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New Jersey Division of Youth and Family Services v. M.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 12, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.D. AND M.D., DEFENDANTS-APPELLANTS,
IN THE MATTER OF THE GUARDIANSHIP OF M.D. AND A.T, MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FN-09-386-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2008

Before Judges S.L. Reisner and Gilroy.

Defendants Michael and Melissa M.*fn1 , who are husband and wife, appeal from a May 15, 2007 order temporarily removing Melissa's son, eleven-year-old Andrew, and the couple's ten-month-old son Matthew, from their custody on an emergency basis, and giving custody of the children to the Division of Youth and Family Services (DYFS); a May 23, 2007 order denying defendants' motion for the children's return; and two orders dated June 26, 2007, one finding that they had abused and neglected Andrew and the other continuing DYFS's custody of both children.

I.

The emergency removal of the children was based on the following evidence. On May 12, 2007, defendants' landlady called the police to alert them that eleven-year-old Andrew was home alone, locked in his room, and being forced to wear diapers. The police removed Andrew from the home and alerted DYFS, after finding him home alone. Andrew told the investigating officer that his father had beaten him with a belt, that his parents had confined him to his room, had forbidden him to leave his room while the rest of the family went out to do laundry, and had told him to use diapers if he had to relieve himself. The officer also observed a bruise on the child's back where he said he was beaten.

At the police station, defendants were interviewed by DYFS case worker Susana Crespo. According to Crespo's report, Melissa admitted to her that "there were times that Michael would tell Andrew to look at the ceiling for a prolong [sic] time" as a form of punishment. She also admitted that, at Michael's insistence, Andrew was punished by being left home alone when the rest of the family went out and by being required to stay in his room during that time. Melissa claimed "that there has only been about two incidents in which Michael has left pampers for Andrew inside the room and has told him that since he can't go to the bathroom he has to do his stuff there." She claimed her husband "only did that as a way to humiliate Andrew." She also confirmed that "for the last few weeks," her husband required Andrew to leave for school early and sit around the local Dunkin Donuts waiting for school to start, because he was upset with the child. Melissa also admitted to Crespo that on one occasion she hit Andrew ten times with a belt.

Michael confirmed that his wife hit Andrew with the belt. He also confirmed giving the child diapers "to humiliate him" after he urinated on himself. Michael also agreed that he required the boy to leave for school early in the morning because he was angry with him and "didn't want to look at him." He also admitted making Andrew look up at the ceiling "for a while as a way of time out." He stated that "for a month now," Andrew was required to stay in his room with tape over the door when the rest of the family went out on errands. This was punishment for the child having left the stove on, on one occasion.

On the other hand, the DYFS worker observed no signs of abuse of the younger child, Matthew, whom his parents had brought with them to the police station. The child was "dressed appropriately" and "continued laughing and being playful while he was sitting on the stroller."

Nonetheless, both children were removed from the parents' custody on an emergent basis. They were placed with Melissa's brother, R.T. According to Crespo's report, as the children left, Melissa hugged both of them; Michael hugged the younger child and ignored Andrew.

On May 15, 2007, the trial judge signed an order confirming the removal of both children on an emergent basis. The parents moved to vacate the order pursuant to N.J.S.A. 9:6-8.32. The judge heard oral argument on the motion on May 23, 2007. At that time, the defendants' counsel argued that at a minimum, the younger child should be returned to the parents because there was no evidence that he had been abused and, at ten months, his bonding time with his parents was very important. The parents had also submitted a report from a psychologist opining that it was psychologically harmful to remove the younger child from his parents. The judge denied the application based on his conclusion that the evidence thus far indicated that defendants had an "inadequate parenting style" in terms of both abuse and poor judgment in repeatedly leaving Andrew alone in the house, despite his alleged severe behavior problems. The judge, however, ordered immediate visitation.

At this hearing, DYFS also indicated that Dr. Bromberg would be evaluating the family on June 14, 2007. A fact-finding hearing was scheduled for June 25, 2007. Defense counsel indicated that she intended to present testimony from a psychologist and several additional witnesses. However, prior to the start of the June 25 fact-finding hearing, the judge indicated that he would only hear testimony from witnesses with first-hand knowledge as to the alleged incidents of abuse and neglect.

