June 4, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
J.C., DEFENDANT-APPELLANT, IN THE MATTER OF T.C. AND N.C., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 safe with both her parents, as well as with her stepsister. She expressed sadness that her mother had to leave the house.
M.C. stated in his interview at Children's House that defendant had known Tanya since she was nine months old. He acknowledged that defendant had even assisted him in gaining custody of Tanya. M.C. recalled that defendant and Tanya had once maintained a good relationship, but that their interactions changed after defendant gave birth to Natalie. Once Natalie arrived, he claimed, defendant "treated [Tanya] like she didn't exist."
In particular, M.C. felt that defendant treated Tanya worse than Natalie because Tanya was not her biological child. He stated in this regard that defendant "treated [Tanya] like an outcast" and that she "showed major favoritism towards [Natalie]." As an example, M.C. said that defendant would often buy things for Natalie, but would not buy anything for Tanya. He claimed that defendant had verbally and physically abused Tanya in the past. M.C. admitted that there were instances of domestic abuse in his own relationship with defendant, though he insisted that he never hit his daughters.
As to the specifics of the December 31 incident, M.C. repeated to Children's House his account of defendant hitting Tanya in the face. He told interviewers that defendant had kept Tanya out of school on January 3 because of her visible black eye, and that defendant had also tried to cover Tanya's bruises with makeup. M.C. said he was surprised when he learned that the x-rays taken at Children's House showed that Tanya had not suffered more serious injuries from defendant's assault.
Counselors at the Children's House also interviewed defendant. They perceived that she was "often unwilling to answer questions directly" and that she "would avoid addressing pertinent issues by digressing in long narratives about being a victim of domestic violence." Defendant denied all of the allegations against her, suggesting to the interviewers that M.C. may have hit Tanya instead.
Following these interviews and observations, the Children's House clinicians concluded that Tanya had suffered physical abuse on December 31. They also perceived that she had been subjected to domestic violence and psychological maltreatment. As to Natalie, however, the clinicians could not substantiate that she was ever physically, sexually, or psychologically abused. Their report did find that "[defendant] and her estranged husband [M.C.] have exposed both of the minor children . . . to extensive domestic violence." They also stated that defendant "does not make the connection between her behavior with [Tanya] and exposing [Natalie] to her assault on [Tanya] as inadequate parenting. Her tendency to split others into wholly good or bad is also a liability in her appropriate parenting of [Natalie]."
After determining that defendant had abused Tanya, and that both parents exhibited "impaired parenting capacity," the Children's House report concluded:
[Natalie], although she was not physically abused[,] has been detrimentally influenced by witnessing her sister's assault and the continual domestic violence which occurs between her parents. It has resulted in secondary trauma to [Natalie] by witnessing [defendant's] lack of control over her behavior and in [Natalie] needing to be removed from [defendant's] care.
Consequently, the report recommended that defendant have no contact with Tanya, and that her contact with Natalie be restricted to supervised visits, contingent on defendant's participation in therapy.
By the terms of the Family Part's initial order in this matter on January 9, 2006, M.C. continued as the minors' legal and physical guardian. That order was continued in February 2006, and again in May 2006. The February 2006 order mandated psychological evaluations of defendant, M.C., and the two girls. It also provided for defendant to have weekly visits with Natalie supervised by DYFS. The May 2006 order provided that those visits could also be supervised by defendant's mother or another social services agency. The prohibition on defendant's contact with Tanya continued, consistent with "no-contact" provisions apparently also imposed by the Criminal Part.*fn5
At the fact-finding hearing in the Family Part on July 19, 2006, DYFS presented the testimony of caseworker Kurilla, who recounted her initial conversations with Tanya and M.C. Kurilla also testified that she spoke with defendant at the courthouse on January 6. Kurilla testified that defendant denied hitting Tanya, and claimed she only acted in self-defense. Defendant could not explain to Kurilla how Tanya got the black eye.
DYFS also presented testimony from Felix Igunwonyi, the DYFS social worker who took over Tanya's case after Kurilla finished her initial investigation. Igunwonyi testified that he was assigned the case in February 2006, and that he subsequently interviewed both Tanya and Natalie. He testified that Tanya repeated essentially the same account to him as she had previously reported to Kurilla and other investigators. Referring to his case notes from the day of the interview, Igunwonyi testified that Natalie told him that she saw defendant hit Tanya in the face, and that "[Tanya] was on the floor, and mommy was hitting on her."
Igunwonyi recalled that when he asked Tanya if defendant treated her and Natalie differently, Tanya replied that she never saw defendant hit Natalie. She asserted that defendant loved Natalie more than she loved her. Natalie also told Igunwonyi that defendant had never hit her. Both children denied to Igunwonyi that their father M.C. ever hit them.
The court also received as evidence the photographs of Tanya's injuries, the Children's House evaluation report, and Dr. Agrawal's medical report. The judge admitted the photographs over defendant's attorney's objection that they were taken several days after the fight occurred. The reports were admitted without objection.
Defendant testified on her own behalf at the hearing. She denied that she ever punched or kicked Tanya. Defendant claimed that she and Tanya had never had any altercations in the past and described their relationship as "very, very, very nice." Defendant blamed M.C. for causing strife in the household.
According to defendant, Tanya and Natalie were arguing on the morning of December 31, and Tanya got upset and "nudged" Natalie, causing her to fall. Defendant then questioned Tanya as to why she pushed her sister, and Tanya responded by becoming "very, very mad," which defendant thought was "very unusual for a child." Defendant recalled that Tanya "looked aggressive from the gut, like something was not right that day."
Defendant testified that Tanya then cursed at her and told her to "shut up," at which point defendant told Tanya to "go to her bedroom." According to defendant, Tanya then flew into a rage, "screaming [f***] you, and then she kicked me. She was kicking me all up by my chest area over here." Defendant claimed she had "bruises all over [her] breast area," but that "nobody looked" at them. She also claimed that M.C. was awake in bed during this incident, and that she asked for his assistance, but that he did noting.
As the altercation continued, defendant recalled that Tanya was "out of control" and "making grunting noises," and that defendant had to cover her face to protect herself from her stepdaughter's attacks. At the time, Tanya weighed about 140 pounds. Defendant was 5'2" and weighed about 230 pounds.
Meanwhile, defendant could hear Natalie screaming in the background. Defendant admitted that she had not sent her younger daughter out of the room, despite her belief that Tanya was acting "unusual" and was "out of control."
Eventually, defendant succeeded in controlling Tanya, allegedly by "taking [her] arms and restraining her to the floor." She admitted that she "place[d] [her] knee" on Tanya as she was "holding her down." She put her knees somewhere in Tanya's "lower stomach area." Defendant could not recall exactly how this fight ended, but she remembered "putting [Tanya] to the floor, and at that point I went on the bed I believe somehow." She reiterated that her husband M.C. had done nothing to intervene or break up the fight, and then added that he had been abusive to both her and Tanya in the past.
Defendant did not know how Tanya came to have a black eye, but speculated that perhaps Natalie had hit Tanya with the Game Boy while they were arguing. She claimed Tanya did not have any bruises on her face that day. She also claimed that it was M.C.'s decision, not hers, to keep Tanya out of school on Monday, January 3, 2006, and that, by that date, she had noticed "a mark" on Tanya's face, which she could not explain.
In summation, defendant's counsel argued to the trial judge that Tanya had a history of abuse at the hands of her father and her natural mother, and that she also had a history of making "unsubstantiated allegations." He further argued that there was a lack of evidence regarding the harm to Natalie, and that the abuse claims involving her should have been dismissed from the case.
In a two-page written finding of facts issued on July 24, 2006, the trial judge accepted DYFS's contention that defendant had physically assaulted Tanya. The judge found that "[defendant's] allegations that [Tanya] became enraged and attacked her and that she was merely protecting herself are not credible." The judge ruled that "[t]he evidence is clear and convincing that [defendant] abused her stepdaughter . . . causing her serious physical injury."
The trial judge denied defendant's motion to dismiss the DYFS action as to Natalie, stating that "[a]lthough the absence of evidence of past physical abuse to other children may infer their safety, the treatment of [Tanya] may be an indication that [Natalie] is also at risk." The judge then concluded:
[DYFS] should further investigate the cause of [defendant's] uncontrollable rage, which caused her to abuse her stepdaughter, and whether there are services that can be offered to her to overcome the cause. Further court determination will have to be made as to what will be in the best interests of the children.
