November 12, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF F.G. AND R.B., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-18-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Carchman and Sabatino.
J.V. appeals the Family Part's dispositional order dated December 12, 2007, which determined that she had subjected two minor nephews under her care, F.G. and R.B., to abuse and neglect, in violation of N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.
The record developed by plaintiff, the Division of Youth and Family Services ("DYFS"), before the Family Part adduced the following circumstances and sequence of events. In August 2000, defendant was asked by her sister, N.B.C., to care for N.B.C.'s two sons, F.G. ("Frank") and R.B. ("Ralph"),*fn1 for a temporary period represented by N.B.C. to be about two weeks. Frank and Ralph are half-siblings with different fathers. Frank, born in August 1994, was six years old at the time and Ralph, born in September 1998, was nearly age two.
N.B.C. has a history of drug abuse. At the time of N.B.C.'s request, the Department of Human Services in Pennsylvania evidently had already substantiated neglect and abuse charges against N.B.C., and had planned on removing the children from N.B.C.'s care.
Defendant agreed to take Frank and Ralph into her home, where she also resided with W.A., her former paramour. The home is jointly owned by defendant and W.A. They are the parents of two minor daughters, D.A. and A.A., who likewise resided with them in the house. At the time that the boys moved in with defendant in August 2000, D.A. was almost the age of nine and A.A. was seven. According to defendant, when her sister left Frank and Ralph with her, they were malnourished and dehydrated.
N.B.C. abandoned her sons, failing to return to defendant's home. Consequently, defendant assumed the responsibility of caring for Frank and Ralph from August 2000 through the events that led to the present litigation. W.A., meanwhile, did not become a guardian of the boys, although he cohabitated with them.
Both Frank and Ralph have had discipline problems, starting at young ages. Defendant testified that Frank had "a lot of difficulty" in school, including temper tantrums and destructive tendencies. She noted that he lacked table manners and other social skills. As Frank grew older, he frequently made references to drugs and alcohol. According to defendant, Frank failed the fifth grade, "because he didn't want to do anything."
Defendant claims that Frank was a bad influence on Ralph, who is four years younger, and that Frank was "always misleading [Ralph], telling him to do things that were wrong . . . ." She detailed an incident from the summer of 2006, in which Frank allegedly convinced Ralph to ride a bicycle down a steep hill. As a result, Ralph sustained a deep cut on his nose and was taken to the hospital.
Defendant stated that the boys, most often Frank, ran away from home "on occasion." In those situations, defendant would not call the police, but instead would await phone calls advising of the respective child's whereabouts.
Defendant's daughters corroborated some of the difficulties posed by the two boys. A.A., particularly, did not get along with Frank while they were living together. According to A.A.'s testimony, she and Frank "argued a lot about dumb stuff." They sometimes would get into physical altercations, in which Frank would strike A.A. in the back and head with a closed fist.
D.A. testified that, although she personally got along with both boys, "they always got in trouble," and that Ralph would "steal . . . [lie] and r[u]n away." D.A. recalled several instances of fighting between the boys, as well as occasions in which they were suspended from school. She stated that the boys would punch each other on the body and in the face, with Frank usually being the instigator. D.A. also recalled Frank fighting with her sister A.A.
Defendant acknowledged that the boys posed trouble for her because of their "stealing, lying [and] fighting." She was inconsistent in her testimony about whether she ever used corporal punishment to discipline them. On direct examination, defendant claimed that she "never used corpor[al] punishment at all." She further maintained that she would only punish the boys by grounding them, or by denying them television and Internet access. However, she contradicted herself later in her testimony, admitting that "I have spanked them on the bottom, smacked their hand or smacked their mouth, for biting or spitting when they were learning right from wrong. After that, I stopped using it."
W.A. likewise experienced problems with the boys, particularly Frank. He claimed that Frank "lies a lot about a lot of things." He also noted that Frank exhibited "a smart mouth."
The pivotal incidents giving rise to this litigation occurred in the summer of 2007. During this time frame, defendant's whereabouts were sporadic. She claimed to have been residing with the boys at the home she owned with W.A. However, the record also indicates that defendant often spent nights and weekends away at her then-boyfriend's house, which she estimated to be about "three minutes away."
On Friday, August 3, 2007, defendant went to the hospital to pick up W.A., who had recently suffered a heart attack. She drove W.A. home and stayed there until that night. Perceiving that Ralph was asleep and Frank and D.A. were in bed, defendant then left the premises with A.A. She dropped A.A. off at a friend's house, where A.A. remained for about six days. Defendant continued on to her boyfriend's house, leaving W.A. and D.A. with the boys.
That same evening, Frank ran away from home. W.A. searched for him that weekend, to no avail. Eventually, Frank returned voluntarily to the house on the afternoon of August 4*fn2 by crawling through the back window in the house. According to W.A., later that afternoon he sent the boys to the store to buy a newspaper, and only Ralph returned. The next day, August 5, Ralph also ran away.
