Opinion
DOCKET NO. A-1393-13T1 DOCKET NO. A-1394-13T1
01-02-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. F.M. and L.M., Defendants-Appellants. IN THE MATTER OF J.M. and C.M., minors.
Lora B. Glick, Designated Counsel, argued the cause for appellant F.M. (Joseph E. Krakora, Public Defender, attorney; Ms. Glick, on the brief). Theodore J. Baker, Designated Counsel, argued the cause for appellant L.M. (Joseph E. Krakora, Public Defender, attorney; Mr. Baker, on the brief). Russell M. Smith, Jr., Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Smith, on the brief). Gillian P. Menza, Assistant Deputy Public Defender, argued the cause for J.M. and C.M., minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Menza, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-109-13. Lora B. Glick, Designated Counsel, argued the cause for appellant F.M. (Joseph E. Krakora, Public Defender, attorney; Ms. Glick, on the brief). Theodore J. Baker, Designated Counsel, argued the cause for appellant L.M. (Joseph E. Krakora, Public Defender, attorney; Mr. Baker, on the brief). Russell M. Smith, Jr., Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Smith, on the brief). Gillian P. Menza, Assistant Deputy Public Defender, argued the cause for J.M. and C.M., minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Menza, on the brief). PER CURIAM
After fact-finding hearings in this Title 9 case, Judge Kimarie Rahill concluded that both F.M. ("the father") and L.M. ("the mother") had committed abuse or neglect of their two daughters, J.M. ("Jenny") and C.M. ("Chrissy"). The court found that the parents engaged in multiple acts of domestic violence with one another in the children's proximity or presence, which resulted in psychological harm to the children substantiated by expert proof. Both parents now appeal. The Law Guardian joins with the Division of Child Protection & Permanency ("the Division") in opposing the appeals, which have been consolidated.
We employ pseudonyms to protect the privacy of the minors and for ease of reference.
I.
The record shows that the father and mother have a long history of verbal and physical altercations with one another. The Division first got involved with the family in 2008, responding to reports of domestic violence within the household occurring in the children's presence. In particular, the Division investigated reports of a violent incident occurring in June 2008 and a second incident in November 2008, after which Chrissy, the younger daughter, came to school with a bruise on her face.
After completing an investigation in April 2009, the Division concluded that the allegations of child abuse or neglect concerning both the June 2008 and November 2008 incidents were "unfounded." With regard to the June 2008 incident, the Division accepted the parents' representations that domestic violence had not occurred. As for the November 2008 incident, the Division accepted the girls' statements that Chrissy had bruised herself while playing and tripping into a wall. The mother apparently did not seek or obtain a restraining order against the father, or vice-versa, relating to those 2008 incidents, although the mother had previously obtained a temporary restraining order in or about 2006 or 2007 when the father brandished and shot a gun into the air.
The critical incident that sparked the Division's present litigation was a fight that occurred in the family residence on May 5, 2012. In the admitted presence of both girls, who were then ages ten and eleven, the parents spewed profanities at one another and engaged in, as Judge Rahill aptly described it, "mutual combat." The preteen daughters witnessed defendants calling each other names, shoving, and hitting each other, with the mother wielding a belt and the father inflicting blows that left bruises on the mother.
The May 5 altercation they witnessed upset both daughters. The Division intervened and had the daughters professionally evaluated. After psychological harm to the children was confirmed, the Division charged both parents with abuse or neglect, citing N.J.S.A. 9:6-8.21.
At trial, the Division presented testimony from an expert psychologist, Dr. Margaret Delong, who had examined and evaluated the daughters. Dr. Delong concluded that the daughters had been negatively affected by their exposure to their parents' fighting. Based on her clinical interviews with both children, Dr. Delong found that they exhibited psychological harm from their exposure to the violence, even though they did not score poorly on psychological tests. The expert also noted that the daughters have a tendency to minimize their harm and that the adverse effects of their exposure to the domestic violence were greater than the daughters would acknowledge.
