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New Jersey Division of Youth and Family Services v. A.R.G.

March 17, 2004

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.R.G., DEFENDANT-APPELLANT.
IN THE MATTER OF: C.R.G., R.L.G. AND A.J.G., MINORS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 361 N.J. Super. 46 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers the meaning of the term"aggravated circumstances" in N.J.S.A. 30:4C-11.3(a), the existence of which excuses the Division of Youth and Family Services (DYFS) from providing statutorily required reasonable efforts at family reunification, and it considers further what process is due a parent prior to the entry of a trial court's initial finding of aggravated circumstances.

After the 1998 death of their mother, C.R.G., R.L.G., and A.J.G., ages 16, 10, and 9, went to live with their father and paternal grandmother (N.G.) in New Jersey. In May 2002, a school nurse received an anonymous telephone call contending that R.L.G. had been physically abused by his father. The nurse examined R.L.G. and found numerous bruises that he contended were from a beating by his father. The nurse reported the matter to DYFS. A caseworker met with the nurse and R.L.G. The caseworker observed approximately twenty bruises of varied hues and sizes on R.L.G.'s body. R.L.G. stated that his father began hitting him in September 2001 and that the latest beating, using a belt, occurred after he received a negative school progress report. The caseworker also spoke with N.G. and the other two siblings, who confirmed the beatings. Two physicians examined R.L.G. and also confirmed the beatings.

Based on A.R.G.'s physical abuse and N.G.'s awareness of and failure to prevent the abuse, DYFS effected an emergency removal of the children and placed them in foster care. A.R.G. was indicted on charges of aggravated assault, endangering the welfare of a child, and child abuse. DYFS sought custody of the three children pursuant to N.J.S.A. 9:6-8.21 to -8.73, and N.J.S.A. 30:4C-12. With A.R.G. present, the trial court set a return date on which A.R.G. would show cause why custody, care and supervision of the children should not be continued in DYFS.

A.R.G. met with the caseworker and asked to be reunited with his children. He also reported that he had sought counseling and skills in anger management and parenting.

DYFS faxed a copy of its court report to A.R.G.'s attorney on June 20, 2002, in preparation for the fact-finding hearing set for June 26th. On June 24th, DYFS hand-delivered a letter and attached evidence packet that included, among other things, DYFS records and R.L.G.'s certified medical records. The letter confirmed that DYFS would apply at the hearing for a"finding pursuant to N.J.S.A. 30:4C-11.3(a)," and that one witness would be called.

At the hearing, DYFS asked the court to relieve the agency of its statutorily mandated duty to provide reasonable efforts toward family reunification. In support, DYFS cited the existence of aggravating circumstances, i.e., the abuse inflicted on the children by A.R.G. The only witness at the hearing was the DYFS caseworker, who testified about the investigation and produced the DYFS records, including photographs of the bruises. The defense did not produce any witnesses but rather relied on A.R.G.'s remedial efforts. The court ruled that DYFS had shown by clear and convincing evidence that R.L.G. had been subjected to aggravated circumstances of abuse and cruelty, and that the other two children were at risk. The court ordered, in part, that reasonable efforts to reunite the family need not be provided and that a permanency hearing would take place on July 17, 2002. On July 15th, A.R.G. moved for a rehearing or reconsideration of the court's determination and sought further an order requiring DYFS to provide him with services and to adjourn the permanency hearing. On July 17th, the court denied A.R.G.'s motion and conducted the permanency hearing, the goal of which was the termination of A.R.G.'s parental rights and adoption. The court approved that plan but directed that DYFS at least consider other options. The court reminded DYFS that it was statutorily required to establish each of the four prongs of the best interests test for termination of parental rights.

On June 5, 2003, the Appellate Division affirmed with one judge dissenting. The panel defined the term"aggravating circumstances" as embodying the concept that the nature of the abuse or neglect must have been"so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child, and would place the child in a position of an unreasonable risk to be reabused." The panel explained that"any circumstances that increase the severity of the abuse or neglect, or add to its injurious consequences, equate to'aggravated circumstances.' Whether couched as'severe child abuse or neglect,''serious child abuse or neglect,' or'severe physical injury' of a singular, chronic, recurrent, or repetitive nature, where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety and welfare of the child, they are'aggravated' to the extent that [DYFS] may bypass reasonable efforts of reunification." The panel rejected A.R.G.'s claim that he was denied due process.

The dissenting judge questioned whether A.R.G's due process rights were adequately protected and whether the evidence presented rose to the level of aggravated circumstances. In part, the dissent questioned the lack of medical testimony on the extent and nature of R.L.G.'s injuries and the lack of psychological examinations of the children.

HELD: The Court affirms New Jersey Div. of Youth and Family Services v. A.R.G., 361 N.J. Super. 46 (App. Div. 2003), in respect of the definition of"aggravating circumstances" pursuant to N.J.S.A. 30:4C-11.3, and it remands the matter to the trial court for consideration de novo whether defendant's conduct satisfies the definition, thereby permitting DYFS to forego reasonable efforts to reunify the defendant with his children.

1. N.J.S.A. 30:4C-11.3 states, in part, that DYFS shall not be required to provide reasonable efforts to reunify a child with a parent if the court determines that the parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment. The statute states further that the health and safety of the child and the need for permanency shall be paramount. The statute was enacted to enable New Jersey to qualify for the continued federal funding of its child protection system after the Adoption and Safe Families Act (AFSA) became law. ASFA provides that in determining whether to reunify children and their parents, health and safety are paramount concerns and that reunification efforts will not be required if a court has found aggravating circumstances,"which definition may include but need to be limited to abandonment, torture, chronic abuse, and sexual abuse." (Pp. 20 -- 22).

2. The Appellate Division's definition of the term"aggravated circumstances" carries out the aims of the law and describes the circumstances that can be deemed sufficiently aggravated to make family reunification efforts unnecessary. The standard is affirmed. (Pp. 22 -- 23).

3. The standard is not rigid, however, and each case must be decided on its facts. Likewise, each determination must involve separate lines of inquiry. The first line of inquiry is whether the alleged conduct took place. If the conduct did occur, the next issue is whether it was severe or repetitive. If the answer is no, family reunification efforts are required. If the answer is yes, the court then must determine whether reunification would jeopardize and compromise the safety and welfare of the child. That inquiry, in turn, has two prongs -- the first is whether the abuse was of such a nature that standing alone, it compels the conclusion that reunification should not be required. Such is the case where the conduct is particularly heinous or abhorrent, involving savage, brutal or repetitive beatings, torture, or sexual abuse. In that situation, the abusive parent's future remedial efforts would be of no consequence. The acts complained of are so unnatural or depraved that the fundamental bond that is the basis of the reunification notion is deemed to be irremediably undermined. (Pp. 23 -- 24).

4. Some cases, however, require inquiry beyond the conduct of the parent. Examples are abandonment, corporal punishment that does not result in permanent injury, and serious neglect and mental abuse, which may or may not have irremediably undermined the parent-child relationship and may or may not support the conclusion that reuniting the family will place the child at risk. In those cases, the court may consider whether to admit expert testimony about the conduct and its relationship to the parent-child bond along with an assessment of whether the parents' remedial efforts are sufficient to eliminate an unreasonable risk of re-abuse. Because the trial court did not have the benefit of the Appellate Division's standard or this Court's elucidation of it, the matter is remanded to the trial court for consideration of the issue of aggravated circumstances, de novo. (Pp. 24 -- 25).

5. In light of the remand, the Court does not decide whether A.R.G. was afforded due process. The Court observes, however, that due process in these proceedings usually requires more than a few days notice of what the State intends. When, as here, the State seeks to obtain a waiver of the duty to attempt reunification, the parent should be given sufficient notice of that intention to obtain representation and prepare a meaningful defense. That notice should be more than a statutory citation, and should outline the underlying facts and theory on which the state intends to rely to prove aggravating circumstances. If the case is based solely on the parent's depraved conduct, the parent should be advised of that fact. If the case is a combination of conduct and its effect on the parent-child bond, the parent should be notified of that fact as well. Although expert testimony would be useless in a depraved-conduct case, in a case involving serious neglect or repeated corporal punishment with no permanent physical consequences, expert testimony regarding the conduct, its effect on the parent-child bond, the parent's remedial efforts, and the avoidance of re-abuse might be critical to the outcome. (Pp. 25 -- 27).

The judgment of the Appellate Division is AFFIRMED in part, and MODIFIED in part, and the case is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICE LaVECCHIA, concurring, joined by JUSTICE VERNIERO, agrees with the Court's opinion but adds that she does not find in the circumstances of this matter a constitutional violation in respect of defendant's notice and opportunity to be heard.

CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, ALBIN and WALLACE join in JUSTICE LONG's opinion. JUSTICE LaVECCHIA filed a separate concurring opinion, joined by JUSTICE VERNIERO.

The opinion of the court was delivered by: Justice Long

Argued January 20, 2004

This appeal, which is before us as of right based on a dissent in the Appellate Division, Rule 2:2-1(a)(2), involves the meaning of the term "aggravated circumstances" in N.J.S.A. 30:4C-11.3(a), the existence of which excuses the Division of Youth and Family Services ("DYFS") from providing statutorily required reasonable efforts at family reunification. Also implicated is the question of what process is due a parent prior to the entry of a trial court's initial finding of aggravated circumstances.

I.

C.R.G., R.L.G., and A.J.G., aged 16, 10, and 9, respectively, are the sons of A.R.G. and his former wife, M.G. They lived with their mother in Florida until she died in a car accident in 1998. Thereafter, the children went to live with their father and paternal grandmother ("N.G.") in New Jersey.

On May 28, 2002, a school nurse received a phone call from an anonymous caller who stated that R.L.G. had been physically abused by his father. The nurse called R.L.G. to her office and verified numerous bruises on his arms, back, and buttocks. R.L.G. stated that the bruises were from a beating administered by his father. The nurse called DYFS to report the matter, after which a caseworker, Dionis Burgos, went to the school and met with the nurse and R.L.G. The caseworker observed between nineteen and twenty-two bruises of varied hues and sizes on R.L.G.'s body. R.L.G. was dressed in a long-sleeved high collared shirt, which he said his father told him to wear.

R.L.G. told the caseworker that his father began hitting him in September 2001 and that the latest beating occurred after he received a negative school progress report. In describing the incident that precipitated the call, R.L.G. told the caseworker that his father hit him with a belt and that his arms were bruised when he attempted to protect himself.

While at the school, the caseworker also spoke with the youngest sibling, A.J.G., and the children's paternal grandmother who had been called in. A.J.G. and N.G. confirmed they were present when R.L.G. received the beating. A.J.G. also confirmed that their father had pulled R.L.G.'s hair and kicked him in the back, leaving a shoe imprint, and that he had beaten R.L.G. on other occasions when the child received poor grades. N.G. initially denied, but later admitted, that her son beat R.L.G. N.G. further admitted that her son "is like a dictator in his own home" and yells at everyone. N.G. warned that A.R.G. is aggressive and that anger management classes would not help.

The caseworker accompanied the two children and N.G. home. While there, A.J.G. retrieved the belt used in the beating. The caseworker compared the belt to the marks on R.L.G.'s back and determined that a match existed.

The oldest child, C.R.G., arrived home shortly thereafter and the caseworker interviewed him as well. C.R.G. stated that he was not present when R.L.G. was beaten, but that afterward his grandmother had showed him R.L.G.'s bruises and remarked, "look what your father did to [R.L.G.]" C.R.G. also told the caseworker that the beating was not an isolated incident and that he himself had been beaten by his father until he stood up to him. C.R.G. indicated that he feared that all the children would be hit now that DYFS was involved.

The caseworker went on to interview the boys' paternal aunt, C.G. C.G. admitted she made the anonymous call to the school nurse reporting the abuse, stating "the abuse had to stop." C.G. also stated that A.R.G. was abusive and that everyone in the home was afraid of his temper.

The caseworker took R.L.G. to Jersey City Medical Center where the child was examined by two physicians. The first, Dr. Pellicia, confirmed that R.L.G. had suffered at least four to five past beatings. Dr. Pellicia told the caseworker that the healing wounds, "particularly in the buttocks area, which was the more seriously injured, would probably leave scars... like birthmarks." R.L.G. also was examined by Dr. Radwan, the attending emergency room physician, who confirmed that R.L.G.'s "buttock area did not have time to heal and that a new beating was probably done on top of the healing wounds."

Based on A.R.G.'s physical abuse and N.G.'s awareness of and failure to prevent the abuse, DYFS effected an emergency removal of the children from the home and placed them in foster care. Later that day, A.R.G. was arrested and charged with Aggravated Assault contrary to N.J.S.A. 2C:12-1b; Endangering the Welfare of a Child contrary to N.J.S.A. 2C:24-4a; and Child Abuse contrary to N.J.S.A. 9:6-1 and 9:6-3, charges for which he was subsequently indicted. Bail was set at $50,000.

The following day, May 29, 2002, DYFS sought custody of the three children pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. A.R.G. was brought to court from the Hudson County Jail for the hearing. On that date, the trial court ordered emergency removal of the children from the home and continued custody in DYFS; no-contact between A.R.G. and children; a return date of June 26, 2002, on which A.R.G. would show cause why custody, care, and supervision of the children should not be continued in DYFS; representation of the children by the Office of the Law Guardian, and representation of A.R.G. by the Public Defender's Office if financial circumstances warranted it. A.R.G. initially stated he would represent himself. The trial court nevertheless suggested that he consider legal representation because of the seriousness of the allegations and the possibility he could lose his children.

Later that day, the caseworker interviewed the children's swimming coach by phone. The coach stated he never observed any marks on the children and that R.L.G. wore a Speedo to swim class. The coach also told the caseworker that the boys (R.L.G. and A.J.G.) had attended swimming practice on May 13, 16, and 22, 2002. The coach did not see R.L.G. again after May 22. Subsequently, the caseworker spoke with the child's school principal, who had received the initial anonymous phone call. The principal stated that she never had any trouble with the family, that the father seemed very involved in the children's education, and that he was there for every event.

The caseworker also spoke with the paternal aunt, P.G., by phone. P.G. said that, in the past, she had reported the family to New York Social Services when she observed bruises on the children. DYFS verified the family's history with Child Protective Services agencies in New York and Virginia, but was unable to obtain the records because the records were sealed and then destroyed. However, DYFS was able to obtain divorce litigation records from Virginia that revealed a potentially tumultuous relationship between A.R.G. and M.G.

On May 30, 2002, the caseworker visited R.L.G. at his foster home and took photographs of his injuries. On June 3, 2002, the caseworker met with the three children together and they told her they did not want to return to their father's care. The children expressed their desire to go to Florida and live with their maternal grandparents, with whom they had resided prior to their mother's death. Consequently, on June 6, 2002, the court ordered placement of the children with the maternal grandparents in Florida, pursuant to the Interstate Compact ...


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