Opinion
DOCKET NO. A-2398-12T2
08-04-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.C., Defendant-Appellant. IN THE MATTER OF M.C., M.C., Jr. and A.C., Minors.
T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, of counsel and on the brief). Peter Alvino, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Alvino, on the brief). Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, of counsel and on the brief; Lorraine M. Augostini, Assistant Public Defender and James A. Louis, Deputy Public Defender, of counsel; Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Argued April 2, 2014 - Decided May 5, 2014
Remanded by Supreme Court September 4, 2015
Reargued January 4, 2016 - Decided August 4, 2016 Before Judges Sabatino, Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-71-12. T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, of counsel and on the brief). Peter Alvino, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Alvino, on the brief). Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, of counsel and on the brief; Lorraine M. Augostini, Assistant Public Defender and James A. Louis, Deputy Public Defender, of counsel; Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
In our prior opinion in this matter, 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), certif. dismissed and remanded, 223 N.J. 160 (2015), we reversed the trial judge's finding that M.C. abused or neglected his, fictitiously named, fourteen-year-old son Matt, six-year-old son Jack, and four-year-old daughter Jill. Specifically, we found the court erred in assessing the imminent danger and risk of harm to the children under N.J.S.A. 9:6-8.21c(4)(b) at the time the Division interceded instead of evaluating the evidence solely as it existed at the time of the fact-finding hearing. Id. at 419-20.
The Supreme Court granted the Division's petition for certification. While the appeal was pending in the Supreme Court, the Court issued its opinion in Department of Children & Families v. E.D.-O., 223 N.J. 166, 189 (2015), holding that "focus[ing] on the risk the parent poses to a child at the time the incident is reviewed by a fact-finder has the obvious potential to overlook conduct, even aberrational conduct, that had the clear capacity to produce a catastrophic result" and "contravenes the legislative determination that child protective services and a court may intervene before a child experiences actual harm." E.D.-O. effectively overruled our holding in this matter and the Court subsequently, on its own motion, summarily remanded this matter to us for reconsideration in light of its opinion in that case. N.J. Div. of Child Prot. & Permanency v. M.C., 223 N.J. 160 (2015).
Having reconsidered the record in this matter in light of the Court's guidance in E.D.-O., we continue to be of the view that the evidence is insufficient to support the trial court's finding that Jack and Jill were abused or neglected children, but we now affirm the trial court's finding that M.C. abused or neglected Matt.
We set out the facts in our prior opinion.
On January 27, 2012, a member of the staff at Matt's school reported Matt's allegation of abuse to the Division. Reportedly, Matt was told that the school would be calling his mother about an argument Matt had with another student in the gym that escalated into a face-to-face encounter and chest-butting. As reported by the Division's screener who took the call, Matt cried hysterically, "got on his hands
and knees," and "begged" school staff not to tell his mother. Matt said he was afraid to go home, explaining that he "gets hit at home" and that M.C. is the one who hits him—sometimes punching, sometimes smacking and sometimes using a belt. He said he was last "beaten up after the Christmas break."
The Division caseworker assigned to investigate the referral, Ms. Badger, went to the family home that evening and spoke separately with Matt, Jack, Jill and both of the children's parents. Matt was the first child Ms. Badger interviewed. He told her he was taking two medications for bipolar disorder, "ADHD" and anger management.
Matt also advised Ms. Badger that he had not told his mother about his problem at school and did not think the school had told her about it. He said "if he gets into trouble, he is terrified of his dad because he is into physical discipline." Matt said he feels safe when M.C. is not angry but is "very, very scared" when M.C. is angry, which he is "a lot."
Matt said he had bruises in the past, but not presently, explaining that M.C. last hit him about two weeks "before Christmas" because he had gone to wrestling practice instead of homework club after school. When M.C. spoke to Ms. Badger, he acknowledged that he might have "just pushed" Matt and "tapped him [on] his head."
Matt advised Ms. Badger he had not told anyone about the abuse before because he was afraid, and he told her that M.C. slaps him in the face and punches him in the ribs and chest. He claimed that one punch was so hard that it made him cough up blood. The Division never obtained Matt's medical records, and apart from Matt's statements there was no evidence tending to show Matt
coughed up blood, had bruises, broken bones or bled.
Jack and Jill told Ms. Badger that Matt gets hit all over his body. Jill said that Matt "'gets beated' when he is bad" and that her mom and dad hit her on her butt.
Matt's mother admitted that she knew about M.C.'s use of physical discipline and did not approve. She said she assumed that when M.C. took Matt to another room to discipline him, he was giving Matt a "spanking," which was something M.C. did no more than twice a year. Generally, the children were punished by taking electronic devices and other privileges away from them for a time.
Matt told Ms. Badger about a different type of discipline that M.C. meted out once during an event the parties dub "the corner incident." Without indicating the precipitating event or approximate date, Matt told Ms. Badger that M.C. "pinned him" in a corner, made Jack and Jill come into the room, and directed Matt to slap himself in the face and say "'I'm stupid'" and then slap himself harder and say "'I'm a retard.'" He said his brother Jack laughed while that was happening. When Ms. Badger asked M.C. about the corner incident, M.C. said "he only told [Matt] to call himself a liar because he lied" and did not say anything about directing Matt to hit himself.
Ms. Badger asked Jack about the corner incident. According to Ms. Badger's report, the six-year-old child "affirmed that his dad made [Matt] smack himself and call himself stupid." He said that it happened one time and he could not "remember what else his dad made [Matt] sa[y] about himself." Jack also told Ms. Badger Jill was present. Ms. Badger did not describe the questions she asked Jack in order to
elicit his affirmance of Matt's description of the "corner incident," but she did note that Jack "appeared to laugh and smirk . . . when ask[ed] about [Matt] being hurt."
There was significant and undisputed evidence that M.C. had a problem with drinking. Matt told Ms. Badger that M.C. drinks alcohol on weekends and hurts people when he does. He also said that he and his mother and siblings left the house when M.C. was drinking on weekends to stay with family or in a motel. Matt's mother, and Matt's uncle who lived with the family, confirmed that the mother and children spent some weekends away from home because of M.C.'s drinking. Matt's mother also told Ms. Badger that M.C. is "not a very nice person" when he drinks and that he is a "binge" drinker, and Matt's uncle acknowledged that his brother gets "talkative and aggressive" when drinking, which he did at home when his family was away.
Matt did not know how much M.C. drank. He also said he had never seen M.C. stumbling or slurring his words, but he had heard his mom say that M.C. was slurring his words when talking to M.C. on the phone. Matt reported that his parents fought a lot about M.C.'s drinking, but he said he had not seen any violence between them.
In speaking with Ms. Badger, M.C. readily acknowledged that he had a drinking problem and said that he was scheduled to commence a program to address it. He advised Ms. Badger that he enrolled in the program as a consequence of driving while under the influence.
At the conclusion of M.C.'s first interview with Ms. Badger, M.C. told her he was willing to have a substance abuse evaluation and would like to have family counseling. He also agreed to leave his
home. In fact, he left that night when Ms. Badger departed.
Three days later, Ms. Badger spoke with the staff member from Matt's school who called the Division on January 27. She said she had not called the child's home that night because Matt said he would not go home and cried hysterically, which was something he had not done when he was in trouble at school before. Matt asked that no one call his home, because he was afraid his dad would beat him. The woman told Ms. Badger that she had never seen or heard about Matt having bruises and knew of no prior complaint he made about physical abuse. She noted that Matt had, however, mentioned that his home was strict.
[M.C., supra, 435 N.J. Super. at 409-12 (footnote omitted).]
After the Division's intervention, M.C. went into treatment for his drinking problem and the entire family went into counseling the Division arranged at Families Matter, LLC. M.C. engaged in a sincere effort, with the therapist reporting to the Division "that M.C. was 'verbalizing [his] accountability for inappropriate parenting and discipline of his children,' 'maintaining sobriety,' 'fully participat[ing] in each session,' expressing interest in improving his relationship with Matt and spending quality time with Matt during the supervised visits he had in the home . . . ." Id. at 413.
Five months after Matt begged school officials not to tell his parents about the incident at school, the family stood reunited and was discharged from therapy, with the therapist concluding "the family had successfully increased communication and improved bonding; the parents had learned new parenting techniques to which the children were responding well; and the family had discussed M.C.'s alcohol abuse, which M.C. was addressing in a separate program for that purpose." Id. at 414. As we noted in our prior opinion, "this case was one of the Division's success stories." Id. at 422. As the Supreme Court made clear in E.D.-O., however, that ultimate outcome is not dispositive of an abuse and neglect finding under Title 9. See E.D.-O., supra, 223 N.J. at 189, 195.
At the fact-finding hearing that followed, Matt recanted the allegations he made against M.C. to school officials and Ms. Badger in an in camera interview with the judge. He denied being afraid of M.C., denied he was ever placed in a corner and made to call himself "bad names," and claimed the last time he was spanked was when he was six or seven years old. As we noted, this
was not his first retraction. On January 31, Matt's mother reported that Matt told her he had blown things out of proportion and made some things up. In addition, the therapist from Families Matter reported that Matt said he lied to the school about the events and did not understand the seriousness of that at the time.
[M.C., supra, 435 N.J. Super. at 414.]
The judge, however, found Matt's retraction not credible. Instead, the judge found the boy's statements "rehearsed and simply contrary to his initial statements separately made to Ms. Badger when she initially interviewed him as well as to the statements made to Ms. Badger by his siblings and of his mother during their interviews." The judge noted he "placed little weight" on the statements Matt made to the family's therapist denying his initial allegations, as the therapist did not conclude the boy had lied. The judge underscored he made his "findings premised on an analysis of all the credible evidence not simply the statement of one of the children."
We quoted the judge's statement of reasons in our prior opinion.
The court looks to the past conduct of [M.C.] in determining risk of harm to the children. Additionally, the court may also examine the parents' behavior to determine whether it creates an imminent risk of harm. This court has done so. As noted above, the court found that [Matt] was terrified of his father. The basis of [Matt's] fear became readily apparent following Ms. Badger's interviews in the home.
This court finds that when a parent subjects a child to the combination of corporal punishment (which is not excessive), self-injurious punishment while calling himself degrading names while his siblings watch and laugh, and is also required to leave their home every weekend due to excessive drinking of alcohol, said parent creates a substantial risk of harm to
the physical, mental or emotional condition of a minor child. Moreover, the court finds that a parent that engages in such conduct failed to exercise a minimum degree of care in that the conduct is grossly negligent, and the children are in a substantial risk of harm.
The fact that the children were not physically injured at the time of the interviews is of no moment for this court's consideration. The disciplinary measures employed by [M.C.] were severe in the sense that [Matt] was terrified of his dad and he got down on his hands and knees to beg that his parents not be told of the incident at school. It was clear to this court that [Matt] was mentally or physically strained to the point that his health or physical or moral well-being may be injured.
Moreover, [Matt's mother's] act of removing herself and the children from the home when [M.C.] drank excessive amounts of alcohol reinforces to this court that [Matt] and his siblings are abused and neglected children. [Matt's mother] found it in the children's best interest to take refuge out of the home to protect the health, safety and welfare of the minor children from [M.C.]. [Matt's mother's] action of leaving the home as often as she described with the children speaks volumes that the children's physical, mental or emotional condition was in imminent danger of becoming impaired as a result of [M.C.'s] failure in exercising a minimum degree of care and that the children were in a substantial risk of harm. Indeed, it was not a secret to the children why they left the home on weekends.
[Id. at 420-21.]
We reversed the finding of abuse and neglect because we found "[i]t is not enough to say that the children were in imminent danger of becoming impaired in the past." Id. at 421. That holding, as cogently explained by Judge Cuff in E.D.-O., was error. Even so, judging the adequacy of the proofs at the time of the incidents that required the Division's intervention, as the trial court properly did, we still conclude the evidence was inadequate to conclude the two younger children, Jack and Jill, were abused or neglected within the meaning of the statute.
The judge made no specific findings of abuse or neglect as to either child. Leaving aside that M.C. invited them to "watch and laugh" while he humiliated their half-brother in the corner incident, the only support in the record for a finding of imminent danger or a substantial risk of harm as to them was when their mother removed them on the weekends as a result of M.C.'s drinking. While noting the record contained "significant and undisputed evidence that M.C. had a problem with drinking," M.C., supra, 435 N.J. Super. at 411, we characterized the support in the record for this conduct posing imminent danger and a substantial risk of harm to them as "thin." Id. at 421.
As the younger children were not the targets of the abuse, but only witnesses to their father's mistreatment of their half-brother, the Division would likely have needed expert testimony to prove they were emotionally or psychologically harmed by what they saw. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).
Our error in focusing on whether the children remained at any risk of harm at the time of the fact-finding hearing meant we did not have to focus on the effect of that behavior on the children at the time it was happening. We noted in a footnote that M.C. and the children's law guardian argued persuasively that having the children stay with their mother in a motel, or with a relative on the weekends when M.C. was drinking, demonstrated efforts by their father to shield them from any adverse effects of that conduct. Id. at 421 n.5. That their mother found it necessary to shield the children from M.C. in that manner to protect their health, safety and welfare, the judge found, "speaks volumes" of the imminent danger they faced from M.C.'s failure to exercise a minimum degree of care for their safety.