In their defense, the parents presented a competing expert, Dr. James Reynolds, a forensic psychologist. Dr. Reynolds did not interview the daughters. However, from his review of the written records, test results, and the reports of other professionals who had examined the daughters, Dr. Reynolds disagreed with Dr. Delong that the children had been psychologically harmed by their parents' combative behavior.
Over defense counsel's objection, Division case workers read into the record at trial various contents of the Division's files, including documents relating the 2008 incidents. Both parents tested positive for substance abuse, but Judge Rahill found that their drug use was not a sufficient basis for a finding of abuse or neglect.
The trial judge also considered testimony from a Division intake worker, a Division supervising family service specialist, and the mother, who appeared as a defense witness. The father did not testify. The judge further considered various records that were admitted into evidence, including evaluations from clinicians who performed risk assessments of the parents.
Upon considering the proofs as a whole, Judge Rahill concluded that the Division had sustained its burden of proof of establishing abuse or neglect as to both parents, by a preponderance of the evidence. In her oral opinion on May 29, 2013, Judge Rahill first noted that the relevant facts concerning the fighting incident on May 5, 2012 were not in dispute. Judge Rahill found that the mother on this occasion was not a victim of domestic violence, as that term is understood within N.J.S.A. 2C:25-17 to -35. In the judge's view, such a finding would be inappropriate because both parents had engaged in "mutual fighting."
Judge Rahill found it significant that the daughters had been exposed multiple times to "past physical domestic violence as well as verbal abuse." In reaching this conclusion, Judge Rahill relied upon both the mother's statements contained in the Division's investigation summaries for the period from June 16, 2008 and May 5, 2012, the daughters' statements in their interviews with Dr. Delong, as well as the defendants' admissions concerning the pre-2008 gun incident.
Turning then to the critical question of whether such exposure to domestic violence had adversely affected the daughters, Judge Rahill credited the expert testimony of Dr. Delong, and rejected the testimony of the defense expert, Dr. Reynolds. As Judge Rahill observed:
Dr. Delong clearly indicated in her report, as well as her testimony[,] that she concluded with a relative degree of certainty based on her expertise . . . [t]hat both girls were negatively impacted from the domestic violence that they
witnessed. And that there was neglect of child as to each of them.In contrast, Judge Rahill took issue with Dr. Reynolds' testimony. As the judge noted, Dr. Reynolds
This [situation] is more than the girls being upset by witnessing these acts of domestic violence, which the mother acknowledged [] [caused them to be] upset. And even the father acknowledged that they were upset because he said I think it was [Jenny] after the incident on May 5th, I know that you're upset by what you saw. But this is a situation in which the girls have shown anxiety.
That [Jenny] has reported that she is actually being aggressive and argumenta[tive] [which] is the term that Dr. Delong used. [Chrissy] had reported anxiety, depression, anger, and it was indicated could be suffering from post[-] traumatic stress.
only reviewed the test scores. He did not actually interview the children, nor did he review the significant history in connection with this matter. And while the test scores certainly could indicate that there could have been other contributory factors, including the [children's] grandfather's death, the strictness of the grandmother, and the girls['] concerns with the grandmother possibly asking them to leave the home because the family was living with the grandmother.
[By contrast,] Dr. Delong concluded that based on her specific interview her conclusions were not solely dependent upon the testing. It also included her interviews with the children, her interview with the mother, as well as then her review of other records. And it was looking at all
of those factors together that she made her conclusion that each of the children were neglected and had suffered from their exposure to the fighting between the parents.Ultimately, Judge Rahill concluded that
the Division has met [its] burden by a preponderance of the evidence that both [parents] have impaired the children emotionally as in connection with the constant fighting and the domestic violence that occurred on May 5, 2012 that the girls not only, or at least [Chrissy][,] eye witnessed and [Jenny] heard, and that there has been expert testimony provided to show that this is a matter beyond the [facts presented in the] case of [N.J. Div. of Youth & Fam. Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)].
