On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-215-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically April 30, 2008
Before Judges Lintner, Sabatino and Alvarez.
This appeal arises out of an incident in which defendant, J.C., had a physical confrontation at home with her eleven-year-old stepdaughter, which culminated with defendant punching the stepdaughter in the face and giving her a black eye. The altercation was witnessed by defendant's biological daughter, who was then age five. Both girls were removed from defendant's care. After a fact-finding hearing in the Family Part, defendant was found to have committed abuse and neglect, under N.J.S.A. 9:6-8.21(c), as to both of the female minors.
For the reasons stated in this opinion, we affirm the Family Part's finding of abuse and neglect as to the stepdaughter, but reverse its separate finding of abuse and neglect as to the daughter who witnessed the injury to her half-sister.
The proceedings in this matter began when the Family Part entered an order on January 9, 2006, granting the Division of Youth and Family Services ("DYFS") care and supervision of defendant's stepdaughter, "Tanya," and her biological daughter, "Natalie."*fn1 The order stemmed from an allegation that ten days earlier, on December 31, 2005, defendant had punched Tanya in the face, giving her a black eye. Following an investigation into this claim, police arrested defendant. The State later charged her with second-degree endangering the welfare of Tanya under N.J.S.A. 2C:24-4(a).
Tanya, who is now thirteen years old, was born on October 23, 1994. She is the child of defendant's husband, M.C., and M.C.'s first wife, Mia.*fn2 DYFS became involved with M.C. and Mia in 1994 following several referrals that had alleged domestic violence, child abuse, and neglect committed by both parents. Although these allegations resulted in multiple arrests and temporary restraining orders, they were never substantiated. Consequently, DYFS eventually closed its files on the family.
When M.C. and Mia divorced in 2000, M.C. retained physical custody of Tanya. Since 2001, Mia has made no effort to see her daughter. Her present whereabouts are apparently unknown.
Prior to divorcing Mia, M.C. became involved with defendant in 1998. The couple had a daughter, Natalie, who was born on September 29, 2000. Sometime after that, defendant and M.C. married. Up until the December 2005 incident at issue here, M.C., defendant, Tanya and Natalie all resided together.
The record suggests that defendant and M.C. have had a rocky marital life. At various times the two spouses have traded accusations of domestic abuse. Both of them have also filed intermittent reports with the local police, alleging that the other spouse was abusing the children. Nevertheless, none of these allegations of previous abuse were ever substantiated.
Before the events underlying the present appeal occurred, the most recent DYFS involvement with this family took place in May 2004. At that time, the Hackensack Police Department contacted DYFS about a telephone call they had received from Tanya, in which she claimed that defendant had assaulted and threatened to kill her. DYFS subsequently determined that Tanya had no visible bruises. Her allegation at that time was never substantiated.
On January 4, 2006, Tanya, who was eleven at the time, came back to school following the holiday recess with visible bruises on her face. When questioned by school personnel, Tanya revealed that she and her stepmother had gotten into a physical altercation on the morning of December 31, 2005. Tanya stated that defendant had punched her in the eye, pushed her to the ground, and kicked her. Tanya reported that she felt pain in her ribs when she bent over, and that she had trouble breathing.
School personnel called the police, who, in turn, alerted DYFS. The assigned caseworker, Stephanie Kurilla, met with Tanya at the Hackensack police station. Kurilla recalled that, at their first meeting, she observed "underneath [Tanya's] left eye there was bruising from the corner -- the inner corner of her eye to the outer," and "on the left side of her face she also had a straight bruise going down a couple of inches in length." Additionally, Tanya reported bruises on her legs, which Kurilla could not observe because of the nature of Tanya's clothing, pain in her side, and difficulty breathing. Tanya told Kurilla that she thought her pain came from being kicked in the ribs.
Tanya told Kurilla that, sometime before noon on December 31, 2005, she was playing a game on a computer in the bedroom that M.C. and defendant shared. M.C. and defendant were lying in bed at the time. Tanya stated that Natalie was playing on a Game Boy*fn3 device and bothering her, so she pushed Natalie, causing her to drop the Game Boy. The girls' dispute prompted defendant to start yelling at Tanya. Tanya responded by telling defendant to "shut up."
At this point, defendant allegedly leapt out of bed and went after Tanya, pushing her to the floor and kicking her in the legs, ribs and chest. Tanya claimed that she tried to fight back and to cover her face, but defendant punched her in the eye with a closed fist. Natalie, who was five at the time, and M.C. both witnessed the fight. Tanya had bruises on her face and was kept home from school on Tuesday, January 3.*fn4 Neither M.C. nor defendant took her to the doctor.
After meeting with Tanya, the DYFS caseworker transported her from the police station to the Audrey Hepburn Children's House ("the Children's House") located within the local hospital. There she was examined for injuries by Nina Agrawal, M.D. Dr. Agrawal observed Tanya's facial injuries. She also noted a faded bruise on Tanya's leg. In her written report, Dr. Agrawal opined that the injuries she observed were consistent with Tanya's report of assault. The bruises to her face were documented with photographs. An x-ray of her ribs showed no abnormalities. While at the hospital, Tanya repeated her account of what happened on December 31 to a detective from the Bergen County Prosecutor's Office.
That same day, the DYFS caseworker informed M.C. of Tanya's allegations. In response, M.C. acknowledged that he had seen defendant hit Tanya. He recounted that he had been sleeping in bed on the morning of December 31 when he awoke to hear defendant and Tanya arguing. He then saw defendant kick Tanya while she was on the ground. As he got out of bed to intervene, M.C.'s blanket fell off of him. While bending down to pick up the blanket and cover himself, M.C. witnessed defendant punch Tanya in the face. M.C. then managed to separate Tanya from defendant. When asked why he did not immediately call the police about the incident, M.C. replied that he was afraid that defendant would again falsely accuse him of domestic violence and have him arrested.
Later that day, M.C. signed a DYFS case plan, promising to keep defendant out of the presence of the two children and not to allow her back into the house. Meanwhile, the police arrested defendant. She was subsequently indicted by a Bergen County grand jury on charges of endangering the welfare of Tanya.
Pursuant to an order from the Family Part dated February 2, 2006, counselors at the Children's House conducted separate interviews of defendant, M.C., Tanya, and Natalie. A twenty-four-page report, signed by three psychologists and two clinical social workers, incorporated those interviews and subsequent clinical evaluations. DYFS submitted that report into evidence, without any objection from defense counsel, at the ensuing fact-finding hearing in the Family Part.
As background, the Children's House report canvassed the lengthy history of allegations of abuse and violence concerning M.C., his former wife Mia, defendant, and their respective children. The report then discussed the interviews its staff had with the parties about the December 31 incident.
In her interview at Children's House on January 24, 2006, Tanya repeated her same accusation that defendant had pushed her to the ground and punched her in the eye. Tanya claimed that defendant verbally abused her often and called her "fat" on a daily basis. Tanya also acknowledged she "[gets] slapped once or twice a year by [her] dad[,] but it's not hard." Tanya said her home had been much happier since defendant left, and that she hoped that her father and stepmother did not reconcile.
In her own interview at Children's House, Natalie admitted that she had seen her sister and her mother fighting on December 31. As she put it, "Mom and [Tanya] yell[ed]. I saw a fight. I told them to stop. They were screaming, yelling, [and then] mom and [Tanya] hit each other." Natalie denied that anyone hit her. Natalie said that she had never seen her mother and father strike each other, but that they sometimes yelled at one another. Natalie stated that she felt ...