Opinion
DOCKET NO. A-1561-14T3
06-16-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.S., Defendant-Appellant. IN THE MATTER OF S.N. AND N.S., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-452-14. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant R.S. is the biological father of a ten-year-old girl (N.S.) and a twelve-year-old boy (S.N.). Defendant now appeals from the order of the Family Part finding he abused or neglected his children, as defined in N.J.S.A. 9:6-8.21(c). The trial court reached this conclusion after considering evidence presented by the Division of Child Protection and Permanency (Division), at a fact-finding hearing held pursuant to N.J.S.A. 9:6-8.44. The trial judge found defendant physically injured N.S. in the course of committing an act of domestic violence against his wife, the children's mother. The trial judge also found S.N. was abused or neglected, within the meaning of N.J.S.A. 9:6-8.21(c)(4), because he witnessed his father's aggression against both his mother and his younger sister.
Defendant argues the court erred in finding he injured his children, or placed them in imminent risk of substantial harm, because the injuries sustained by N.S. did not require medical attention. Alternatively, defendant argues his actions involving N.S. were forms of corporal punishment, which was not excessive and thus not child abuse or neglect under N.J.S.A. 9:6-8.21(c).
We reject defendant's arguments and affirm. We derive the following facts from the record developed before the Family Part.
I
On the morning of January 27, 2014, defendant and his wife, Shirley, had an argument about the condition of the children's school uniforms. This verbal disagreement escalated into an episode of domestic violence when defendant physically assaulted Shirley, holding her on the ground in a headlock. The incident unfolded while the children were in the home. S.N. and N.S. came downstairs in time to witness their parents engaged in this physical altercation. Before coming downstairs, twelve-year-old S.N. armed himself with a golf club. When N.S. saw that her parents were fighting, she threw herself on top of her mother in an effort to shield her from her father's aggression. According to Shirley and the children, defendant grabbed his ten-year-old daughter by her hoodie and "threw" her on to the couch. As a result, N.S scratched her face and bruised her knees.
The appellate record includes photographs of N.S. depicting these injuries. These photographs were admitted into evidence at the fact-finding hearing. --------
Later that same day, the medical staff of the Pediatric Emergency Room of Newark Beth Israel Hospital reported to the Division that Shirley had brought N.S. to be treated for injuries to her face. Hospital records show the child told the medical staff that her injuries were caused when she attempted to protect her mother from her father's aggression during a domestic dispute. N.S. was treated in the emergency room for minor lacerations to her knees and face and discharged. Later that evening, a Division caseworker interviewed Shirley and the children at their home. All three concurred on how N.S. was injured.
According to Shirley, the incident began as a mundane, commonplace annoyance. Defendant had agreed to wash the children's school uniforms. However, when defendant arrived home, the uniforms were wet and not ironed. Shirley became very upset with defendant because this would cause the children to be late for school. As described in the caseworker's report, Shirley was the one who began the physical altercation.
She stated she pushed [defendant] when she was angry and they started to kick each other. She stated before she knew it he had her in a choke hold. She stated she was on the floor facing down. She stated she did not see her daughter but felt [N.S.] throw her body over hers. She stated she did not see what happened but knew her daughter was thrown across the room. She stated she saw her daughter crying by the sofa.
Defendant left the marital residence immediately after Shirley reported the incident to the Newark Police Department. The police officers who responded to the home transported Shirley and N.S. to Newark Beth Israel Hospital. The Division caseworker who interviewed and documented her interactions with S.N. testified at the fact-finding hearing. S.N told the caseworker he took a golf club before going to the place where his parents were arguing. When he arrived, he sat in the corner holding the golf club. The caseworker testified that S.N. saw his sister throw herself on top of their mother to protect her from defendant; he then saw defendant grab N.S. by her hoodie and throw her on to the couch.
Defendant did not testify at the fact-finding hearing. However, his version of how the events unfolded was presented to the trial judge through the Division's records and the testimony of the Division caseworker who interviewed defendant on February 11, 2014. Defendant told the caseworker that his wife charged at him, requiring him to use force to restrain her. As described in the Division's report, defendant claimed Shirley "started to go crazy and she threw a glass at him and it busted all over the floor." At the time his daughter was laying over her mother, "he picked up her up by the arm and placed her by the sofa while his wife was fighting with him." He did this to avoid his daughter from being cut by the glass that was "all around his wife."