At the June 25 fact-finding hearing, the State presented testimony from Officer G. Louis Carneiro*fn2 and DFYS worker Crespo. Their hearing testimony was consistent with their reports. According to Carneiro's testimony, after receiving the landlady's complaint, at approximately 10:00 A.M., he arrived at defendants' residence in Harrison, NJ. Upon knocking on the door, Carneiro heard Andrew say "that he was locked in his [room] and he could [not] open the door." Carneiro identified himself as a police officer and told Andrew to open the door, after which Andrew complied. When Carneiro entered the apartment and asked the child where his parents were, Andrew responded that "they were at the laundry mat." Carneiro testified that when he asked Andrew if he knew why he was left alone, he responded that "he was [being] punished because [of] a prior incident [when] he tried to cook something for himself, and he almost set the house on fire." The officer also noticed two pieces of tape placed on the door of the bedroom in which Andrew said he had been confined. Andrew told Carneiro that "his [step-]father placed it there, so he would [not] open the door."

Upon examining the child, the officer saw "a slight bruise on his back[,]" which Andrew told him was from his step-father striking him with a belt. Carneiro observed "a couple of diapers, which [Andrew] stated his . . . step-father gave to him so he would [not go] into the bathroom." According to Carneiro, Andrew stated that when "his step-father came home, he was going to be in big trouble[,]" after which Carneiro brought the child back to the Harrison Police Department due to concerns about his safety. Once Carneiro and Andrew arrived at the station, Carneiro contacted DYFS.

At 10:56 A.M., Crespo, who was employed by DYFS as a special response unit (SPRU) worker, received a telephone call from DYFS concerning Andrew. Crespo, who was accompanied by Gloria Larza, subsequently contacted the Harrison Police Department and spoke with Carneiro. After arriving at the station, Crespo and Larza interviewed Andrew in an office at the station. Crespo testified that:

[Andrew] proceeded in informing me that early that morning, he had been at the house because his parents had left to [go to] the laundry mat around - roughly 9:00 a.m. And they . . . went with . . . [his] little brother. And when they left for the laundry mat, his step-father told him . . . to go inside the room. And he left him two diapers inside his bedroom. And he also told him that he was going to put tape outside the door to ensure that he would [not] go out, because he has been on punishment. Roughly ever since January of 2007, his step-father . . . was very upset at him, as there was an incident that [Andrew] was making breakfast one morning, he left the stove on. And ever since then he has been . . . different forms of punishment.

The first punishment that [Andrew] discussed with me . . . , [Michael] had asked him numerous times to sit in a chair and to continue looking up at the ceiling for extensive time. And [Andrew] said there were times his neck would hurt very much, and he would feel very dizzy. Then following that punishment for the last month, the punishment was . . . for him to . . . stay[] in the house everytime they would go out, he's not allowed to go out with them, because of an incident . . . [when] he had peed in his bed, and he mentioned to me that his step-father was even more upset at the issue.

And he also mentioned to me that roughly for the last two weeks . . . from the day I interviewed him, his step-father had told him that he wanted him to leave the house early in the morning before him and his wife got up, because he was so angry at him . . . [for] pee[ing] in his bed and other behavioral issues of him. That [Andrew] said to me, that he had to get up early, early in the morning and just - he would just make some toast, and he would leave before his parents would get up. And he would sit at the Dunkin Donuts around his house that was about two blocks from his house. He would sit there until it was more or less time for him to be ready to go to school. And this continued happening for - for about two weeks. That was the last punishment he discussed with me.

[Andrew] did tell me that his mother did tell [Michael] many times . . . to stop . . . [administering] that kind of punishment.

. . . . [Andrew] did mention to me that there were other times that he had been left at the house.

When Crespo examined Andrew, she noticed that he had a bruise on his midback. Crespo testified that when she inquired about the bruise, Andrew stated that "his mother found out that he lied, that he did [not] go to the library, and that [was] when she [struck] him with the belt ten times[,]" and that "his mother had never hit him before and his step-father either." Crespo stated that Andrew "was really afraid that his father would punish him even worse for . . . having told us all of this." At approximately 1:30 P.M., Crespo concluded her interview with Andrew.

At 2:30 P.M., defendants arrived at the police station with ten-month-old Matthew. According to Crespo's testimony, Matthew seemed very playful, neat, and well cared for. Crespo interviewed both defendants, individually. Crespo testified that she first interviewed Melissa, who admitted many of the essential facts that Andrew had told Crespo:

[T]hat that morning, [Melissa] and her ten-month-old baby . . . went to the laundry . . . . [T]hat [Andrew] has had very defiant behavior for a while. And ever since January of 2007 there was an incident where he left the stove on, and her and [Michael] became very upset at him. And, at this point, [Andrew] was under punishment, which [Michael] had stated that, for now, every time that him and his wife go out, that [Andrew] would have to stay . . . inside the house.

[T]hat [Michael] has been putting that tape outside the door, just to see if [Andrew] comes . . . outside of the door . . . while they are outside, since his punishment is to be in inside his bedroom, while they were out.

[T]here was an incident in which [Andrew] had peed in his pants. And [Michael] was very upset, because he [is] already a grown boy. . . . [H]e just put [the diapers] in there as a way to humiliate . . . him. Not because he really wanted him to use the diapers, if he had to go to the bathroom. [Michael] had tried many forms of punishment like . . . taking away his privileges with TV, and . . . other household . . . games and stuff like that. But those punishments had not seemed to work. And there was a time that [Michael] would ask [Andrew] to sit down in a chair and look up at the ceiling - at the ceiling for a while as a form of punishment . . . she had told [Michael] . . . that this form of punishment was too harsh. And . . . one of the reasons why . . . at this point, she had allowed for the punishment to go on is because she no longer wanted to continue arguing with [Michael] about [Andrew's] behavior all the time.

According to Crespo, Melissa described the beating incident as follows:

[S]he was very upset at [Andrew], because [Andrew] . . . told her he was going to be at the library after school, which she found out that he was [not]. And when he got home she did take a belt and strike him with it.

And she was aware it was ten times because she counted it . . . .

Crespo also interviewed Michael, who according to Crespo's testimony did not deny the allegations. Crespo testified that:

[Michael] was very upset . . . he [told] me that early that morning him, [Melissa] and his ten-month son, [had] all [gone] to the laundry together. And the reason why [Andrew] did [not] go with them is because [Andrew] ha[d] been punished . . . that for a while now [Andrew] has been punished since on or about January 2007, that there was an incident in which he left the stove on one morning, and when they came back . . . the house was very hot, and they realized [Andrew] [left] the stove [] on.

[H]e went on to say that he's used other means of discipline. He tried to take away his TV privileges, any of his games. However, that has not seemed to work. He said that there was an incident that he would ask him . . . to sit in the chair and . . . look up at the ceiling . . . for an extensive amount of time. He would figure that maybe this type of punishment would work, in terms of behavior. [Michael] went on to further say that for the last month he has been asking [Andrew] [to] stay at the house when they go out, because there was also an incident that [Andrew] had peed in his pants. And [Michael] felt that he was too old to be doing this. So . . . the new punishment was for him to stay inside his room every time they went out.

[Michael] stated that the purpose of the tape was to make sure [Andrew] was abiding by the . . . rules of the punishment, that he would stay inside his room. Because he would see that the tape was off, it would mean that . . . he did [not] follow . . . the rules of the punishment. [Michael] had put those diapers in [the room with Andrew] because of the incident of him peeing his pants a while ago. And he said to him, if he had to go to the bathroom, he had to use those diapers as a form of . . . going to the bathroom, because he could [not] walk out the door. And he said that . . . he did not really mean for him to really use them. But it was a way to make him feel bad because of what he had done when he peed in his pants.

He did say that for the last weeks he had told [Andrew] that he wanted him to leave the house before he . . . woke up. Because he was very angry at him. [Michael] said he did [not] . . . want to look at his face at all. And he had asked [Andrew] to leave the house before he got up, and he realized that [Andrew] would walk over to the Dunkin Donuts, and . . . then on he would go to school from there. [Michael] did tell me that his wife mentioned to him that [Andrew] lied to her and told her he was going to be going to library after school, in which he did [not], and that she did strike him with a belt.

At the hearing, Crespo explained that Matthew was removed from his parents on an emergency basis, along with Andrew, because of Matthew's age and inability to report any abuse if defendants were abusing him, and because defendants admitted to her the essential facts of the abuse that Andrew had alleged he suffered.

[T]his child [Matthew] is at a very young age, that he's not verbal at all. I couldn't ask him, I wouldn't know what kind of discipline he's being . . . being used at home, because of his age. It makes him very, very fragile. And therefore, you know, you're not going to put another child at risk.

After DYFS presented its case, defense counsel sought to present witnesses to testify that Andrew had behavior problems and was manipulative and a liar. There was no proffer that any of these witnesses had personal knowledge about the alleged incidents of abuse at issue in the fact-finding hearing. The judge ruled that the evidence was inadmissible, stating if the child was the worst child in the world, in creation, [that] doesn't provide for him to be hit with a belt ten [times] . . . [nor] to be locked or left in his room unattended, perhaps that even makes it worse that he's a behavior problem and they leave him unattended for hours.

However, the children's uncle, R.T., with whom they were living at the time, was permitted to give extensive testimony in which he described Andrew's behavior problems in detail. He painted a picture of a child who did not get along well with other children, was very difficult to deal with, and did not respond to discipline such as loss of privileges. According to the uncle, as a result of these difficulties he had asked DYFS to find another foster home for Andrew.

Melissa testified that she never told Crespo that her husband had forced Andrew to stare at the ceiling for prolonged periods of time, but she also acknowledged in her testimony that she had asked her husband to stop punishing Andrew by making him stare at the ceiling. Melissa also testified that, on one occasion, after learning that Andrew had urinated on his clothes, her husband told the child that if he was going to act like a baby, then maybe he should dress like a baby. Later in her testimony, however, Melissa denied telling the Crespo that Michael had left diapers for Andrew, or that he had given Andrew diapers as a form of humiliation. She admitted that the couple sent Andrew to Dunkin Donuts before school, but denied that they sent him off early so that Michael could avoid seeing the child in the morning. Rather, she contended that they sent the child to Dunkin Donuts before school and told him to stay at the library until six o'clock after school, because they could not afford child care. However, they had a day care arrangement for Matthew.

Melissa also denied telling Crespo that she objected to Michael's punishments as being too harsh, or that she allowed the punishments to continue because she no longer wanted to argue with Michael. During cross-examination by the Law Guardian, Melissa denied telling Crespo that Michael had placed tape on Andrew's bedroom door. Melissa's testimony did not address the beating incident. Michael did not testify.

In an oral opinion placed on the record on June 26, 2007, the trial judge determined that Melissa's testimony was neither candid nor credible. He credited the State's witnesses and found no evidence that DYFS workers were biased against defendants. In determining whether defendants' conduct toward Andrew constituted abuse or neglect, the judge stated:

Much argument has been made about whether or not leaving a child at home on a Spring, Saturday is abuse or neglect. Having children walk to school, is abuse or neglect. Having a child stare at a ceiling, is abuse or neglect. Having a child go to Dunkin' Donuts prior to school, or hanging out, [for want of] a better phrase, prior to school, going to a library after school, or again, hanging out, playing after school, would be abuse or neglect. And obviously, each of those questions would be a no, except for extenuating facts, which may or may not exist . . . So each individual factor may not be significant. But the Court has to view the case based upon everything that is before it.

The definitions of abuse [are] set forth [in] 9:6-8.21C-4, . . . specifically subsection b. Also the statute sets forth evidence which can be considered proof of abuse or neglect - abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of another child.

[(emphasis added)]

He concluded that, taken as a whole, defendants' treatment of Andrew amounted to child abuse:

I'm satisfied that this is not appropriate discipline by any stretch of the imagination. This is a pattern of abusive, perhaps even tortuous conduct. . . . I'm satisfied that an order should be entered that [Andrew] is an abused and neglected child.

While no individual act of defendants constituted abuse or neglect alone, the totality of their conduct constituted abuse or neglect:

[Andrew] may be a behavior problem. On one hand, we have [defendants] saying that he is defiant, doesn't cooperate. Yet on the other hand, they say that he was cooperative enough to go to the Dunkin' Donuts in the morning before school, and get to school on a daily basis for that he had no absences, or lateness, apparently. That he would go to the library, apparently, most of the time he went to the library, except for sometimes where he would not go to the library, he would play with his friends, or hang out, do whatever young children do. Where they felt that he was lying, could [not] be trusted. They apparently left him in the house on, what sounds like, at least, three occasions by [Melissa's] testimony report to Ms. Crespo . . . But [DYFS's] concern was that his punishment would continue to August 31st as a result of some incident that . . . took place in April. So . . . he was going to be punished every time the family went out, they would leave him home alone for over four months. Obviously, the punishment does not fit the crime . . . [a]nd on May 12th, the period of time seems to be, based upon [Melissa's] testimony, three hours to go to the laundromat, and wait [there], and then . . . return home. [(emphasis added)]

While the judge did not find that Matthew was abused, he agreed with the contention of DYFS that "because of the activities towards [Andrew], it puts [Matthew] at risk of harm."

Immediately after the judge rendered his fact-finding opinion, the State presented a summary report of Dr. Bromberg, who had evaluated the family on June 14, but apparently had not provided his report until the day of the hearing. Dr. Bromberg's report indicated that in his interview with Andrew, the child told him about incidents of alleged abuse that he had not related to the DYFS workers, such as his step-father allegedly hitting him and directing that he be fed only bread. Based on psychological testing of Andrew, Dr. Bromberg concluded that the child "has emotional problems and is in need of psychotherapy."

Based on his interview and psychological testing of Michael, Dr. Bromberg concluded that Michael "has cognitive distortions frequently held by physically abusive parents," in the sense that he blamed Andrew for trying to break up his marriage to Melissa. Dr. Bromberg noted that Michael appeared to have "essentially no emotional attachment to Andrew." On the other hand, he as well as Melissa both showed emotional attachment to the younger child.

Dr. Bromberg concluded that it was unclear whether Michael's abuse of Andrew was "sadistic, the result of very poor judgment and parenting skills, or both." However, he opined that Andrew would be "at-risk for continued abuse and neglect if returned to [Michael's] care in the foreseeable future." Although Michael had "a stronger degree of emotional attachment" to Matthew, Dr. Bromberg concluded that Michael's "behaviors toward [Andrew] suggest that any minor in his care would be at an unacceptably high risk for both physical abuse and neglect."

Dr. Bromberg also concluded that Melissa was "a passive individual who currently lacks the ability to protect her children from harm. Moreover, during a single incident when she felt overwhelmed, she perpetrated physical abuse against Andrew." He concluded that Andrew would be at-risk for abuse and neglect if returned to his mother and that "her behaviors toward Andrew suggest that any minor in her care would be at an unacceptably high risk for neglect, as well as physical abuse, during times of stress."

Based on the factfinding hearing and the report of Dr. Bromberg, the judge entered two orders on June 26, 2007. The first made a finding that defendants abused and neglected Andrew. The second order continued legal and physical custody of the children with DYFS, and allowed Melissa supervised visitation with the children. According to the order, a compliance review was scheduled for August 29, 2007. However, at the June 26 hearing, all parties agreed on the record that the August 29 proceeding would be a dispositional hearing.*fn3

Although it is not part of the record of the May and June 2007 hearings that gave rise to this appeal, the parties have provided us with documentation from subsequent proceedings in this case. On August 3, 2007, Dr. Bromberg wrote a much more complete, sixteen-page report on his interviews with, and psychological testing administered to, defendants and Andrew, as well as his interview with the maternal uncle R.T. He also issued a brief letter dated August 29, 2007, recommending mental health services for Andrew and defendants. By order dated August 29, 2007, following a hearing on that date, physical custody of the younger child was transferred to his paternal grandmother in Massachusetts, at defendants' request. The August 29 order was denominated as "Compliance Review." Another compliance review was scheduled for November 14, 2007.

Counsel have represented that, pursuant to our order on a different interlocutory appeal, there is a pending hearing as to whether Andrew should also be placed with his paternal grandmother. However, the DYFS brief conceded that as of the filing of that brief on January 18, 2008, no dispositional hearing had been held. In response to our inquiry, DYFS subsequently advanced the contradictory contention that the August 29, 2007 hearing was the dispositional hearing.

II.

We begin by reviewing the statute on abuse and neglect. An abused or neglected child is defined by statute as: a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (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; (3) commits or allows to be committed an act of sexual abuse against the child; (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; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation. [N.J.S.A. 9:6-8.21c.]

In an emergency situation, if a child is removed from the home due to abuse or neglect, "any other child residing in the home may also be removed if his immediate removal is necessary to avoid imminent danger to his life or health." N.J.S.A. 9:6-8.33.

In order to determine whether a child is abused or neglected, the court must hold a "fact-finding hearing." N.J.S.A. 9:6-8.44. Proof of abuse or neglect of one child is "admissible evidence on the issue of the abuse or neglect of any other child" of the same parents. N.J.S.A. 9:6-8.46. If the court determines that a child is abused or neglected, the court then holds a "dispositional hearing" to determine "what order should be made." N.J.S.A. 9:6-8.45. The dispositional hearing "may commence immediately" after the court makes a finding of abuse or neglect, or the court may adjourn the dispositional hearing "to enable it to make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings." N.J.S.A. 9:6-8.48.

However, after making a finding of abuse or neglect and before holding a dispositional hearing, the court may enter a preliminary order of protection pursuant to N.J.S.A. 9:6-8.31. See N.J.S.A. 9:6-50d. This may include a placement with a relative or foster parent, if the court first makes a finding "that there is a substantial probability that the final order of disposition will be an order of placement" under N.J.S.A. 9:6-8.54. See N.J.S.A. 9:6-8.50. In other words, even if a child is found to be abused or neglected, the court is not to place the child out of the home even temporarily, without first finding that there is a likelihood that such will be the disposition after a dispositional hearing. The court is to expedite hearings in cases in which children have been removed from the home. N.J.S.A. 9:6-8.49. "Any adjournment granted in the course of such a proceeding should be for as short a time as possible." Ibid.