. . . .
So while there's no dispute that the children were not physically harmed during the incident of May 5th or any other domestic violence incidents between the parents, there [have] been professional conclusions that the girls have suffered emotionally and the [c]ourt finds so.
It should be noted and, you know, [the mother] certainly was credible in her testimony. There does not need to be an intent of harm. Certainly, I do not find that [the mother] intended to harm the girls. But I do find that there was willful and wanton neglect of these children because of the constant fighting and certainly the incident of May 5, 2012.
[(Emphasis added).]
Following her finding of abuse and neglect, Judge Rahill proceeded with a dispositional hearing that is not pertinent for purposes of this appeal.
On appeal, the parents argue that the trial court should have ignored the 2008 incidents in its analysis because the reports were required to have been expunged within three years after the Division closed those "unfounded" matters in April 2009. The parents also contend that the Division's proofs of harm to the daughters are inadequate to support the court's findings under the statute. They further argue that Dr. Delong's testimony comprised an inadmissible net opinion. For the reasons that follow, we reject these contentions of reversible error and affirm.
II.
As is relevant here, N.J.S.A. 9:6-8.21(c) defines an "abused or neglected child" as
a child less than 18 years of age . . . (4) [] 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 . . . (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[.]
[N.J.S.A. 9:6-8:21(c).]
"Abuse and neglect cases are generally fact sensitive." N.J. Div. of Youth and Fam. Servs. v. P.W.R., 205 N.J. 17, 33 (2011). As our Supreme Court has recognized, cases adjudicating such claims by the Division require "careful, individual scrutiny." Ibid.
The quantum of proof required in a fact-finding hearing brought under Title 9 is well established. 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.S.A. 9:6-8.46(b). Such evidence may include, among other things, "any writing, record or photograph . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency," provided it meets certain admissibility requirements consistent with the business records hearsay exception. N.J.S.A. 9:6-8.46(a)(3); R. 5:12-4(d); see also N.J. Div. of Youth & Fam. Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012).
"[T]he act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs. Likewise, exposure of children to a coercive control relationship does not by itself prove abuse or neglect." N.J. Div. of Youth & Fam. Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (citing S.S., supra, 372 N.J. Super. at 22-26). However, abuse or neglect in violation of the statute can be established where a child is harmed by such exposure to his or her parent's domestic violence. Id. at 557; see also S.S., supra, 372 N.J. Super. at 22-23. The Division has the burden of establishing that such harm has occurred or is likely to occur. S.S., supra, 372 N.J. Super. at 24.
Our standard of review in evaluating the trial court's findings and order is limited. We accord considerable deference to the trial court's credibility determinations and findings of fact, so long as those findings are supported by "adequate, substantial, and credible evidence on the record." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 2 69 N.J. Super. 172, 188 (App. Div. 1993)). On appeal we will generally not second-guess the factual findings of the Family Part, given that particular court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998) (analogously noting that "matrimonial courts possess special expertise in the field of domestic relations"). Thus, "unless the trial court's findings went so wide of the mark that a mistake must have been made," the decisions should not be disturbed. M.M., supra, 189 N.J. at 279 (internal quotation marks omitted).
III.
A.
We first address defendants' argument that the records of the 2008 incidents were improperly considered and relied upon by the trial judge because they should have been expunged by the Division.
N.J.S.A. 9:6-8.40(a) provides that if the Division determines that "a report, complaint, or allegation of an incident of child abuse or neglect . . . was unfounded," the Division "shall expunge from its records all information relating to [said] report, complaint, or allegation." At the time when the unfounded determination was made here, a companion regulation defined an allegation as "unfounded" if "there [was] not a preponderance of evidence that the alleged child victim was harmed or placed at substantial risk of harm; or there [was] not a preponderance of evidence indicating that a parent or guardian and child were involved." 44 N.J.R. 357(a) (Feb. 21, 2012).
As a corollary to N.J.S.A. 9:6-8.40(a), the Division has adopted an implementing regulation, N.J.A.C. 10:129-8.2(a), which provides that unfounded reports are to be expunged within three years, subject to certain enumerated exceptions in N.J.A.C. 10:129-8.3 that are inapplicable here. See also N.J.S.A. 9:6-8.40(a).
The regulations use the term "expunction" rather than the more common term expungement. N.J.A.C. 10:129-8.3.
Although this regulation was partially modified to account for certain definitional expansions in N.J.A.C. 10:129-7.3 in 2013, the exceptions remained essentially the same. See 44 N.J.R. 357(a) (Feb. 21, 2012).
In the present case, the Division reached its determination that the June 2008 and November 2008 incidents were "unfounded" no later than April 30, 2009, when the Division closed those cases. We therefore agree with defendants that the records concerning those incidents should have been deemed "expunged," as of three years from that date, i.e., as of April 30, 2012. Coincidentally, the new domestic violence incident that precipitated this case occurred on May 5, 2012, just five days after the three-year expunction trigger was reached.
We do not assume that the Division was obligated to physically or electronically expunge the record instantaneously on the same day the three-year period expired. The question before us is one of the legal treatment of the records, rather than the actual mechanics of purging the records.
--------
The Division argues that the admission of the 2008 records was invited error, but our review of the record reveals that defense counsel voiced their objections to the Division's evidential use of the Division's reports concerning the 2008 incident. However, defendants objected on general relevance grounds rather than upon a failure to expunge the records. Accordingly, even though this is not a situation of invited error, defendants must show plain error. N.J. Div. of Youth & Fam. Servs. v. B.H., 391 N.J. Super. 322, 343-44 (App. Div.), certif. denied, 192 N.J. 296 (2007).
We are satisfied that any error in the trial court's consideration of those records was harmless. To be sure, a court cannot find abuse or neglect based solely on an alleged incident that has been previously investigated by the Division and determined to be unfounded. See P.W.R., supra, 2 05 N.J. at 36. Here, however, the court found abuse or neglect based on the 2012 incident, with the 2008 allegations being considered by the court and the Division's expert only for background.
Although the contents of the Division's records concerning the 2008 incident were improperly presented to the trial judge, there are ample independent grounds to support her findings of abuse and neglect. These evidential underpinnings include, but are not limited to, the parents' admissions of the past occurrences of domestic violence in the children's presence, the pre-2008 gun incident admitted by both parents, the proof concerning the May 2012 domestic violence incident itself, the statements of the two children, and the testimony of the Division's employees and the expert testimony of Dr. Delong. The court's error in considering the 2008 records, which should have been expunged, was not "clearly capable of producing an unjust result." R. 2:10-2.
B.
We also reject defendant's claims that the proofs were inadequate to sustain the findings of abuse and neglect. The domestic violence act of May 5, 2012, which one child observed and the other child heard, was unrefuted. As required by I.H.C. and S.S., supra, the Division presented expert psychological testimony from Dr. Delong to substantiate the harm caused by the children's exposure to this and other prior domestic violence incidents between their combative parents. The trial judge had the authority to credit the testimony of Dr. Delong, who had interviewed the children, and to reject the competing views of Dr. Reynolds, who had not. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (underscoring a fact-finder's prerogative to accept or adopt a particular expert's testimony).
C.
We also reject defendants' claim that Dr. Delong's expert testimony should have been rejected as an improper "net opinion." The doctor's testimony sufficiently articulated the "why and wherefore" that supported her findings of psychological harm to the children. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014); Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).
D.
We reject the remainder of defendants' arguments, including the father's claim that the trial court did not find his own culpability with enough specificity. Those arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
In sum, we affirm the findings of abuse and neglect, substantially for the sound reasons expressed in Judge Rahill's oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION