Opinion
DOCKET NO. A-5291-11T1 DOCKET NO. A-5295-11T1
06-02-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.V. and A.S, Defendants-Appellants. IN THE MATTER OF X.V., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.V. (Linda Mehling, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant A.S. (Kimmo Z.H. Abbasi, 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 minor (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0321-11.
Joseph E. Krakora, Public Defender, attorney for appellant J.V. (Linda Mehling, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant A.S. (Kimmo Z.H. Abbasi, 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 minor (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
A.S. (Alice) and J.V. (John) each individually appeal the trial court order entered determining their son, X.V. (Xerxes), was abused and neglected, as defined by N.J.S.A. 9:6-8.21(c)(4)(b), "when they engaged in drinking, arguing, and subject[ed] [Xerxes] to their actions and subjected [him] to a risk of harm." We conclude the evidence presented was insufficient to support the findings of abuse and neglect and reverse.
For clarity and ease of reading, we have chosen to use pseudonyms.
I.
The facts upon which the court relied were derived from a fact-finding hearing conducted by the court, at which time key testimony was elicited from Alice's sister, M.S. (Morgan). Morgan was the only testifying witness who was present when the incident occurred. Because the court expressly found that her testimony was "highly relevant, at the heart of the Division's case," and convinced the court that defendants abused and neglected Xerxes, we focus upon her testimony.
Morgan was twenty years old at time of her testimony. She testified that around 4:30 a.m. on May 17, 2011, she received a telephone call from John, reporting that Alice was drunk and attempting to take Xerxes from the house and drive away. He asked Morgan to come to his home to pick up Alice and take her home. Morgan arrived twenty minutes later. When she entered the residence, she asked for her sister and heard her sister crying in another room. She headed for the room, which was John's bedroom, and saw her sister seated on a bed crying. When she asked the whereabouts of Xerxes, John told her that five-week-old Xerxes was upstairs.
Morgan then went upstairs and found Xerxes in the arms of John's teenage sister, who was feeding Xerxes. Morgan took Xerxes and walked back downstairs. She saw three men seated on a couch in the living room drinking 40-ounce bottles of beer. She expressed her intention to leave, but John told her that she could not take Xerxes. He grabbed her arm, albeit not hard enough to have caused bruising or to have made her feel that she might drop Xerxes. Morgan sat down on the couch and explained to John that she thought it would be better if she took Xerxes. John reacted by throwing an object, possibly a bassinet, but did so in a direction away from Morgan and Xerxes. He then went into his room and slammed the door. Morgan left with Xerxes and Alice, driving her sister and the baby home.
Morgan was confronted with an affidavit she signed shortly after the incident. In that affidavit, Morgan stated that John told her on the phone that Alice was really drunk and was trying to take Xerxes and drive away in her car. She also stated that John appeared to be intoxicated, but did not explain why she reached that conclusion. She did, however, testify that she believed John's friends were intoxicated because "if you're drinking, aren't you intoxicated?"
Evidence was also presented to the court that once the incident was referred to the Division and it obtained an order for care and supervision of Xerxes, the infant underwent a medical evaluation performed by a pediatrician. The pediatrician voiced no concerns as to the care Xerxes was receiving, reported that he was current on vaccinations, and found no signs of abuse or neglect. Nor did the investigating caseworker report any concerns related to Xerxes being fed and clothed. The caseworker further noted that defendants had car seats, as well as appropriate bedding and clothing. The caseworker did not observe any inappropriate behavior on the part of Alice during the investigation.
At the conclusion of the fact-finding hearing, the court was satisfied the Division proved, by a preponderance of the evidence, that defendants had abused and neglected Xerxes. The court's decision was based upon its finding that defendants had been drinking and arguing on May 17, 2011, and had subjected Xerxes to a risk of harm by virtue of their actions. The court also relied upon the positive results for alcohol in John's system when he was tested on May 19, 2011. The court additionally relied upon the report from Preferred Children's Services stating that Alice, during an interview, admitted that she used marijuana at age fourteen, and had used it once within the thirty-day period prior to the May 17, 2011 incident. The court noted, however, that Alice tested negative for drugs, when the Division tested her the day after the incident, as part of its investigation.
Based upon these considerations, the court concluded the circumstances surrounding the incident involved a "crisis situation where we have arguing, certainly the potential for domestic violence, beer, drinking, and a five-and-a-half-year-old baby (sic) at 4:30 in the morning, I might add. . . . [Defendants] failed to properly supervise their child. They exposed their very young child to a risk of harm by virtue of their conduct[.]"
The present appeal followed. Both Alice and John contend there was insufficient evidence to support the court's determination they abused and neglected Xerxes. Alice specifically urges that the evidence, at best, established a domestic violence incident limited to a verbal argument between herself and John, and that alone does not constitute domestic violence. Moreover, she maintains that even if the verbal altercation is considered domestic violence, Xerxes did not witness the incident because he was upstairs during the argument, where he was being fed by his paternal aunt at the time.
John contends the Division's proofs fell short of establishing gross or wanton negligence, which is the standard for establishing abuse or neglect, and the court's determination was based upon a single incident, an argument, which was insufficient to support a finding of abuse and neglect. Moreover, he argues that while the court found defendants had exposed Xerxes to a risk of harm, there was no finding they exposed Xerxes to a substantial risk of harm, as is required under the abuse and neglect statute.
Both the Division and the Law Guardian maintain the court's determination should be upheld, given the age of Xerxes and the parents' conduct in subjecting him to a substantial risk of harm while consuming alcohol in the early morning hours and engaging in a domestic dispute, which escalated to the point where John threw an object and other adults had to be called to care for Xerxes.
II.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). "The factual findings which undergird a trial court's judgment should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
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 J.T., supra, 269 N.J. Super. at 188-89). Despite such circumstances, deference will still be accorded to the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Ibid.
N.J.S.A. 9:6-8.21(c), in relevant part, defines an "abused or neglected child" as:
[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 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[.]"[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Thus, the Division was not required to prove that defendants intended to harm Xerxes when they engaged in drinking and their verbal altercation. It was required to prove that each defendant was at least grossly negligent or reckless. N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 257 (App. Div. 2012).
[N.J.S.A. 9:6-8.21(c)(4).]
"Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. Gross negligence falls on a continuum of conduct from ordinary to gross based on the level of risk created, and it is determined on a case-by-ase basis. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181.
Child abuse ranges from situations of "slight inadvertence to malicious purpose to inflict injury." Id. at 178. "One act may be 'substantial' or the sum of many acts may be 'substantial.'" Dep't of Children and Families, Div. of Youth and Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) (citations omitted).
A fact-finding hearing is a critical element of the abuse and neglect process. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). The purpose of a fact-finding hearing in an abuse or neglect proceeding is not to assign guilt to a defendant, but to determine whether a child is an abused or neglected child pursuant to N.J.S.A. 9:6-8.44. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581-82 (App. Div. 2010). At the hearing, the State must prove, by a preponderance of the evidence, that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child. N.J.S.A. 9:6-8.46. An act of abuse or neglect is established when a child's 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." See G.S., supra, 157 N.J. at 177.
Here, it is undisputed that Morgan received a telephone call from John around 4:30 a.m. on the day of the incident, requesting that she come to his house. According to the affidavit she signed shortly after the incident, John wanted her to come over to his house because Alice was really drunk and was planning to take Xerxes in her car. When Morgan arrived, she saw Alice pushing John and his mother. At trial she testified otherwise, stating that the dispute was not "serious [sic] physical." She stated she witnessed John throw a bassinet across the room, acting very violent, slamming and throwing things down, yelling and mumbling, and not making any sense, which led her to suspect that he had been drinking.
In articulating its findings of fact, the court did not find, as Morgan testified, that John had been very violent, or that Alice was out of control, very drunk, or had been pushing John. Rather, the court merely noted that the circumstances certainly established the "potential" for domestic violence, and then found "the Division has shown by a preponderance of the evidence that by virtue of the actions of these parents on the night of May [17th] engaged in . . . arguing and drinking" and that Xerxes was in the "middle of it." These findings, however, do not establish that Xerxes was abused or neglected within the meaning of Title Nine.
Five-and-one-half-week-old Xerxes was not downstairs in the living room where other guests were drinking 40-ounce bottles of beer. Nor was he in John's bedroom where the domestic dispute had occurred or was ongoing. Rather, he was upstairs, obviously being watched by his teenage aunt, who was feeding him. Moreover, even after Morgan took control of Xerxes and brought him downstairs, there was no actual or threatened harm to Xerxes. While John threw a bassinet, (or some other object), he threw it in a direction away from Xerxes and Morgan. Additionally, although Morgan testified John attempted to stop her from leaving with Xerxes by grabbing her arm, she explained the grab was not forceful to the point of causing a bruise; nor did it make her feel that she would drop the baby. Morgan confirmed that it was John who called and wanted her to pick up Alice because he believed Alice was very drunk and was going to leave with Xerxes. He did not ask her to take Xerxes. To the extent he believed Alice was "very drunk," it was reasonable for him not to want Alice to leave with Xerxes, notwithstanding that she was leaving with Morgan.
Nothing in the record before the court remotely suggests that Xerxes suffered any actual harm as a result of defendants' conduct. Therefore, the inquiry is narrowed to whether the Division proved, by a preponderance of the evidence, that Xerxes faced imminent danger or a substantial risk of harm as a result of the events occurring in the early morning hours of May 17, 2011. A.L., supra, 213 N.J. at 22 (holding in a case where there is no proof of actual harm, "the critical focus is on evidence of imminent danger or substantial risk of harm"). Not even the court, as defendants note, found that defendants' conduct exposed Xerxes to a "substantial risk of harm."
The Division, in its brief, states the court found that defendants "placed their very young baby at 'substantial' risk of harm on May 17, 2011." This is a mischaracterization of the court's findings. The court's reference to the word "substantial" in its decision was in the context of its consideration of our decision in C.H, where we stated the elements of proof in Title Nine abuse and neglect cases are "synergistically related" and, therefore, could be based upon one substantial act or the sum of many acts, which could be found to be substantial. C.H., supra, 414 N.J. Super. at 481. The court stated that it found C.H. "is a very significant holding" and "particularly applicable in this case." Nonetheless, the court found only that defendants exposed their very young child to "a risk of harm," not a "substantial" risk of harm.
Even if we were to assume the court's failure to include the word "substantial" before "risk" in its findings was inadvertent, we are convinced the record does not support the finding that defendants subjected Xerxes to any risk of harm, let alone a "substantial" risk of harm. Moreover, the court at no time found that Xerxes faced imminent danger. Further, the Division put forth no proofs that entrusting Xerxes to his fourteen-year-old aunt exposed Xerxes to actual harm, a substantial risk of harm, or imminent danger.
Finally, the Division presented evidence of Alice's past history of abusing alcohol and illegal substances, as well as John's criminal history and the fact that he tested positive for alcohol twenty-four hours after the incident. The Division also focused upon the fact that defendants are young parents and immature.
The fact that defendants are young and immature, had been drinking, and drinking with friends around 4:30 a.m., neither singly, nor collectively, evidence abuse or neglect. While it may not be typical for parents to be up and drinking alcohol with friends at 4:30 a.m., this conduct certainly did not establish that either parent failed to exercise a minimum degree of care for the benefit of Xerxes.
Likewise, the fact that defendants were engaged in a verbal dispute or even a physical altercation outside of Xerxes's presence and about which the infant was certainly unaware, also falls short of establishing they failed to exercise a minimum degree of care for their child. Even the throwing of the bassinet or some other object while Xerxes was then in the same room as John did not expose Xerxes to actual harm, a substantial risk of harm, or imminent danger, since the object was thrown in the opposite direction from where Xerxes was being held by Morgan.
Title Nine cannot be converted into a moral compass by which any inappropriate parental behavior is deemed abusive or neglectful. Instead, "Title [Nine]'s primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177. "The focus in abuse and neglect matters, thus, is on promptly protecting a child who has suffered harm or faces imminent danger." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013).
The consequences of a finding of abuse or neglect on the part of a parent or guardian are significant:
The court can enter a dispositional order that places the child in the custody of a relative or another suitable person for a substantial period of time. The Division can also bring an action to terminate parental rights, which may rely on a Title 9 judgment.
In addition, when an allegation is substantiated, the Division enters the name of the person found to have committed child abuse and any identifying information into a Central Registry. Although those records are kept confidential, . . . they may be disclosed, on written request, to doctors, courts, child welfare agencies, employers who are required by law to consider child abuse or neglect information when conducting a background check or employment-related screening, and others[.]
[A.L., supra, 213 N.J. at 25-26 (citations and internal quotation marks omitted).]
As such, a finding of abuse and neglect must be based on more than what the trial court relied upon. The record before the trial court established no evidence of actual harm, substantial risk of harm, or imminent danger arising out of defendants' actions, within the contemplation of Title Nine. We are therefore constrained to reverse.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION