Opinion
DOCKET NO. A-3391-13T2 DOCKET NO. A-3392-13T2
01-22-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.P. and S.B., Defendants-Appellants. IN THE MATTER OF G.E. and Z.P., Minors.
Joseph E. Krakora, Public Defender, attorney for appellants (Dana Citron, Designated Counsel, on the brief in A-3391-13; Daniel Brown, Designated Counsel, on the brief in A-3392-13. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Klein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.E. and Z.P. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-34-13. Joseph E. Krakora, Public Defender, attorney for appellants (Dana Citron, Designated Counsel, on the brief in A-3391-13; Daniel Brown, Designated Counsel, on the brief in A-3392-13. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Klein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.E. and Z.P. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendant S.B. (Sara) appeals from the November 29, 2012 Family Part order following a fact-finding hearing that determined she had abused or neglected her daughter, G.E. (Gloria), and son, Z.P. (Zeb). Sara's husband, H.P. (Harry), appeals from the same order that found he had abused or neglected Zeb, his son. We provide some context.
To maintain confidentiality, we use pseudonyms for those involved.
I.
Gloria was born in 2006. Her father, A.E., was a party to the proceedings in the Family Part, but no finding was made against him, and he has not participated in this appeal. Zeb was born to Sara and Harry in October 2011.
On July 12, 2012, the Division of Child Protection and Permanency (the Division) filed a verified complaint and order to show cause seeking immediate care and custody of both children. The precipitating event was a referral from the Woodbridge Police Department detailing a motor vehicle accident on the Garden State Parkway on July 5, 2012. Sara was driving a car with both children as passengers when she rear-ended the car in front of her. She was arrested for driving while under the influence (DWI) and remained incarcerated at the time the verified complaint was filed. The judge granted the Division custody of Gloria, placed Zeb in the Division's care and supervision, but left him in Harry's custody. The order provided that upon release, Sara was not permitted to care for Zeb unless supervised by Harry or another suitable adult.
Sara was released from custody prior to the return date, August 2. With the Division's consent, the judge ordered that Sara could return home and transferred legal custody of Gloria to Sara. The order further provided that Sara could not be alone with the children. On August 10, however, the Division was alerted to a domestic violence incident between Sara and Harry that occurred the night before. Harry had been arrested, and Zeb was in the care of his maternal grandmother. Gloria, it was discovered, had not been in the home at the time and was staying with a paternal aunt. The Division effected an emergency removal, amended its complaint to include these new allegations of domestic violence and both children were temporarily placed in a resource home.
A fact-finding hearing took place on November 29, 2012. Woodbridge Police Officer Thomas Cobaleski testified that he responded to an automobile accident at about 12:29 p.m. on July 5, 2012, and observed that Sara's vehicle had rear-ended another, causing "a lot of damage." There were "no skid marks which would note that there was no braking involved," and the damage to the other car indicated Sara's vehicle was moving at a high rate of speed. The car's air bags had deployed, and the windshield was cracked. Sara was sitting on a concrete ledge on the side of the highway. Gloria was crying and complaining of neck pain; Zeb was in a baby carrier - which had been in the rear seat of the car - and his face was scratched. Cobaleski did not perform any field sobriety tests because he detected no odor of alcohol on Sara's breath.
Nevertheless, the officer testified that Sara "wasn't really coherent. Her speech, she wasn't making sentences, full sentences." Sara "seemed indifferent and wasn't . . . in a panic, wasn't [in] shock that her kids were hurt." She supplied conflicting information about the children's birthdates. Cobaleski noticed Sara's "pinpoint" pupils, and that she was not squinting, despite full sunshine.
The officer followed the ambulance to the hospital and again spoke to Sara there. She admitted having had a thirty-pill-per-day Percocet addiction, and she was receiving treatment at a Methadone center. Sara told Cobaleski that "she had [gone] to a Methadone clinic and took Methadone and drove." Cobaleski ceased his questioning and arrested Sara for DWI. During the booking procedure at headquarters, Sara "uttered . . . that this [was] an eye-opening experience for her because she almost killed her kids." Although a urine sample was taken at the hospital, Cobaleski was unaware of the results of the lab tests.
