June 13, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF S.B., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-52-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2008
Before Judges S.L. Reisner and Baxter.
Defendant B.B., the mother of twelve-year-old S.B., appeals from an August 31, 2005 order of the Family Part in which the judge found that the Division of Youth and Family Services (DYFS) proved that she abused and neglected her son.*fn1 We affirm.
These are the most pertinent facts. In the early morning hours of July 1, 2005, the Ridgefield Park police department received a telephone call from B.B. in which she asked for police assistance because she and her son were having an argument. Patrolman Chris Thibault responded to that call. He testified that he was familiar with B.B. because he had been to her apartment "five or six times" in the last few months "for family disputes" because B.B. and her son could not get along with each other and were "always arguing." According to Thibault, the two could never seem to resolve issues that were going on at the moment and "we always had to intervene and just calm the situation." When Thibault arrived at the apartment in response to B.B.'s call on July 1, 2005, S.B. had left.
Thibault and other officers advised B.B. that they would look for S.B. in the area and they wanted her to do the same; however, B.B. refused, saying that "she was tired and she wanted to go to sleep."
A little while later, B.B. called police headquarters and reported that her son had returned to the apartment. Thibault then returned and spoke to S.B. While speaking to the child, Thibault noticed that there was a mark on S.B.'s arm. When Thibault asked what had happened, S.B. "said that his mother had bit him." Thibault then asked B.B. about the bite mark. She said that her son "had made this mark himself." Thibault told B.B. that she and her son would have to come to police headquarters, causing her to become "angry and hostile . . . jumping up and down and screaming . . . just acting out irrationally and the situation was escalating." Thibault handcuffed B.B. and took her to headquarters.
DYFS also called Detective Albert Brooks as a witness. Brooks corroborated Thibault's account of numerous prior dealings with B.B. According to Detective Brooks, B.B. often called to complain that the son was being violent, but when police arrived, they found her complaints were not true. According to Brooks, "many times she was pissed off, acting irrational at some points in time, it was just continuous, a multitude of incidents that we've had with her."
Once B.B. and S.B. arrived at police headquarters in the early morning hours of July 1, 2005, Brooks interviewed S.B. about the night's events. The child told him that he and his mother were arguing and she would not let him into the bedroom that they shared. When he tried to force his way in, the two got into a scuffle during which his mother bit him. Brooks saw the bite mark on S.B.'s arm and took photographs to document the injury.
Brooks also saw a bruised area near S.B.'s shoulder. Along the child's neck, Brooks also observed some "abrasion or redness." When Brooks questioned S.B. about the source of those bruises and abrasions, the child reported the abrasion on his shoulder was "an old wound" that "he got when one of B.B.'s friends dragged him across the floor and into the kitchen" because S.B. had refused to do the dishes. When Brooks asked S.B. about the mark on his neck, S.B. "related that he attempted to commit suicide by tying a [bathrobe] rope or some sort of item around his neck and from underneath the bunk-bed area . . . tried to hang himself."
As a result of his own observations, as well as S.B.'s description of having tried to take his own life and of his mother biting him, Brooks called DYFS and asked that a worker be immediately dispatched to the Ridgefield Park police headquarters. Shirley Thankachan was the emergency DYFS worker who responded to Brooks's call. Thankachan interviewed S.B., who told her that his mother bit his arm earlier that night during an argument. Thankachan saw "a four-inch mark" on S.B.'s arm that was "fairly new." Thankachan asked S.B. about the red bruise on his back. S.B. told Thankachan the same thing he had told Detective Brooks, except this time he also stated that "his mother sent him to her boyfriend's house for a few days for punishment" because she was angry at him. According to S.B., it was during those few days that the boyfriend dragged him across the rug when he refused to do the dishes.
Thankachan also asked S.B. about the incident when he had tied the bathrobe sash around his neck and around the bunk-bed. According to her testimony, S.B. said he did so not to kill himself but only to get his mother's attention. The child reported to her that he had done the same thing on a prior occasion. According to Thankachan, S.B. reported that "his mother did not pay him any more attention when she saw that and . . . she told him that it wasn't hurting him and to stop."
After speaking with S.B., Thankachan asked B.B. about the incidents when her son tried to choke himself with the bathrobe sash. According to Thankachan, B.B. said "that it wasn't hurting him." When asked by Thankachan if she sought medical treatment or psychiatric treatment for her son after the two incidents when he tried to choke himself, B.B. said no.
As a result of the information that Thankachan gathered that night, she determined, in consultation with her supervisor, that S.B. should be taken to a local hospital for an immediate psychiatric evaluation. Upon being told by Thankachan that her son was going to be taken for a psychiatric evaluation, B.B. became irate and tried to charge at Thankachan, necessitating police intervention. B.B. refused to accompany her son to the emergency room for the psychiatric evaluation.
After an examination, a psychiatrist determined that S.B. should be admitted. After thirteen days of evaluation and treatment, S.B. was released to the custody of a relative, where he has remained ever since.
B.B. also testified. She agreed that her son had all the bruises and abrasions that Thibault, Davis and Thankachan had described, but she disagreed about the origin of those injuries. As to the mark on her son's arm, she testified, "[if] he got a bite mark, he must have done it himself. I did not bite my son." As to the abrasions on S.B.'s back, which S.B. said resulted from B.B.'s paramour dragging him on the rug, B.B. dismissed the bruise as a mere "disagreement between two friends and they were just sort of roughing around on the floor." As to the red mark around her son's neck, B.B. again nonchalantly disregarded the incident:
[When Thankachan] was asking me about the red mark and I told her, [I] came out of the shower, got dressed in the bathroom, went into the bedroom, [to] see my son sprawled on the bed with a sash that he uses, you know, he puts it around his belts, he puts it around his neck as a scarf, he puts it there all the time. So the sash was around his neck and he's, mom, they got me. And he must have had a hard time getting it off of him or something, I said to her.
But I--and she said you didn't do anything? And I said, well, why would I do anything. He was trying to get my attention. It was at night, you know, I was ready for bed. Why in the world--I didn't want to play now. And then she looked at me and I remember saying to her, hey, oh, my goodness, if he had been hanging, I would have done something. She said, you didn't take him to be evaluated, you didn't call your doctor, you didn't call the police or anything. I said, well, why would I, he was playing. What in the world do I need to call the police when he's being machine-gunned by World War II Japanese soldiers all the time you know.
So, . . . she said . . . your son needs to be evaluated. She said we need to take your son to Bergen Pines to be evaluated. He needs emergency medical attention. And I said to her . . . I don't think he needs emergency medical attention, it's late at night.
I didn't go with them because . . . it was late at night. I wanted to go home. I did want to rest somewhat. . . . [so] I slept.
And I set my alarm for 7:00 to get up and go.
When B.B. was asked whether she believed at any time "that that episode was a danger" to her son, she answered no. She insisted "we have lots of dress-up clothing in our house. So he uses lots of things." When asked on cross-examination whether it was possible that her son could "block his airway and cause either serious damage or even kill himself inadvertently" as the result of tying the sash around his neck, B.B. answered, "I would say that a man who wears a tie has the same chance of hurting himself." When she was again asked whether her son could injure himself by such conduct, she answered "I believe that walking down the street in Ridgefield Park . . ." At that point, the judge directed B.B. to answer the question responsively. She answered no.
During cross-examination, B.B. continued to insist that she did not bite her son on the night in question, July 1, 2005. She conceded, however, that in April 2005, she had bitten her son. She testified that she had apologized to her son after that incident; however, she again down-played the significance of the incident by stating that it "was an instance that . . . was judged by DYFS as something not needing further attention."
On cross-examination B.B. was also asked whether her son's behavior had gotten to the point where she felt she could not handle him. She did not answer the question directly, but instead commented that she "was really appreciative that the policemen were willing to come out and re-enforce some of the rules of regular households. I think my son does need a male figure . . . and I was reaching out to the police . . . because they are authorities. . . . [Maybe] I called the police too much." When she was again asked whether "without assistance of the police . . . S.B.'s behavior [had] gotten to the point where it was . . . unmanageable," she simply answered, "I think I was glad that the police were there to reenforce [sic]."
B.B. also presented the testimony of three acquaintances whom her attorney described as "character witnesses." All three testified that B.B. and her son had a good relationship, but none of the three was present when the events of July 1, 2005 transpired.
At the conclusion of the testimony, Judge Martinotti rendered an oral decision in which he concluded that DYFS satisfied its burden of proving by clear and convincing evidence that B.B. abused or neglected her child as defined by N.J.S.A. 9:6-8.21(c)(4)(a) and (b). The judge noted that although B.B. presented several "character witnesses on her behalf," these witnesses, though believable and credible, were not present when the incidents at issue occurred. The judge also observed that their testimony that B.B. and her son had a good relationship was contradicted by B.B.'s own testimony.
The judge pointed to numerous portions of the record that substantiated the allegations of abuse or neglect: when police and DYFS advised her that her son was at risk of harming himself and that immediate psychiatric evaluation was required, B.B. declined to follow police to the hospital insisting instead that she was too tired and wanted to go to sleep; her dismissal of the incidents where her son tied a sash around his neck as mere "play acting," thereby minimizing the serious implications of her son's conduct; her concession that she needed "time away" from her son "numerous times"; her acknowledgment that she "needed a male authority figure" such as police to help her control her son; and her refusal to agree that her paramour dragging her son across the floor causing a rug burn was inappropriate behavior.
The judge reasoned that the relationship between B.B. and her son shared many of the characteristics of a "domestic violence" relationship had the two been adults. The judge also found that because B.B. was not properly supervising her son, he was permitted to stay with another adult who inflicted an injury upon him. Finally, the judge concluded that B.B. "does not understand her child, she does not understand the ramifications of her child's conduct. . . . [S]he minimizes the child's behavior." Consequently, the judge determined that DYFS satisfied its burden of proving that B.B. had abused or neglected her son. On appeal, B.B. argues that the evidence presented by DYFS was insufficient to support a finding that she abused or neglected S.B.
In evaluating B.B.'s arguments, we do not write on a clean slate. Review of a trial court's finding of abuse and neglect is limited. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). While M.M. dealt with termination of parental rights, rather than an abuse and neglect proceeding under Title 9, we discern no reason to afford less deference here, especially because the consequences of an abuse and neglect proceeding are far less severe than a termination of parental rights as in M.M.
We will uphold the factual findings of a trial judge if they are supported by "adequate, substantial and credible evidence" in the record. Id. at 279. Additionally, we must grant deference to a trial court's credibility determinations. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). As the court observed in M.M., "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." M.M., supra, 189 N.J. at 278 (quoting In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "Still, even in those circumstances we will accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., 233 N.J. Super. 65, 69 (App. Div. 1989)).
N.J.S.A. 9:6-8.21(c)(4)(b) provides that an "abused or neglected" child is one 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 . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . 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)(b)(emphasis added).]
DYFS is required to prove abuse and neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).*fn2
As we have observed, our scope of review is a narrow one. M.M., supra, 189 N.J. at 278. So long as the judge's findings are supported by sufficient credible evidence in the record, we will not disturb them. Ibid. We are satisfied that the evidence in the record amply supports the judge's findings. Three witnesses, Thibault, Brooks and Thankachan, observed fresh bite marks on S.B.'s arm the night of July 1, 2005. S.B. himself stated in no uncertain terms that his mother had bitten him and the court had the opportunity to observe the photographs documenting those bite marks. B.B. herself acknowledged that she bit her son a few months earlier in April 2005. The record thus supports the judge's conclusion that B.B. abused her son by biting him both in April 2005 and on July 1, 2005. In so doing, she "impaired" his "physical condition" by "unreasonably inflicting harm" as proscribed by N.J.S.A. 9:6-8.21(c).
We are also satisfied that the record fully supports the judge's conclusion that B.B.'s lack of insight and understanding of her son's behavior constitutes child neglect. Her indifference to two episodes of her son tying a sash around his neck and her dismissive attitude when confronted with the serious risks inherent in such behavior provide support for such a finding. Like the trial judge, we conclude that B.B.'s refusal to accompany DYFS and police to the psychiatric hospital where her son was taken in the early hours of July 1, 2005, is a separate, and indeed disturbing, instance of child neglect. Accordingly, we are satisfied, as was the trial judge, that B.B.'s conduct impaired her son's "physical, mental or emotional condition" as the result of her failure to provide "proper supervision." Finally, by sending S.B. to her paramour's home for punishment, where he was dragged on the floor, B.B. allowed another to inflict harm or excessive corporal punishment upon her son, which is also proscribed by N.J.S.A. 9:6-8.21(c)(4).