September 16, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
R.R. AND B.R., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF: R.R., JR., R.R. AND R.R., MINORS-APPELLANTS.
On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Gloucester County, FN-08-69-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
The law guardian of minor children R.R., Jr. (fictionally Ralph), age ten, R.R. (fictionally Robin), age six, and R.R., age four, appeals from the order of a judge of the Family Part, following a fact-finding hearing, dismissing an abuse and neglect complaint, filed pursuant to N.J.S.A. 9:6-8.21 against the children's father, R.R., and mother, B.R., but determining on the basis of clear and convincing evidence that defendants were a family in need of services, N.J.S.A. 30:4C-12. On appeal, the law guardian raises the following arguments:
THE FINDINGS OF FACT MADE BY THE TRIAL COURT, SPECIFICALLY THAT [RALPH'S] INITIAL ACCOUNT OF THE "KNIFE INCIDENT" WAS CREDIBLE, SATISFIED THE CRITERIA UNDER N.J.S.A. 9:6-8.21 FOR ENTERING A JUDGMENT OF ABUSE.
THE TRIAL COURT, BY ENTERING AN ORDER THAT THE FAMILY WAS ONE "IN NEED OF SERVICES" IN LIEU OF ONE INDICATING THAT [RALPH] WAS AN ABUSED CHILD, GAVE R.R. SR. WHAT IS TANTAMOUNT TO A "SUSPENDED JUDGMENT," CONTRARY TO THE FACTORS OF D.Y.F.S. v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006).
The Division of Youth and Family Services (DYFS) argues that the evidence presented at the fact-finding hearing required entry of judgment pursuant to N.J.S.A. 9:6-8.21 as to the acts of the father because they rendered Ralph an abused or neglected child as defined by N.J.S.A. 9:6-21(c)(4)(b). Having reviewed the record on appeal in light of applicable law, we affirm.
The record in this matter reflects that the Family Part judge personally interviewed Ralph in chambers in connection with her factfinding, and the interview was heard by counsel. Although that interview is not contained in the record on appeal, it appears from references in the record that Ralph denied any threat by his father when speaking to the judge.
Nonetheless, the record contains testimony by Ralph's fifth-grade language arts teacher, Ms. Gelzunas, that on March 6, 2007, Ralph approached Gelzunas in the hall to express his concerns regarding his mother, who was ill,*fn1 and experiencing mood swings. Among other things, Gelzunas advised Ralph to talk to his father, but was told by Ralph that he could not. Ralph reported that "the other night," at around dinner time, when he had talked to his mother about being positive, "his father . . . grabbed him and put a knife to him and told him to shut up and never talk about it again." Gelzunas later testified that while Ralph was talking to his mother about being positive, "his dad grabbed him and threw him up against the wall and held a knife to him." According to Gelzunas, Ralph additionally stated "it was not the first time and he was scared of his dad." Gelzunas reported that Ralph appeared "agitated" and "trying not to cry" while talking to her and that, at the end of the conversation, he appeared "upset" and "relieved." Gelzunas had no knowledge of the type of knife the father held, and she did not know where the father had grabbed Ralph. She observed no bruising or other injury. Gelzunas stated that approximately two hours before this incident, Ralph told her that he had been grounded by his father for throwing a snowball at someone.
Gelzunas reported the incident to the school principal, who contacted DYFS, which in turn, removed the three children from their home on an emergent basis, placing them in foster care, where they remained for approximately one week. They were then returned to their mother, with supervised contact with their father.
At the factfinding hearing, testimony was also provided by DYFS intake investigational worker, Lewis Delacruz, whose job was to conduct an investigation when allegations of child abuse were made. Delacruz first interviewed Ralph in his school principal's office and then, later that day, participated in an interview of family members conducted by DYFS at the local police station.
At the time that Delacruz interviewed Ralph at his school, Delacruz had been informed that Ralph's father had thrown Ralph against a wall and put a knife to his face. However, upon inquiry, Ralph denied that he had been thrown against a wall and stated only that his dad "got in his face with a knife." When asked to demonstrate the father's conduct as reported by Ralph, Delacruz raised his arm to a level between his waist and his chest and "thrust it forward maybe about two inches." Like Gelzunas, Delacruz did not obtain a description of the knife and he did not ascertain how close the father was to Ralph when the threat was made. According to Delacruz, he was told by Ralph that, at the time of the incident, which occurred as the family was cleaning up from dinner, Ralph's younger brother and sister were running around and causing a ruckus that upset Ralph's mother, who Ralph, in turn, was trying to calm. Ralph's father, too, was upset, yelling that he "hates this house and he hates the kids and he was leaving" - reportedly, a frequently uttered, but never fulfilled threat. Ralph, who on occasion cried during the interview, stated to Delacruz that his father frequently hit him with his hand and yelled a lot.
In interviews by DYFS at the police station, conducted by Delacruz and Stephanie Hightower, Ralph's sister, Robin, stated that "there's a lot of yelling and screaming at the house" and that when her father got mad, she was afraid of him. She also stated that her mother and father "sometimes" hit her with their hands. Nonetheless, she stated that she loved her mom and dad. Testimony confirmed that when the children left the police station in the custody of DYFS, they hugged their parents. Robin stated that if she were present at the time of the knife incident, she did not remember it.
The mother, when questioned, stated that the children were only "very rarely" physically disciplined. Usually, they were spoken to or grounded. The father stated that since an earlier incident in 2005 when he was found to have abused Ralph by hitting him in the face with his hand and, as the result of the intervention of DYFS, he had received anger management training, he had not hit the children. However, he admitted that there had been a lot of stress in the house, occasioned by his wife's cancer, and that he and Ralph argued. The father, as well as the mother, stated that Ralph had a tendency to exaggerate and lie.
Hightower, a family service specialist II, was called as an additional witness for DYFS. As stated previously, she assisted in the interviews of family members conducted at the local police station.*fn2 At the outset of her testimony, Hightower expressed concern that, because the mother and father brought the children to the police station, they had discussed the allegations with them prior to the interviews. Additionally, Hightower found it to be unusual that the police had ceded the duty to investigate to DYFS, and she envisioned a potential conflict of interest on the part of the police as the result of the father's frequent appearance as an attorney in municipal court.
Hightower confirmed that Ralph had described the incident to her while at the police station in an interview that she had conducted without Delacruz's presence, and she stated that Ralph had reported that his father had held a knife "to his face." However, Hightower, like the other witnesses, was unable to describe the knife or the proximity of father and son at the time of the incident. According to Hightower, both Ralph and his sister Robin stated that their father slapped them, and that there was a lot of yelling in the household. The mother stated to Hightower that Ralph initially had denied the incident on the ride to the police station, but that Ralph later stated that it had occurred. The father denied its occurrence, as well as any physical punishment since the prior incident in 2005. Hightower reported the father to be "very controlling and self-absorbed." She testified that, when asked to quit the residence for the safety of the children, he became angry and again stated that he hated the family and wished to move out, but later insisted that he would remain so long as his wife was ill. The husband's continued presence in the home led to the emergency removal of the children.
According to a final DYFS witness, Mamie Gonzalez, the caseworker assigned to the family, upon Ralph's return to the home, along with his siblings, pursuant to a safety protection plan, Ralph denied the knife incident.
In connection with the testimony of Gonzalez, DYFS introduced into evidence, pursuant to Rule 5:12-4(d), the psychological evaluations of the family performed on behalf of DYFS by Janet Cahill, Director of the Rowan University Child & Family Assessment Clinic and a professor of psychology at the university. Following observation of the family and interviews of the children, Dr. Cahill concluded that: "Overall, this observation indicated a good attachment between [the father and mother] and their children. The children wanted to be near them, looked to them for their approval and were able to talk about common interest[s]. Especially during the structured portion of the observation, both parents demonstrated some good parenting skills." However, Dr. Cahill was concerned by a lack of interaction with Robin and by the father's "intrusive and domineering style" with Ralph. Dr. Cahill described Ralph as "bright, but very intense and somewhat anxious." She stated that, during her interview, Ralph "immediately began recanting the accusation" admitting only that some arguing and yelling had occurred. He stated that he had told his teacher of the knife threat because he was angry at his parents and then repeated the false story because he did not know how to get out of the situation. However, Robin, for the first time, admitted to Dr. Cahill that the knife incident had taken place. Both Ralph and Robin stated that they loved their parents and wished to stay in their care. Nonetheless, both children reported a high level of tension in the family and much yelling.
After an interview of the mother and administration of psychological tests, Dr. Cahill concluded:
Both the results of her interview and test results indicate that [the mother] feels [Ralph] is the primary problem in the home. This is also evidenced by her persistent demand that he be evaluated to determine what services he may need. [The mother] was highly defensive and guarded throughout the evaluation. However, there was no evidence that she had any significant psychopathology that would interfere with effective parenting. Multiple sources (this evaluation and the family preservation worker) directly observed that [the mother] is capable of using some effective parenting skills. It appears that the difficulties in the family arose because she was not able to implement a full set of effective parenting skills on a consistent basis. The core of this case appears to be a situation where both parents are struggling with effectively attending to their children while simultaneously dealing with a serious illness. It is important to note, however, that these problems began before [the mother] was initially diagnosed. Therefore, her illness is best viewed as exacerbating rather than causing the problems in the parent child interactions that are occurring. I did not find any evidence that this problem had escalated into a pattern of chronic physical abuse. I also did not find any evidence of domestic violence in the home. Her assertion that her serious battle with cancer has not affected her emotional health in any significant way was is somewhat surprising. However, even if she is not being completely forthright about this issue, it does not mean she can not implement effective parenting.
Dr. Cahill concluded that the parents' problems with an older son who had left the family home had risen to the level of conduct disorder and domestic violence. In contrast, in Ralph's case, she found "the level of concern is still within the boundaries of oppositional defiant disorder" arising from "inconsistent parenting." The doctor stated:
[The mother] has many strengths. She is a bright and articulate woman who is coping with a major illness as well as attempting to meet the needs of her family. She has good insight and judgment in many areas. While resistant to interventions overall, should she commit to high level parenting therapy, she is very likely to benefit from it. On the other hand, if current patterns of parenting persist, it is highly likely that [Ralph's] behaviors will escalate. With respect to the father, Dr. Cahill stated:
[The father] is a forceful personality who tends to relate to his children in a loving, but intrusive manner. This may be effective with his younger children but has not worked well with [Ralph]. In addition, he appears to engage in long discussions about what [Ralph] should do as opposed to paying attention to and reinforcing [Ralph's] pro-social behaviors. In terms of his overall coping style - he appears to be someone who becomes highly emotional during periods of stress.
Despite the existence of this stress and the inability of the father to effectively set limits with Ralph, Dr. Cahill "did not find any evidence that this problem had escalated into a pattern of chronic physical abuse." She reiterated her determination that there was no evidence of domestic violence in the home.
In conclusion, Dr. Cahill recommended that the parents be referred for strong parenting therapy to improve their parenting and communication with their children. She also recommended ten to fifteen weeks of targeted therapy for Ralph to improve his coping skills and anger management. As a final matter, Dr. Cahill stated:
This evaluation did not find any evidence that the requirement that the family have ongoing external supervision was necessary. Instead, it appears to be adding to the already high stress levels in the home.
Supervision requirements were lifted on May 18, 2007.
In an oral opinion delivered at the conclusion of the factfinding hearing and after the submission of written and oral closing arguments, the Family Part judge denied an application by the law guardian to produce two additional witnesses to testify regarding Ralph's veracity, determining that such testimony, while relevant in a broad sense, would be cumulative.
As a substantive matter, the judge held:
I find that the original statements made by [Ralph] to his teacher and to DYFS investigators were truthful. I find that his later statements to the court and his statements to Ms. Gonzalez [and] to Doctor Cahill were basically recantations. I found him to be a credible child even though his recantation of course was presented to the court.
I cannot find that there is sufficient evidence, not by virtue of what [Ralph] said didn't happen later, but by virtue of the lack of existence of contextual detail that . . . the Division has been able to demonstrate by a preponderance of the evidence . . . that [Ralph] was placed at risk of the kind of harm defined in Title 9 in this knife incident.
Basically, in broad strokes, I know there was an argument at the dinner table. I know there was a knife that was not a butter knife but was a regular knife, or a knife with a pointy end that was not very sharp, pointed in his face. I know that "in one's face" is a figure of speech. I know that it means that there must have been at least visual proximity, you know, within the same room, within the same kind of area of potential control.
What I don't know and what I cannot infer for example is if the child was in a physical proximity to [the father] when this happened that he felt if I moved I might have been hurt . . . . I have no evidence as to physical proximity of [the father] to [Ralph] when this happened other than it clearly was close enough to frighten him and it clearly was close enough to affect him emotionally, clearly close enough to cause him concern about how to help his mom and what was going on in the house. What I don't know is whether it was close enough to place him at risk of harm and I don't know whether [the knife] was sharp enough.
However, the judge found that DYFS had "absolutely" demonstrated, whether by a preponderance or by clear and convincing evidence, that Title 30 intervention was warranted in this matter. Although the judge ruled that the statements made by Ralph to his teacher, Gelzunas, were inadmissible as excited utterances pursuant to N.J.R.E. 803(c)(2), she found the unsolicited statement of Robin to Dr. Cahill to be sufficiently corroborative to permit the use of both children's statements as a basis for a Title 30 finding. The judge stated: "[The mother and father] bring a great deal of resources and love to the table, but I find they need help and so do the children." The recommendations of Dr. Cahill for counseling of both the parents and Ralph were therefore accepted. The Title 9 action was dismissed, and a finding under Title 30 was thus entered.
Our review of the record satisfies us that the judge's findings of fact, to which we accord particular deference, Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), were amply supported by evidence presented at the factfinding hearing and that the judge's legal conclusions warrant affirmance. See also New Jersey Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005). Although appellants argue the applicability of N.J.S.A. 9:6-8.21(c)(4) to this case, claiming that the father's conduct during the knife incident harmed Ralph or exposed him to a substantial risk of harm, we agree with the Family Part judge that evidence supporting the existence of such actual or potential injury was lacking. As the judge found, evidence demonstrated that the father had made a threatening gesture toward his son with some sort of a knife. It established nothing more. Thus, the existence of any risk, let alone a "substantial" risk, remains speculative. In reaching this conclusion, we recognize that Ralph expressed emotional distress when recounting the incident to his teacher and to representatives of DYFS and stated that he had been frightened by his father's actions. However, we are unwilling to find the level of distress and fear that was described to be adequate to establish harm of sufficient severity to meet the statutory definition of abuse or neglect in the absence of any other evidence of significant transitory or permanent emotional harm. Indeed, the reports of Dr. Cahill suggested otherwise.
We likewise reject the argument that by entering a finding pursuant to Title 30, the judge essentially granted the father a disposition of the Title 9 complaint that was analogous to a suspended judgment. Although N.J.S.A. 9:6-8.51 authorizes the imposition of a suspended sentence following a dispositional hearing, by dismissing the Title 9 action, the judge rejected that remedy, instead releasing the children to their parents' custody as authorized by N.J.S.A. 9:6-8.51a(2), but finding that the family was in need of services and that it was in the children's best interests to require that such services be provided, as permitted by N.J.S.A. 30:4C-12. We thus find that the standards set forth for imposition of a suspended judgment in State of N.J. Div. of Youth & Family Servs. v. C.R., 387 N.J. Super. 363, 375 (Ch. Div. 2006) are inapplicable in the present circumstance.