On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No.: FN-05-95-05.
The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2007
Before Judges A. A. Rodríguez, Sabatino and Lyons.
In this child abuse and neglect matter, defendant, B.H. appeals from a judgment entered by the trial court terminating litigation concerning her three children. We affirm.
B.H. is the mother of three minor sons: O.F., A.F., and E.F. The biological father of the three children is O.F., Sr., B.H.'s former husband. B.H. and O.F., Sr. obtained a final judgment of divorce on May 16, 2002 and sole custody of the children was awarded to B.H.; O.F., Sr. was granted visitation rights. The children lived in a home with their mother and approximately ten other relatives, including their maternal grandmother, uncles, aunts and cousins.
On November 26, 2002, the Division of Youth and Family Services ("DYFS" or "Division") was contacted by a female caller who stated that a few days earlier, O.F.'s uncle and B.H. hit O.F. in the face causing him to bleed. The caller also notified DYFS that the children were dirty and had no clean clothes, that B.H. made the children run a mile each day, and that the house was overcrowded.
A DYFS worker went to B.H.'s home on that date, accompanied by police, to investigate the referral. During the visit, the DYFS worker observed six children in the living area of the home, noting that they were clean and pleasant. The worker also noted that the house was cluttered.
While at the home, the DYFS worker interviewed O.F. about the allegations outside the presence of B.H., but in the company of his maternal aunt and grandmother, who refused to leave the room. O.F. admitted that "his mother and father have both hit him hard" with their hands, that he has been "smacked in the face and hit wherever they could reach" but could not recall the last time that he was actually hit. O.F. admitted that he has nosebleeds, but acknowledged that he did not know what caused them. O.F. denied that he was afraid of his mother and father, denied that other adults in the home physically disciplined him, and stated that he would prefer to live with his father because "his father has more fun things at his house."
O.F. told the DYFS worker that he only runs when he is late for school and is trying to catch the bus. The DYFS worker was unable to interview B.H.'s two younger children because they were running around the house. During the interview, the children's maternal grandmother admitted that O.F.'s father "disciplined him in the past but that they took care of that."
The DYFS worker also spoke with B.H. during the visit.
B.H. expressed suspicion that her former husband's wife, T.F., made the DYFS referral because she wanted the children removed from her care. B.H. informed the DYFS worker that the Division had been to her home in the past because the children's father had used physical discipline and because another woman previously alleged that B.H. was a neglectful mother.
With regard to disciplinary practices, B.H. stated that she used time-out chairs, denied that her family abuses her children, but admitted that at times, her brothers play roughly with the children. B.H. acknowledged that she "spanks [the children] on their rearends or taps their hand but denied that it is abusive." When asked about the number of persons residing in the home, B.H.'s sister interjected that the worker did not need that information and became upset, refusing to show the worker the bedrooms. When she asked about sleeping arrangements, B.H. became defensive, stated that the home has six rooms, and that there was sufficient space for the children. B.H. also denied that she made the children run.
B.H. permitted the worker to examine the children's bodies for bruises, though none were found. A.F. showed the worker his lip and told her that he had "'busted' [it] on the jungle gym at school." The DYFS worker noted a healed scratch mark on O.F.'s right cheek and a similar healed scratch mark on A.F.'s stomach which B.H. explained were caused by playing. The DYFS worker then left the home with the officers.
Once outside, one of the officers informed the worker that he observed a bedroom to be cluttered with clothing and paper, but denied any unsanitary or dangerous conditions. Both the officers and the worker concluded that the children were not in imminent risk of harm and were safe for the night. The worker recommended that interviews of the children be taken at school.
On November 27, 2002, two DYFS workers went to the children's elementary school to interview O.F., A.F. and E.F. O.F. was interviewed first. With regard to the family living situation, O.F. stated that his mother, A.F., E.F., his three uncles, four aunts, and two other children live with him at the home. O.F. denied that his mother forced him to run but told the worker that he had been practicing at home for the school's mile run.
When asked about disciplinary practices at the house, O.F. stated that his Uncle Ben punched A.F. in the face but was unsure of when this occurred and denied that A.F. bled or had a mark on his face as a result. O.F. also stated that his Uncle Ben hits him and all the children in the house with his hand.
O.F. also informed the worker that his other uncles have hit him and the other children in the past and that his mother has told the uncles to stop. O.F. also stated that his mother hits him in the face when he does "bad stuff" and that his grandmother hits the children on their hands.
A.F. was interviewed at school following O.F. A.F. confirmed O.F.'s account that over ten people lived in the home. With regard to disciplinary practices, A.F. states that he is sent to "the black chair for time-outs." A.F. told the worker that his Uncle Ben had hit him on his lip the day before the interview, causing it to bleed and that this event was witnessed by his Uncle Bobby. The worker, however, was unable to observe any cuts or marks on the child's face. Moreover, A.F. told the worker that he saw "Ben hit O.F. in the nose," that the child's nose did not bleed, and that no one else hits him or his brothers.
Following A.F.'s interview, the worker spoke with E.F. at school. E.F. stated that he was afraid of his Uncles Ben and Bobby but did not articulate why. E.F. acknowledged that his uncles fight him and that his Uncle Ben hit him two times. The child was unable to demonstrate where he had been hit. E.F. denied that his Uncle Ben hits anyone else in the home.
Information garnered from the school interviews indicated that the children witnessed physical disputes between the adults in the house. O.F. recalled seeing his Uncle Ben hit his Aunt Barbara. A.F. told the worker that "Ben and grandma hit each other."
Later that day, DYFS workers went to the home to interview the family. At this interview, B.H. again denied that she made her children run against their will. B.H. asserted that A.F.'s nose bleeds on its own when the child is at her house, but that it bled a month ago at his father's house because T.F. hit him. B.H. again argued that DYFS was called by the children's father and T.F. out of spite. She also acknowledged that she "uses the black chair for time-outs and will sometimes hit [the children] or spank them." B.H. also informed the worker that the children's grandmother sometimes hits them on the hand. B.H. stated that the children have good relationships with their uncles and that she would not tolerate abuse if she saw it. She acknowledged that O.F. used to be hit in the chest and stomach by his Uncle Ben but that she ended such behavior. B.H. also admitted that Ben does not like O.F. because O.F. "tries to be big and talk big to Ben" and "O.F. thinks Ben's friends are his friends."
With regard to the living arrangements at the home, B.H. stated that she sleeps with her sister, the children sleep in their separate room, the grandmother sleeps in her room or the couch, one of the aunts and her children sleep in the grandmother's room, and Uncles Ben and Bobby sleep downstairs. B.H. informed the worker that she intended to move to Delaware at the end of the year with a friend of hers and that she was going to seek employment after the move.
The DYFS workers then interviewed Uncle Ben who denied punching O.F. in the nose, but admitted that he used to hit and push the three children before B.H. instructed him not to do so. Ben also admitted to hitting Barbara after he became angry during the playing of a board game.
After Ben's interview, the maternal grandmother demanded to speak with the DYFS worker. The grandmother stated that most of the events the worker heard about occurred a year earlier and that the situation at home was fine.
Following the interviews, the worker inspected the house. The worker noted clutter throughout the home, especially the bedrooms, and a broken glass window on the first floor which B.H. promised to repair that day. On December 11, 2002, B.H. informed DYFS that the window had been fixed and the bedrooms had been cleaned. On a visit to the home on December 20, 2002, the worker noted that indeed, the rooms had been tidied up and the window was repaired. At the end of this investigation, DYFS closed the case, concluding that the referral of neglect was unsubstantiated.
On March 25, 2003, the Division received another child abuse referral concerning then seven-year-old, O.F. On that date, the referent taught a child abuse prevention class at O.F.'s school. Referent informed DYFS that after class, O.F. told the referent that he did not feel safe at home and that his uncle "throws [him] against the wall and makes [his] nose bleed." A DYFS worker interviewed O.F. later that afternoon.
At the interview, O.F. told the worker that he felt he was safe at home but that his two uncles would hit him when they played football. O.F. denied ever being hurt by his uncles and stated that his uncles never hit him in anger, only when they played football. O.F. denied that any adult in the home hits him or any of the children and said that he was not afraid of his mother. Without giving a specific date, O.F. recounted that his mother became angry with him when he disrespected an adult and moved to hit him, but that when he flinched, he hit himself in the nose, causing it to bleed.
The worker then spoke with six-year-old A.F. who similarly denied any adult in the home ever hit him. A.F. told the worker that he "play fights" with his Uncles Ben and Bob, but denied that they ever purposefully hurt him. A.F. acknowledged however, that he saw his Uncle Ben "hit [O.F.] in the nose yesterday, causing [O.F.'s] nose to bleed while they were playing with each other," but denied that Ben and O.F. were angry at each other at the time of the incident. A.F. told the worker that O.F. informed his mother of his uncle's actions.
The worker spoke with then four-year-old, E.F. who likewise denied being hit by any of the adults in the home. E.F. also denied "play fighting" with his uncles. E.F. informed the DYFS worker that O.F.'s mother made his nose bleed but that he was not present and was unsure what happened.
The worker then interviewed B.H., who stated that she was frustrated by the referral. B.H. was adamant that she took good care of the children and that they were not in a dangerous environment. B.H. said that since the prior referral had been made, the children were never left unsupervised with their uncles.
With regard to O.F.'s disclosure of the most recent nosebleed, B.H. stated that a week earlier, O.F. "made a smart remark to an adult in the home" and that she raised her hand at him, causing him to flinch, strike himself, and cause his nose to bleed. With regard to O.F's claim that his uncle hit him in the face and caused him to bleed, B.H. stated that she was unaware of this event.
The worker then interviewed Uncles Ben and Bob, who both denied knowledge of O.F.'s nosebleed or hitting or "play ...