On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Passaic County, FN-16-166-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Payne and Waugh.
R.G., the father of a three-year-old son, a ten-year-old daughter, and an adult daughter, appeals from a determination by a Family Part judge that, as the result of an act of domestic violence committed by R.G. on his wife in the presence of the son, R.G. had abused and neglected his minor children.
An "abused or neglected child" is: 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 . . . 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, 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)(b).]
The Supreme Court discussed the statutory minimum degree of care standard in G.S. v. Dep't of Human Serv's, 157 N.J. 161, 178 (1999), stating:
The phrase "minimum degree of care" 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.
We are guided by the standards just articulated in reviewing the facts of this matter, which follow.
At four o'clock a.m. on October 27, 2006, R.G., who had been drinking and, according to his minor daughter, was drunk, returned home and entered the bedroom, seeking sexual relations with his wife. When she resisted, R.G. assaulted her, placing his hands around her neck, hitting her face and biting her hand. At the time, the couple's son had been sleeping with his mother. When the assault commenced, the son awoke, left the bed and "ran into [the minor daughter's] room screaming, saying that [his] father was hitting and pushing [his] mother." The daughter also awoke, ran downstairs, and she observed her mother leaving the house and R.G. following her. Her mother then returned to the home, locking out R.G., and she called the police. Following the arrival of the police, R.G. was arrested. The mother was treated in a local hospital emergency room, returning home after approximately two hours with a prescription for 600 mg. ibuprofen for pain.
The incident was recounted by the daughter to someone at the daughter's school, and the Division of Youth and Family Services (DYFS) was contacted. DYFS commenced an investigation on October 30, interviewing the mother and both the adult and minor daughters. According to the Incident Report, which was marked as an exhibit at trial, the caseworker attempted to engage the son in conversation, but was not successful. However, she reported that he appeared healthy and clean.
During the initial interview by the DYFS caseworker, the mother reported that R.G. worked two jobs, one at the Paterson Housing Authority, and one at Sears in the Willowbrook Mall. She stated that R.G. went out after work with co-workers. The mother stated that there had been three prior physical altercations between her and R.G. in the course of a twenty-four-year marriage. At the time of the interview, the mother had obtained a temporary restraining order against R.G., who was living with his mother. The report continued:
Worker asked if the children are fearful of [R.G.]. [The mother] stated that the children are not fearful of their father. She explained that they do speak over the telephone to each other. ...