On appeal from Superior Court of New Jersey, Family Division, Morris County, FN-14-36-03.
Before Judges Stern, Lefelt and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
S.S., the wife of F.S. and the mother of a twenty-one month old infant boy, appeals from a determination on October 8, 2002 by the family court following a fact-finding hearing, memorialized in an order dated October 31, 2002, that she abused or neglected her infant son by failing to appreciate the continuing risk of harm posed by the actions of her husband, see N.J.S.A. 9:6-8.21c(4)(b), thereby requiring the assistance of the court. At issue is whether, under the facts of this case, a battered wife can be found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked by his father and because, after the attack, the wife initially sought to remain in the violent relationship.
The facts are as follows: On August 8, 2002, a dispute arose between appellant and her husband after he came home from work in the late afternoon to find his wife at the next-door neighbor's house briefly minding the neighbor's children and his dinner unprepared. Following appellant's return to the home, words were exchanged, and appellant went onto the deck with her son. As the son played with his toys on the deck, appellant's husband placed his hands around appellant's neck, but, according to appellant's testimony at the fact-finding hearing, did not choke her. Appellant picked up her son and left in her car.
After approximately twenty minutes to half an hour, appellant, believing that her husband's anger had cooled, returned to the house with her son, placed him in his high chair in the kitchen, and proceeded to feed him his dinner. Verbal abuse ensued, and appellant sought to leave the kitchen with her son in her arms. While she was doing so, her husband again put his hands around her neck. Appellant retreated to her son's bedroom, placing her son on the floor, closing the door and leaning against it. Appellant's husband nonetheless entered the room, and while the son was nearby, the husband violently choked appellant and pulled her hair.
Appellant sought to call the police and, finding the phone disconnected, utilized her cell phone for that purpose as she ran from the home with her son in her arms. While appellant was outside, kneeling down with her son at her side, her husband punched her in the back of the head and attempted to flee the scene. His escape was blocked by the police, who placed him in a police car. While there, the husband threatened to kill his wife and stated to the police that he usually followed through on his threats.*fn1
The husband was charged that night with terroristic threats, endangering the welfare of a child, simple assault, and criminal coercion. Bail was set by a municipal court judge at $100,000 with no ten-percent option, and a no-contact order was entered with respect to the child. According to the police report, appellant declined a restraining order. Because he could not make bail, the husband was taken to the Morris County Correctional Facility.
On August 12, 2002, the husband's bail was reduced by a Superior Court judge to $10,000 with no ten-percent cash option, and the no-contact order was extended to cover appellant. The husband made bail on that day, and went to his mother's house to stay. He was eventually admitted to the pretrial intervention (PTI) program. No contact with appellant was made a condition of PTI.
On August 13, five days after the event, the local police referred the matter to the Division of Youth and Family Services (DYFS) pursuant to N.J.S.A. 9:6-8.10, and an investigation was commenced. N.J.S.A. 9:6-8.11. A DYFS case worker contacted appellant by telephone, and made an appointment to see her the next day. A home visit followed on August 14, at which time the home was reported as"clean, neat and appropriately furnished." The child was described as"a friendly, happy, healthy looking 2 year old." After hearing appellant's version of the events, including a prior event of domestic violence occurring three years earlier, the case worker suggested that appellant obtain a restraining order. The case worker stated that she refused, a statement that appellant contested at the fact-finding hearing. The case worker's notes then indicated that she told appellant that she needed"to cooperate and enter treatment at JBWS [Jersey Battered Women's Service]." In response to a call by the case worker to the pediatric group caring for appellant's child, his pediatrician stated that the group had"no concerns" about the child's care. The"[m]other is always appropriate, concerned. She is very careful with him and comes in with a list of questions."
On August 16, the case worker mentioned serious concerns about the safety of the child to the husband's criminal attorney, and warned him that if there were another incident, the child might be removed from the home. On that day, the case worker also learned indirectly that at some point, appellant had made a call to the prosecutor's office and had left a message in which she sought to determine whether her husband's bail could be reduced so that he could return home for the weekend.*fn2 Despite the fact that appellant's inquiry was causally unrelated to her husband's release on bail on August 12, and despite the fact that restraining orders were in place and the husband had not returned home, the case worker determined that emergent eX parte removal of the child from the home was required. N.J.S.A. 9:6-8.29a.
The case worker, accompanied by the police, arrived unannounced at appellant's home while she and her son were napping. Upon awakening, appellant was both alarmed and frightened by the prospect that her child would be taken, and she questioned the case worker's right to do so, stating that she was not the law, but merely a"lowly social worker." However, upon threat that the child would be placed in foster care, appellant eventually agreed to a"voluntary" fifteen-day placement of her son with her parents. During that process, appellant was read the wrong form by the case worker, and when the correct waiver form was found, she was not informed of its content and was not given a copy.
Appellant was permitted to live with her parents, as well. However, she was not allowed to have unsupervised contact with her child, even in the parents' home. Thus, at the time of the child's removal, appellant was not permitted to transport her son to her parents, occasioning her to tell the case worker that she hoped he would cry the entire way. She also initially balked at providing milk or cookies for her son (which the case worker had not found necessary to supply herself, although she had planned to take the child), but she soon relented. The case worker appears to have been deeply offended by appellant's rash, but certainly understandable words and conduct at the time of the removal, ...