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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...