III.

Before addressing the merits of defendants' appeal, we consider the procedural posture of this case, an issue raised by the Law Guardian in a motion to dismiss the appeal as interlocutory.*fn4 As we held in New Jersey Div. of Youth and Family Services v. L.A., 357 N.J. Super. 155, 165 (App. Div. 2003), orders finding abuse and neglect are interlocutory, and applications for review should be by motion for leave to appeal.

The treatment of orders finding abuse and neglect as a final order may emanate from an appreciation of the impact such a finding may have on a family and permanency planning proposed by DYFS. It may be founded on experience which has revealed that dispositional hearings do not proceed as close in time to the fact-finding hearing as prescribed by the Legislature. By treating a finding of abuse and neglect as a final order, however, this court implicitly condones non-compliance with the scheme enacted by the Legislature requiring a final order as soon as possible after the removal of a child from her home. It is the function of the trial courts and this court to enforce, not subvert, a legislative scheme which emphasizes dispatch rather than delay in the disposition of allegations of abuse and neglect. A parent or guardian found to have abused or neglected a child, whose dispositional hearing is delayed, is not without relief. This court will be receptive to motions for leave to appeal in appropriate circumstances.

Here, the order following the fact-finding hearing is interlocutory. The May 9, 2002 order scheduled a "post-dispo" hearing for July 25, 2002. We were informed at oral argument, however, that the hearing was continued at that time and another hearing was scheduled for January 10, 2003.

The protracted nature of the post-finding proceedings and the grave impact the finding has had on this family militates that we consider this appeal on its merits. Therefore, we grant leave to appeal nunc pro tunc. [Id. at 165-66 (emphasis added).]

Although defendants improperly proceeded by notice of appeal, in this case, as in L.M., we will grant leave to appeal, nunc pro tunc, because of our concern over the apparent delay in holding a dispositional hearing for these children and because of the inadequacy of the trial judge's fact-finding with respect to the younger child. However, we remind counsel that orders of abuse and neglect are interlocutory, and applications for review before entry of a final order should be by motion for leave to appeal.

IV.

On this appeal defendants raise the following issues for our consideration:

POINT I: THIS COURT SHOULD REVERSE BECAUSE THE EVIDENCE DID NOT PERMIT A FINDING OF ABUSE OR NEGLECT.

POINT II: IF THE COURT DISAGREES WITH POINT I, IT SHOULD STILL REVERSE AND REMAND BECAUSE [THE TRIAL JUDGE] CONSIDERED STATEMENTS OF [ANDREW] WHICH WERE THE PRODUCT OF A WARRANTLESS SEARCH.

POINT III: IF THE COURT DISAGREES WITH POINT I, IT SHOULD STILL REVERSE AND REMAND BECAUSE [THE TRIAL JUDGE] CONSIDERED STATEMENTS OF DEFENDANTS EVEN THOUGH THEY HAD NOT BEEN ADVISED OF THEIR RIGHT TO REMAIN SILENT.

A. Defendants' Statements At The Police Station Were Privileged Because They Were Made At A preliminary Conference Within N.J.S.A. 9:6-8.36.

B. Even If Defendants' Statements Were Not Made At Preliminary Conference Within N.J.S.A. 9:6-8.36, The Court Should Still Reverse Because The Admission Of Those Statements Constituted Error Of Law.

POINT IV: THE EXCLUSION OF DEFENDANTS' WITNESSES, PARTICULARLY BASED ONLY ON A PROFFER OF TESTIMONY, WAS ERROR OF LAW.

A.

We first address defendants' contention that the evidence was insufficient to establish, by a preponderance of the evidence, that they abused and neglected Andrew. See N.J.S.A. 9:6-8.46(b)(An abuse and neglect determination "must be based on a preponderance of the evidence.")

On this appeal, our review of the trial judge's fact-finding is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such 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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Judged by that standard, we find no basis to disturb the trial court's conclusion that Andrew was abused and neglected, as defined in N.J.S.A. 9:6-8.21c. While believing that Andrew was a difficult and unreliable child, his parents nonetheless repeatedly punished him for his unreliability by leaving him home alone for hours at a time. He was confined to his room and told to use a diaper if he needed to relieve himself. His step-father also punished Andrew by making him stare at the ceiling in an uncomfortable position for long stretches of time. He directed Andrew to leave home early in the morning and wait at a Dunkin Donuts until school started, because the step-father was angry at the child and did not want to see him first thing in the morning. The parents also directed Andrew to stay in the library for hours after school, allegedly because they could not afford child care. However, they admittedly had a day care arrangement for Matthew. Finally, in a fit of temper, Melissa beat Andrew ten times with a belt, leaving a visible bruise in the middle of his back.