Samantha Olivera, one of the Division's caseworkers, testified at the fact-finding hearing regarding her investigation of the domestic violence incident between Harry and Sara. Olivera noted that Sara had bruised arms and legs. Reluctantly, Sara admitted Harry assaulted her the night before during a jealous rage. Olivera interviewed Harry who begrudgingly admitted he became jealous and pushed Sara, physically holding her down on the floor. Both parents maintained that Zeb was sleeping in his crib in another room during the argument, and Gloria was not home at the time.
Olivera explained that Zeb could not remain in the custody of his maternal grandmother, the subject of multiple, unsubstantiated referrals to the Division. Prior court orders placed Zeb in Harry's custody and prohibited Sara from having unsupervised contact with the children. Harry's arrest, therefore, resulted in an emergency placement of Zeb with a foster family. Olivera testified that when she saw Zeb in the home, he was in good condition, healthy, and appeared well cared for.
In his oral opinion, the judge credited Cobaleski's testimony, including Sara's admission that she went to a Methadone clinic, received treatment and was driving directly home from the clinic when the accident occurred. The judge noted Cobaleski's observations of Sara at the scene and the hospital. He found that "the Division has established by at least a preponderance of the evidence that [Sara] abused and neglected [her] children . . . by being in a motor vehicle with them under the influence of, or having Methadone in [her] system."
A panel of our colleagues granted the Division's motion to supplement the record, leaving it to the "merits [panel to] determine what if any weight to give to the supplemental material." The supplemental materials demonstrate that Sara was indicted as a result of the accident, after the fact-finding hearing pled guilty to two counts of fourth-degree assault by automobile, N.J.S.A. 2C:12-1(c)(2), and was sentenced to probation on July 9, 2013. N.J.S.A. 9:6-8.46(b) mandates that "[i]n a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." Because none of these supplementary materials were available at the time of the fact-finding hearing, we accord them no weight in reaching our decision.
The judge found it was undisputed that Harry had committed an act of domestic violence, and there was no evidence to contradict his or Sara's accounts to Olivera that Zeb was asleep in another room during the incident. The judge did not "necessarily fully agree" with the argument made by the Law Guardian that Harry had neglected Zeb because he was arrested without "a proper plan" for custody of the child. Instead, he accepted the Division's argument:
I do agree with [the Division] that the domestic violence is a serious problem and even though it occurred in a separate room and [Zeb] was not in the same room, the fact that the incident escalated to the point that it did is very, very problematic.The judge entered the order under review.
. . . .
We're talking about here substantial risk of injury that domestic violence against one member of the household can and often times has domestic violence against anybody in the household. You don't have to actually commit the domestic violence against let's say [Zeb] or someone else. If you have it against one person in the household, . . . it could go across the board.
On March 1, 2013, the judge granted the Division's application to return both children to the home, subject to certain conditions. In February 2014, the judge granted the Division's request to terminate the litigation. These appeals followed.
II.
Sara argues that the finding of abuse and neglect was not based upon substantial evidence, noting a lack of objective evidence that she was actually under the influence of any drug while driving. She further contends that the children were not actually harmed, and the Division failed to prove a substantial risk of harm. She argues that, at best, the Division proved that her negligence caused the accident, and a finding of abuse or neglect cannot be based upon negligent conduct alone. Harry contends there was no evidence that Zeb was harmed or that he exposed the child to a substantial risk of harm, noting Zeb was asleep in another room during the entire incident between him and Sara.
Harry also relies extensively upon our holding in New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif. granted, 220 N.J. 41 (2014), appeal dismissed and remanded, 223 N.J. 160 (2015), arguing that because Zeb was not actually harmed, the judge improperly focused only on Harry's past conduct, not whether the child's safety was in imminent risk at the time of the fact-finding hearing. Id. at 418-20. This argument lacks any merit in light of the Court's subsequent decision in Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 170 (2015), where the Court rejected such an interpretation of Title Nine as "[un]supported by the text of the statute, the legislative history, the Court's long-standing interpretation and application of the statute, or common sense."
