November 19, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.M., DEFENDANT-APPELLANT, AND Z.F., DEFENDANT-RESPONDENT.
IN THE MATTER OF X.F., S.J. AND Z.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-172-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges Lihotz and J. N. Harris.
This is a Title 9*fn1 action that was commenced by the New Jersey Division of Youth and Family Services (the Division) alleging neglect due to improper supervision. Appellant Carla*fn2 appeals from the Family Part's determinations that (1) she abused or neglected her three children Xenon, Zeena, and Sonja and (2) awarded physical custody of son Xenon to his father Zeshawn, notwithstanding returning physical custody of daughters Zeena and Sonja to appellant. We affirm.
The Division became involved in the lives of Carla and her children when she left them for several weeks with a childcare provider without making arrangements for their ongoing care. Carla left for a vacation and because of the lack of a mobile phone, rendered herself unavailable for days on end. When the childcare provider could no longer supply assistance to the missing Carla, the children were dropped off with a putative relative, who in turn left the children in the care of an unqualified neighbor. The Division intervened to protect the lives, safety, and health of the children and effected an emergency removal without a court order on October 29, 2007.
As part of the ensuing Title 9 proceeding that the Division commenced the next day, the Family Part eventually conducted a fact-finding hearing on March 31, 2008, in which the court concluded that "[Carla] left these children... without adequately supervising them and really exposed them to a substantial risk of harm, making these children abused and neglected children within the meaning of [N.J.S.A. 9:6-8.21(c)(4)]." The court wrestled with the sharply conflicting testimony of Carla, who denied leaving the children unsupervised, and the caregiver, who recited that Carla had habitually left the children without making arrangements for their food and supplies and without making contact with the caregiver for days or weeks at a time.
Concluding that the caregiver was a more credible witness than Carla, and taking into account the vast amount of other evidence presented during the fact-finding hearing, the Family Part determined that Carla "leaves her children in the care of others -- strangers -- [and] she left these children there without adequately supervising them." The court continued its oversight of the family, pending the Division's efforts to assist Carla, and plan for the children's future. Custody was continued in the Division and the children were placed in foster care.
Throughout the next several months, each family member was evaluated, and Carla was provided with extensive parenting education and other services by the Division. In June 2008, after the receipt of a favorable home study report, Xenon was transferred from his foster home and placed in the physical custody of his father in Pennsylvania. Custody of Carla's daughters remained unchanged, but it was contemplated that they would return to Carla's physical custody as soon as practicable. That did not occur for another eight months, in February 2009.
The Family Part conducted a two-day dispositional hearing*fn3 regarding Xenon, pursuant to the newly-minted principles of N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382 (2009). The complement of witnesses included Xenon's parents: Carla and Zeshawn; Division caseworker Tyronnette Nimmons; psychologist Dr. Eric Kirschner, Ph.D.; and psychologist Dr. Gerard Figurelli, Ph.D.*fn4 After reserving decision, Judge Margaret M. Hayden rendered an oral determination on January 6, 2010, awarding physical custody to Zeshawn.
From the outset of her opinion, Judge Hayden recognized that the mode of analysis for the dispositional hearing was not the best interests of the child paradigm. Rather, under G.M., the court was obliged to determine "was it safe to return the child home to the parent from whom the child was removed." See id. at 402.
After canvassing the evidence, including the conflicting opinions of Drs. Kirschner and Figurelli, Judge Hayden found the following:
Now, if the issue here were simply the issue of custody under N.J.S.A. 9:2-4 with the best interest[s] of the child standard [to] be met, there would not be any doubt as to who should have custody. Both Dr. Kirschner and Dr. Figurelli found that it was in the best interest[s] of [Xenon] to remain in the current family where he is feeling safe and secure. And that was Dr. Figurelli -- I will point out again -- that [Xenon] would suffer harm that couldn't be mitigated, he certainly found it was in the best interest[s] of the child to remain with his father.
But that is not the standard here.....
Having analyzed all of the facts, in my opinion, it is not safe to return the child home. I believe, without the definition being fleshed out by the Division, that here is both physical safety, and emotional safety that must be looked at. This is not a close case. It wasn't a close case -- there are several reasons why it wouldn't be safe to return the child home.
First of all, the child does not feel safe. This is very different from what was happening in G.M., where the children were saying, I want to live with my mom, I want to live my dad, or I'll stay in Florida, I want to come back. This is a child who has consistently said that he did not feel safe with his mother. He was very clear to the experts, as well as when interviewed by the Court that he was fearful of living with his mother due to the history of her beating him with a belt, and leaving him alone with strangers.
The second reason is that [Carla], when interviewed by the Dr. Kirschner, even after having received services, even after having parenting classes, she really minimized the incident. And the incident was not something to be minimized. And secondly, she also justifies beating a child with a belt. Now, it's true that there's nothing inherently... illegal to beat a child with a belt. But the questioning of [her] after she received parenting skills classes,... she still felt like that was permissible and a justifiable way to deal with discipline, which so often can go into excessive beatings, or excessive corporal punishment.
And part of the problem is Dr. Kirschner found that she had many unresolved psychological issues. And her lack of empathy, and her bad judgment seemed to still exist during the evaluation in 2009, giving - really giving rise to a major concern of her being able to safely parent this child who has shown highly aggressive acting out and sexualized behavior in the recent past, before he went to live with his [father].
I also find it highly significant, the inconsistency with visitation. Now I understand that there were times that the child wasn't brought by the father. And I understand there were times when there was - if there were weather issues. But the Division has consistently offered to arrange visitation, and she - I found credible the caseworker's testimony that the Division offered to take her to a meeting place every other week. And she refused, saying it would be too hard with the two younger girls.
That's not - if you can't visit with the child with the two younger girls, your ability to handle the child, the third child and the two younger girls, is certainly at issue. But it's also an attitude of not being able to understand the need to let the child know that he is safe by being consistent, by being a presence in the child's life. That continues to have me worried that he is not safe.
I found Dr. Kirschner's opinion must be given a great deal of weight. And I'm giving his opinion as to the bonding more weight than I'm giving Dr. Figurelli's, who found that there was a fully actualized bond with both parents, because I think that Dr. Kirschner had a better picture because of the psychological evaluations that he had done as well as having seen some things, the way that the mother was harsh and authoritative with the child, which was a bit different than was being shown to Dr. Figurelli.
And so, I find credible Dr. Kirschner's opinion that [Xenon] will suffer harm from leaving the family where he is, and that the mother will not be able to mitigate the harm due to her unresolved psychological issues, and her lack of empathy. And that this could result in emotional un-safety that I believe must also be considered at a time like this.
Now, I know the Division has said that - the Division's argument is that [he] would be safe in both places, and we have put the children - there's two children that have gone back. And it seems that everything is going okay with the younger children. But the circumstances here are different.
First of all, he is the oldest child. He was three years older. And when he was removed he was six years old. And has a much more vivid memory of the abuse and of the neglect. And the mother was able to more consistently visit with the two younger children, because they were placed in New Jersey, as opposed to the visitation with the father in - even though the Division offered to take her out many times, she did not visit with [Xenon] to the extent that she visited with these children, therefore, being able to assure the safety of these children.
Therefore, I find that under this final disposition requirement, under N.J.S.A. 9:6-8.47 as well as -8.51, that it would not be safe to return the child home to the mother at this time. As the child has - the child is safe, and everyone agrees. The psychologists agree that the child's safe with the father. There are no child safety - child welfare concerns of this Court living with the father. I find that the final disposition shall be placement with the father. And that with this final disposition hearing that this litigation shall terminate, and there shall be visitation with the mother and the siblings to be worked out in the pending [custody action].
We begin with well-established principles of appellate review. Great deference to the discretionary decisions of Family Part judges is the touchstone of our analysis. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Similar respect is accorded to the factual findings of Family Part judges. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). Alternatively, a trial judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003). In this case, there were substantial findings of fact based upon each of the fact-finding and dispositional hearings by which Carla remains aggrieved. We remain unpersuaded that Carla was the victim of incompetent evidence, a denial of due process, or any other error necessitating our intervention.