Taken together, all of this conduct amounted to physical and emotional abuse, as well as neglect. We defer to the judge's decision to credit the State's witnesses, who testified to their first-hand observations of Andrew and testified that defendants admitted most of the alleged abusive conduct. The trial judge properly rejected the parents' attempt to justify their conduct by blaming Andrew.*fn5

We find no merit in defendants' contention that they were deprived of the opportunity to call witnesses at the fact-finding hearing. Based on defendants' witness list, which included a brief proffer as to the witnesses' expected testimony, the proposed witnesses did not have first-hand knowledge of the facts relevant to the issue of abuse and neglect. Moreover, the children's uncle was permitted to testify about Andrew's behavior problems.

B.

We next address the removal of Matthew from the home, based only on proof of abuse of Andrew. As we recognized in DYFS v. Robert M., 347 N.J. Super. 44 (App. Div.), certif. denied, 174 N.J. 39 (2002), the abuse of one child may pose a danger to other children, or may be predictive of danger to other children. In that case, the parents abused and tortured an adopted child, Viktor, resulting in his death. We addressed a guardianship action respecting the couple's biological children:

Although the absence of past physical abuse to the natural children may infer their future safety, the alleged treatment of Viktor could be a dangerous harbinger to one or more of the others. As we stated in J.&E. v. M.& F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978).

Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.

A child's exposure to a parent's physical abuse of a child may well be abusive to others by instilling either fear or a tolerance to violence in intra-family relationships. In the instant case the trial judge found that the twins . . . were abused children partly because of defendants' treatment of Viktor. If Viktor was abused by defendants and died as a result, potential abuse of other children, whether emotional or physical, cannot be discounted. [Id. at 68.]

In a case closer to the one before us, however, we reached a different conclusion:

The record as to the youngest child, James, is significantly less compelling than the record pertaining to his siblings. There is absolutely no evidence that James was ever abused or neglected by his parents. We recognize, however, that under N.J.S.A. 9:6-8.46, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent. . . ."

The Supreme Court has recognized that the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." DMH, supra, 161 N.J. at 383. "However, as a part of its burden of proof, the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46b) the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). [New Jersey Div. of Youth & Family Services v. F.H., 389 N.J. Super. 576, 613-14 (App. Div.), certif. denied, 192 N.J. 68 (2007).]

In F.H., we concluded that DYFS had not presented proof of abuse of the one child, James, where there was proof that his brother had suffered repeated broken bones due to neglect, but James was unharmed.

[T]he Supreme Court's admonition . . . that "courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect," must be understood, considered, and applied in the context of a clear record showing a pattern of parental inaction and neglect, amounting to unfitness.

Applying this standard, we conclude that the trial court failed to make sufficient factual findings to warrant the termination of F.H.'s and A.H.'s parental rights with respect to James. In contrast to the facts in DMH, the record here with respect to James is devoid of any evidence that he was abused or neglected by his parents. [Id. at 615-16 (citing In re Guardianship of DMH, 161 N.J. 365 (1999).]

Like Robert M., supra, F.H. involved termination of parental rights as opposed to a temporary removal of a child from the home.

In this case, we conclude that the evidence was sufficient to justify an emergency removal of both children from the home, based on the information available to the DYFS workers at the time of the removal and made available to the court on the subsequent emergency removal application. There was evidence that the parents had imposed highly inappropriate physical discipline on Andrew and had neglected him, and there was reason to question their judgment.

However, we conclude that after the fact-finding hearing, the trial judge did not make sufficient factual findings to justify keeping Matthew in foster care. DYFS presented no evidence that the younger child had been abused or neglected in any way, or that he was old enough to observe and be affected by the parents' neglectful treatment of his brother.

While Dr. Bromberg's preliminary report provided some support, after the fact, for the judge's conclusions, the judge did not base his findings about Matthew on that report, and defendants did not have a fair opportunity to respond to it. It is one thing to remove a very young child from parents on an emergent basis, due to a realistic concern that if they are abusing an older child who reports abuse, they may also be abusing the younger child who cannot report the abuse. Crespo's testimony in that regard is convincing. However, once the emergency has passed, a decision to continue each child in foster care must be based on sufficient factual findings to support a conclusion that they are each at risk if returned to their parents' custody. That fact-finding is missing with respect to Matthew.

Because this appeal is interlocutory, we cannot determine whether later proceedings in the case have filled in this gap. However, in the absence of a record on that issue, we will remand this case to the trial court to make findings of fact on whether Matthew should remain in foster care or whether he should be returned to his parents. Further, defendants must have an opportunity to present evidence to rebut Dr. Bromberg's opinion concerning the alleged risk to Matthew if he is returned to their custody. If there have been later hearings on that issue, conducted after the May and June orders on appeal here, and if defendants had an opportunity to present their proofs, the trial court may base its findings on those proceedings. If there has not been a dispositional hearing with respect to Matthew, such a hearing must be held and decided within sixty days of the date of this opinion. The findings of fact ordered here, which must be specific to Matthew, shall be issued within ninety days of the date of this opinion and shall be accompanied by an order reflecting those findings. Any party wishing to challenge the order may seek leave to appeal. We do not retain jurisdiction.

V.

Finally, we find no merit in defendants' contentions that Andrew's statements to Officer Carneiro were the product of an unconstitutional search, and that defendants' statements to Crespo should be suppressed because they were not read their Miranda*fn6 rights.

Officer Carneiro's entry into the home was justified by the emergency aid and exigent circumstances exceptions to the warrant requirement. It is well-recognized that these doctrines apply to cases of potential child abuse and neglect. As we acknowledged in State v. Garland, 270 N.J. Super. 31 (App. Div.), certif. denied, 136 N.J. 296 (1994):

[I]t is generally recognized that the emergency aid doctrine applies where police officers have reason to believe that unattended children require their assistance. Indeed, leaving children unattended constitutes a substantial threat to their welfare and safety and is recognized as grounds for criminal prosecution in this State. [Id. at 44-45 (citations omitted).]

Officer Carneiro had information that an eleven-year old child was left alone in the house, locked in a bedroom and required to wear diapers. His entry into the premises was consistent with the applicable test set forth in Garland to justify a warrantless entry: "[T]here must be (1) the existence of an emergency as viewed objectively (2) a search not motivated by a desire to find evidence [of crime] and (3) a nexus between the search and the emergency." Id. at 44 (quoting State v. Scott, 231 N.J. Super. 258, 275 (App. Div. 1989) (Ashbey, J.A.D., dissenting), rev'd on dissent, 118 N.J. 406 (1990)).

Moreover, when Carneiro identified himself as a police officer, Andrew voluntarily opened the door and let him in. None of the cases defendants cite stand for the proposition that a child left alone in the home cannot consent to entry by a police officer sent to check on his welfare. See Abdella v. O'Toole, 343 F. Supp. 2d 129, 135 (D. Conn. 2004)("It is clear that there is no per se rule that all minors lack the authority to consent to a search.") Finally, even if the entry were unlawful, we would find no basis to apply the exclusionary rule in this civil child welfare proceeding. See In re Diane P., 110 A.D. 2d 354 (N.Y. App. Div. 1985), app. dism., 67 N.Y.2d (1986); In re Robert P., 61 Cal. App. 3d 310 (1st Dist. 1976), appeal dismissed sub nom., Potter v. Department of Social Services, 431 U.S. 911, 97 S.Ct. 2165, 53 L.Ed. 2d 221 (1977).

We need not decide here whether defendants were in custody and therefore entitled to Miranda warnings for purposes of any use of their statements in a criminal prosecution. See State v. P.Z., 152 N.J. 86 (1997). The record is insufficient for such an inquiry, although there is no evidence that the statements to Crespo were the products of coercion or were otherwise unreliable. However, we find no justification to apply Miranda here. See In re Diane P., supra; In re Robert P., supra. Even if defendants' statements to the DYFS worker might be subject to suppression in a criminal prosecution, they are admissible in this civil child abuse and neglect proceeding. See also Robert M., supra, 347 N.J. Super. at 64. ("Parallel investigations and proceedings by [DYFS] and the county prosecutor have resulted in thorny constitutional issues. Defendants may face the Hobson's choice of deciding whether to testify and risk incrimination or remain silent in the face of testimony that could deprive them of custody of their children.")(citations omitted).

We find no merit in defendants' alternate contention that the statements were made in the course of a preliminary conference and therefore inadmissible. See N.J.S.A. 9:6-8.36. This argument warrants no further discussion here. R. 2:11-3(E)(1)(e).

Affirmed in part and remanded in part.


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