The Division counters by arguing the evidence demonstrated Sara drove with her children in the car while she was impaired, thereby failing to exercise a "minimum degree of care." N.J.S.A. 9:6-8.21(c)(4). As to Harry, the Division argues his conduct was more serious than one isolated act of domestic violence because it "destroyed the plan the court sanctioned for keeping [Sara] with her children," since Harry was supposed to supervise her time with them. As a result, Harry neglected Zeb because "he could no longer safely supervise [Sara's] contact with the children."
The Law Guardian urges us to affirm the order as to both parents. She argues that the evidence as to Sara was more than sufficient. As to Harry, the Law Guardian echoes the Division's argument and contends the finding of neglect was justified based upon the "impact of the consequences" of Harry's domestic violence, which were "foreseeable, that [Zeb] would be deprived of the care of either of his parents."
Having considered these arguments in light of the record and applicable legal standards, we affirm the order as to Sara and reverse the finding of abuse and neglect as to Harry.
A.
The standards governing our review are well-known. "We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "We recognize that the cold record, which we review, can never adequately convey the actual happenings in a courtroom." Ibid. (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "We will not overturn a family court's factfindings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." Ibid. (quoting E.P., supra, 196 N.J. at 104).
However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)).
We accord no deference to the judge's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011).
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). Each case is "fact-sensitive" and "requires careful, individual scrutiny." Id. at 33. N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as one
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 . . . 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 . . . .The Court has said that "[i]f there is no evidence of actual harm . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm" before a parent can be found to have abused or neglected a child. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8 (2013). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).
B.
The arguments raised by Sara lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). Initially, contrary to an assertion made in her brief, Gloria and Zeb suffered some physical injuries, albeit minor, as a result of the accident. Sara's reliance on V.T., supra, is misplaced. There, in the context of a parent's positive drug test results before a supervised visit, we said that "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect." V.T., supra, 423 N.J. Super. at 332.
Here, the judge's factual findings were amply supported by the record. He found that Sara was under the influence when she drove her car with her two children as passengers and rear-ended another vehicle at high speed. Her conduct was not merely negligent. We recently said that "no reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by an inebriated operator." N.J. Div. of Child Protection and Permanency v. J.A., 436 N.J. Super. 61, 69 (App. Div. 2014). We affirm the order as it applies to Sara.
C.
We reach a different result as to Harry. Although we defer to the judge's factual findings, we expand our scope of review because those findings do not support the legal conclusion that Harry abused or neglected Zeb. G.L., supra, 191 N.J. at 605.
In New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004), certif. denied, 182 N.J. Super. 426 (2005), we concluded that, absent evidence of emotional harm, proof that a child witnessed acts of domestic violence was insufficient to prove abuse or neglect. We recognize that in S.S., the defendant was the non-battering mother. Id. at 15-16. Nevertheless, the principle is the same and applies with even greater force to this case, since it was undisputed that Zeb never witnessed the incident, was asleep in another room and, based on the Division's own testimony, appeared fine when seen the next day.
Seemingly, the Division and the Law Guardian recognize that the judge's legal conclusion cannot be supported on that basis, because both argue that it was the consequences of Harry's domestic violence that proved his neglect of Zeb. In other words, by engaging in an act of domestic violence and being arrested, Harry neglected Zeb because Sara was forbidden by court order from caring for the child alone, and the Division had to place Zeb with a resource family.
We have previously rejected this as a basis upon which to find abuse or neglect under Title Nine. See, e.g., N.J. Div. of Child Protection & Permanency v. R.W., 438 N.J. Super. 462, 471 (App. Div. 2014) (rejecting the mother's ingestion of marijuana, subsequent arrest for a parole violation and inability to remain with her child as a basis for a finding of abuse or neglect). Accordingly, we reverse the order as it applies to Harry.
In sum, on A-3391-13, we reverse. On A-3392-13, we affirm. Within fourteen days of this judgment, the Division shall remove Harry's name from the Central Registry in relation to the events that were the subject of these proceedings. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION