February 1, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF G.V. AND J.M., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0171-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
Defendant F.V. appeals from a Family Part order, entered following trial, finding she abused or neglected her grandsons pursuant to N.J.S.A. 9:6-8.21(c)(2), (4)(a), and (4)(b).*fn1 On appeal, F.V. challenges the trial court's findings and conclusions presenting these issues:
THE TRIAL COURT ERRED BECAUSE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A FINDING OF ABUSE AND/OR NEGLECT AND THE TRIAL COURT FAILED TO ARTICULATE WITH PARTICULARITY THE FACTS UPON WHICH A DETERMINATION OF ABUSE AND/OR NEGLECT WAS MADE.
A. M.V.'S ALLEGED SUBSTANCE ABUSE.
B. MARCH , 2008, IGA SUPERMARKET.
C. MARCH 6, 2008, DIAPER BAG INCIDENT.
D. MARCH 6, 2008, ALLEGED MEDICAL NEGLECT.
E. ALLEGATIONS OF INEFFECTIVE PARENTING.
THE TRIAL COURT ERRED IN ADMITTING MELISSA CIOTTONE'S INCOMPLETE REPORT INTO EVIDENCE.
THE TRIAL COURT ERRED IN PERMITTING ALISON STRASSER WINSTON, PH.D., TO TESTIFY.
F.V. is the mother of M.V., a recovering prescription drug addict, and the maternal grandmother of G.V., born in 2002, and J.M., born in 2006. M.V. and the children lived in F.V.'s home.
Prior to G.V.'s second birthday, the Division of Youth and Family Services (DYFS or Division) removed him from M.V.'s care after she unexpectedly moved out of F.V.'s home and was hospitalized following an attempted suicide. Six months later, G.V. was returned to M.V.'s care and F.V.'s home. At that time, G.V. was diagnosed with "anger management issues" and attention deficit hyperactivity disorder.*fn2
During the intervening years, the Division received six referrals regarding the children's safety while they resided with F.V. and M.V. We decline to recite all of the incidents recorded by DYFS. We confine our review to those referrals aired at trial, which led to events recited by the court in support of its findings of abuse and neglect.
On December 6, 2006, an anonymous referent reported F.V. and M.V. were addicted to pain pills. DYFS's special response unit investigators went to the home, but M.V. "refused to allow the workers to enter" because "the Division was responsible for G.V.'s problems." The impasse was broken when F.V. allowed DYFS caseworker Dawn Graber and another worker into the foyer for five minutes to speak to G.V., who "appeared to be well cared for." When requested, F.V. declined to provide a list of her prescription medications, stating she occasionally took Aleve. M.V. advised she used Percocet, prescribed for a bladder infection. When one worker suggested substance abuse evaluations were necessary, F.V. became irate and ordered the workers to leave. The caseworkers returned with police assistance to regain entrance. J.M. was interviewed and, he too, "appeared healthy and well cared for."
The Division arranged for urine drug screens. M.V. tested negative for all substances but F.V. tested positive for benzodiazepines. F.V. declined to submit to a second screen, and informed the Division she no longer would cooperate with its investigation. Coincidently, later that day, Graber observed F.V. driving a car with G.V. sitting in the front seat, between M.V. and F.V., not secured in a car seat. This observation, coupled with F.V.'s decision not to cooperate with the Division's efforts, led to the initiation of litigation on December 20, 2006.
DYFS filed a Verified Complaint and an Order to Show Cause for Investigation seeking an order "directing [M.V.] and [F.V.] to permit the Division to investigate the circumstances of the minors and directing [M.V.] and [F.V.] to assist and cooperate with the Division." The record does not disclose the results of this hearing. The family's file remained open and, over the ensuing months, the Division received additional referrals regarding possible drug abuse by M.V. and F.V. On August 20, 2007, an anonymous female referent reported M.V. had been arrested for breaking into a home and stealing prescription pads. M.V. pled guilty and advised the Division caseworker she was addicted to Percocet and searching for a suitable long-term inpatient treatment program. M.V. also admitted she recently completed detoxification treatment at Meadowlands Hospital.
The referent alleged F.V. also "abused drugs." The caller explained F.V. had asked her to "watch her purse because she had '200 pills in it and I don't want [M.V.] to get them.'" When interviewed by DYFS, F.V. denied the caller's accusations and repudiated the suggestion that M.V. abused drugs. On September 13, 2007, M.V. contacted DYFS to confirm her Percocet addiction and informed the Division of her intention to pursue treatment in Florida. A caseworker called F.V. to discuss the family situation and care of the children pending M.V.'s proposed drug treatment. F.V. again denied knowledge of M.V.'s substance abuse problem and past hospitalization for detoxification treatment. The following day, F.V. arrived alone for an appointment at a Division office. She admitted she left the children with M.V., resurrecting the Division's concerns for the children's safety and F.V.'s parenting ability.
The Division told F.V. that, due to M.V.'s drug addiction, she must not leave the children unsupervised with their mother. DYFS placed a homemaker in the residence. Division supervisors stressed to F.V. the importance of allowing the homemaker to supervise the family and related the Division's concerns regarding F.V.'s parenting ability. Apparently, F.V. ignored the Division's instructions because, on December 15, 2007, M.V.'s mental health provider anonymously contacted the Division to disclose that, although "M.V. was not supposed to have unsupervised contact with the children, . . . she watches [them] one day a week when her mother goes to work."
We do note the Division's records during this time also reflect that M.V. and F.V. were properly caring for the children. Additionally, case notes state M.V. was addressing her drug abuse and her drug screens were negative, and F.V. took only prescription medication. Further, the homemaker suggested she had "no concerns regarding the family." However, DYFS was contacted by the Bergen County Probation Department and learned that, as a condition of M.V.'s probation, granted in September 2007, she had been ordered to engage in a long-term inpatient drug rehabilitation program. M.V. purposely withheld this information from the Division. M.V. was placed at the Integrity House in Secaucus on January 11, 2008.
DYFS filed its complaint and order to show cause seeking care and supervision of G.V. and J.M. on January 17, 2008. At the initial hearing, DYFS consented to the court's order allowing the children to remain in F.V.'s care, so long as she agreed to submit to a hair follicle test, continue random drug testing, and undergo a psychological examination.
Other concerns regarding F.V.'s ability to parent G.V. surfaced when Division worker Noah Murphy arrived to transport F.V. and the children to the Newark LabCorp drug testing site on February 7, 2008. Arriving at approximately 9:30 a.m., Murphy noted the children were "calm . . . [r]egular, very even tempered." The trip did not go smoothly. Murphy became lost and when the party finally arrived at LabCorp, there was an inordinately long wait-time, due to the number of clients ahead of F.V. Murphy took F.V. and the children outside. It was at this point that G.V. had some sort of episode where he [ ] basically just started screaming at the top of his lungs over and over and [ ] he wouldn't stop . . . . [S]he asked him to stop. He didn't. I asked him to stop and he just [ ] took off running towards the building and he [ ] started just kicking.
It was one of those office windows that [was] just full glass from top to bottom and he just started kicking the window.
And I went over to get him to [ ] stop and he ran away from me. He went around the building and he came back with a metal [ ] Quest Diagnostic box that you would [ ] put samples in or something and he threw it into the building, into the glass window. It didn't break. I don't know how. So at this point I took the box away from him and he ran over by the railing and it [ ] had to be about an eight-foot drop or so on the other side of the railing, so I [ ] ran over and I grabbed him and I picked him up because I didn't want him to try and climb over the side. He was very resistant. He was holding onto my shirt and pushing back, and I carried him back over to [F.V].
Throughout this commotion, F.V. was watching the infant J.M. in his stroller but did not offer to help with G.V. and, in fact, suggested Murphy had overreacted in chasing the child and picking him up.
Murphy, F.V., and the two children returned to the LabCorp waiting room. F.V. left the children with Murphy and became involved in a heated confrontation with a LabCorp worker regarding the length of time she was waiting for her test. Murphy told F.V. he was required to report the incidents, at which point "her attitude towards [him] changed completely." After failing to convince Murphy not to write the report, F.V. told him he "wasn't a very nice person" and that she would seek alternative transportation home. F.V. then took the children outside to smoke another cigarette. Murphy followed. Not long after leaving the building, Murphy described a second incident of F.V.'s apparent indifference to G.V.'s behavioral outburst. Murphy stated:
[G.V.] basically took off running again around the corner of the building and so I ran after him and [F.V.] yelled [ ] at me. ["]Don't you touch my son. You don't have to chase my [grand]son.["] And I said back to her ["]I can't let him run around Newark unattended.["]
The next incident cited to reflect F.V.'s inadequate parenting abilities occurred on March 2, 2008. Patrolman Michael Mullay of the Ridgefield Park Police Department was dispatched to F.V.'s home after "a town resident" reported she saw a woman "le[ave] two young children unattended in the car" for approximately ten to fifteen minutes, as she shopped at a local IGA supermarket. The caller gave the police the woman's license plate number, which Patrolman Mullay traced to F.V., and who admitted leaving the children in the car while it was running, but stated it was only for "approximately five minutes." Patrolman Mullay testified the front of the store was comprised entirely of glass windows and someone standing by the cash register could likely see cars parked near the entrance to the store.
At trial, F.V. disputed Patrolman Mullay's account and contradicted an earlier statement she gave to DYFS. F.V. asserted she had taken the children inside the store with her to shop. The car was parked in a "handicap spot" near the store entrance. After loading the groceries and placing the children inside the vehicle, F.V. realized she lost her wallet. Deciding to retrace her steps, she headed toward the store entrance. G.V. found her wallet under the seat and called to F.V., who returned to the vehicle "in a matter of seconds." F.V. admitted G.V. had "the music [ ] blasting in [her] car[,]" but she insisted the keys were not in the ignition. F.V. previously told caseworker Kwesi Ithier she left the children alone in the car, but that they were not unsupervised because "she had asked a person who was outside of the IGA smoking a cigarette" to watch them.
F.V. presented testimony from Mary Hodges, who was standing outside the IGA. Hodges did not see F.V. go into the IGA, she noticed a woman [who] apparently had lost something and was outside of a car looking on the ground and my reaction was to approach her and see if I could be of assistance. And she had stepped around the car and there was a little boy in the car who, at that time said I found it, I got it, I got it, something to that [effect]. And so I just watched that and I smiled and whatever.
Four days later, on March 6, 2008, F.V. was scheduled to be picked up to attend a psychological evaluation at the Center for Evaluation and Counseling (CEC) in Newton, approximately fifty miles from her home. Division transportation aide Lisa Baker testified she arrived at F.V.'s home at approximately 8:20 a.m. F.V. was surprised to see Baker, whom she was not expecting until 10 a.m. Baker was surprised to learn G.V. and J.M. would be accompanying them, as she had assumed F.V. would make alternative arrangements for their care. The group finally left at 9:20 a.m.
As Baker approached Newton, G.V. "yelled 'ouch' . . . unbuckled himself and ran to the front of the van." G.V. was bleeding from a "small slice" in his finger. After pulling into the CEC, Baker examined the backseat of the van and discovered a "blue object" in a cup-holder, which was a pill cutter containing a razor blade. Baker showed the object to F.V. who stated:
"Well, that's a toy that he plays with. It's some [ ] kind of car toy[.]" And I opened it up and showed her the razor and said that this is a pill cutter. And she said, I never saw that in my life. She took it from me, looked at it . . . [a]nd put it in [J.M.'s] diaper bag.
G.V. turned to F.V. and said, "[Y]ou gave that to me." At trial, F.V. explained the diaper bag belonged to M.V. and that she thought the object was a toy. Baker initially threw the object in the garbage but later retrieved it.
At the CEC, the group was met by a local office DYFS worker, Megan Berkery. F.V. was asked to complete written test materials, which she took outside the building to complete, as she smoked. G.V. frequently left Berkery to go outside to visit with F.V. At one point, G.V. hid underneath a bench in the lobby of the CEC building, laughing, and refused to come out, despite coaxing by the Division workers. G.V. then darted out from under the bench and began running around outside the facility. Berkery chased G.V., telling him to return inside. G.V. picked up several rocks and began throwing them at passing cars, striking at least one. While this occurred, the workers noted F.V. "didn't do anything" and only "glanced [at G.V.] a few times." F.V. even suggested the workers stop chasing G.V. because "the more they chased him the more he would run." One motorist whose vehicle was struck by a rock thrown by G.V. stopped his car and confronted F.V., who stated he was just a little boy with problems. G.V. then ran inside the CEC, locking out the DYFS workers and F.V. Baker called a CEC worker to open the door. G.V. frantically began running around the lobby, "screaming, grunting, growling" and kicking. He began "taking phones [ ] and paperwork off tables . . . [a]nd splashing things around" as F.V. tried "to get him to sit down with her and [ ] relax and calm down. But he just kept pulling away from her." Baker also tried to calm the child, attempting to speak with him at eye-level. G.V. responded by punching her in the face.
At this point, staff psychologist Melissa Ciottone described G.V. as "angry and hostile and out of control" and insisted DYFS call the police. By the time Patrolman Dan Smith of the Newton Police Department arrived, G.V. was sitting with F.V. on a bench "talking about knives and lighting fires." After speaking with CEC staff regarding the circumstances of the call, Patrolman Smith went inside to speak to G.V. Upon seeing the officer, G.V. "kicked [him] in the shin" then "ran towards the other staff members like he was [going to] kick them." Smith then restrained the child. An audiotape recording of the incident was offered as evidence. F.V. can be heard yelling that G.V. was fine and merely afraid of the police.
Ciottone requested Patrolman Smith take G.V. to the hospital for a psychiatric evaluation. Smith sought F.V.'s consent but she declined. Rather than taking the child to the hospital, Smith attempted to arrange for a "Mobile Outreach" clinician to come and perform an evaluation at the CEC. F.V.'s refusal to allow an evaluation precluded the provision of services. Smith finally persuaded F.V. to consent to a hospital evaluation of her grandson. At the emergency room of Newton Memorial Hospital, F.V. and G.V. were seen by a "psychological screener." F.V. renewed her objection to the evaluation, stating, "she wanted to take [G.V.] to his own doctor." The screener told F.V. "it was necessary to evaluate [G.V.] there," at which point "[F.V.] and [G.V.] [began] clutching on to each other, both of them crying and he was just [ ] screaming." Later, F.V. re-consented to the screening.
G.V. was seen by psychiatrist Jenny Blanchard, M.D., who evaluated G.V. after he had been initially screened at Newton Memorial. Dr. Blanchard, called as a defense witness at trial, described the family as "a bit stressed out" and testified G.V. became agitated and upset in a reaction to F.V. being agitated and upset. Dr. Blanchard explained G.V. should not have been taken home at that time due to his emotional state. She diagnosed G.V. with impulse control disorder.
The screener then met with the Division caseworkers and explained hospital staff were seeking G.V.'s admission to the psychiatric wing of Saint Clare's Hospital in Boonton. DYFS decided to seek an emergency removal of G.V. and J.M., pursuant to N.J.S.A. 9:6-8.29. When F.V. was told of the Division's anticipated action, she became "hysterical, loud and upset." Dr. Blanchard noted F.V. did nothing to calm the children and told G.V. "these people are taking [you] away from [me]," causing him to scream and cry. Hospital security was called to remove F.V. DYFS placed J.M. in foster care and admitted G.V. to St. Clare's Children's Crisis Intervention Service Unit (CCIS), which is "designed . . . to provide a safe and therapeutic environment for children and adolescents who have been assessed to be in an acute crisis[.]"
Daniel King, a senior clinician at St. Clare's, testified regarding his observations of G.V. when he arrived at the hospital. King stated G.V. was "flailing around" attempting to get away from F.V., but may or may not have posed a threat to himself or others at that time. For the most part, G.V. adjusted to the unit and displayed no signs of psychosis or hyperactivity. Upon discharge, in-home therapy was recommended and, G.V. was placed in the care of his paternal grandparents.
F.V. believed G.V. would only be comfortable if she were present and initially thought she would actually move into the paternal grandparent's home because they were "strangers" to the child. When F.V. was told she would not be living with the child, her interactions with G.V. became problematic. F.V. alleged an incident of inappropriate behavior by the paternal grandfather occurred. Specifically, she told the Division, G.V. said his paternal grandfather had "touched his pee-pee." The paternal grandparents also reported difficulties, stating they d[id] not see aggressive behaviors on the part of [G.V.], but for times when he speaks to [F.V.] on the phone. The telephone calls apparently are very long and he gets off the phone and he's extremely aggressive.
There was an incident where [F.V.] went to the home of the paternal grandparents, insisted on seeing the child. When she was refused, [F.V.] became agitated and she had to be threatened with police involvement.
Initially, the court restrained F.V. from going to the parental grandparents' home and ordered supervised visitation at the DYFS office. When she raised the allegation of sexual abuse, the court saw the statement as a potential fabrication and temporarily suspended F.V.'s visitation entirely while the Division performed an investigation. Thereafter, F.V., along with M.V., defied the restraint and spoke to G.V. at his grandparents' home. The grandparents stated the two had told G.V. "not to eat." The court terminated all contact between F.V. and M.V. with G.V. "outside the Division office."
Prior to trial, F.V. was ordered to attend a psychological evaluation performed by Dr. Allison Winston. Dr. Winston and Ciottone testified as the Division's experts.
The seven-day hearing concluded on August 8, 2008. The trial court reviewed over thirty-five exhibits and considered the testimony of the DYFS workers and transportation aides, Officers Mullay and Smith, and experts Ciottone and Winston. F.V. testified and presented Hodges and Dr. Blanchard, who was qualified as an expert. Judge Mizdol issued a bench opinion on October 6, 2008.
Rejecting F.V.'s trial testimony in favor of the contrary evidence, Judge Mizdol concluded F.V. neglected her grandchildren by knowingly leaving them in the care and custody of her daughter [M.V.], whom she knew was drug involved, creating a substantial risk of serious injury.
[B]y providing [G.V.] with a razor sharp pill cutter to play with, causing injury to himself.
[B]y leaving them unattended in her car while she went food shopping in the IGA . . . .
[B]y leaving them unattended in her car with the keys in the ignition.
I find that [F.V.] neglected [G.V.] . . . by refusing to consent to a psychiatric assessment and hospitalization, contrary to the opinions of all mental health providers. She further ignored his high-risk behaviors, refusing to acknowledge the seriousness of those behaviors and, in fact, minimizing them, despite having been told of the serious[ness] of same by school professionals, professionals at CEC, Newton Memorial Hospital and St. Clare's Hospital. Her impressions were contrary to all school and medical professionals involved.
I also find that her history of poor judgment stemming back to [M.V.'s] minority demonstrates that she cannot provide a safe and a stable home for either child[.]
This appeal followed.
F.V. argues there was "insufficient competent evidence" for the court to make a finding that she abused or neglected G.V. and J.M. F.V. challenges both the individual findings and the conclusions drawn therefrom, arguing the Division's proofs are inadequate. F.V. maintains (1) M.V.'s abuse of prescription drugs was never shown to have "interfered with her ability to care for the children"; (2) F.V. did not create a substantial risk of harm in the IGA parking lot, as she remained in close proximity to the automobile and within earshot of the children; (3) F.V. did not provide the pill cutter as a toy and G.V.'s injury was an accident; (4) F.V.'s desire to seek an independent medical recommendation rather than admit G.V. to St. Clare's was not neglect; and (5) the court failed to articulate the facts supporting its conclusion of ineffective parenting. Additionally, F.V. challenges two evidential rulings made by the court.
Following our review of these arguments, in light of the voluminous record and the applicable law, we reject F.V.'s contentions and find these arguments are without merit. R. 2:11-3(e)(1)(E).
The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." Division of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation omitted). Accordingly, "in reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the  court's credibility determination . . . based upon . . . her opportunity to see and hear the witnesses." Division of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). The judgment of a trial court in a family-related matter "'should not be overturned except upon the basis of a carefully reasoned and factually supported . . . determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
"However, 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." Division of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted). "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.
The statute, N.J.S.A. 9:6-8.21(c), defines conduct by a "parent or guardian"*fn3 causing a child to be "abused or neglected" as a matter of law. The trial court applied these statutory sections:
"Abused or neglected child" means a child . . . whose parent or guardian . . .
(2) creates or allows to be created a substantial . . . risk of physical injury to such child by other than accidental means which would likely cause death or serious protracted disfigurement, or protracted loss or impairment of the function of any bodily organ.
(4) or 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)(2), (c)(4)(b).]
A finding of abuse or neglect must be based on a preponderance of the evidence and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
"Under the preponderance standard, 'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). "The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574-75 (1958)).
Ultimately, "[w]hether a parent or guardian has failed to exercise a minimum degree of care in protecting a child" as used in the statute "is determined on a case-by-case basis[,]" and "analyzed in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999).
Generally, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Wanton and willful behavior is "an 'intermediary position between simple negligence and the intentional infliction of harm[,]'" id. at 179 (quoting Foldi v. Jeffries, 93 N.J. 533, 549 (1983)), and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). "[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." Division of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005). "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." G.S., supra, at 182.
