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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...