On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-350-02.
Before Judges Kestin, Eichen and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this child abuse and neglect appeal, we consider whether the proofs presented to the Family Part support the court's finding that"[t]he parent has subjected [his] child to aggravated circumstances of abuse, neglect, cruelty or abandonment[,]" pursuant to N.J.S.A. 30:4C-11.3(a), thereby excusing the New Jersey Division of Youth and Family Services (DYFS or Division) from its statutory obligation under N.J.S.A. 30:4C-11.1(b) to exert"reasonable efforts" to reunify the child, placed in its care and custody by the court, with that parent.
A.R.G. is the father of C.R.G., a male child born on January 2, 1987; R.L.G., a male child born on October 5, 1992; and A.J.G., a male child born on May 16, 1994. M.A.G., the children's mother, died in an automobile accident that occurred on November 7, 1998 in Florida. A.R.G. and M.A.G. had been living in Virginia. However, they separated in 1997. M.A.G. filed a complaint for divorce in the Circuit Court in Virginia and an order granting her custody of the three children was entered on March 25, 1997. The complaint alleged that A.R.G. had subjected M.A.G. to mental cruelty; threatening and emotional abuse; stalking; harassment; marital rape; physical restraint; and destruction of her property. M.A.G. obtained a domestic violence order of protection against A.R.G. on August 4, 1997. During the pendency of the divorce case, M.A.G. obtained permission from the court to move, with the children, to Florida to reside with her parents. After M.A.G.'s fatal accident, the children went to reside with A.R.G., who moved with them to New Jersey to reside in the home of his mother, N.G.
A.R.G. appeals from an order entered on July 17, 2002, denying his motion for reconsideration of an order that had been entered on June 26, 2002, finding that A.R.G's behavior toward the children constituted aggravated circumstances of abuse, neglect and cruelty that excused DYFS from the statutory requirement to exert reasonable efforts to reunify A.R.G. with his children. A.R.G. also appeals from a"permanency order," also entered on July 17, 2002, approving the permanency plan of DYFS to terminate A.R.G.'s parental rights, with adoption of the children by the maternal grandparents, and requiring DYFS to file a guardianship action against A.R.G. by September 18, 2002.
The following factual and procedural history gave rise to this appeal. On May 28, 2002, DYFS received a referral from Ms. Carola, the school nurse at the Hudson Elementary School, 18th Street, Union City, the school attended by R.L.G. and A.J.G., advising that she had observed numerous bruises on the arms, back, buttocks and legs of R.L.G. that had been attributed by the child to a beating by A.R.G. The school had received an anonymous call stating that R.J.G. had been physically abused. It was later determined that C.G.F., A.R.G.'s sister, had reported the abuse to the school after C.R.G. had informed her that A.R.G. had been beating R.L.G.
DYFS caseworker Dionis Burgos responded to the school, met with Nurse Carola, and spoke with the child. R.L.G. advised Burgos that he had been beaten by his father because he had received a negative progress report from school. Burgos observed large black and blue marks on R.L.G.'s right arm and outer forearm; fading red bruises, in addition to eight fading, red belt marks around the area of R.L.G.'s inner right arm; fading black and blue bruises on the child's left arm along with four red, circular belt marks; seven red belt-loop bruises on R.L.G.'s back in the area of the child's left shoulder; and three black and blue belt-loop bruises on the side of his right calf.
Upon further inquiry by Burgos, R.L.G. described a beating that had been inflicted upon him by A.R.G. on May 27, 2002. R.L.G. further informed Burgos that his father often struck him. Burgos also interviewed A.J.G., who verified the information given by R.L.G. N.G., the children's paternal grandmother, appeared at the school to retrieve the children, and was also interviewed by Burgos. N.G. initially informed Burgos that she did not see her son A.R.G. strike R.L.G., but stated that A.R.G. was"always screaming at everyone[,]" and that she feels A.R.G."went to the extreme." Burgos made arrangements for R.L.G. to be physically examined at the Jersey City Medical Center.
Prior to going to the hospital, Burgos accompanied N.G., R.L.G. and A.J.G. back to their home to obtain various phone numbers and other information that might be needed at the hospital. Upon their arriving at the home, the child C.R.G. appeared and he was also interviewed by Burgos. C.R.G. informed Burgos that R.L.G."does not get hit all the time only when he gets bad grades[,]" and that A.R.G. had stopped hitting C.R.G. three years ago. C.G.F., who also resided in an apartment at the same premises where the children resided, was also interviewed by Burgos. C.G.F. stated"she was glad the Division had gone to her brother's home[,]" because"[t]he abuse had to stop[,]" and further stated that"[h]er brother even verbally abused his mother."
After examining R.L.G. at the hospital, Dr. Radwan"reported that the child had old bruises and that based on that information he was determining that the child had at least 5 to 6 beatings on his body." No bruises were detected on A.J.G.'s body. Dr. Pellecia also examined R.L.G., and reported that R.L.G."had 4 to 5 past beatings on his body[,]" and that"[h]e had old, new and healing scars." Dr. Pellecia also stated in his report that the bruises to"[t]he buttock area did not have time to heal and that a new beating was probably done on top of the healing wounds[,]" and"that the buttock area, which was the more seriously injured, would probably leave scars that appeared like birthmarks."
In a second interview of N.G. by Burgos, conducted later that day, N.G. admitted she had been present when the beating to R.L.G. had occurred, but stated that"[A.R.G.] is an aggressive person and she is powerless to stop him." Photographs taken of the bruised areas of R.L.G. graphically depict the results of the severe beating inflicted upon the child by A.R.G. A.R.G. was interviewed by representatives of the Hudson County Prosecutor's Office, and admitted to beating R.L.G. with a belt.
After substantiating the abuse, the Division effected an emergency removal of the children from A.R.G.'s care on May 28, 2002, pursuant to N.J.S.A. 9:6-8.29 to -8.30, and temporarily placed the children into foster care. DYFS also concluded that N.G. had been"neglectful because she did not stop the numerous beatings."
On May 29, 2002, DYFS filed a verified child abuse and neglect complaint in the Family Part against A.R.G., pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, alleging, inter alia, that
[w]hile in the care and custody of their father, the children were abused and/or neglected in that their father has failed to exercise a minimum degree of care in providing the children with proper supervision or guardianship or by unreasonably inflicting or allowing to be inflicted harm or substantial risk thereof, including infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court resulting in such children's physical, mental or emotional condition becoming impaired or in imminent danger of becoming impaired.
The complaint also alleged that there was an extensive history of protective service agency involvement in several other states, and that DYFS had requested records from those states.
DYFS sought an order granting it custody of the three children"and/or such relief as is provided by law, specifically N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C-12, and such other relief as may be warranted."
As a result of the application by DYFS, the trial court entered two orders on May 29, 2002. One order approved and authorized the emergency removal that had been effected by DYFS; placed continued custody of the children with DYFS; prohibited A.R.G. from having any contact with the children; and directed that the matter return to court on June 26, 2002. An order to show cause was also entered on May 29, 2002, directing A.R.G. to show cause on June 26, 2002, why an order should not be entered continuing custody, care and supervision of the children with the Division. The order to show cause also provided for representation of the children by the Office of the Law Guardian, and stated that if A.R.G. was unable to afford counsel he could make application for representation to the Public Defender's Office.
Meanwhile, criminal charges were filed against A.R.G. and he was incarcerated; bail was set at $50,000. A Law Division order entered on May 29, 2002 in the criminal matter prohibited A.R.G. from having any contact with the children. A.R.G. was released on bail on June 7, 2002.
Pursuant to the provisions of the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-1 to -18, an order was entered in the Family Part on June 6, 2002, authorizing the priority placement of the children with L.L. and G.L., the maternal grandparents, in the State of Florida.*fn1
By letter to all counsel dated June 24, 2002, counsel for DYFS advised, as follows:
Enclosed please find a copy of the evidence packet for the fact finding hearing on Wednesday, June 26, 2002 at 1:30 pm. We anticipate moving these documents in evidence at the upcoming trial pursuant to R. 5:12-4(d). At the hearing a request for a finding pursuant to N.J.S.A. 30:4C-11.3(a) will be made.
Please advise whether you will stipulate to the admissibility of these records. It is understood that in so stipulating you reserve the right to proffer evidence rebutting the contents of the documents.
If you object to a document, please advise me as to the nature of your objection. I anticipate calling one witness from the Division.*fn2
At the June 26, 2002 hearing, DYFS moved for a finding that it was not required to exert reasonable efforts to reunify the children with A.R.G., pursuant to N.J.S.A. 30:4C-11.3(a), based upon the presence of alleged aggravating circumstances of the abuse inflicted upon the children by A.R.G.*fn3 That statute provides, as follows:
In any case in which the Division of Youth and Family Services accepts a child in care or custody, including placement, the division shall not be required to provide reasonable efforts to reunify the child with a parent if a court of competent jurisdiction has determined that:
a. The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment;
b. The parent has been convicted of murder, aggravated manslaughter or manslaugh- ter of a child; aiding or abetting, attempt-ing, conspiring or soliciting to commit murder, aggravated manslaughter or manslaughter of a child; committing or attempting to commit an assault that resulted, or could have resulted, in significant bodily injury to a child; or committing a similarly serious criminal act which resulted, or could have resulted, in the death of or significant bodily injury to a child; or c. The rights of the parent to another of the parent's children have been involun tarily terminated.
When determining whether reasonable efforts are required to reunify the child with the parent, the health and safety of the child and the child's need for permanency shall be of paramount concern to the court.
This section shall not be construed to prohibit the division from providing reasonable efforts to reunify the family, if the division determines that family reunifi cation is in the child's best interests.
A permanency plan for the child may be established at the same hearing at which the court determines that reasonable efforts are not required to reunify the child with the parent, if the hearing meets all of the requirements of a permanency hearing pursuant to [N.J.S.A. 30:4C-61.2]. [N.J.S.A. 30:4C-11.3 (emphasis added).]
The only witness presented at the fact-finding hearing was Dionis Burgos, the DYFS caseworker. Burgos testified to the results of the investigation by DYFS and produced the various records contained in the DYFS file, including the photographs taken of R.J.G.'s injuries. Over the objection of counsel for A.R.G., the DYFS file was admitted into evidence. After considering the testimony, evidence, and arguments of counsel, the judge stated, in pertinent part:
The Division has proffered 20 photographs of [R.L.G.], and I think the most descriptive photograph would be P-7, the photograph that shows [R.L.G.'s] left arm with bruises on the left forearm....
I'm satisfied that the photographs do not overly exaggerate the extent, nature of the injury. Perhaps bruises are more colorful, demonstrative, but certainly the markings indicate a serious savage beating by [A.R.G.] upon the child.
I'm clearly convinced based upon the testimony of Ms. Burgos, the documentation of the medical records, the photographs that the Division has established that [A.R.G.] has abused [R.L.G.] pursuant to [N.J.S.A.] 9:6-8.21.
Additionally, there is argument that the other two children were not abused. [N.J.S.A.] 9:6-8.46 provides for evidence to be considered, proof of abuse and neglect of one child shall be admissible evidence on the issue of abuse and neglect of another child.
I'm satisfied that based on the abuse inflicted upon [R.L.G.] that the other children likewise would be considered victims of abuse and at risk in the care of [A.R.G.]
The Division also requests a determina tion pursuant to [N.J.S.A.] 30:4C-11.2*fn4 that they be excused from providing reasonable efforts based upon the child being subject to aggravated circumstances of abuse, neglect, cruelty, or abandonment. I'm satisfied that the Division has clearly established that [R.L.G.] has been subjected to aggravated circumstances of abuse and cruelty.
This is not just punishment for a child's bad progress report in school. This is a serious beating inflicted upon a young child by an adult through the use of a belt.
The Division would be excused from providing reasonable efforts. The children are to continue in the care and custody of the Division. Visitation will continue to be suspended for [A.R.G.]
[A.R.G.] is to comply with the Division's referral for parenting, anger management, along with any referrals made as a result of the psychological evaluation.
[Counsel for A.R.G.] can have her own psychological evaluation. The children can be... placed with the maternal grandparents in Florida at any time on notice to [the Law Guardian].
The court entered two orders on June 26, 2002, memorializing its findings. In the fact-finding order, the court found that removal and placement of the children was necessary due to imminent danger to their life, safety or health. The order also recited that DYFS had established by clear and convincing evidence that R.L.G. had been abused by A.R.G., and that due to the severity of abuse the other children were at risk for abuse. The order further provided that"reasonable efforts need not be provided." In the second order, entered on return of the order to show cause, the court continued the"no contact" provision until further order of the court; directed that the interstate referral be conducted on the maternal grandparents in Florida; restrained A.R.G. from the home of the maternal grandparents; required A.R.G. to submit to a psychological evaluation, anger management counseling and parenting skills training; and scheduled a permanency hearing for July 17, 2002.*fn5 That order also stated that the"Division is excused from reasonable efforts."
On or about July 15, 2002, A.R.G. filed a motion seeking a rehearing or reconsideration of the determination by the court that had excused DYFS from providing reasonable efforts to reunify him with the children. The motion also sought an order directing DYFS to provide services to A.R.G., and an adjournment of the permanency hearing. The motion was argued in the Family Part on July 17, 2002. After analyzing the statute, the judge found that the conduct of A.R.G. had constituted aggravated circumstances of abuse and cruelty, and denied the motion stating, in pertinent part:
In this case the evidence presented by the Division, P-1 through P-5, testimony of Ms. Burgos, really shows that [A.R.G.] beat the child, [R.L.G.] with a belt on or about May 27th, 2002. The Division offered statements of the child and in fact the children, [A.J.G. and C.R.G.] that this was not an isolated incident, as offered by [A.R.G.] in his statement to the Prosecutor's Office. [R.L.G.] had reported that he had been hit previously by [A.R.G.] with both belt and by hand, page five of P-4. He also reported to the Division that in the past his father has always hit him. It started in September of 2001. Every time the teacher sent a progress report or report card or a note he would be hit with the belt, P-4 at page 11. [R.L.G.] also said that he was hit every marking period. [R.L.G.] also stated that the beating left him in pain, the contact sheet dated May 30th at P-1.
The medical documentation, P-4 at page three, reflects that the child had lesions in different stages of healing.... Dr. Pellecia... reported to the Division worker... that [R.L.G.] had four to five past beatings. Dr. Pellecia opined that he, [R.L.G.], has old, new and healing scars. Photos, ...