That same day, the court issued a corresponding order under N.J.S.A. 9:6-8.50(a). On September 18, 2006, four days after filing her notice of appeal on the Family Part's judgment, defendant pled guilty in the Criminal Part to a reduced charge of third-degree child endangerment.*fn6 She received a sentence of four years of probation. As conditions of that probation, the Criminal Part judge ordered defendant to attend parenting classes and to continue with anger management counseling. The judge also ordered her to have no contact with Tanya. The Criminal Part entered a final judgment of conviction on October 26, 2006.
The following spring, at the request of DYFS, the Family Part entered an order on April 17, 2007, terminating litigation in the present case. The reason specified on the order for terminating the litigation was that "the child(ren) have been returned home, conditions have been remediated." This order provided that Tanya "shall remain in the legal and physical custody of [M.C.]" and that Natalie "shall remain in the joint legal custody of [M.C. and defendant] and the physical custody of [M.C.]" The Family Part also required defendant, M.C., and the two children to attend individual and family psychotherapy at a facility called "Comp Care."
In addition, the April 17, 2007 order dissolved the restraining order between defendant and Tanya, provided that defendant could have unsupervised visits with Natalie, and allowed for supervised, "therapeutic" visits between defendant and Tanya if recommended by Tanya's therapist. Lastly, the order restricted defendant from residing in the same house as Tanya unless recommended by Tanya's therapist, and provided for DYFS to supervise the family for an additional three months.
No other orders were entered in this Title 9 litigation. We learned, however, from counsel that defendant has since regained physical custody of Natalie, as the result of an application defendant filed in a separate non-dissolution case against M.C. under Docket No. FD-02-101-03. Specifically, on December 14, 2007, a Family Part judge issued an order in that related case awarding defendant "primary physical custody" of Natalie, with M.C. to have parenting time "upon application to [the] court."*fn7 The order, which was entered by a different judge than the one who had presided over the Title 9 fact-finding hearing in this case, also invited defendant to file an application for child support for Natalie.*fn8
On appeal, defendant argues that the record lacks clear and convincing proof of abuse or neglect as to both Tanya and Natalie; that Tanya sustained no "serious" physical injury under N.J.S.A. 9:6-8.21(c); that defendant did not use "excessive physical restraint" on Tanya under N.J.S.A. 9:6-8.21(c)(6); that the judge improperly assumed that Natalie's witnessing of the blows to her half-sister caused Natalie psychological harm; that defendant lacked a supervisory or caretaking relationship with Tanya; and that defendant was not served with adequate notice of the DYFS action before Natalie was removed from her custody in January 2006.
Under Title 9, any allegation that a child has been abused or neglected must be substantiated at a fact-finding hearing. N.J.S.A. 9:6-8.44. Recognizing the "fundamental constitutional right" of parents to raise their children, the Legislature has adopted stringent procedures for courts to follow in Title 9 proceedings. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). At the fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). DYFS bears the burden of proving abuse and neglect by a preponderance of such competent evidence. Ibid. If the court is satisfied that this burden has been established, it "shall state the grounds for [such] findings." N.J.S.A. 9:6-8.50(a).
Substantively, an "abused or neglected child" is defined in the statute as to include: 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 . . . (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. [N.J.S.A. 9:6-8.21(c)(4).]
See also N.J.S.A. 9:6-8.9 (similarly defining an "abused child" in provisions addressing the reporting of alleged child abuse).
Given these procedural and substantive criteria, we have no hesitation in sustaining the Family Part judge's finding that defendant committed abuse and neglect upon her stepdaughter Tanya, through "the infliction of excessive corporal punishment" on December 31, 2005. The judge's findings in respect to the older child are manifestly supported by substantial credible evidence, giving due regard to his ability to assess the credibility of the contrary factual accounts presented by defendant, on the one hand, and the DYFS witnesses, on the other. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); see also N.J. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 35 (App. Div. 2008).
We specifically reject defendant's legal argument that she lacked a sufficient relationship with Tanya to function as her parent or guardian. The pertinent statutes expressly include stepparents within the scope of parents or guardians covered by the statute. See N.J.S.A. 9:6-2 (defining "parent" to include a stepparent); N.J.S.A. 9:6-8.21 (likewise treating as a "parent or guardian" a stepparent, or any other person, "who has assumed responsibility for the care, custody, or control of a child or upon whom there is legal duty for such care"). Tanya resided for many years with defendant and her husband, after her biological mother divorced her father and ceased caring for her. Prior to the December 31 incident, defendant clearly served with M.C. in a joint custodial role in caring for Tanya in their household. Although defendant argues that she played a subordinate role to M.C. in supervising Tanya, that role was nevertheless sufficient to impose upon her duties as a co-guardian. Consequently, defendant's interactions with Tanya, and her misguided effort in this case to discipline her with physical force, is within the scope of the abuse and neglect statutes.
We also have no trouble in affirming the trial judge's factual finding that, after Tanya "responded disrespectfully" to defendant's scolding her, defendant "became enraged and struck [Tanya] in the face, pushed her to the floor, kicked her, and pinned her down before [M.C.] could intervene." The medical proof of Tanya's black eye and bruising is entirely consistent with that finding. We also defer to the judge's assessment that defendant's claim that "she was merely protecting herself [is] not credible." The judge reached these well-founded determinations not only by the requisite preponderance of the evidence, but by a stronger finding that "[t]he evidence is clear and convincing that [defendant] abused her stepdaughter . . . causing her serious physical injury."
Defendant's contentions on appeal that her actions with respect to Tanya did not amount, as a matter of law, to "excessive physical restraint" under N.J.S.A. 9:6-8.21(c)(6), and did not result in "serious" bodily injury under N.J.S.A. 9:6-8.21(c), are completely without merit. The proofs are clear that defendant deliberately struck Tanya in her face and in other parts of her body in a manner that was "excessive." These blows left Tanya with a medically-documented black eye and other injuries, verified by third parties, that cannot be realistically classified as minor or inconsequential. The absence of any abnormalities in Tanya's x-ray does not dispel the other considerable proofs of serious injury.
Defendant's wrongful acts are by no means excused by Tanya's disrespectful and profane retort to her. Nor are they justified, as the trial judge noted, by any credible claim of self-defense.*fn9
We reach a different conclusion, however, with respect to the judge's separate finding that defendant also abused Natalie.
The judge's sparse finding as to Natalie is contained in one sentence, followed by a string of case citations. That sentence reads:
Although the absence of evidence of past physical abuse to other children may infer their safety, the treatment of [Tanya] may be an indication that [Natalie] is also at risk. [Emphasis added.]
The judge made no finding that Natalie had been harmed, physically or psychologically, as the result of witnessing defendant's corporal punishment of her half-sister in her parent's bedroom. Nor did the judge state that Natalie had been mistreated by her mother in the past. Indeed, the judge's finding as to Natalie is couched in tentative language, observing that the treatment of Natalie's half-sister "may be an indication" that she is also at risk.
As a matter of law, we recognize that our abuse and neglect statutes are broad enough to encompass situations in which violent acts inflicted upon a sibling or another minor in the child's household may indirectly result in abuse or neglect of that child. See N.J.S.A. 9:6-8.46(a)(1). However, we are persuaded by both the Law Guardian and defense counsel that the present facts with respect to Natalie do not equate to those extreme circumstances. In particular, we agree with the Law Guardian and defense counsel that the two closest cases of relevance, N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), and N.J. Div. of Youth & Family Servs. v. F.H. 389 N.J. Super. 576 (App. Div.), certif. denied, 192 N.J. 68 (2007), support a reversal of the finding in this case that Natalie was abused and neglected.
In S.S., supra, 372 N.J. Super. at 15, the trial judge determined that an infant child qualified as an abused or neglected child under Title 9 because he had been in his mother's arms or near her when she was assaulted by her husband. We reversed the court's finding of abuse, noting, "[i]f we could take judicial notice of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses, we would be less concerned by the court's conclusion here that [S.S.] was an abuser. However, we cannot." Id. at 25. Although DYFS argues that S.S. is distinguishable because the minor who witnessed the violence in S.S. was a toddler rather than a five-year-old girl like Natalie, we do not agree that the age differential requires a contrary result here on the specific facts of this case.
More recently, in F.H., supra, 389 N.J. Super. at 585, we reversed a trial court's finding that the defendant parents had caused harm to two of their children, based on evidence of their abuse of a third child. Concluding that the record was "devoid of any evidence that [the third child, James,] was abused or neglected by his parents," we noted 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 [their son] James." Id. at 615-16. We reached that conclusion, despite proven injuries to another sibling, because those injuries did not, ipso facto, require a finding that the other children were at risk of harm. Id. at 613-14.
DYFS contends that the present record does contain actual evidence of harm to Natalie. It points to the Children's House report, which stated that "[Natalie], although she was not physically abused[,] has been detrimentally influenced by witnessing her sister's assault and the continual domestic violence which occurs between her parents." The authors of that report further opined that Natalie suffered "secondary trauma" from the incident. Yet the report does not delve into the reasons for this assessment, and contains no specific observations or indications to clarify exactly what kind of trauma Natalie suffered.
Notwithstanding its conclusory statement that Natalie had been "detrimentally influenced" by witnessing the fighting at her house, the Children's House report also notes that "[Natalie] may also be experiencing emotional and behavioral reactions due to her separation from her mother." The report does not analyze whether these undefined negative emotional reactions may have been caused more by Natalie's separation from her mother than from witnessing violence in the home.
According to Tanya and her father, defendant treated Natalie extremely well, showing clear favoritism towards her.*fn10
The Children's House evaluation confirmed that defendant spoke of Natalie "in glowing terms." Natalie told the clinicians that she felt "safe" with her mother and that her mother treats her well and loves her. There is little indication in this record, based on the family dynamic, that Natalie would be next in line to suffer the type of abuse inflicted on her half-sister.
The judge's opinion did not discuss the Children's House report. Nor did it comment on defendant's individual relationship with Natalie as her biological child. The opinions of the Children's House clinicians are not presented within a reasonable degree of professional probability, and they were not subjected to cross-examination. The record also lacks any data from psychological testing, or any indication that defendant had acted aggressively toward Natalie in the past. We further note that there was no live testimony concerning any psychological harm to Natalie presented at the fact-finding hearing, which could have strengthened the judge's suppositions of risk and increased our reasons for deference.
DYFS contends that defendant should have excluded Natalie from the bedroom so that she would not see defendant's altercation with Tanya. We cannot verify the feasibility of that suggestion, given the spontaneous fashion in which the events in the parents' bedroom unfolded, starting with Natalie's disagreement with her half-sister, precipitating defendant's verbal rebuke, and leading to Tanya's disrespectful invective against her stepmother. We also question whether it was sensible for Natalie to be left alone in another room while her mother disciplined Tanya, given that her father was still undressed and their shouts presumably could have been heard within the house, even through closed doors.
Perhaps, in hindsight, it was negligent for defendant to allow Natalie to observe her half-sister being struck. Even so, mere negligence does not constitute abuse and neglect of a child. As our Supreme Court has held in G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999):
The phrase "minimum degree of care" [in N.J.S.A. 9:6-8.21(c)(4)] denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
The Court also stated that "the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court found this standard had been satisfied in G.S., where a parent had given her autistic child a full bottle of medication, which was seventy-eight times the indicated dosage. Id. at 166-67. Defendant's conduct here, with respect to her treatment of Natalie, has not been shown to be likewise willful or wanton.
Although we do not foreclose a finding of abuse and neglect in other more extreme scenarios where a minor has witnessed a sibling or another child in the household being physically harmed, the factual and psychological proofs in this particular record simply do not suffice to warrant the trial court's finding of abuse and neglect as to Natalie. The judge's belief that the abuse upon Tanya "may be an indication" that Natalie was also "at risk" is conjectural and is not adequately supported by the record.
The decision by DYFS to charge defendant with abuse and neglect of Natalie for witnessing her half-sister's corporal punishment caused Natalie to be separated from the regular care of her mother for a period of well over a year until DYFS asked the court to terminate the litigation in April 2007. In the meantime, Natalie's contact with her mother was supervised by third parties. This barrier continued despite the removal of Tanya from defendant's household.
Although we recognize that Children's House's clinicians recommended that defendant not be left alone with Natalie for an interim period until the situation stabilized in the aftermath of the December 31, 2005 altercation, the chronology raises significant concerns about whether Natalie should have been reunited with her mother sooner. While we do not second-guess the short-term judgments that were made in this case, we do have lingering doubts about whether the procedural path of this case, culminating in the termination of litigation in April 2007, necessarily advanced Natalie's best interests. As we have recently noted in another context, N.J. Div. of Youth & Family Servs. v. I.Y.A., ____ N.J. Super. ____, ____ (2008) (slip op. at 25-28), the handling of such abuse and neglect litigation raises delicate caretaking issues for the children involved. The fact that Natalie is now completely within the unsupervised physical custody of her mother does not emasculate the losses to both parent and child that unfortunately may have been caused in the interim.
For these various reasons, the Family Part's findings of abuse and neglect as to Tanya are affirmed, and reversed as to Natalie.*fn11