Opinion
DOCKET NO. A-0432-12T2
03-13-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.D., Defendant-Appellant, and F.D. and R.S., Defendants. IN THE MATTER OF G.S., B.D., B.D., and H.D., Minors
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.S., B.D., B.D., and H.D. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-218-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.S., B.D., B.D., and H.D. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In this Title 9 case, defendant K.D. appeals from a May 8, 2012 order finding that she abused or neglected her children by concealing the fact that her husband was committing domestic violence against her and by coaching her autistic son not to disclose that the husband committed violent acts in the home.
The order became ripe for appeal when the court terminated the litigation by order of August 9, 2012.
On this appeal, K.D. asserts that the court erred in relying on the children's uncorroborated statements, and the Division of Child Protection and Permanency (Division) did not prove that she harmed the children or created a risk of harm to them. On those issues, K.D.'s brief presents the following points for our consideration:
POINT I
THE COURT IMPROPERLY ADMITTED AND RELIED UPON HEARSAY EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED.
POINT II
THE STATE DID NOT PROVE BY A PREPONDERANCE OF EVIDENCE THAT THE DEFENDANT CREATED A RISK OF HARM TO THE CHILDREN.
After reviewing the record, we conclude that those arguments are without merit, and we affirm for the reasons stated by Judge Margaret Foti in her comprehensive written opinion issued on May 8, 2012.
The facts are set forth at length in Judge Foti's opinion and will not be repeated here in the same level of detail. To summarize, at all relevant times, defendant's household consisted of K.D., her husband F.D., their two children, one-year-old Ben and three-year-old Bella, and twelve-year-old Galen, who was K.D.'s child by a prior marriage. Galen is autistic but able to communicate. On this record, there is no dispute that F.D. engaged in repeated acts of domestic violence against K.D. There is also no dispute that in 2010 and again in July 2011, the Division received reports of domestic violence and investigated those allegations. However, during both those investigations, K.D. denied that her husband was physically abusive to her. As a result, the Division concluded that the allegations were unfounded, the husband continued to live in the home with his anger and violence issues unaddressed, and the children continued to be exposed to domestic violence.
We use pseudonyms for these children. The husband, F.D., did not appeal the finding of abuse and neglect entered against him. K.D. and F.D.'s third child, H.D., was born in April 2012 and was not involved in the Title 9 allegations. However, H.D. was included in the August 9, 2012 order granting legal and physical custody of the children to K.D. and F.D.
On October 12, 2011, F.D. assaulted K.D. while she was lying on a bed with Ben lying beside her. This time, K.D. admitted to the Division case worker that domestic violence had occurred, although she attempted to minimize the incident, and the Division filed a Title 9 complaint.
There is some indication that the child may have been lying in her arms; for purposes of this opinion, it does not matter if he was in her arms or lying next to her on the bed.
At the fact finding hearing, the Division presented extensive testimony from Dr. Jemour Maddux, a clinical psychologist, specializing in the field of child abuse and neglect. Dr. Maddux interviewed all of the family members and, during those interviews, K.D. and her husband both admitted that he committed acts of domestic violence against her. For example, Bella told Dr. Maddux that her father pulled her mother's hair. When the doctor interviewed K.D., she admitted that her husband pulled her hair, thus corroborating the child's statement. K.D. also admitted that Bella was present during the hair-pulling incident, although she claimed she "thought [Bella's] back was turned at that time."
The husband also admitted to Dr. Maddux that he and K.D. had verbal conflicts that escalated into his physically assaulting her. He admitted pushing her out of a car on one occasion, an incident K.D. also described to Dr. Maddux. He admitted that on another occasion, when the children were present, he grabbed K.D. by the shoulders and pushed her through several rooms of the house while cursing at her. K.D. told Dr. Maddux about that incident as well. The husband also admitted to the October 12, 2011 incident, in which he grabbed K.D. by the head and pushed her head down into the bed, while she was lying next to the baby. The husband further admitted that he struck Galen in the face. However, K.D. denied that incident happened.
During his interview, Galen revealed to Dr. Maddux that his mother told him she would be upset if he told the doctor about "the bad things," and she promised him a trip to a toy store if he complied with her request not to talk about the bad things. However, at some point during the interview, Galen revealed that his father had hit him, and had "cursed and yelled." The child tried to downplay those incidents, saying "but he [the father] didn't hit her [K.D.]."
In his report, Dr. Maddux recounted observing that, as Galen was leaving the interview, the child asked K.D. if they were going to the toy store. In his testimony, Dr. Maddux stated that he asked K.D. about promising Galen a trip to the toy store if he did not talk about bad things; she told Dr. Maddux that he must have "misunderstood" what Galen said.
Dr. Maddux testified in detail that observing the physical violence by the father against the mother caused the children psychological harm. He diagnosed Bella as having anxiety disorder not otherwise specified (NOS). He also explained the harm done to Galen not only by watching his father's violent behavior but being asked by his mother to conceal that behavior.
During the fact finding hearing, counsel for both parents stipulated to the admission into evidence of the Division's investigation summaries without the need for the Division to present the case worker as an authenticating witness. Dr. Maddux's report was also admitted in evidence. Neither parent testified concerning the abuse and neglect allegations. Through their counsel, both parents also waived cross-examination of Dr. Maddux with respect to those allegations.
Defense counsel did question Dr. Maddux concerning his opinions as to the appropriate therapy that the parties and their children should have, so that the father could resume living in the family home. The parents also testified briefly on that limited issue.
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In her opinion, Judge Foti credited Dr. Maddux's testimony entirely. She found:
It is undisputed that there were acts of domestic violence on at least three occasions as admitted to by both parties . . . . [F.D.] has also admitted that he has struck and demeaned [Galen], a child suffering from autism. It is also clear that [Bella] witnessed acts of domestic violence - citing the hair pulling - which both parents admit did happen. It is also clear from the record that [K.D.] under-reported these incidents, didn't want the Division to find out about the incidents, and coached [Galen] not to disclose the acts of domestic violence. Dr. Maddux testified credibly as to the harm caused to the children by virtue of their parents' actions which the court has discussed at great length.
Distinguishing New Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2008), Judge Foti reasoned that in this case, unlike S.S., the Division presented expert testimony about the emotional harm to the children caused by exposure to domestic violence. She also found that this was "not a case where the Division is blaming a victim of domestic violence. [K.D.'s] coaching and pressuring of [Galen] was harmful to him and placed him at risk of harm," including the risk that he would be unwilling to report abuse in the future. The judge concluded that the Division proved that both parents abused and neglected the children "within the statutory definition of N.J.S.A. 9:6-8.21(c)(4)(b)."
In reviewing Judge Foti's decision we do not write on a clean slate. We are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We owe particular deference to the trial judge's evaluation of witness credibility, and to the expertise of the Family Part. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Having reviewed the record, we find no basis to disturb Judge Foti's well-reasoned decision.
Defendant argues that statements by the children, contained in the Division's investigative reports and in Dr. Maddux's report, were uncorroborated and insufficient to support a finding of abuse or neglect. See N.J.S.A. 9:6-8.46(1)(4). We cannot agree. Not only were the children's statements corroborated, but K.D. and her husband admitted that the domestic violence occurred. Because Dr. Maddux personally observed Galen asking his mother about the trip to the toy store after the interview, there was also sufficient corroboration for what Galen told Dr. Maddux during the interview.
Likewise, we reject defendant's contention that the Division failed to prove that she placed the children at risk of harm. Dr. Maddux cogently explained the psychological harm that exposure to domestic violence inflicted on the children, and the risk posed to Galen when K.D. coached him not to reveal the "bad things" that happened at home. In that respect, this case is unlike S.S., and more closely resembles I.H.C., where the Division presented expert proof of harm to the children. Our observations in I.H.C. are on point here:
Citing our holding in S.S., supra, 372 N.J. Super. at 22-26, the trial court recognized correctly that the 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. . . . In this case, however, unlike S.S., the court heard credible evidence that professionals in the field accept the general proposition that domestic violence in the home harms children and that harm had occurred in this family. We also note our Legislature's explicit finding and declaration in the Domestic Violence Act that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18.
[I.H.C, supra, 415 N.J. Super. at 584-85.]
In summary, we agree with Judge Foti's reasoning on this issue. Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION