Opinion
DOCKET NO. A-0619-14T2
01-25-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.M.M., Defendant-Appellant. IN THE MATTER OF M.M., Y.M.M., E.B.W., and E.D.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; William T. Harvey, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-422-13. Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; William T. Harvey, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant appeals from a June 5, 2013 Family Part order finding she abused or neglected her four children. We affirm the court's finding as to defendant's children, E.B.W. (Evan) and E.D.W. (Edward), and reverse as to her children, M.M. (Mary) and Y.M.M. (Yolanda).
We use pseudonyms for the children and initials for the parents, in order to avoid confusion and protect their identities.
I.
We discern the following facts from the record. Defendant is the mother of four children, Evan, Edward, Mary, and Yolanda. On December 15, 2012, Evan was seven years old, Edward was five, Mary was one, and Yolanda was two weeks of age.
On that date, W.W., the father of Mary and Yolanda, reported to the police that defendant had threatened to harm herself and her four children if he did not go to defendant's home. As a result of the report, emergency medical services (EMS) responded to defendant's home and transported her to Our Lady of Lourdes Hospital emergency room, where defendant denied making the threat and any suicidal thoughts, but complained about medical complications related to the birth of Yolanda two weeks earlier. The New Jersey Division of Protection and Permanency (Division) received a referral regarding the incident. A Division case worker met with defendant at the hospital, and defendant denied threatening to hurt herself or her children. The case worker was informed the hospital staff had no concerns regarding defendant's mental health. Defendant received treatment for her medical issues and was discharged.
On December 16, 2012, the case worker interviewed Evan and Edward regarding the incident. Evan reported that defendant had been in pain, and was screaming and crying because "people were messing with her." According to Evan, defendant then said she wanted to kill herself and went into the kitchen where she grabbed a knife and pressed it against her neck, and then started cutting her left wrist. Evan reported that he was seated on the couch with Edward during the incident and that "they were scared" defendant "was going to kill herself."
Edward told the case worker that he saw defendant take a knife and put it on her neck and then use the knife to cut her arm a couple of times. He said that defendant was going to kill herself and that he was scared.
When the case worker told defendant what Evan and Edward had reported, defendant said she had picked up a knife to peel the skin from a chicken she planned to cook. She denied threatening to harm herself, holding the knife to her throat, or cutting herself. The case worker examined defendant's left arm, however, and observed four or five linear lacerations on her arm. Defendant said the lacerations were the result of a fall in her backyard.
Due to the Division's concerns regarding the defendant's emotional stability and the safety of the children, on December 16, 2012, the children were placed in defendant's mother's home with the requirement that defendant's contact with the children be supervised by defendant's sister. On December 17, 2012, Division workers conducted an emergency Dodd removal of the children due to concerns regarding defendant's mother and sister.
A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
II.
On December 19, 2012, the Division filed a verified complaint and an order to show cause in the trial court, seeking custody, care, and supervision of defendant's four children. After hearing argument, the court found defendant's mental health issues and threatened suicide posed an imminent danger to each child's life, safety, or health, and concluded the Division "made an appropriate removal" and that continued removal was warranted. An order was entered placing the children in the custody, care, and supervision of the Division, and requiring that defendant comply with Division services.
At the conclusion of a January 23, 2013 hearing, the court ordered psychological evaluations of defendant, Evan, and Edward, and directed that defendant comply with Robin's Nest, Inc. (Robin's Nest) services, including participation in therapeutic visitations to assist in the reunification of defendant and her children.
Robin's Nest is an organization that provided therapeutic visitation services to defendant and her children pursuant to the order of the Family Part.
On June 5, 2013, the court conducted a fact-finding hearing on the allegations of abuse or neglect. The Division's evidence included reports regarding its investigation, psychological evaluation reports for Evan and Edward prepared by Dr. Meryl Udell, and testimony from Dr. Udell. Defendant did not present any witnesses, but introduced into evidence two reports from Robin's Nest.
Dr. Udell was qualified as an expert witness in the area of forensic psychology. She testified that she conducted separate psychological evaluations of Evan and Edward on May 8, 2013, discussed the matter with a Division representative, reviewed court records related to the filing of the order to show cause and a psychological and parenting capacity evaluation of defendant prepared by defendant's psychologist, and considered psychiatric, psychological, and CARES Institute evaluations of Evan.
Dr. Udell testified that Evan and Edward suffered trauma as a result of defendant's threat to commit suicide. Dr. Udell stated that Evan had a history of significant behavioral problems, including setting fires and animal cruelty, which evidenced an emotional state that made him more susceptible to harm from defendant's actions than a child without a similar history. Dr. Udell explained that following the December 15, 2012 incident with the defendant, there was a "clear behavioral change" in Evan. She testified that he no longer displayed the same behavioral problems, that the "switch in the other way" in his behavior was evidence of trauma, and that the trauma was the "intervening factor" that caused the change in Evan's behavior. Dr. Udell also concluded that Evan suffered an "emotional impact," based upon his statements that he was "frightened" and later "sad" and "mad" because of his mother's actions.
Dr. Udell also testified that Edward developed enuresis and encropresis — the inability to hold urine and bowel movements — as a result of the trauma. She explained that behavior in young children "is a response to trauma or extreme emotional distress."
Dr. Udell did not diagnose Evan or Edward with post-traumatic stress disorder (PTSD), but she testified the definition of trauma within that diagnosis is that a "person experiences or witnesses an event that is well outside the realm of normal expected experience in which they feel they are going to be killed or severely physically hurt or someone else is going to be killed or severely physically hurt." Dr. Udell testified that is "exactly" what Evan and Edward had experienced and witnessed. Dr. Udell said that "trauma" is a precursor to PTSD, but that a child can suffer trauma without developing the disorder.
Dr. Udell based her conclusions upon what she described as "basic developmental theory" or "trauma theory." She supported her conclusions by reference to literature on the effects upon children of parental suicide and exposure to domestic violence. Dr. Udell also relied on her doctoral dissertation, which focused on the effect upon children of a loss of a sibling or family member by homicide.
At the conclusion of the fact-finding hearing, the Family Part judge issued an oral decision and found that defendant abused or neglected all four of her children. The judge relied upon the testimony of Dr. Udell, finding she was an "extremely competent, qualified expert witness," and accepted her opinion that Evan and Edward suffered trauma, and could continue to suffer trauma, as a result of defendant's actions. The judge found that defendant's threat to commit suicide, her placing of the knife to her throat, and the cutting of her wrist in the presence of Evan and Edward constituted gross negligence. The judge memorialized his decision in an order dated June 5, 2013, finding abuse or neglect as to all of defendant's children.
The June 5, 2013 order includes a finding of abuse or neglect as to all of defendant's children. In his oral decision, however, the judge did not make any factual findings as to the abuse or neglect of Mary and Yolanda.
At a July 29, 2013 compliance review hearing, the Division reported that defendant was compliant with services, and deferred to a report of Robin's Nest recommending reunification. After a September 23, 2013 compliance review hearing, the court entered an order directing gradual reunification for each child.
At the final compliance review hearing on August 21, 2014, the Division requested an adjournment in order to obtain an updated psychiatric evaluation, but the Law Guardian reported that the children were healthy, happy, and no longer afraid. The court denied the Division's request for an adjournment, found it was in the children's best interest to be with defendant, and terminated the litigation subject to defendant's attending a subsequent psychiatric evaluation and complying with any recommendations. This appeal followed.
III.
On appeal, defendant argues that the trial court's finding of abuse or neglect must be reversed because there was not substantial credible evidence that her children were harmed or were in imminent risk of harm. Defendant also contends that Dr. Udell's opinion constituted an impermissible net opinion and could not support the court's finding of abuse or neglect.
Family court decisions are entitled to substantial deference on appeal. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
A trial court's findings of fact are binding on appeal, "so long as 'the record contains substantial and credible evidence to support' the family court's decision." N.J. Div. of Child Prot. & Permanency v. L.W., 435 N.J. Super. 189, 195 (App. Div. 2014) (quoting F.M., supra, 211 N.J. at 448-49). Accordingly, family court decisions will be upheld, "'unless the trial court's findings went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 617 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). However, "[w]here 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)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Title Nine "governs abuse and neglect proceedings." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011); N.J.S.A. 9:6-8.21 to -8.73. Title Nine provides that,
[t]he purpose of this act is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.
[N.J.S.A. 9:6-8.8].
In relevant part, Title Nine 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 . . . ." N.J.S.A. 9:6-8.21(c). The chief consideration in abuse or neglect cases is "not the 'culpability of parental conduct' but rather 'the protection of children.'" N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999)); see also State v. P.Z., 152 N.J. 86, 99 (1997) ("The inquiry in every case focuses on the best interests of the child.").
Whether a parent has engaged in acts of abuse or neglect as defined by the statute must be "'analyzed in light of the dangers and risks associated with the situation,'" N.J. Dep't of Children & Families v. R.R., 4 36 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82), and whether the parent or guardian exercised a minimum degree of care under the circumstances. "The parent is held to what 'an ordinary reasonable person would understand' in considering whether a situation 'poses dangerous risks' and whether the parent acted 'without regard for the potentially serious consequences.'" N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 179). "[M]ore than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178.
Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). This standard has been satisfied when a parent knows of dangers inherent to a particular situation, or "act[s] with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179, 181.
A finding of abuse or neglect also requires proof "by a preponderance of the competent, material[,] and relevant evidence [of] the probability of present or future harm" to the children. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005). Courts may not "fill in missing information on their own or take judicial notice of harm. Instead, the fact-sensitive nature of abuse and neglect cases turns on particularized evidence." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 28 (2013) (citing N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011)).
Here, the Family Part judge found that defendant threatened suicide in the presence of Evan and Edward, held a knife to her throat, and then used the knife to cut her wrist. We are convinced the judge's factual findings are supported by substantial credible evidence in the record, including Evan's and Edward's observations of defendant's actions which were corroborated by the case worker's observations of the lacerations on defendant's arm. N.J.S.A. 9:6-8.46(a)(4); see also, J.A., supra, 436 N.J. Super. at 67 (finding a child's statements regarding her mother's drinking while driving were corroborated by a police officer's observations of the mother's driving and slurred speech).
The trial court's factual findings support its conclusion that defendant's actions were grossly or wantonly negligent. G.S., supra, 157 N.J. at 178. Each of defendant's actions were taken with knowledge that her seven and five year old sons were present and had the ability to observe her. We are convinced the evidence showing that defendant threatened suicide, held a knife to her throat, and then cut her wrist in the presence of her young sons supports the trial court's conclusion that defendant failed to exercise the minimum degree of care required under the circumstances and therefore engaged in reckless conduct undertaken without regard to the safety of her children. See, e.g., N.J. Div. of Youth & Family Servs. v. I.H.C, 415 N.J. Super. 551, 586 (App. Div. 2010) (finding "defendant-parents failed 'to exercise a minimum degree of care'" when they engaged in domestic violence, thereby "'recklessly creat[ing] a risk of serious injury' to their children by failing to protect the children from harm . . .").
We are not persuaded by defendant's argument that Dr. Udell's testimony regarding the harm to the children constituted an impermissible net opinion. Appellate courts "apply [a] . . . deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
An expert's testimony "'may be based on facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject[.]'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)); see also N.J.R.E. 702; N.J.R.E. 703. Experts must "'give the why and wherefore that supports the opinion,' and not present a mere conclusion." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 149 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372).
"[B]are conclusions, unsupported by factual evidence or other data, are inadmissible as [they constitute] a mere 'net opinion.'" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 (2015) (quoting Townsend, supra, 186 N.J. at 494-95). The "prohibition against a 'net opinion' bars expert testimony based on unfounded speculation or mere possibilities." Costantino v. Ventriglia, 324 N.J. Super. 437, 451 (App. Div. 1999) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998)), certif. denied, 163 N.J. 10 (2000).
Dr. Udell's opinion was founded upon her review of Division reports regarding defendant's actions, her interviews and evaluations of Evan and Edward, and various literature in her field of expertise. She explained the factual basis for her opinion and the reasoning upon which her opinion was based. We therefore conclude that Dr. Udell's opinion was not an impermissible net opinion and, as a result, the trial judge did not err when he relied upon Dr. Udell's testimony for his finding of abuse or neglect.
We are convinced Dr. Udell's testimony provided substantial credible evidence supporting the court's finding that Evan and Edward suffered actual harm as a result of defendant's actions, and that therefore defendant's actions posed a risk of imminent harm to Evan and Edward. We reject defendant's argument that our decision in S.S. requires a different result. In S.S. we held that the act of allowing a child to witness domestic violence does not constitute abuse or neglect in the absence of credible evidence that the child suffered harm or was placed in imminent risk of harm. S.S., supra, 372 N.J. Super. at 22-25. Here, Dr. Udell's testimony that Evan and Edward suffered actual harm and were in imminent risk of harm provided the evidence we found lacking in S.S.
We also are convinced the trial judge did not err when he made his abuse or neglect finding without consideration of defendant's successful participation in Division services after the incident on December 15, 2012. Defendant relies on our holding in N.J. Div. of Child Prot. & 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), contending that the trial court was required to consider the evidence existing at the time of the fact-finding in its determination as to whether the children's "physical, mental or emotional condition" were "'in imminent danger of becoming impaired.'" M.C., supra, 435 N.J. Super. at 418 (quoting N.J.S.A. 9:6-8.21(c)(4)).
While certification for M.C. was pending, our Supreme Court decided E.D.-O., supra, 223 N.J. at 166, and rejected the argument defendant makes here. The Court held that the phrase, "is in imminent danger of becoming impaired," N.J.S.A. 9:6-8.21(c)(4), requires a fact-finding court to consider the "imminent risk of harm" as it existed at the time of the incident at issue, and not at the time of the fact-finding hearing. E.D.-O., supra, 223 N.J. at 187-88. We therefore conclude that the trial court correctly found abuse or neglect without regard to defendant's participation in services subsequent to December 15, 2012.
We also conclude, however, there was no evidence that defendant's actions caused harm or posed an imminent risk of harm to Mary and Yolanda. They were not present when defendant threatened suicide and there was no credible evidence supporting the court's conclusion that they were abused or neglected as a result of defendant's conduct.
Reversed as to the trial court's finding of abuse or neglect of Mary and Yolanda. Affirmed as to the trial court's finding of abuse or neglect of Evan and Edward. Remanded for the entry of a fact-finding order consistent with our opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION