On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-l68-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Reisner and Hayden.
Defendant E.M. appeals from a Family Part order dated March 31, 2010, finding that she committed child abuse by placing her young son, E.S., at risk of harm.*fn1 In brief summary, on June 10, 2009, E.M. became angry at her former boyfriend because he was cutting up some clothing that he bought for her earlier in the day. The two argued in an upstairs room in E.M.'s residence. She went downstairs, leaving her three-year-old son upstairs.*fn2
She then returned upstairs with a knife and stabbed the former boyfriend in front of the child. The Family Part judge found that E.M. was the aggressor in the incident and that witnessing this violent act placed the child at risk of harm.
On this appeal, E.M. argues that the trial court erred in admitting certain evidence; that the remaining evidence was insufficient to support the court's decision; and that the Division of Youth and Family Services (DYFS) failed to prove that the child suffered emotional harm from witnessing the incident. Based on our review of the record, we find no basis to disturb the trial judge's decision, and we affirm.
This was the most pertinent evidence from the fact-finding hearing, which took place on three days between October 19, 2009 and March 24, 2010. Officer Ryan Kelly testified that he was the first officer on the scene responding to a call reporting a violent incident at a house in Sewell. When he arrived, Angela Iacona came out of the house, breathless and excited. Before allowing Kelly to testify as to what Iacona told him, the judge required the State to establish a further foundation for admission of her statement as an excited utterance. Kelly testified that Iacona "appeared to be very excited," "out of breath", was "whispering" and "talking rapidly," and at first spoke spontaneously instead of in response to questions. Finding this sufficient to establish an excited utterance, the judge permitted Kelly to testify only as to Iacona's initial statement to him.
According to Kelly, when she ran out of the house, "[Iacona] stated, 'She stabbed him; they're both at fault, but she was most at fault,' and she was referring to [E.M.]." In response to Kelly's questions, Iacona told him that E.M. and D.J. had been arguing, that D.J. was "ripping up clothes" with his bare hands, and that E.M. then "'grabbed a knife and stabbed him.'" Kelly confirmed that Iacona made all of these statements during a very brief conversation with him on the front lawn, while she was still "upset."
Kelly also interviewed E.M., who came out of the house "with a towel wrapped around" a deep cut on her finger. He asked her what happened, and she made the following statement:
She said that she had tried to grab a knife out of his [D.J.'s] hand that he was using to cut up clothes, in the process cutting her hand, and as she was pulling the knife out of his hand it ended up in his leg.
After entering the house, Kelly found D.J. upstairs, "sitting in a pool of blood on the bathroom floor," surrounded by "five blood soaked towels . . . all completely full of blood." D.J. looked "woozy" and his speech was slightly slurred. Kelly had D.J. lie on the floor to wait for the "medics" to arrive. He testified that, "[w]hile [D.J.] was on the ground he had said that [E.M.] had stabbed him." In response to an objection from E.M.'s attorney, the judge ruled that D.J.'s statement to Kelly was admissible as an excited utterance. After hearing some additional foundational testimony, the judge also ruled admissible Kelly's testimony that, in the minute or so after he entered the bathroom, the badly-injured D.J. spontaneously told him that "they had been fighting, she was swinging the knife at him and she stabbed him." Kelly also observed that D.J. had a scratch on his chest, "what looked like chips of skin taken out of his stomach," "scratches and abrasions all around his neck," "bruises on his arms," and "a bite mark on his arm." The "chips" on the stomach were in the shape of "perfect triangles" and looked like they had been made with a knife.*fn3
On cross-examination, Kelly admitted that at some later time, Iacona recanted, telling him that she "wasn't sure what happened." The recantation occurred after a phone call between Iacona and E.M. He also testified that E.M. told him that D.J. had choked her and held her up against a wall. He saw a mark on her neck and "red marks" on her arms. In response to cross-examination questions from E.M.'s counsel, Kelly clarified that both D.J. and Iacona told him "that there was a fight between the two of them [E.M. and D.J.], . . . he had pushed her up against the wall, the fight continued, she went downstairs, he started ripping up clothes, and then she came back upstairs with a knife." There was no objection to this testimony, which was elicited by defense counsel. Kelly had no personal knowledge as to whether the three-year-old child was in the house at the time of the stabbing; the child was not there when he arrived.
The State also presented testimony from Krista Pappas, a DYFS intake investigator. She testified to a report prepared by another DYFS worker, who interviewed the child, E.S., on June 10, 2009, the day of the incident. The child told the Division investigator that he "saw" his mother and D.J. fighting and that he "saw" his mother with a knife. When asked what she did with the knife, the child answered, "she cut." The judge ruled that the child's statements were admissible, because they were sufficiently corroborated by other evidence, and that the DYFS report was admissible as the agency's investigation record. The judge also noted that, although the report Pappas prepared was a compendium of reports from other DYFS investigators, the agency had provided all of those individual reports to E.M.'s counsel in discovery. Pappas admitted she had no evidence that the child was "damaged psychologically by [the] incident."
E.M. testified that on June 10, 2009, D.J. came to her house to help bring their daughter to a school party while E.M attended a doctor's appointment. Because D.J. was living in Philadelphia, he spent the previous night at her house so he would be there early in the morning to take the daughter to school. According to E.M., she arrived at the school event after her doctor's appointment. When the adults returned to her house, D.J. went upstairs to take a nap while E.M. stayed downstairs with her son, a friend, and the friend's son. E.M. testified that she heard noise upstairs and, on going up to check on the source, found D.J. destroying her clothing with a knife. When she asked him to stop and get out of her house, he approached her with the knife, started choking her and threw her into a wall. She grabbed the knife, which sliced her finger, and "then when it was being pushed back . . . it hit him in the thigh." According to E.M., Iacona was present in the room and tried to pull D.J. "off of the top of me." E.M. testified that her son was downstairs during this incident.
On March 31, 2010, the judge issued an order finding that E.M. abused or neglected the child "in that [E.M.] stabbed [D.J.] in the presence of the child and was arrested and had untreated substance abuse issues." According to a letter dated March 10, 2010, the judge issued an oral opinion, but after this appeal was filed the audio recording of her opinion could not be ...