June 3, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.M., DEFENDANT-APPELLANT, AND S.M., M.P., AND K.G., DEFENDANTS.
IN THE MATTER OF M.P., M.P. JR., L.G., S.M. AND J.M., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-81-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2010
Before Judges Sapp-Peterson and Espinosa.
Defendant L.M. ("Lois")*fn1 appeals from an order that memorialized a finding of abuse or neglect, based upon her failure to protect her daughter, M.P. ("Maria"). We affirm.
Lois is the biological mother of five children, Maria and M.P. ("Michael"), whose father is M.P. ("Martin"); L.G., ("Lisa"), whose father is K.G. ("Kyle") and S.M. and J.M. ("Sally" and "Jack"), her children with her present husband, S.M. ("Stanley").
In November 2007, Maria, age 14, resided with her mother and stepfather, her brother Michael, age 11, and her half-sisters Lisa, age 5, and Sally, age 2.*fn2 On November 6, 2007, Maria was disciplined for inappropriate use of text-messaging by the suspension of her text-messaging service. In response to her request to have the privilege reinstated, Stanley told her that he would restore the service if she helped her mother around the house. Maria complied. However, when Lois was not present, he told her that the text-messaging service would be restored that night if she wore a certain pair of shorts later in the evening. The shorts in question were purchased at Victoria's Secret, pink and very short, with buttons on the front and "Hot Hot Pink" written on the rear. Maria agreed and Stanley called the wireless provider to restore the texting services.
When Maria discovered that her picture messaging service was not activated, she complained to Stanley. He agreed to call to resolve the issue and said, "I'll be in in a little bit," and added, "Don't forget our deal." Lois asked Stanley what he was talking about. Stanley replied that he was referring to Maria's agreement to help her around the house. Stanley later went to Maria's room, called the wireless provider to restore the picture messaging function, and then left to go to his bedroom.
Maria went to sleep, wearing the pink shorts under her sweat pants. At approximately 12:30 a.m., Stanley returned to Maria's bedroom. He asked if she was wearing the shorts. She replied, "Yeah." Stanley said, "Oh, let me see," and lifted the blankets and pulled down her sweat pants. Maria asked him to stop and leave her alone, stating that she was tired and sleeping, and turned toward the wall. Stanley then took her hand and put it on his bare penis. Maria pulled her hand away and asked him to leave her alone but Stanley again took her hand and placed it on his penis. She pulled her hand away again and Stanley left the room.
It was customary for Stanley to wake Maria in the morning. On the following morning, he called her and told her that he did not come into her room the previous night. She replied, "Oh." He responded, "Yeah."
That morning, Maria discussed her stepfather's actions with her cousin, "Jill," and asked Jill to ask her mother what she should do. As a result, Maria sought out her guidance counselor at school and told her what had happened the night before. The school reported Maria's account to her father, Martin, the Hamilton Township Police Department and the Division of Youth and Family Services (DYFS). Martin brought Maria from school to the police department, where she gave a statement.
Gary Byrne, an investigator with DYFS, testified that, from the first time he met Lois at Maria's school, her biggest concern was about her losing her home if Stanley went to jail, rather than Maria's welfare. She stated, "I cannot have him leave because I need him to pay for the mortgage and the rest of the bills." When asked if she believed her daughter, Lois said,
"I don't know what to believe but I can't put my husband out because I will lose my home." Investigator Byrne stated, "At no point did she ask how [Maria] was doing during the course of the day." Stanley was arrested and charged with aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) and endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(1): Lois asked about having the charges reduced. Maria, Michael and Lisa were all placed with their biological fathers that day.
After learning that Lois had bailed out Stanley, DYFS initiated an emergency removal of the children pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30 on November 9, 2007. On November 14, 2007, DYFS filed a verified complaint for custody, care and supervision, N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. An order was entered, granting DYFS custody of Maria, Michael, Lisa and Sally.*fn3 In May 2008, DYFS entered into a consent order with Lois and Stanley that allowed Lois to reside in the marital home with Sally and Jack but restrained Stanley from entering the marital home for any purpose.
A fact finding hearing was conducted on three nonconsecutive days in May, June and July 2008. Maria testified about the events of November 7, 2007. She stated that this was the first time her stepfather had attempted to sexually abuse her. However, she stated that he made inappropriate comments to her, such as calling her "little hottie," and regularly touched, slapped and grabbed her buttocks in front of her siblings and her friends as well as Lois. Her brother told Martin about Stanley's conduct, prompting Martin to complain to Lois. However, Lois defended Stanley, saying that he was just kidding. On one occasion, Lois observed Stanley touching Maria's buttocks and saw Maria make a face. When Lois commented to Stanley, he replied that he was only kidding. She told him to "just stop." Maria testified that she did not tell her mother what Stanley had done in her bedroom because she did not think Lois would believe her since Lois had defended Stanley when Martin complained about him touching her buttocks.
Lois did not testify at the fact finding hearing. The trial court found Maria's testimony credible and noted the absence of any evidence that contradicted her. The court's findings of fact included the following:
[T]he facts that I would find with regard to statements that were effectively unrefuted with regard to what were the circumstances in the home? It took prodding for [Lois] . . . to say to [Stanley], stop touching my daughter's butt, playful or not. She's uncomfortable and it's inappropriate.
And [Lois] at least allowed this permissive atmosphere to exist where [Stanley] with young women around the house was permitted to walk around in his underwear. That he was able to refer to her daughter as a "little hottie." That he was able to smack her on the butt, to touch her on the butt, without really being reprimanded until [Lois] was told by [Maria's] father, until she saw how uncomfortable the girl was.
And so, [Lois] allowed this permissive atmosphere to exist in the home and in fact it went beyond the permissive nature that night with regard to the panty deal. The deal in itself is inappropriate, what occurred beyond the deal clearly was inappropriate. I would acknowledge that even [Maria] says her mother did not know about the extent of the deal. She thought it was to do things around the house.
But, the permissive atmosphere in the home almost enabled this deal to be made, although I will not say that it would let it go much further. But, clearly, I believe that [Lois] by allowing this permissive atmosphere in the home to occur did fail to protect her child. And did, by failing to correct these issues in the home and allowing that permissive atmosphere in the home, did expose her child to a risk of harm, a risk of harm that actually came into fruition on the night of November 7th. And she was unable to protect the child from that harm and that, in fact, created an atmosphere that allowed that to occur.
I'd also add that her failing to respond earlier to these complaints about [Maria] and being touched by [Stanley] further exposed the child to a risk of harm, as to what extent that might be taken.
For those reasons I would find that the Division has proven by a preponderance of the evidence that [Maria] was an abused or neglected child by both [Stanley] for the events that occurred, and by her mother with regard to this permissive atmosphere in the home that she allowed to fester leading up to November 7th.
An order was entered, incorporating these findings.
In November 2008, the court found that Maria, Michael and Lisa were stabilized with their biological fathers and dismissed them from the litigation. The court entered an order in April 2009 that terminated the litigation and ordered legal custody of Sally and Jack to remain with Lois and Stanley.*fn4
Stanley did not appeal from the order finding that he had abused the children. In her appeal, Lois raises the following issues:
THE FACT FINDING WAS INCORRECTLY DECIDED SINCE THE APPLICABLE LAW DOES NOT DEFINE OR PENALIZE A PERMISSIVE ATMOSPHERE.
POINT II M.P.'S UNCORROBORATED STATEMENTS CONCERNING SEXUAL ABUSE AND FAMILY LIFE STYLE SHOULD HAVE BEEN SUPRESSED.
After carefully reviewing the record and arguments of counsel, we conclude that these arguments lack merit. Moreover, the argument that Maria's prior statements should have been suppressed as uncorroborated, N.J.S.A. 9:6-8.46(a)(4), lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). That statute does not require the suppression of prior statements; it merely states that prior statements relating to an allegation of abuse shall be insufficient standing alone to support a finding of abuse. In this case, the evidence to support the finding was not so limited as Maria testified at the fact finding hearing and was subject to cross-examination.
In reviewing the trial court's findings, we recognize "the family courts' special jurisdiction and expertise in family matters," and appropriately accord deference to the trial court's factfinding. N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 342-343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Lois's challenge to the trial court's finding focuses on the court's references to the atmosphere in the home as "permissive." She argues that this term is not defined in the statute and that the court's reference suggests an inappropriate and subjective rejection of an "alleged lifestyle" that met with his disapproval. However, the court's reference to a permissive atmosphere is directly related to the definition of abuse set forth in N.J.S.A. 9:6-1(f), which explicitly states that the following constitutes abuse of a child: permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of the child that may tend to debauch or endanger the morals of such child . . . . [(Emphasis added).]
Pursuant to N.J.S.A. 9:6-8.21(c)(4), a child is "abused or neglected" when her physical, mental or emotional condition "has been impaired or is in imminent danger of becoming impaired as the result of the failure of [her] parent . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision . . . by unreasonably . . . allowing to be inflicted harm or substantial risk thereof . . . ."
A review of the court's statement of reasons shows that, in speaking of a permissive atmosphere, the court was describing circumstances in which Stanley engaged in behavior toward Maria that unreasonably exposed her to a risk of harm and that Lois failed to exercise a minimum degree of care to protect her from such behavior. The court specifically noted that Stanley walked around the house in his underwear; that he referred to Maria as "little hottie;" that he repeatedly touched Maria inappropriately and that Lois failed to take action until Martin complained and she observed that Stanley's actions made Maria uncomfortable. In short, the court found facts that supported a conclusion that Lois permitted Stanley to perform acts "that may tend to debauch or endanger the morals of such child." See N.J.S.A. 9:6-1(f).
It was not necessary for the court to find that Lois intentionally exposed Maria to sexual abuse by Stanley. To prove abuse based upon her failure to exercise a minimum degree of care, the State had to show, by a preponderance of the evidence that Lois had been grossly or wantonly negligent. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). This is shown "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences[.]" Id. at 179. In G.S., the Court held that a parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. This issue "is to be analyzed in light of the dangers and risks associated with the situation," id. at 181-182, focusing on the harm to the child and "whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009) (quoting G.S., supra, 157 N.J. at 182).
In this case, it is undisputed that Stanley regularly touched, slapped and grabbed Maria's buttocks - in front of her siblings, her friends and even Lois. The conduct was sufficiently troubling that Maria's brother told their biological father, who complained to Lois. Under these circumstances, an ordinary, reasonable person would understand that Stanley's behavior toward her teenage daughter was sexually inappropriate and could lead to more serious abuses. However, consistent with her failure to respond independently, Lois minimized Stanley's conduct, characterizing it as "just kidding." The evidence reveals only one instance in which she took any protective action toward her daughter. After she observed Maria's displeasure at being grabbed yet again, Lois commented to Stanley, who also minimized his conduct as "only kidding." Demonstrating some awareness of the risk to Maria, Lois told him to "just stop" but did nothing else to protect Maria.
The dangers and risks associated with the situation that Lois allowed to persist were that Stanley would continue and even escalate his sexually inappropriate behavior to actually abuse Maria. We are satisfied that the State proved by a preponderance of the evidence that Lois was aware of the dangers inherent in the situation; that she failed to exercise a minimum degree of care by permitting Stanley to engage in sexually inappropriate behavior; and that, in so doing, she recklessly created a risk of serious injury to Maria.