Such efforts on the part of parents could obviously be viewed as cutting both ways. We think it does so here. Although the judge noted "it was not a secret to the children why they left home on the weekends," there is no proof in the record that the younger children, who were then six and four, had any appreciation of what they were being shielded from. So, for them, their mother's efforts on their behalf appear to have successfully protected them from the imminent threat of physical, mental, or emotional harm from their father's drinking. There is nothing in the record, to suggest otherwise. Accordingly, we accept M.C.'s and the law guardian's arguments that the Division failed to meet its burden to prove that either Jack or Jill was an abused or neglected child under N.J.S.A. 9:6-8.21c(4)(b), -8.46b. See N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).
We do not accept those arguments as they pertain to Matt. The judge found Matt was terrified of M.C., his adoptive father, in part because he knew why his mother took them away on weekends. As Matt told Ms. Badger, "his dad gets out of control" when he drinks and "tends to hurt people a lot." Although there was no evidence that M.C. belittled, berated or physically abused Jack or Jill, there was ample proof in the record he treated Matt differently.
Fourteen-year-old Matt was a troubled child. He told a Division investigator he was taking medicine "for ADHD, bi-polar condition and anger management." He had a "one-on-one" aide at school. Yet, M.C. once disciplined Matt by pinning him in a corner, making the teenager hit or slap himself, and call himself a liar, a retard, and stupid, while the younger children watched and his six-year-old half-brother laughed. M.C. used corporal punishment on Matt, although there was no evidence of injury, and Matt, unlike his younger half-siblings, knew he was not safe in his father's presence when his father drank, which he did routinely on the weekends.
As we noted in our prior opinion, there was ample corroboration of Matt's allegations. M.C., supra, 435 N.J. Super. at 424. M.C.'s admissions were admissible against him as a party in the abuse or neglect action, N.J.R.E. 803(b)(1). As corroborative evidence "need only provide support for the out-of-court statements," N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002), M.C.'s acknowledgement of "his drinking problem, his wife's removal of the children from their home when he drank, his use of physical discipline — pushing Matt and tapping him on the head — and his punishing Matt by having Matt call himself a liar," sufficiently corroborated the out-of-court statements of all three children. M.C., supra, 435 N.J. Super. at 424. As to Matt, we found because he "testified in camera, any statements he made when speaking with Ms. Badger that qualified as inconsistent with his in camera testimony, if offered in conformity with N.J.R.E. 613, were admissible pursuant to N.J.R.E. 803(a)(1)." M.C., supra, 435 N.J. Super. at 424 (citing State in the Interest of R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995)).
Although Matt recanted his allegations, the judge found him incredible, based in large part on the credible testimony of Ms. Badger regarding her initial conversations with Matt and the corroborating accounts of the rest of his family. Because that finding is supported by adequate, substantial, and credible evidence in the record, we are bound by it in deciding this appeal. See N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010).
Although M.C. complains on appeal about the trial court's reliance on objectionable hearsay embedded in the Division's investigation report and screening summary, and we noted the hearsay objections that could have been interposed to the statements by M.C.'s wife and brother, see M.C., supra, 435 N.J. Super. at 421 n.5, the deputy attorney general correctly notes that M.C.'s counsel expressly waived any objection to the embedded hearsay in the documents on the second day of the fact-finding hearing. The court admitted the documents without redactions only after counsel advised he was waiving any objections to admissibility based on the embedded hearsay. Accordingly, the doctrine of invited error precludes M.C. from complaining that the trial judge relied on the hearsay statements in those documents in reaching his conclusions. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010). The concern we expressed on this issue at note 5 in our prior opinion was misplaced. See M.C., supra, 435 N.J. Super. at 421 n.5; see also N.J. Div. of Child Prot. & Permanency v. N.T., ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 27) ("Of course, a party is free to waive objection to the admission of hearsay evidence."). --------
Based on the evidence in the record, the judge concluded from the synergistic effect of the circumstances, "that [Matt] was mentally or physically strained to the point that his health or physical or moral well-being may be injured." Because we find — focusing on the effect of M.C.'s behavior on Matt at the time it was happening — that a reasonable fact finder could certainly conclude, as the judge did here, that the synergistic effect of those circumstances posed an imminent danger to Matt's mental and emotional condition, we affirm the finding that he was an abused or neglected child as defined by N.J.S.A. 9:6-8.21c(4)(b).
Affirmed in part; reversed in part; and remanded for entry of an amended judgment in conformity with this opinion, which supersedes our May 2014 decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION