On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FN-09-386-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...