October 22, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF B.L. AND M.W., JR., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FN-06-69-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2007
Before Judges Weissbard and S.L. Reisner.
Defendant A.R. appeals from a finding that she abused and neglected her children, B.L. and M.W., Jr. We affirm.
At the time of the incident which gave rise to these proceedings, B.L. was five years old and M.W., Jr. was about a year and a half old.
On September 29, 2005, the Division of Youth and Family Services (DYFS) received an anonymous phone call alleging that B.L. was being physically abused. The anonymous reporter stated that he was informed that B.L. did not attend school that day because she had bruises all over her body.
In response to this allegation, DYFS sent Letitia Cologne, a DYFS caseworker, to A.R.'s home to investigate. Cologne arrived at the residence at approximately 4:15 p.m. Cologne and a co-worker knocked on the door, but no one answered. While she waited for someone to answer the door Cologne could hear children's voices inside. Since she did not hear any adult voices, Cologne called the local police department for assistance. At approximately 5:00 p.m., A.R. arrived at the home.
Before entering the home, Cologne asked A.R. if she knew where her children were. A.R. responded that she left the children in the apartment with a neighbor, Cecilia, while she went to get food. Cecilia was a thirteen year old child whom A.R. described as her "niece." However, Cecilia was not A.R.'s blood niece. In fact, A.R. did not know Cecilia's last name, address or phone number. Also, A.R. did not know Cecilia's parents. Cecilia was not at school that afternoon because she was suspended.
Upon entering the home, it was apparent that Cecilia was not there and that the children were alone. After some resistance from A.R., Cologne was able to speak to B.L. alone. B.L. appeared to be nervous. Cologne asked B.L. if she was home alone. B.L. responded that Cecilia was there.
Based on evidence that the children were left at home alone for at least thirty minutes and evidence of physical abuse, as discussed hereafter, Cologne removed the children from the premises, and took them to a hospital for examination. At the hospital, B.L. told Cologne that Cecelia was not actually at her house that afternoon, contrary to what B.L. told Cologne at home. B.L. also told Cologne that she and M.W., Jr. were sometimes left home alone. When confronted with this information, A.R. responded that she had never left her children home alone in the past and that Cecilia was there when she left to get food.
In total, B.L. and M.W., Jr. were left alone for at least thirty minutes because A.R. did not arrive until thirty minutes after Cologne arrived.
After entering A.R.'s home, the DYFS case workers examined the children for injuries. Cologne observed several raised welts on B.L.'s back, shoulders and arms. She testified that the marks were "all over her [B.L.'s] back and they were red and black and blue and they looped all over her back." There were too many marks to count. Cologne testified that, in her opinion, the marks were the result of being struck by a belt. Photos of the markings were taken and copies were introduced as evidence during the hearing.
When Cologne asked B.L., in A.R.'s presence, how these marks were inflicted, she appeared fearful and gave various stories. First, B.L. said she fell into a bush; however, she could not explain what bush it was, where it was, or how it happened. Then, B.L. said she fell down the steps. Again, when Cologne asked where she fell, B.L. was unable to answer. Cologne described the steps as being "very, very long steps, and in her opinion, if B.L. had fallen, she would have been seriously injured."
Conversely, after leaving the home and separating from A.R., B.L. told Cologne on at least two separate occasions that it was A.R. who had hit her. Later that evening at the hospital B.L. told Cologne and a nurse that it was "Mommy [who] had hit her with a blue belt because she was doing her homework and was watching TV." The following Monday or Tuesday, when Cologne took the children to their grandparents' house, B.L. repeated that A.R. hit her with the belt.
When Cologne asked A.R. how B.L. sustained the marks on her back, A.R. had no explanation. A.R. testified that B.L. may have stated that it was her who inflicted the injuries because B.L. liked to tell stories in order to receive attention. Additionally, A.R. testified that she did not hit her children, nor did she own a blue belt.
On October 3, 2005, four days after the children were removed from their home, DYFS filed a Verified Complaint seeking temporary custody of B.L. and M.W., Jr. "pursuant to N.J.S.A. 9:6-8.21 et seq., N.J.S.A. 30:4C-11, and N.J.S.A. 30:4C-12, R.5:7A et seq. for the protection and best interest of the [children]."
A hearing was held on January 24, 2006. Cologne testified on behalf of DYFS, and A.R. testified in her own defense. After considering the testimony and exhibits, Judge Mendez rendered a thoughtful and thorough decision. His essential findings of fact were as follows:
The Court finds that the testimony of the caseworker is consistent with the pictures and consistent with the reports that I have reviewed and I find that testimony to be credible. The court is less impressed with the testimony of [A.R.].
She explains the fact that she left the children with Cecelia. Whether or not Cecelia was there that day, it's difficult to ascertain from the facts. But if she was there that day, earlier in the day, she did not go to school. She doesn't know Cecelia's last name. She doesn't know Cecelia's address. She doesn't know Cecelia's telephone number. She does know that Cecelia comes from a large family. She does know that Cecelia's father is involved with drugs. She does know that Cecelia's brother once before, when she left him taking care of her children, left. And even if Cecelia was there that day, the arrangements that Mrs. Robinson made for her children were not appropriate.
You do not leave children in a situation where you do not know the background of the caretaker. You don't know the telephone number. You don't have arrangements to follow up in case something happens for them to contact you, for you to contact them. And everything that she knew about this situation raises to any normal person a lot of red flags.
And therefore, the arrangements that she made by leaving her child either alone and/or with someone that had no ability to contact her or for her to contact the caretaker, a 13 year old that was suspended from school, is just as unacceptable and not consistent with what the law requires from parents.
In my view, it meets the criteria for a finding of abuse and neglect under Title Nine for purposes of the lack of supervision and that - - on the basis of lack of supervision, as outlined in the Statute.
The Court is also of the opinion, based on the observations of the pictures, based on the admissions of the mother that she becomes very upset and she did say that on direct examination; of course I'm going to get very upset. And then she went on to say, and as referring to her child, she knew she did something wrong.
I don't really know what, if anything, [B.L.] did wrong. In my view, she did absolutely nothing wrong. She was left alone by mom and maybe she was watching TV while doing her homework. That's really not doing something wrong.
And she obviously has some anger issues, based on my assessment of her testimony. And the explanation provided by . . . the child, [B.L.], initially as to how the injuries took place were as the result of perhaps being afraid of mom or trying to protect her mother.
The fact that the child did not go to school that day also fits into the whole circumstantial evidence, as to what took place and what happened to this child.
The Court finds the denial on the part of [A.R.] to be incredible, not consistent with the evidence that I find. And as I indicated, I am not impressed with her testimony. . . . [A]lso in other parts there was testimony indicating she often becomes very agitated and again, consistent with someone that loses her temper.
And I am therefore satisfied that the evidence indeed supports a finding of abuse on the basis of excessive discipline. The child being hit by her mother and the - - as a result, the child suffered the bruises that are indicated in the picture. And I do find that those bruises are consistent with being hit by either a belt, which the child described as a blue belt.
And I find that part of her child's statements to be truthful and especially the statements that the child made at the hospital when she felt she was in a secure environment. Those statements were then repeated again and again and again, at least three or four times.
Therefore, I do make a finding of abuse and neglect, consistent with the statutory definition of abuse and neglect under 968.21, against the Defendant [A.R.].
On appeal, A.R. contends as follows:
THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND ABUSE AND NEGLECT.
THE FINDING OF ABUSE AND NEGLECT MUST BE REVERSED BECAUSE IT WAS BASED ON THE UNCORROBORATED STATEMENTS OF A CHILD.
We deal with the second issue first, since the admissibility of B.L.'s statements substantially effect the sufficiency of the evidence.
Judge Mendez based his finding of abuse, in part, on the statements of B.L. that A.R. hit her with the blue belt. A.R. argues that the court's conclusion must be reversed because B.L.'s statements were not corroborated. A.R. argues that the "majority of the testimony of the DYFS caseworker regarding the marks on B.L.'s back and whether A.R. had left B.L. and M.W. alone consisted of repeating statements made to her by B.L." Precisely put, A.R. contends that "DYFS did not provide corroboration of B.L.'s statements."
Under N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse and neglect." Thus, the statute authorizes the admissibility of hearsay evidence from an alleged abused and neglected child, provided that there is corroboration. "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" New Jersey Div. of Youth and Family Services v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting New Jersey Div. of Youth and Family Services v. Z.P.R. 351 N.J. Super. 427, 436 (App. Div. 2002)).
In L.A., the trial court made a finding of abuse and neglect against L.A. based in part on the out-of-court statements of the child. 357 N.J. Super. at 158. L.A. had two children, K.S. and S.A. R.S., the father of the children, had sexually assaulted K.S. and was barred from the home. About one year after R.S. was barred, he entered L.A.'s apartment while L.A., both children, and J.M., 'a mutual friend,' were present. Without warning, R.S. grabbed J.M., who immediately directed the children to go to another room. After J.M. called the police, R.S. left. It turned out that J.M. owed R.S. money. The trial judge based his finding of abuse and neglect on, among other evidence, the DYFS caseworker's testimony that K.S. told her that it was L.A. who called R.S. and directed him to come by and get his money from J.M., and that L.A. had taken the youngest child (S.A.) to visit R.S. Id. at 161-62. The trial judge found those statements "highly credible." Id. at 162. On appeal, L.A. argued that the trial judge erred by basing a finding of abuse and neglect on, among other evidence, K.S.'s statements to the caseworker, because they lacked corroboration. We reversed, holding that:
There is no evidence of any kind to corroborate K.S.'s statement that L.A. took the infant to see R.S. It is undisputed that there is no evidence that K.S. had been in R.S.'s presence at any time between her return to her mother in April 2001 and January 11, 2002. Thus, she had no personal knowledge of any visit. This portion of K.S.'s statement was inadmissible.
Id. at 167. We also concluded that J.M.'s acknowledgement of a debt was too indirect to provide that necessary support to admit K.S.'s out-of-court statement. Id.
On the contrary, in Z.P.R., supra, we reversed the trial court's finding that a child's out-of-court statements concerning sexual abuse by the mother were not corroborated. In Z.P.R., parents Z.P.R. and W.R. placed their children W.A.R. and I.D.R. in foster care due to unstable housing. Shortly thereafter, the foster mother witnessed I.D.R. performing fellatio on W.A.R. W.A.R. told the foster mother that he learned of this behavior from his mother, Z.P.R. 351 N.J. Super. at 430. W.A.R. was then placed in a second foster home. There, the foster mother found W.A.R. and H., another foster child, in their underwear. H. stated that W.A.R. told him that he had sex with his mother. Additionally, when the foster mother asked if they had sex, H. responded, "'no, we fake it, but W.A.R. said it's like what he do with his mother.'" Id. at 431. About a week later, W.A.R. reported to a DYFS caseworker that he learned such behavior from his mother. The trial judge found that there was no corroborating evidence for these statements. Id. at 434-35. On appeal, we were not persuaded that the trial judge properly applied the concept of corroborating evidence under N.J.S.A. 9:6-8.46a(4):
If, as the Law Guardian and DYFS suggest, those comments reflect an understanding by the judge that corroboration of child sexual abuse must be offender-specific, we do not agree. It would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator, in this case the mother. The case law does not require that the evidence be that specific before it can be deemed corroborative of the child's outof-court statements. [Id. at 435.]
We went on to hold that:
[E]vidence of age-inappropriate sexual behavior could provide the necessary corroboration required by N.J.S.A. 9:6-8.46a(4). The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements. [Id. at 436-37.]
In this case, a review of the record reveals that, contrary to A.R.'s contention, DYFS did provide corroborating evidence for B.L.'s statements. Unlike the court in L.A., there was more evidence before Judge Mendez than merely the out-of-court statements of B.L. Most obviously, the injuries themselves (or physical corroboration) provided support for B.L.'s statements. Cologne directly observed and testified at length about her observations of B.L.'s injuries. There were also photographs of the marks that were submitted as evidence. Judge Mendez himself, after reviewing the pictures, came to the conclusion that the marks were consistent with being hit by a belt. This physical corroboration is exactly the type of evidence that we have indirectly stated is ideal.
The most effective types of corroboration in such cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse. In most cases of child sexual abuse, however, there is no direct physical or testimonial evidence. The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation.
Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority. Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. [Z.P.R., supra, 351 N.J. Super. at 436 (quoting State v. Swan, 790 P.2d 610, 615-16 (Wash. 1990)) (emphasis added).]
Unlike the trial court in Z.P.R., Judge Mendez did not need to rely on indirect evidence in order to establish corroboration; the marks on B.L.'s back directly corroborated her statements.*fn1
A more difficult issue is raised by A.R.'s contention that "the only evidence that A.R. had left the children alone was B.L.'s alleged statement that she had." Had Judge Mendez come to the conclusion that Cecilia was not there based solely on B.L.'s statements, we might have found that conclusion inadequate. However, as Judge Mendez made very clear, he did not come to that conclusion. As discussed earlier, the judge based his finding of abuse and neglect for lack of supervision on the fact that Cecilia herself was an inappropriate person to leave the children with, not because Cecelia was not there. Accordingly, A.R.'s argument is without merit.
We turn to the sufficiency of the evidence. The definition of an abused or neglected child is set forth in N.J.S.A. 9:6-8.21(c): "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, - - as herein defined . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child 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 or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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
Under N.J.S.A. 9:6-8.46(b), "any determination that a child [has been abused or neglected] must be based on a preponderance of the evidence. . . ." New Jersey Div. of Youth and Family Services v. K.M., 136 N.J., 546, 552 (1994) (alteration in original).
The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference "is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)) (alteration in original).
Judge Mendez found that the evidence supported a finding of abuse and neglect on two grounds: (1) excessive discipline; and (2) lack of supervision. A.R. contends that DYFS failed to provide adequate, substantial, and credible evidence to support such conclusions. We disagree.
A.R. contends that Judge Mendez's finding of abuse on the basis of excessive discipline should be reversed because DYFS:
(1) never looked for or produced the alleged belt that struck B.L.; (2) never compared the marks on B.L.'s back to a specific belt; (3) never produced a report from the doctor opining that the marks on B.L.'s back were caused by a belt; and (4) produced photos of B.L.'s marks that were dark, grainy, and unclear.
A.R. cites to New Jersey Div. of Youth and Family Services v. J.Y., 352 N.J. Super. 245, 259-60 (App. Div. 2002), as authority for the proposition that "[t]ypically, [adequate, substantial, and credible] evidence may include police reports, hospital records, school records, or other professional reports." A.R. then concludes that "[n]o such records or reports were submitted in the present case." In actuality, however, in J.Y. we noted that "[s]uch evidence may include, but is not limited to, police reports or other law enforcement records, hospital records, school records or other professional reports containing information relevant to the child's health and safety or the parent's fitness or whereabouts. R. 5:12-4(d)." Id. at 259-60 (emphasis added). We went on to state that
[t]he judge may also consider the testimony, under oath, of a DYFS representative who can attest to the efforts undertaken to determine whether the above-cited statutory requirements have been met. Although such testimony may include hearsay statements, the judge must be satisfied that the evidence adduced provides a sufficiently reliable basis upon which to make the required findings. N.J.S.A. 9:6-8.46." [Id. at 60.]
Contrary to A.R.'s suggestion, and made clear by the quotation, we did not wish to create an exhaustive list of what constitutes adequate, substantial, and credible evidence. The record here reveals the following.
First, the court had the opportunity to observe the demeanor of the witnesses and assess their credibility. See New Jersey Div. of Youth and Family Services v. S.F., 392 N.J. Super. 201, 210 (App. Div. 2007) ("'Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because the trial court has the benefit of seeing and hearing the witnesses and determining whether they are believable.'") (citation omitted). Judge Mendez found the testimony of Cologne credible and consistent with the documentary and photographic evidence before the court. He also found that B.L.'s statements reciting that it was indeed A.R. who struck her were truthful. This is especially so in light of the fact that they were repeated on several different occasions and made in the hospital (a secure environment away from A.R.). On the other hand, Judge Mendez found A.R.'s testimony incredible and inconsistent with the evidence before the court.
Second, Judge Mendez analyzed the photos of the markings on B.L.'s back and concluded that the "looping pattern, in this Court's view, [is] consistent with being hit with a belt or something similar to a belt." The caseworker herself, who was able to directly observe the looping pattern of marks on B.L.'s back, also opined that the marks were created by a belt. This is exactly the type of evidence that, by statute, is deemed prima facie evidence of abuse. See N.J.S.A. 9:6-8.46(a)(2)("proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child.")
Third, Judge Mendez found that the following evidence supported the conclusion that B.L. was lying either because she was afraid of A.R., or because she was protecting her mother:
(1) B.L.'s various conflicting stories regarding the cause of her injuries made in A.R.'s presence; and (2) B.L.'s inability to explain these stories. It was not until B.L. reached the hospital and was away from A.R. that she stated that it was A.R. who struck her with the belt.
Finally, Judge Mendez found that B.L.'s absence from school corroborated the original referral that led DYFS to A.R.'s residence (the referral stated that the child did not attend school because she had bruises all over her body).
Accordingly, the record reveals that Judge Mendez's finding of abuse and neglect on the basis of excessive punishment was supported by adequate, substantial, and credible evidence. The Court's conclusion cannot be said to be "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc., 65 N.J. at 484.
A.R. argues that Judge Mendez's finding of abuse and neglect based on lack of supervision should be reversed because DYFS never attempted to determine whether Cecilia was actually present when A.R. left to pick up food. A.R. notes that DYFS could have located Cecilia through the school system.
A close look at Judge Mendez's reasoning reveals that he purposefully refrained from making that determination. ("Whether or not Cecilia was there that day, it's difficult to ascertain from the facts.") Indeed, Judge Mendez stated that even if Cecilia was there, the arrangement would nonetheless be inappropriate. What he believed significant was the fact that A.R. left her five year old child and an infant with a thirteen year old child whom she knew very little about.
She [A.R.] doesn't know Cecilia's last name. She doesn't know her address. She doesn't know Cecilia's telephone number. She does not know Cecilia comes from a large family. She does not know that Cecilia's father was involved with drugs . . . And even if Cecilia was there that day, the arrangements that A.R. made for her children were not appropriate.
You do not leave children in a situation where you do not know the background of the caretaker. You don't know the telephone number. You don't have arrangements to follow up in case something happens for them to contact you, for you to contact them. And everything she [A.R.] knew about this situation raises to any normal person a lot of red flags.
And therefore, the arrangements that she made by leaving her child either alone and/or with someone that had no ability to contact her or to contact the caretaker, a 13 year old that was suspended from school, is just not acceptable and not consistent with what the law requires from parents.
Thus, Judge Mendez's finding of abuse and neglect based on lack of supervision is well supported by the record and based on adequate, substantial, and credible evidence. Contrary to A.R.'s contention, it was not necessary to decide whether Cecilia was actually present on the day in question. Judge Mendez believed that the fact that A.R. left her young child and an infant with a thirteen year old girl whom she knew very little about was sufficient to support his finding. This conclusion cannot be said to "offend the interests of justice." Rova Farms Resort, Inc., 65 N.J. at 484.
We note that the children were returned to A.R. in September 2006 and the litigation was closed on December 11, 2006, on condition that A.R. meet certain conditions. Hopefully A.R. has overcome whatever problems spawned this matter. Notwithstanding, the findings of Judge Mendez must be affirmed for the reasons noted.