Frank returned home on August 7, again by sneaking back into the house. Frank informed W.A. of Ralph's whereabouts, and W.A. went in his truck to pick him up.
Defendant allegedly next saw the boys on the morning or afternoon of August 8, when she returned to her house from her boyfriend's to take D.A. and A.A. to school. Defendant allegedly reprimanded both Frank and Ralph about their running away in her absence, threatening to send them back to the Pennsylvania child welfare authorities if they did not behave.*fn3
On the night of August 8, DYFS received a referral from a third party, reporting that defendant had apparently abused and neglected the boys. The reporter, whose children are friends with Frank and Ralph, was "very upset" when she called. The reporter indicated that Ralph had large bruises across the back of his thighs. Ralph apparently told her that he had gotten the bruises at home after taking a cookie. The reporter explained that the boys both had stayed at her home on August 6 because defendant had put them out and would not let them back in the house. The reporter telephoned defendant, who confirmed that she had banned the boys from coming back that night. The reporter also stated that she had learned that Frank had threatened suicide the night before, and that defendant told the boys that she would "sic" members of the Pagans motorcycle gang on them and "beat them until they were dead" if they told anybody.
As a result of this referral, Colleen Corbett, an intake supervisor working with the DYFS Special Response Team, went to investigate defendant's home. Due to the lateness of the hour, Corbett obtained police assistance to gain entry to the premises. Corbett arrived at the house at approximately 11:40 p.m. that night, August 8. She met with W.A., who was sleeping at the time of her arrival. Corbett explained why she was there, and discovered that defendant was not home. She found the boys upstairs in bed. Corbett awakened them and conducted separate, independent interviews.
Corbett first interviewed Frank, while Ralph stayed in another room with one of her assistants. Frank recounted several recent incidents of abuse involving him and his brother. In one incident on August 6, Frank saw defendant hit Ralph several times with a belt belonging to A.A.,*fn4 after Ralph had taken a piece of candy. That same day, August 6, Frank and his brother had encountered defendant after returning from a place that they were not permitted to go. According to Frank, defendant got on top of Ralph and punched him several times in the face. Frank stated that he did not intervene, for fear of being harmed himself.
Frank also reported to Corbett that in the past defendant had beaten him with a belt. He stated that within the last year defendant had also strangled him with the cord of a hot straightening iron, after making him place his tongue on it. Additionally, Frank told Corbett that in the past few days, defendant had shoved his body and face into a wall.
During his interview with Corbett, Frank went into a room and retrieved the belt that defendant had used to strike Ralph. Corbett noticed that Frank had a distinct bruise on his jaw line, but Frank contended that the mark was from playing football. Frank stated that he was frightened to be in the home with defendant because he felt scared and threatened. Neither brother reported to Corbett any abuse by W.A.
Corbett then interviewed Ralph, while Frank stayed in another room. Ralph told Corbett that defendant had beaten him numerous times with a belt on August 6. He also reported that he was punched by defendant several times in the face for being somewhere that he was not supposed to be. Corbett noticed a red marking on the middle of Ralph's forehead, another marking that was on the bridge of his nose, and severe bruising on the back of both thighs.
Ralph told Corbett that he was very fearful of his aunt. He detailed incidents of past abuse, including beatings with belts and being pushed over a railing in the home when he was much younger. Corbett took photographs of Ralph's injuries.
Corbett then interviewed W.A., who denied that he had ever abused the boys. W.A. also denied ever seeing defendant strike them. Corbett tried to develop a safety plan, so that the boys could be kept safe until DYFS could reach defendant. W.A. stated that he was unsure of defendant's whereabouts, and had no contact information for her. He tried to call defendant's cell phone two or three times and left voicemails. Meanwhile, defendant evidently was sleeping at her boyfriend's house with the ringer to her phone turned off. W.A. would not allow Corbett to interview A.A.
Significantly, this was not the first time that defendant has been the subject of a DYFS referral. The record indicates that there have been fifty-two such referrals concerning defendant's family, resulting in fourteen substantiations of abuse and neglect. The substantiated incidents date back to 1987 and involve both defendant's natural children, as well as Frank and Ralph.
Based upon the information that she learned, Corbett performed an emergency removal of Frank and Ralph. She took the boys to Virtua Hospital. While they were at the hospital, more photographs were taken of Frank and Ralph. The photos depicted marks on Ralph's left posterior thigh, calf, face, and neck.
The attending physician reported that Ralph's injuries were consistent with abuse.
The DYFS investigation was turned over to William Graham, another intake worker. Graham contacted defendant the next day, August 9. Defendant denied abusing the boys. Even so, she expressed no interest in getting the boys back or visiting them. Meanwhile, defendant was about to embark on a trip to Florida with A.A. She left on August 12, staying in Florida with another one of her natural children, a pregnant daughter, for sixteen days.
On August 13, 2007, DYFS brought an order to show cause in the Family Part concerning the allegations of abuse and neglect. Neither defendant nor W.A. appeared. In that initial proceeding, which included testimony from Corbett, Judge Covert found that DYFS had presented a prima facie case of abuse and neglect as to both Frank and Ralph. The judge specifically noted that "[t]here were injuries observed on both of the boys in this matter after a report from a friend of the family." The judge also cited the visible bruises documented in the photographs, and noted that the independent testimony of each brother "corroborated one another." The judge also found significant the independent corroboration of abuse by the physician at the hospital.
On September 11, defendant and W.A. appeared for the return of the order to show cause. Defendant advised the court that she wanted to relinquish her custody because of Frank's "incorrigibility." She also claimed that she did not know why she was appearing in court, asserting that she could not have abused the boys at the time in question because she "was not even in the home." The court continued DYFS's care and protection over the boys.
Around mid-September of 2007, the continued DYFS investigation was transferred to Steven Ginsburg, a caseworker. When Ginsburg met with Frank and Ralph, they told him that they were relieved to be out of defendant's home.
On December 12, 2007, Judge Covert held a fact-finding hearing concerning the allegations. At the hearing, defendant was represented by counsel. After hearing testimony from Corbett, Graham, Ginsburg, W.A., D.A., A.A. and defendant, the judge found that the allegations of abuse and neglect against defendant were truthful. In her oral ruling, Judge Covert made several important observations:
First of all, both boys' statements are utterly consistent as to the originating incident. This, despite the fact that they were interviewed separately and that they were interviewed after a deep sleep and they're quite young, as particularly in the case of [Ralph]. This information came to the Division's attention as a third-party referral, not from the boys. They did not initiate the referral as a means to be removed from the home, and in fact expressed a fear to do so.
The injuries are corroborated through pictures which indicate clear and severe bruising on [Ralph]'s thigh, side of leg, forehead and nose. There is no alternate rational explanation that was offered by any party as to how these injuries would have arisen.
Moreover, Judge Covert found that defendant and W.A. lacked credibility. The judge found their efforts to explain away the circumstances and injuries to the boys' own wrongful behavior were undermined by the fact that the boys had grown up while under their care. Additionally, the judge found that the testimony of A.A. and D.A., who had been supportive of defendant on several issues, was biased because their mother faced very sensitive charges.
Judge Covert found unusual that defendant had not contacted authorities when the boys ran away from home. The judge also found significant defendant's lack of desire to have the boys back, or even to see them. The judge found this indifference "somewhat dispassionate and also lends to the credibility of the allegations."
In light of these reasons, Judge Covert found, by clear and convincing evidence, that "there was in fact abuse and neglect by [defendant] with regard to both [Frank] and [Ralph]." That same day the judge signed an order to that effect.
Defendant now appeals the judge's adverse findings. She argues that the record was insufficient to sustain a determination of abuse and neglect under the statute, and that the findings must be reversed because they were allegedly based on the "uncorroborated statements of the children." She further objects to this finding being maintained in the DYFS Central Registry.*fn5
Under N.J.S.A. 9:6-8.21(c), a parent or custodian of a child has committed abuse and neglect where: 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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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
It is uncontested that defendant was a person who assumed legal responsibility for Frank and Ralph under N.J.S.A. 9:6-8.1 since the time of her sister's abandonment in 2000. The evidentiary burden of DYFS to prove abuse and neglect is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
Our standard of review in this matter is limited. We defer to the trial judge's factfinding, especially on matters of credibility, so long as the findings are supported by substantial proof in the record. State v. Locurto, 157 N.J. 463 (1999). Even where the focus of appeal is upon the trial judge's evaluation of the record and the implications to be drawn from it, reviewing courts still are obligated to "accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Additionally, we customarily do not second-guess the factual findings of judges in the Family Part, given their expertise and day-to-day involvement in matters that involve families and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Applying these standards, we are satisfied that the trial judge's findings of abuse and neglect are amply supported by substantial and credible evidence in the record, as graphically corroborated by the photographs of the bruises and marks. We also concur with the judge that defendant acted irresponsibly in leaving the children behind without proper supervision while W.A. was recovering from his heart procedure, and in failing to maintain accountability for her whereabouts while she was out of the home. The judge reasonably found that the evidence of abuse and neglect was "clear and convincing," which surpasses the statutory burden of proof requiring only a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
Although these two boys undoubtedly present child-rearing challenges, and we are empathetic with the difficult task that defendant was left with by her sister, those difficulties do not excuse defendant's repeated infliction of corporal punishment and her inattentiveness to the custodial obligations that she chose to accept. Her poor track record with DYFS, which previously led her to be included on the Registry, underscores our view that the trial judge's decision in this matter has worked no manifest injustice.