July 26, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.F., DEFENDANT-APPELLANT, AND E.M., DEFENDANT. IN THE MATTER OF J.M. AND J.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0353-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2011
Before Judges Reisner and Alvarez.
Defendant L.F. is the mother of three sons - A.G., born on March 8, 1999, twins C.G. and J.G., born on August 18, 2001 - and two daughters, J.M. (hereinafter Mary), born April 20, 2008, and J.M. (hereinafter Jane), born April 15, 2009. On June 23, 2010, a Family Part order was entered dismissing abuse and neglect proceedings instituted against her by the Division of Youth and Family Services (the Division). New proceedings were initiated by the Division for guardianship with respect to Mary and Jane, who are in foster placement. L.F.'s former husband, the father of A.G., C.G., and J.G., was granted custody of the boys. E.M., the girls' father, has not joined in the appeal.
The challenged June 23, 2010 order contains no findings of abuse and neglect. It grants the Division continued custody of the girls and indicates that the matter was "superceded by FG-09-190-10," the guardianship proceedings. Therein lies the procedural and substantive quandary presented by this appeal. The order did no more than clear the way for the potentially more consequential litigation that may result in termination of L.F.'s parental rights. But it cleared the way after the legally significant finding that the Division had proven L.F. abused or neglected the children by a preponderance of the evidence. Fact-finding orders were entered as to Mary, on March 31, 2009, and as to Jane, on August 5, 2009.
L.F. challenges the Division's permanency plan for Mary and Jane, the removal of the boys, and several other substantive issues nowhere referenced in the order attached to the notice of appeal. Rule 2:5-1(f)(3)(A) provides that, in civil actions, a notice of appeal "shall set forth . . . the judgment, decision, action or rule, or part thereof appealed from[.]" Thus, "[w]hile the rule does not in terms so provide, it is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011) (citing 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Amer. Cyanamid, 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). Likewise, Rule 2:5-1(f)(2) requires a copy of the final judgment, order, or agency decision appealed from to be attached to the parties' case information statement. To reiterate, the notice of appeal and attached order do not include any adjudication or disposition. The order merely dismisses one form of litigation in preparation for the pursuit of another.
Where no findings are made as to abuse and neglect, and a Title 9 action is dismissed in order that guardianship proceedings can be filed, the case is moot:
DYFS's dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect. Such a disposition, like the dismissal of any other action by a plaintiff under Rule 4:37-1, adjudicates nothing and thus cannot provide a predicate for relief [N.J. Div. of Youth & Family Servs. v. A.P. & F.H., 408 N.J. Super. 252, 262-63 (App.
Div. 2009) (internal quotations omitted).]
N.J.S.A. 9:6-8.70 explicitly provides an appeal may be taken as of right from any Title 9 order "adjudicat[ing] a complaint of abuse and neglect and provid[ing] an appropriate disposition in light of that adjudication." A.P. & F.H., supra, 408 N.J. Super. at 262. Because the order appealed from in this instance was a dismissal, it cannot strictly speaking be considered an appealable disposition. It "adjudicate[d] nothing." See id. at 263. Yet the order did two important things of great consequence to L.F. - it continued custody of the girls in the Division, and rendered the fact-findings available for use in the guardianship proceedings.
Fact-finding orders are considered interlocutory and generally require a motion for leave to appeal. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003). But we have recently found the procedure wanting in Title 9 matters, observing that "[g]ranting leave to appeal from the interim finding is unnecessarily disruptive and unreasonably causes delay in the dispositional review and family reunification, . . . the desired outcome of Title  litigation." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 620 (App. Div. 2010). In that matter, we relieved parents of their burden to contest "'the outcome of the litigation as embodied in the judgment,'" id. at 618 (quoting Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990)), in order to contest a finding of abuse or neglect, "notwithstanding their agreement to an acceptable resolution of the litigation." Id. at 621. In other words, because of the importance of interim findings and the effect upon parents of the entry of such orders, despite the ultimate reunification of a parent and a child, a parent is permitted to pursue an appeal of the finding of abuse and neglect even if he or she consented to the final dispositional order.
This case, therefore, seemingly falls into a category of its own. In A.P. & F.H., the appeal was considered moot because no adjudication was made as to the alleged abuse and neglect - the litigation was merely dismissed. In N.S., after an interlocutory fact-finding, the parents consented to dismissal of the Title 9 proceedings because the result was favorable to them. Here, appeal is taken from an interlocutory fact-finding order where a parent disagrees with the disposition and the permanency order, yet the matter was subsequently dismissed to pave the way for a guardianship proceeding.
Therefore, we cannot dismiss the appeal as moot. There are significant consequences to the finding of abuse and neglect as to the girls. See N.S., supra, 412 N.J. Super. at 619-20. These consequences entitle L.F. to appellate review but, depending upon the outcome of the guardianship proceeding, this review may ultimately prove meaningless.
We reiterate that even though L.F. raises numerous points on appeal, we will address only the contention that the finding of abuse and neglect as to the girls, and their removal from L.F.'s care, was erroneous. Following are the circumstances and procedural history developed during the fact-finding hearings.
On May 21, 2008, the Division filed a complaint for the care and supervision of A.G., C.G., and J.C., L.F.'s three older sons from a prior marriage, and Mary, the oldest daughter of L.F.'s subsequent relationship with E.M. All four children initially remained in L.F.'s home, with E.M., and services were provided to the family.
It was eventually determined, however, that the boys had been physically abused by L.F. and E.M., and sexually molested by E.M. and by L.F.'s father, R.F. L.F. was found to have kicked one of the boys with such force that she imprinted an outline of her shoe on his leg. As the March 31 fact-finding order stated, E.M. also used corporal punishment "beyond acceptable bounds in that he had the children kneel on rice." Thus, the court entered an order, finding all four children abused and neglected. On August 5, 2009, after Jane's birth, the court entered an order indicating she too was at risk for harm based on the prior fact-finding.
By that date, the children had been removed and were in the Division's care - the boys living with their father, L.F.'s former husband, and the girls in a foster placement. On March 8, 2010, L.F. entered guilty pleas to three counts of fourth-degree child abuse related to excessive corporal punishment upon the boys.
Despite her entry of three guilty pleas, and the incarceration of E.M. on sexual abuse charges, L.F. continued to deny she or anyone else had abused her children. Eventually, the Division requested that visitation with the boys cease, as they were being emotionally harmed by her denials and did not want further contact with her. Even in a therapeutic setting with the children, L.F. could not bring herself to admit that the boys had suffered at her hands, or had suffered at all. In fact, L.F. described herself as "very overprotective" of her children at the August 5, 2009 hearing.
The Division's position was that L.F.'s inability to acknowledge the boys' allegations of physical and sexual abuse, including the impact of her own conduct, even though her denials were harmful to the boys and jeopardized her future contact and relationship with them, also posed a risk to her girls, who were extremely vulnerable because of their age. Mary was then only two, Jane was only one.
Other than her incomprehensible denials in the Family Part, L.F. was generally compliant with services and completed a parenting class. In a permanency hearing conducted on April 16, 2010, L.F. presented the testimony of an expert who opined she did not suffer from a mental illness or personality disorder which would prevent her from adequately parenting the children.
Yet, even he acknowledged the concern expressed throughout the proceedings: that without taking responsibility for the harm inflicted on the boys, L.F. posed a risk to the girls in that she might inflict excessive corporal punishment upon them or be unable to protect them from harm inflicted by others.
Great deference is accorded trial court fact-finding, primarily as it "has the opportunity to make first-hand credibility judgments" and possesses a "'feel of the case' that can never be realized by review of the cold record." N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). This is particularly true for cases arising in the Family Part, which has a "special . . . expertise in family matters[.]" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
It is undisputed that L.F. entered a plea of guilty to three separate counts of child abuse. Consequently, and obviously, she can no longer claim innocence. N.S., supra, 412 N.J. Super. at 625 (observing "[d]efendants' respective criminal convictions [arising from the abuse] collaterally estop any asserted claims of innocence").
On March 31, 2009, the court found that Mary was at risk of harm because L.F. struggled to cope with the presence of the three boys and an infant in the household, and had another child on the way. It found that L.F. and E.M. had employed excessive corporal punishment, and that L.F. was already in a state of denial about the abuse inflicted on the boys.
The court subsequently found that Jane was an abused or neglected child, pursuant to N.J.S.A. 9:6-8.21(c), as a result of the proximity in time between her birth on April 15 and the finding of abuse and neglect with respect to the boys on March 31. As the court said at the August 5, 2009 fact-finding hearing:
[D]o I take a risk with this infant child and are the services there enough to make these parents whole so that there is no more corporal punishment, because I don't have anybody to tell me. An infant can't tell me that . . . [s]he was made to sit in a soiled diaper or that there was a shaking or what have you. I don't know what's going to go on, but I have to err on the side of caution and I have to protect the child. And in this situation I am convinced that the Division has presented to me that there is a probability of harm and that's the standard[.] . . . There's a probability that based on the condition of the parents that led to the finding as to the other children, there's a probability of harm to this newborn, to this infant child.
N.J.S.A. 9:6-8.46(a) provides that, at "any" Title 9 hearing, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent[.]" Additionally, N.J.S.A. 9:6-8.21 defines an "abused or neglected child," in pertinent part, as one whose parent or guardian "inflicts or allows to be inflicted . . . physical injury by other than accidental means which causes or creates . . . [a] protracted impairment of physical or emotional health[.]"
It is undisputed L.F. entered guilty pleas to three counts of fourth-degree child abuse related to the excessive corporal punishment of her sons. In the face of these convictions, she nonetheless refuses to acknowledge the effect her conduct, including her failure to protect, has had on her children's lives. Given her admissions in the process of entering the pleas, and the cost to her of taking the position - loss of contact with her boys - this refusal is both troubling and puzzling.
Evidence of the abuse or neglect of one child is clearly admissible to prove the abuse or neglect of another - a court is not required to "wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Certainly, the ability to predict "probable future conduct can only be based on past performance . . . . Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody." J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978).
In this case, given the girls' young age and corresponding extreme dependency and vulnerability, it was reasonable for the court to find that L.F.'s conduct posed a risk. She engaged in inappropriate discipline as to her boys; in fact, engaged in conduct which constituted a crime. Furthermore, the evidence introduced during the August 5, 2009 hearing, to the effect that the boys had been sexually abused by L.F.'s father and E.M., suggested an additional risk to the girls. L.F. cannot protect the girls if she is unwilling to acknowledge the existence of a threat to their well-being.
In this case, the Division was only required to establish the requisite proofs by a preponderance of the evidence, a lower standard than that applicable in the guardianship proceeding. Obviously, our affirmance means only that the standard was met in this case, without comment on any future disposition. See N.J. Div. of Youth & Family Servs. v. R.D., ___ N.J. ___, ___ (2011) (slip op. at 43 n.12) (explaining such findings do not carry "preclusive effect" in a subsequent Title 30 proceeding).
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