With respect to his son S.N., defendant told the caseworker he noticed the boy "with a golf club." While he was holding his wife down, he looked at his son and said: "Really, really, you are going to hit me with the golf club." His son did not respond; the boy merely remained in the corner. Defendant left the house when he saw his wife call the police. According to the caseworker, although his relationship with his wife had been tumultuous for years, defendant claimed he has never actually "hit her." He only used physical force to restrain her.
Defendant's counsel called Division caseworker Mary Clark as a witness in support of defendant's claim that N.S. had recanted her original claim that her father had thrown her across the room into the couch.
Q. Okay. Now, regarding the entire incident what did [N.S.] say regarding what -- has she given other versions of what happened regarding what [defendant] allegedly did?
A. Yes.
Q. Okay. What's another version of what he allegedly did?
A. As far as the reasoning or what he did? I just --
Q. Oh, the reasoning.
A. Oh, she did explain to me that she said that dad threw her mainly because she wanted him out of the house because dad is mean and he forces the rules and mom don't. [sic]
Q. Okay. And when did she tell you that?
A. At our very first meeting, which was -- it was in June, I believe. I went to the school and met with the two of them -- [N.S.] and [S.N.].
Q. Okay. And has she repeated that since then?
A. Oh, yes.
Q. And when was the next time she repeated that?
A. That following -- I went to the school on that Wednesday and, then, I went to the home on Friday. So once I went up to her bedroom and we spoke again, because there was more -- it was more private, whereas, being in school, we spoke about it again. And she did say it again. And, then, that's when she said she misses her dad, and she wants her dad back.
Q. This was Friday what?
A. This was Friday -- the Friday after I did the initial . . . meeting. I can't recall exact dates. But I went . . . to the school on a Wednesday and, then, I went to the home on a Friday.
. . . .
Q. Okay. So she said she just basically wanted her father . . . at the time she wanted her father out of the house?
A. At the time she said she wanted him out of the house, basically, because he was more strict than mom.
Q. Okay. And did she say what she did to get him out of the house?
A. Yes. She said that . . . he threw her across the room.
Q: But he did not throw her across the room?
A: From [what] she told me he didn't.
Q. He did not?
A: Yeah, he did not. From what . . . she told me he said he did not. He did push her and grab her by the hoody part.
Defense counsel thereafter discussed the matter with defendant outside the courtroom. Upon his return, defense counsel told the trial judge defendant "was not going to testify." The parties rested without calling any additional witnesses.
II
In his summation at the conclusion of the fact-finding hearing, defendant's counsel argued the evidence did not definitively establish how N.S. was injured. Counsel noted that according to the investigation report, Shirley only saw her daughter sitting on the couch crying, "[b]ut she states that she doesn't know what happened." According to defense counsel, N.S. was the only one who claimed defendant scratched her face. Under these circumstances, defense counsel argued "that in addition to the possibility that [defendant] may have caused the scratch on the face there's, also, the possibility that [Shirley] caused the scratch on the face and that she was the one over whom [N.S.] had laid her body."
Defense counsel also emphasized that Division caseworker Clark's testimony established N.S. thought her father was a strict disciplinarian "and he's the one who [N.S.] can't . . . get over on." By contrast, her mother was considered "Ms. Softy." Counsel thus argued it was reasonable to conclude the child falsely accused her father of throwing her across the room as a means of getting him out of the household.
The trial judge found defendant injured his ten-year-old daughter N.S. when he grabbed her by the hoodie she was wearing and threw her on the couch located across the room. Although the child was not severely injured, the judge found that what occurred here was not an isolated event for this troubled family. The judge found the parents of these children appeared to have had a history of unreported domestic violence. The court found both parents shared a measure of responsibility for allowing what began as a mundane argument about defendant's insensitivity to the children's school needs to escalate into a full blown physical confrontation. The trial judge especially emphasized the emotional damage caused to the children involved in domestic violence. Here, the court also found this emotional trauma was compounded when both children felt the need to intervene and take sides in this adult dispute in order to protect their mother from their father's aggression.
In determining whether the Division proved by a preponderance of the evidence that defendant's conduct constituted abuse or neglect of his children under Title 9, the court made the following findings:
The court finds that the parties, the mother and the father, were engaged in an act of domestic violence in their home . . . . Apparently nits can be picked about who said what, whether it was a hickey or wet clothes, whether it was a push or a look, whatever the act that ignited the exchange was is, frankly, in my view irrelevant to the issue.
What is relevant to the issue is once having engaged in an exchange, an act of domestic violence did [defendant] act in such a way as to either cause actual harm or place the child, [N.S.], . . . and/or the son, [S.N], in substantial risk of harm?
It is noted by both the legislature in the State of New Jersey and numerous courts that children even when they themselves are not the ones physically assaulted suffer deep and lasting emotional effects from exposure to domestic violence.
The trial judge also rejected defendant's attempt to question N.S.'s credibility based on an alleged recantation, and accepted as credible N.S.'s original description of what transpired in her home on the morning of January 27, 2014. Consequently, the court found the lacerations to N.S.'s face and knees were caused by defendant "removing her from in between [the] domestic violence incident." The judge also distinguished between "merely witnessing domestic violence without something more" and what occurred here. As it relates to N.S., the judge found she not only witnessed her parents' physical altercation, she was "so emotionally distressed by the circumstances that she put[] herself in peril by attempting to go between her father and her mother at great risk."
With respect to S.N., the judge found:
[H]e doesn't just watch the event, but he's so impacted by the event, he's so fearful for either his safety or the safety of other members of his family that he goes out to get a golf club. And I have no understanding as to whether he intended to use that offensively or defensively. But under the circumstances emotional response to that circumstance was so strong that he felt it necessary to place the golf club in his hand.
. . . .
So as to both children, the witnessing the domestic violence incident and their response to it, this Court finds the State has met its burden with respect to whether [defendant] caused these children to be abused or neglected children.
On October 7, 2014, the Family Part entered an order terminating the litigation. Defendant opted not to address the court.
III
We review the factual findings made by a trial court to determine whether they are supported by adequate, substantial, credible evidence. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We also defer to credibility determinations made by the trial judge because the trial judge "hears the case, sees and observes the witnesses, [and] hears them testify." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). The trial judge "has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid.
In determining whether the evidence presented to the trial court supports a finding of abuse or neglect, we must "focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." N.J. Div. of Child Prot. & Permanency v. K.M., 444 N.J. Super. 325, 331 (App. Div. 2016) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 182 (1999)). Under Title 9, an "abused or neglected child" is
a child 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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so . . . .
[N. J.S.A. 9:6-8.21(c)(4) (emphasis added).]
Our Supreme Court examined the "minimum degree of care" standard in G.S.:
The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[G .S., supra, 157 N.J. at 178.]
In adopting the Prevention of Domestic Violence Act, the Legislature found "there is a positive correlation between spousal abuse and child abuse; and 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. In N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), this court examined this question in the context of a parent exposing a child to acts of domestic violence. In S.S., the defendant mother was carrying a twenty-one-month-old baby in her arms while being choked by her abusive husband. Id. at 21. The defendant ran away from her attacker while carrying the baby. Ibid. In reversing the Family Part's finding that the defendant had abused or neglected her son, we held:
[The] judge found as a matter of fact that appellant had been holding her son when she was attacked. Nonetheless, he made no finding of actual or potential physical harm to the child but, like the Child Placement Review Board, focused on actual or potential harm to the mental or emotional condition of the child resulting from observing the abuse.
. . . .
Our concern with the court's rationale lies in the fact that emotional harm to the child as the result of witnessing domestic abuse was assumed by the DYFS case worker, the C.P.R. Board and by the fact-finding judge. Yet, there is absolutely no evidence in the record to support that assumption or the further assumption that by initially refusing proffered advice to obtain a restraining order and seeking a reduction in her husband's bail, appellant necessarily emotionally endangered her child.
[Id. at 22 (emphasis added).]
Here, by contrast, the children were keenly aware of the act of domestic violence that was taking place and more importantly the role defendant played in bringing it about. Both children experienced profound and readily ascertainable emotional harm by witnessing their father's aggression against their mother. Although N.S.'s physical injuries from being thrown across gthe room by her father were relatively minor, the emotional trauma associated with this experience is likely to endure far into the future.
The Family Part's findings of abuse or neglect against defendant is well-supported by the record. We decline to address defendant's belated argument seeking to characterize his actions against N.S. as a form of corporal punishment or parental discipline. First, defendant did not make this argument before the trial judge. Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 443 (App. Div. 2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Second, based on the facts found controlling by the Family Part, this argument lacks sufficient merit to warrant discussion in a written opinion. 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