Title 9 expressly requires that the Family Part must assess risk to the children. N.J.S.A. 9:6-8.21(c)(4), -8.31(b). Judge Hayden performed this statutory function, and we are loathe to disturb it on the grounds asserted by Carla. First, Carla argues that her testimony was "unrefuted" in establishing that she had made arrangements for the care of her children while she was away on vacation. Judge Hayden determined that the caregiver, who indicated that she had told Carla of her limited availability to care for the children, was more believable than Carla. Despite having this information, Carla nevertheless went off to Virginia and lost the ability to communicate with the caregiver and her own relatives. Judge Hayden's rejection of the "unrefuted" testimony of Carla was amply supported by the record. The court was not obliged to accept Carla's explanation at face value, especially when the court had the benefit of the caregiver's history of events leading up to Carla's final leaving behind of the children.
Carla argues that the Division failed to prove that the children's physical, mental, or emotional conditions were impaired or were in imminent danger of becoming impaired as a result of her conduct. To the contrary, Judge Hayden found that "[Carla] leaves her children in the care of others - strangers... [and] yet, she left these children there without adequately supervising them and really exposed them to a substantial risk of harm." See N.J.S.A. 9:6-8.21(c)(4). We conclude that the evidence was capable of enabling the Family Part to reach this result in a just fashion.
Furthermore, we are unable to detect any other basis upon which to disturb the finding of neglect by the Family Part. Carla was afforded due process of law at every turn, and was not victimized by any injustice or other reversible error. See MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (stating that the court will accord deference to the trial court's findings unless they "went so wide of the mark that a mistake must have been made").
Carla further argues that the result of the dispositional hearing was tainted and improper because the Family Part "admitted and considered inadmissible evidence and made a 'best interests' determination, instead of the safety determination mandated by G.M." We disagree.
The Family Part presented the expert testimony of Dr. Kirschner, who conducted psychological evaluations of Carla and Zeshawn, and bonding evaluations of Xenon with each of his parents. The resultant opinions, favorable to extending Xenon's stay with his father, are attacked because Dr. Kirschner did not expressly condition his opinions upon a "reasonable degree of psychological certainty." No objections to the receipt of Dr. Kirschner's extensive opinions on this ground were lodged in the Family Part, and we are disinclined to address this issue for the first time on appeal. "Appellate courts rightly decline to consider questions or issues not presented to the trial court when an opportunity to do so was available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Solondz v. Kornmehl, 317 N.J. Super. 16, 22 (App. Div. 1998); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Nevertheless, we find that the Family Part's conclusions are not eroded by the failure of the expert witness to mouth the words with the requisite degree of reasonable psychological certainty. There is no magical formula that must be recited in order to admit a psychologist's opinion into evidence. If the surrounding circumstances clearly bespeak the common understanding of the parties and the court at the time that the expert is speaking in terms of reasonable psychological probability, as here, it is sufficient to support the court's fact-finding.
Carla also takes issue with the in camera interview conducted between Judge Hayden and then eight-year old Xenon on the grounds that Xenon "took no oath nor did he participate in any ceremonial procedure during which the importance to tell the truth was stressed and his agreement to do same was procured." Carla asserts that reliance upon the statements of Xenon in this modality was violative of N.J.S.A. 9:6-8.45 and N.J.R.E. 603. However, Carla did not interpose any objection to Judge Hayden's process at the time. We do not share Carla's view of the significance of Xenon's comments to Judge Hayden.
Carla's last grievance with the dispositional hearing is her assertion that it gave only "lip service" to the safety paradigm of G.M. Instead, she claims that the Family Part actually engaged in a full-fledged best interests analysis when it awarded physical custody of Xenon to his father. In support of this claim, Carla suggests that the earlier Division-encouraged return of her daughters demonstrates the Division's desire to return Xenon to her custody as well.
Admittedly, Judge Hayden made several references to the best interests standard as she was declaring her oral opinion several weeks after the dispositional hearing. She indicated that if the dispute had solely been devoted to the best interests of the child, "clearly, based on all of these factors, they weigh heavily that the best interest[s] of the child, not only from a psychological point of view as found by both experts, but from this [c]court's point of view, it clearly would be in the best interest[s] of the child to have - to remain with the father." However, the court was acutely aware that this was not the current standard, and hewed to the G.M. safety analysis. The several references to the best interests standard does not wear away our confidence in Judge Hayden's approach, and her conclusion that Xenon would not be safe if he returned to the custody of his mother was supported by the record. Accordingly, we will not upend that finding. See M.M., supra, 189 N.J. at 279.