest child during the day and sleeps for approximately three hours per night from 6:00 - 9:00 pm. Defendants contend that defendant father cares for the children from 6:00pm-6:00am.
[B.T.'s] claim strains credibility and lends support to the statements of the two eldest children they are often left unsupervised for long periods of time. This [c]ourt finds her testimony of sleeping three hours per night on most nights of the week not credible. The [c]ourt find[s] this testimony a poor attempt to explain as to how she cares for her children. When this testimony is taken with the defendants leaving their children unattended at a park and the children's statements they are often
left alone, there is a clear showing of inadequate supervision.
Following the fact-finding hearing, the court conducted periodic compliance review hearings, eventually ordered the children returned to their parents, and on August 21, 2014, entered an order terminating litigation. This appeal followed.
A trial court's task at a fact-finding hearing is to determine "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). "[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 most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence "need only provide support for the out-of-court statements."
[N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003)
(quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).]
The relevant statute, 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, as herein defined, 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[.]As the Supreme Court has explained, a parent's failure to exercise a minimum degree of care requires more than negligence but not intentional conduct:
[N. J.S.A. 9:6-8.21(c).]
The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305
(2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999)).]Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. G.S., supra, 157 N.J. at 178. "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.
Our review of a trial court's decision that a parent has abused or neglected a child is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court factfinding." Id. at 413. We give particular regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "feel of the case." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We will not disturb a Family Part judge's findings of fact and conclusions of law unless "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
E.S. argues the trial court's finding of abuse or neglect was not supported by substantial credible evidence. B.T. makes the same argument and adds that the children's out-of-court statements were not adequately corroborated. We disagree with defendants' arguments insofar as they concern the trial court's finding defendants inflicted excessive corporal punishment.
When a court considers whether corporal punishment is excessive, "'[t]he general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case.'" N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010) (quoting State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002) certif. denied, 177 N.J. 222 (2003)), appeal dismissed as improvidently granted, 208 N.J. 355 (2011). "The administrative code provides additional guidance by listing injuries which may constitute abuse . . . or neglect," Id. at 510, including "[c]uts, bruises, abrasions, welts or oral injuries." N.J.A.C. 10:129-2.2(a)(9). "[W]e evaluate a claim of abuse by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children[.]'" K.A., supra, 413 N.J. Super. at 511 (quoting G.S., supra, 157 N.J. at 176) (alteration in original).
Here, the children reported their parents hit them with open hands "everywhere." One of the children said "they get hit in the face, eyes, nose, arms, bottom, arms and legs." Another said defendant E.S. twisted their wrist, and two of the children displayed areas of redness or slightly pink coloration, along with scabbing, on their wrists.
The children's injuries were observed by the Division caseworker and by a YCS nurse. The injuries fell within a category of injuries which "may be abuse or neglect." N.J.A.C. 10:129-2.2(a)(9). Bearing in mind the Division need not relate corroborative evidence directly to an accused, and that the corroborative evidence need only provide support for the children's out-of-court statements, L.A., supra, 357 N.J. Super. at 166, we conclude the children's documented injuries amply corroborate their out-of-court statements. We further conclude the children's statements concerning the corporal punishment, found credible by the trial court, described punishment that exceeded "moderate correction such as is reasonable under the circumstances of [this] case." K.A., supra, 413 N.J. Super. at 510. The trial court's findings as to excessive corporal punishment are not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412. Accordingly, we will not disturb them.
In view of the trial court's finding the children's injuries corroborated their statements, we need not address defendant's argument that the out-of-court statement of one child cannot adequately corroborate the out-of-court statement of another child. See N.J. Div. of Child Protection & Permanency v. M.C., 435 N.J. Super. 405, 423 (App. Div. 2014) ("[T]he admissibility of extrajudicial statements of children pursuant to N.J.S.A. 9:6-8.46(a)(4) does not depend on admissibility under the evidence rules. For that reason we do not think that overlapping out-of-court statements of children that are not otherwise admissible hearsay have any tendency to show the trustworthiness of each other."), certif. granted, 220 N.J. 41, appeal dismissed and remanded, 223 N.J. 160 (2015). --------
We reach a different result concerning the court's finding defendants provided inadequate supervision of their children. We reverse that determination primarily because the trial court made inadequate findings of fact and conclusions of law. Although the trial court noted three instances of alleged inadequate supervision, it made specific findings and conclusions only as to two, and it appears the court concluded it was the combination of those two that established a child's, or the children's, physical, mental, or emotional condition had been impaired or were in imminent danger of becoming impaired. Even that conclusion, however, does not differentiate between defendants.
The court noted the reference in the Division's records about the case worker observing the two-year-old in the yard, but made no specific findings or conclusions concerning that situation. The court found B.T.'s testimony about sleeping only three hours per day incredible, and further found it "lends support to the statements of two eldest children that they are often left unsupervised for long periods of time." The court concluded: "When this testimony is taken with the defendants leaving their children unattended at a park and the children's statements that they are often left alone, there is a clear showing of inadequate supervision."
Significantly, the court did not differentiate between E.S. and B.T. The court's finding B.T.'s testimony incredible did not establish negligent supervision by E.S. Moreover, the court's conclusion "defendant's lack of supervision shows a wanton disregard of the risk of substantial harm to the children" refers to a single defendant, not both defendants.
The ambiguity in the court's opinion is compounded by what appears to be an unsupported factual determination that defendants left their children unsupervised at a park. Defendant E.S. testified he permitted his three older children to ride their bikes to the park "by themselves" when he "could watch them from [his] house from outside." Thus, E.S. testified he could see them riding their bikes. We cannot conclude from that testimony — that he did not physically accompany the three children to the park, he watched them from his house — he left them unsupervised. True, one child said that once when his mother was sleeping he and his siblings rode their bikes to the park. That statement, however, is entirely uncorroborated.
In short, the trial court noted three allegations of improper supervision, failed to make adequate findings of fact and conclusions of law as to one, based its conclusion on another on an inadequate factual basis, and then used that unsupported conclusion as part of its finding that either one defendant, probably B.T., or both defendants, abused or neglected the children.
Due to the court's inadequate factual determinations, we would, absent countervailing circumstances, remand for additional findings of fact and conclusions of law. In view of our conclusion the Division established abuse or neglect based on excessive corporal punishment, however, a remand on the issue of inadequate supervision is unnecessary.
For the foregoing reasons, we affirm that portion of the order finding defendants abused or neglected their children by subjecting them to excessive corporal punishment. We reverse that part of the order finding both defendants abused or neglected the children by providing inadequate supervision.
Affirmed in part, reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION