Opinion
DOCKET NO. A-5931-11T3
5/16/2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.R., Defendant-Appellant. IN THE MATTER OF T.A. and D.R., MINORS.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel P. McNerney, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea R. Fonseca-Romen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.R. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.A. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-344-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel P. McNerney, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea R. Fonseca-Romen, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.R. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.A. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Following a June 19, 2012 Family Part order terminating Title Nine litigation, defendant M.R. (Maureen) appeals from an April 27, 2012 Family Part order finding that she had abused and neglected her then fourteen-year-old daughter D.R. (Darlene). We affirm.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms for the parents, children, and other family members to protect their privacy.
We discern the following facts and procedural history from the record. Maureen and R.R. (Robert) are Darlene's parents. At the time of the of the incidents that gave rise to the Division's involvement with the family, T.A. (Tara), Maureen and Robert's niece, was fifteen years old. In 2011, Tara's mother sent her to live at Maureen and Robert's home in New Jersey because she was having behavioral issues at school in another state. Tara had lived with them previously for a year when she was in second grade.
In December 2011, Tara disclosed to a school guidance counselor that her uncle, Robert, was sexually abusing her. The school contacted the police and the Division. Tara told the investigator that over the course of several weeks, Robert coerced her into having sexual relations on four occasions. On other occasions, according to Tara, Robert inappropriately touched her and attempted to convince her to join him in the shower. Tara mentioned that it was a normal occurrence for Robert to take showers with the children in the household. The Division began an investigation of the family based on Tara's statements.
On December 8, 2011, the Division filed a verified complaint seeking custody of Tara and Darlene. At the show cause hearing, a Division caseworker testified about Tara's allegations. He also testified that Darlene reported having showered with her father just two weeks prior to the Division's investigation. The judge determined that the removal of the children was necessary due to imminent danger to their life, safety, or health because of the allegations.
On December 21, 2011, Darlene underwent a sexual abuse evaluation with Marita Lind, M.D. Dr. Lind also interviewed Maureen. Maureen stated that she first became aware of Tara's accusations during the investigation. She reported that Robert always took showers with all the children in the family since they were young, she did not know any details about the showers, and she was aware that Robert currently took showers with Darlene. Maureen expressed her belief that the showers were innocent and that she was certain that Robert would not do anything inappropriate with the children.
When interviewed, Darlene acknowledged to Dr. Lind that she had taken showers with her father. She stated that her adult sister and her three adult brothers all took showers with him when they were younger. She denied any sexual abuse stating that Robert never touched her, he turned away when he washed his private parts, and she never noticed him being erect. She reported that he just soaped up and talked about the day. Darlene refused to have a full physical examination.
On January 17, 2012, Maureen underwent a psychological evaluation with Genevieve Chaney, Psy.D. She again acknowledged that she was aware Robert showered with Darlene in the past. Maureen also related that she had showered with their sons until they were nine or ten and wanted more privacy. She denied that any inappropriate conduct happened with any of the children in the house. Maureen believed that Robert never intended any harm to Darlene and she did not believe that he sexually abused Tara. She told Dr. Chaney that she and Robert used to defend the family showering together, but now realized that it "shouldn't have happened," because she now saw that Darlene was a "young woman" who "need[ed] privacy."
Dr. Chaney concluded in her written report that "[a]t the very least, [Maureen] was neglectful in not more proactively establishing, modeling, and enforcing good boundaries in the home in the best interest of her teenage daughter and demonstrated poor parenting judgment." Further, Maureen's "lack of good parenting judgment in the past [was] a foremost concern of [the] evaluation," but "her insight and awareness of the inappropriateness of family bathing practices bode[d] well for future, positive changes in her functioning."
On April 12, 2012, the Family Part judge conducted a fact-finding hearing. The Division submitted documentary evidence including the doctors' reports, police reports, several audio and video statements made to police, and school records. The judge began by interviewing Tara in her chambers, which was simultaneously broadcast into the courtroom. Tara testified in detail about the sexual abuse she claimed that she endured. When the judge asked about the showering, Tara stated that "it was kind of like it was normal for us almost because he would walk around the house naked, he would get in the shower and one of us would get in the shower with him. It was just always like that." She explained that nothing would happen in the shower and it was "just a shower." She said she did not know if Robert became aroused because he would tell the children to never to look down during the showers, and if they did, they would be punished. No other witnesses testified.
After considering the evidence, the judge rendered a thorough sixteen-page written decision on April 27, 2012, finding by a preponderance of the evidence that Darlene and Tara were abused and neglected children within the meaning of N.J.S.A. 9:6—8.21(c). The judge found Tara's testimony to be credible. The judge found that Robert abused Tara because he had inappropriate sexual contact with her.
The judge also found that both Maureen and Robert abused Darlene. The judge determined that Robert "showering with a developing teenager, whether it is his daughter or not, constitutes abuse." The judge found Robert's conduct to be highly inappropriate stating that in light of Tara's allegations, "this Court cannot conceive of any reason why a father would be nude in the shower with his daughter other than for sexual stimulation." The judge determined that Maureen's knowledge of Robert's showers with Darlene and acceptance of that conduct as appropriate and normal also constituted abuse because Maureen failed to exercise a minimum degree of care to protect Darlene by failing to prevent the conduct. This appeal followed.
Robert did not appeal the findings of abuse and neglect pertaining to him. This appeal pertains only to the finding of abuse and neglect of Darlene by Maureen.
On appeal, Maureen argues that the trial court erred in finding that she abused or neglected Darlene because there was insufficient proof of either actual harm to Darlene or proof of an imminent danger and substantial risk of harm. In particular, she contends that because the court did not make a finding that Darlene suffered any harm as a result of showering with Robert, and because there was no finding that Maureen had any knowledge of Robert's sexual contact with Tara, the abuse and neglect finding should be reversed. For the same reasons, Darlene also argues, through her Law Guardian, that the abuse and neglect finding against her mother should be reversed. Based upon the record before us, we cannot agree.
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to - 8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). An abused or neglected child is one
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 . . . 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 300 (quoting G.S., supra, 157 N.J. at 178). "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 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 124 (1995); McLaughlin, supra, 56 N.J. at 305).
In G.S., supra, the Court elaborated on the gross negligence standard in child neglect cases pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), stating,
[w]hether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation . . . . [T]he inquiry should 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. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.Gross negligence requires an indifference to the consequences, Bank v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987), but a parent's actual intent to cause harm is not necessary. G.S., supra, 157 N.J. at 179.
[157 N.J. at 181-82.]
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the parent's conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309-10 (finding only negligence where mother left four-year-old alone at home because she mistakenly believed the child's grandmother was present); see also N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (finding only negligence where mother allowed children to walk from playground to condominium within her line of sight, and they accidentally locked themselves in the home); but see N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (finding gross negligence where defendant left infant on bed near radiator and infant was severely burned because defendant's use of blanket as buffer showed he was aware of substantial risk of imminent harm).
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to the family court because of its "'expertise in family matters.'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
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).
In this matter, the Division's evidence concerning Robert showering with Darlene on a regular basis and Maureen's knowledge and acquiescence was unrebutted. Viewed under the standard established in G.S., supra, 157 N.J. at 181-82, we agree that a preponderance of the evidence showed that Maureen's parental inattention to the highly inappropriate showering arrangements created an imminent risk of harm to Darlene. Maureen's failure to take precautionary measures to halt the showering of a fourteen-year-old girl with an adult man evinces her failure to exercise a minimum degree of care.
Moreover, Maureen's claim that she was not recklessly and wantonly negligent because she mistakenly thought the showering was "innocent" is unavailing. "The standard [for recklessness] is objective and may be proven by showing that [the actor] proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position." Schick v. Ferolito, 167 N.J. 7, 19 (2001) (internal quotation marks and citation omitted). In our view, a reasonable parent would perceive the risks inherent in the behavior here. As a parent, Maureen had a fundamental duty to be aware of and protect her children from potential risks in the environment, including those that may come from the other parent. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (citing M.M. , supra, 189 N.J. at 288-89). In this case, by turning a blind eye to the potential risk to her teenage daughter, Maureen was not providing the minimum amount of protection her child deserved.
The judge appropriately based her decision on the credible testimony of Tara that Robert made it his practice to shower with both of the teenage girls, finding that there was a very high likelihood that he did so for the purposes of sexual gratification, especially in light of his inappropriate conduct with Tara. The obviousness and gravity of the risk of this conduct were recklessly disregarded by Maureen.
Even without knowing that Robert had begun to sexually abuse his niece, Maureen should have known, and in hindsight reluctantly admitted, that allowing a grown man to shower in the nude with a developing teen girl creates a substantial risk of harm, not only of sexual abuse, but psychological damage to the child. Clearly that risk warranted proactive protective actions on her part. Indeed, 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 to take protective measures. G.S., supra, 157 N.J. at 181. The fact that Maureen did not intend to create a substantial risk to Darlene in her failure to act is irrelevant. See id. at 178. Rather, the Division was only required to show by a preponderance that Maureen's failure to act constituted reckless disregard for Darlene's safety. See ibid. Regardless of Maureen's knowledge of what occurred between Robert and Tara, we are satisfied that the Division met its burden.
Maureen's argument that the neglect finding was erroneous since there was no finding of actual harm to Darlene is also without merit. It is well established that in the absence of actual harm, a finding of abuse or neglect can be based upon proof of the child's exposure to a substantial risk of harm. N.J.S.A. 9:6-8.21(c)(4); A.L., supra, 213 N.J. at 23. Furthermore, Dr. Lind recommended that Darlene seek mental-health treatment and counseling as a result of being desensitized to the need to respect her bodily privacy and integrity, which speaks to the harm Darlene has suffered.
Thus, we are in agreement with the trial judge that Darlene's "physical, mental, or emotional condition has been impaired or [was] in imminent danger of becoming impaired" as a result of Maureen allowing Robert to regularly shower in the nude with Darlene, a developing teenage girl. N.J.S.A. 9:6-8.21(c)(4). Accordingly, the finding of abuse and neglect with respect to Maureen is affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION