February 10, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF E.E., J.L. AND J.L., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-73-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2010
Before Judges Reisner and Chambers.
Following a plenary hearing, the Family Part entered an order dated April 23, 2009, determining that defendant J.L. abused two of his children - a baby and a nine-year-old girl. Defendant appeals from that order.*fn1
To summarize, this case arose from an episode of domestic violence. Although the baby suffered only a minor injury during the incident, the record supports a finding that J.L. exposed the baby to an immediate and substantial danger of serious injury when he engaged in a brutal physical assault on J.P., while she was holding the baby in her arms. The record also supports a finding that the nine-year-old girl was physically drawn into the fray in a desperate attempt to defend J.P., and continued to be traumatized after the event. On these facts, we affirm the finding of child abuse.
The hearing record reveals the following pertinent facts. The Division of Youth and Family Services' (DYFS or Division) investigative report was admitted in evidence without objection. See In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). According to that record, at about 4:00 a.m. on November 29, 2008, the Trenton police notified DYFS workers of a domestic violence incident involving J.P., her baby, and her nine-year-old stepdaughter. The police had responded to the incident shortly before midnight on November 28, 2009. At that time, J.P. told them that defendant had assaulted her and she had jumped out a second story window to escape him. The police transported J.P. and the children to a local hospital, helped her to obtain a temporary restraining order against defendant, and brought J.P. and her children back home. At 6:18 a.m. on November 29, 2008, DYFS case workers arrived at the house occupied by defendant, J.P., and the children. At that point, defendant was a fugitive and the police were searching for him.
According to testimony from DYFS worker Rachel Cogsville, when she arrived at the house, she found that J.P. had barricaded the front door to keep defendant out in case he returned. She examined J.P., and observed that she had a black eye, a sprained ankle and "various bite marks on her arms." J.P. told Cogsville that defendant had punched her while she was holding the baby on her lap. J.P. also stated that defendant "pushed her on the floor and the baby fell on the floor and the baby apparently suffered a scratch on his forehead." However, when questioned further, J.P. became evasive and in Cogsville's view was "minimizing" the incident.*fn2
Cogsville then interviewed the nine-year-old girl. Without objection, Cogsville testified at length concerning that interview, which took place only a few hours after the incident. According to Cogsville, the interview began in a bedroom on the second floor of the duplex where the parties lived. After J.P. escorted Cogsville and another DYFS worker into the bedroom, Cogsville observed the girl "placing a t.v., a chair, and another object in front of the [bedroom] door, barricading."
When she asked the girl why she was doing this, the child replied that it was "[t]o prevent her father coming inside."
Cogsville then took the child into another room to interview her. During the interview, the child gave Cogsville a very detailed description of the incident. She told Cogsville that during the night, she overheard an argument between defendant, J.P., and a second man, who was telling defendant that J.P. "was cheating on him." Entering the master bedroom where the adults were arguing, she saw defendant pulling J.P.'s hair. She then saw him get on top of J.P., who was sitting on a couch, and "hit her in the face." The child also told Cogsville that she saw defendant biting J.P. on both arms.
At that point, according to the child, there was a temporary lull in the violence, and J.P. went over to the bed and held the infant on her lap. However, the argument resumed and the child saw defendant approach J.P. and push her, causing her and the baby to fall on the floor. According to the child, defendant "then started to kick [J.P.] while she was still holding the baby." The child told Cogsville that defendant kicked the baby, then picked up the baby and dropped him, causing the baby to land "on the corner molding . . . where he suffered a scratch on the forehead."
At this point, the girl saw J.P. get up and saw defendant chasing her into another room. She saw him pick up an office chair and hit J.P. "on top of the head." The girl picked up her baby brother and handed him to the third adult. Then, in an effort to stop the violence, the girl went to the kitchen, "got a gallon of water out of the [re]frigerator, opened up the gallon of water, [and] proceeded to throw the water on top of [defendant]." The girl then told J.P. to jump out of the window, which she did. The girl told Cogsville that she was "afraid of her father."
On examination at the hospital, the baby was found to have a scratch on his forehead. He also had a 103 degree fever and a hernia on his penis. The Division did not claim that the latter two conditions were caused by the domestic violence incident.
Defendant was present at the hearing but did not testify. Immediately after the hearing on April 23, 2009, Judge DeBello placed an oral opinion on the record. He found "by a preponderance of the credible evidence" that defendant had committed an incident of domestic violence. He based this determination on Cogsville's testimony concerning her physical observations of J.P.'s injuries, together with J.P.'s statements to Cogsville made "shortly after [the incident] occurred."
The judge found that defendant became "enraged" at J.P.'s alleged infidelity and assaulted her. He found that the baby was in her lap while defendant was trying to punch her. He also found that during the assault, J.P. and the baby fell off the bed together and defendant then tried to kick J.P. while the baby was "still in her arms." The judge found that J.P.'s initial account of this incident was consistent "with [the] injuries observed."
The judge further reasoned:
[N.J.S.A.] 9:6-8.21(2) defines as an abuse or neglect of a child where a parent or guardian creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, protracted loss or impairment of the function of any bodily organ. At best, you could say it was fortuitous the child's head wasn't crushed, stomach wasn't ruptured, by virtue of being in between [defendant] and [J.P.] during this assaultive episode which clearly put the child at risk.
So as it relates to the Title 9 finding against [defendant], I'm satisfied by a preponderance of credible evidence, this establishes that.
Later in his opinion, the judge added that there was some actual injury to the baby:
And, in fact, there was some slight harm to the [baby]. . . . [I]n the melee, the child was scratched . . . when the child had hit the floor and hit some molding. . . .
[P]erhaps fortuitously [defendant's] foot missed the child and perhaps his hands fortuitously missed the child and perhaps . . . all that did occur to the child physically is that when the child hit the ground, the child hit [the] molding and got a scratch. That doesn't mitigate the creating or allowing the risk of substantial injury.
The judge also addressed the charge of abuse of the nine-year-old girl. He acknowledged that the State had "to prove some emotional harm" and concluded that the State met that burden:
Just witnessing domestic violence is not a deep harm. However, the fear expressed by [the girl] in barricading a door is a fear that . . . certainly is inferentially related to the fear of her father and the incident itself. So, it's just not an innocent bystander. The c[h]ild had fear, fear of the father, so I'm satisfied that there was some emotional harm to [her].
On this appeal, defendant presents the following points for our consideration:
POINT I: THE TRIAL COURT'S FINDING BASED ON THE STATEMENT OF THE CHILD WAS HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT II: THE TRIAL COURT'S FINDING BASED ON THE UNCORROBORATED STATEMENT OF THE CHILD WAS ERRONEOUS.
POINT III: THE TRIAL COURT'S CONSIDERATION OF J.P.'S STATEMENT WAS ERRONEOUS BECAUSE J.P. RECANTED HER STATEMENT.
POINT IV: DYFS FAILED TO PROVE BY A PREPONDERANCE OF EVIDENCE THAT WITNESSING AN ACT OF DOMESTIC VIOLENCE CAUSED EMOTIONAL HARM TO THE MINOR CHILDREN.
At oral argument defendant withdrew Point I, conceding that the DYFS investigative report was admitted in evidence. Having reviewed the record, we find no merit in defendant's remaining points. We must defer to the trial judge's factual findings so long as they are supported by substantial credible evidence, and we owe particular deference to decisions of the Family Part in light of its special expertise. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Applying that standard, we find no basis to disturb Judge DeBello's decision, which is supported by the evidentiary record and is consistent with applicable law.
R. 2:11-3(e)(1)(A). We add the following comments.
As Judge DeBello correctly observed, child abuse can include placing a child at risk of serious injury even if the injury does not actually occur:
"Abused or neglected child" means a child less than 18 years of age whose parent or guardian . . . creates or allows to be created a substantial . . . risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ. . . . [N.J.S.A. 9:6-8.21c(2).]
The definition also includes emotional harm: 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. 9:6-8.21c(4).]
At a hearing on a charge of abuse and neglect, the Division's investigative records are admissible as business records. N.J.S.A. 9:6-8.46(a). A child's prior statements concerning alleged abuse are admissible, but must be corroborated, and otherwise, only competent, material and relevant evidence is admissible:
[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.
b. In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted.
c. In a dispositional hearing and during all other stages of a proceeding under this act, only material and relevant evidence may be admitted. [N.J.S.A. 9:6-8.46a(4) to -8.46c.]
In this case, Cogsville's testimony about the statements made by the girl were admitted without objection. Moreover, there was ample corroboration in the form of Cogsville's testimony. See N.J. Div. Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). Cogsville personally observed J.P.'s injuries, including the black eye and the bites on her arms, which were consistent with the girl's description of the assault. The DYFS report of the observed scratch on the baby's head likewise corroborated the child's statement to Cogsville. J.P.'s statement to the police immediately after the incident and her later statement to Cogsville provide further corroboration.
The proofs show that defendant engaged in an extended and brutal attack on J.P. while she held a baby in her arms. He also took the baby from her and dropped him. We agree with Judge DeBello that defendant placed the baby at risk of serious and permanent injury within the meaning of N.J.S.A. 9:6-8.21c(2).
In the circumstances of this case, we also agree that defendant's extreme conduct, which caused the nine-year-old girl to become physically involved in the incident and traumatized her, met the standard of N.J.S.A. 9:6-8.21c(4). The terrifying nature of the incident, and its emotional aftermath, was established on this record. The child witnessed a brutal attack on her stepmother, which left her in fear even after her father had left the premises and there were adults around to protect her. Cogsville actually observed the child barricading herself in the bedroom where Cogsville and another DYFS worker were trying to interview her. She heard the child say that she was doing this to keep her father out and that she was afraid of her father. The child also told Cogsville that she was personally involved in the incident, in that she threw a gallon of water on her father in an effort to stop his attack on J.P., and she then told J.P. to jump out the window to escape.
The facts presented here differ significantly from those in New Jersey Div. Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). In that case the defendant, the child's mother, was the victim of the domestic violence and was accused of failing to protect the child. The child had witnessed, but not become involved in, the incident of domestic violence, and the Division did not present any evidence of emotional injury to the child. In that context, we found no basis for a finding of abuse or neglect against the mother. Id. at 22-23.
By contrast, in this case, the child was not simply an innocent bystander but was a participant, rescuing her baby brother from the melee and trying to save her stepmother from further abuse. And there was sufficient proof that she remained traumatized, barricading herself in the bedroom even when the danger was past.