Governed by this standard, the substantial credible trial evidence, including the credited expert testimony, supports Judge Mizdol's findings that F.V. "does not have the skills to parent and . . . poses a risk to the children in areas of safety and consistency," substantiating child neglect, as defined under the statute.
The trial judge's finding that F.V.'s conduct constituted "abuse or neglect," including: (1) leaving G.V. and J.M. alone with M.V. after affirmatively being told of M.V.'s substance abuse problem and directed not to do so; (2) giving G.V. a pill cutter, containing a razor blade, as a toy; (3) leaving her two young grandchildren unsupervised and unattended in a running motor vehicle; (4) declining mental health treatment for G.V., notwithstanding expert opinions of its immediate need; and (5) ignoring G.V.'s high risk behaviors comports with applicable law and satisfies the criteria of the statute. Moreover, F.V.'s cumulative behavior created an actual and imminent risk of serious harm, exposing G.V. and J.M. to neglect within the meaning of Title 9. We review the evidence credited by the trial court as we address each of F.V.'s challenges to the individual findings of neglect.
Although DYFS's case file contains some conflicting evidence of M.V.'s drug addiction, the fact that she abused prescription medication was solidly understood. F.V. was told the reason for placing a homemaker in her home was M.V.'s drug abuse, which precluded her from being alone with the children. F.V. continued to deny knowledge of M.V.'s addiction and defy the instructions not to leave the children unsupervised with their mother. Her argument that the children suffered no harm is immaterial to our analysis. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (noting that "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect").
Regarding the IGA parking lot incident, the record amply documents F.V.'s admissions to Mullay and Ithier that she left the children unattended for at least five minutes. F.V. ignored the substantial risk of imminent danger posed by allowing G.V., known for unpredictable behavior, alone in an operating vehicle, which is without question neglect. See, e.g., G.S., supra, 157 N.J. at 181 (providing, by way of example, "if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well-being or harm the child") (citations omitted). By turning the car off, taking the keys and having the boys accompany her, F.V. would have easily eliminated all danger. Instead, her inattention to the actual and imminent risk of serious harm constitutes grossly or wantonly negligent behavior.
Crediting G.V.'s spontaneous statement that F.V. gave him the pill cutter also evinces F.V.'s failure to exercise a minimum degree of care when responsible for these young children. While he suffered only a minor injury, the potential for G.V. to inflict "physical injury . . . likely to cause death . . . disfigurement, or . . . impairment of the function of any bodily organ" was clearly present. N.J.S.A. 9:6-8.21(c)(2).
Turning to the next finding, we reject F.V.'s suggestion that the court found neglect solely bottomed on F.V.'s initial reaction to the request for G.V.'s psychiatric assessment and hospitalization. We might agree that a single exercise of parental authority to decline a psychiatric evaluation may not be sufficient proof to sustain a finding of neglect. However, the finding was not grounded on that single incident but rather F.V.'s continued indifference to G.V.'s erratic and uncontrolled behavioral manifested in school, during the trip to LabCorp and, ultimately, at the CEC. Even her trial testimony minimized G.V.'s behaviors as "simply playing."
The court reviewed G.V.'s kindergarten school records, which revealed he was in a special program due to his "disruptive and aggressive behaviors and his failure to respond to authority." F.V. related the events of G.V.'s first two days of kindergarten, including running out of the school building, climbing to the top of a tree, and rebuffing efforts to be coaxed from his perch. Additionally, Murphy's account of the visit to LabCorp, along with Barker's and Berkery's testimony of the events at the CEC, exposed F.V.'s lack of awareness of the real possibility that G.V.'s behavior was potentially harmful to himself and others. F.V.'s remedy was to leave the child alone -- even as the child struck his baby brother, ran wildly through parking lots among traffic, threw rocks at cars, punched and kicked adults, and ignored attempts to curb his dangerous behaviors. Without question, F.V.'s "hands-off" parental style exposed G.V. to great risk.
We need not review the court's finding linking F.V.'s ineffective parenting of M.V., who was frequently truant, to the conduct evincing neglect of her grandsons. If omitted, this finding does not alter the court's conclusion, otherwise amply supported by this record, that F.V. engaged in neglect, as defined by N.J.S.A. 9:6-8.21(c), when responsible for the care of her grandsons.
F.V. next challenges two evidentiary rulings, which allowed: (1) Ciottone to testify and admit her report as an expert witness, and (2) the testimony of Dr. Allison Strasser-Winston, who conducted her psychological evaluation. To assess these arguments, we set forth some additional factual background.
DYFS offered Ciottone as an expert "in the area of psychology." During voir dire, Ciottone acknowledged she was not a licensed psychologist and had only limited academic work in the field of child psychology. However, she had completed at least 1,000 psychological assessments of various types - including bonding, psychosexual, fire setter and general risk assessments - under the supervision of a licensed psychologist.
Also, she had been qualified as an expert on five past occasions, four of which dealt with issues of parental fitness.
F.V.'s counsel objected, stating Ciottone's testimony as an expert "as opposed to a factual witness," was unexpected. He requested the opportunity to recall her after he "had a chance to examine . . . her CV and further cross-examine her" as he felt "handicapped somewhat by this last minute introduction[.]" Judge Mizdol allowed Ciottone's expert opinion, noting F.V. was not prejudiced, as the opinion had been provided long before trial, and her testimony would be limited to the contents of her report.
Ciottone related her observation of G.V.'s outburst at the CEC. Ciottone described F.V.'s demeanor as "angry, flustered and agitated." Ciottone opined F.V. "lacked the ability to see or hear what was happening and was not processing the situation and her statements that she just wanted to leave and go home only served to inflame the situation." Ciottone also noted F.V. placed her needs above those of the children. After cross-examination, a renewed defense objection for exclusion was denied.
Also, F.V. objected to Dr. Winston's expert testimony, arguing her "evaluation was done for dispositional purposes, not for purposes of developing evidence for this fact finding."
Specifically, Dr. Winston's testimony would not support whether F.V. had committed acts of neglect. The Division maintained Dr. Winston's evaluation was not completed for dispositional purposes, but substituted for the aborted CEC evaluation scheduled to assess F.V.'s parenting capabilities.
F.V.'s argument implicates N.J.S.A. 9:6-8.47, which provides
Reports prepared by the probation department or the division for use by the court at any time for the making of an order of disposition shall be deemed confidential information furnished to the court which the court in a proper case may, in its discretion, disclose in whole or in part to the law guardian, attorney . . . or other appropriate person. Such reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing.
The court admitted Dr. Winston's testimony "for purposes of a parenting assessment only[,]" not for dispositional issues. Dr. Winston testified that "from a psychological perspective," F.V. does not have the skills to parent and poses a risk to the children in areas of "safety" and "consistency."
On appeal, F.V. maintains the court's admission of Dr. Winston's expert evidence constituted an abuse of discretion. Additionally, she argues the imposed limitation inappropriately placed the burden on the witness to understand what information must be excluded.
"Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court." Carey v. Lovett, 132 N.J. 44, 64 (1993). We will not reverse a trial court's evidentiary decision unless there has been a clear abuse of that discretion. Henningsen v. Bloomfield Motors, Inc. 32 N.J. 358, 411 (1960).
Evidential challenges regarding the scope of expert testimony are governed by N.J.R.E. 702, which states, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." For expert testimony to be admissible, it must meet three requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. [State v. Kelly, 97 N.J. 178, 208 (1984).]
Furthermore, "expert testimony is not necessary when the subject can be understood by jurors utilizing common judgment and experience." Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002) (citation omitted).
When a specified error is brought to the trial court's attention, we review the challenge pursuant to the "harmful error" standard. The error is reversible only when it is "clearly capable of producing an unjust result." R. 2:10-2.
Following our review, we reject F.V.'s evidential challenges. We determine Ciottone was properly qualified as an expert witness and conclude no error or abuse of discretion is presented. Ciottone's education and experience made her qualified to discuss her assessment as the events at the CEC unfolded on March 6, 2008. Ciottone's testimony was limited to the four corners of her report and her conclusions were subject to vigorous cross-examination.
Regarding Dr. Winston's testimony, we disagree with F.V.'s suggestion that the evaluation must be barred, pursuant to N.J.S.A. 9:6-8.47, because it was performed in preparation for a dispositional determination. F.V.'s psychological evaluation was ordered on February 7, 2008, to discern the appropriateness of allowing her to continue to exercise physical custody of G.V. and J.M. The psychological evaluation was ordered early in the litigation to determine whether it was appropriate to continue F.V.'s level of care and custody for the children, pending the factfinding hearing. The delay in concluding the evaluation resulted from the intervening psychological crises experienced by G.V. We conclude the court's admission of the testimony was neither prejudicial nor error.