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New Jersey Division of Youth and Family Services v. E.M


October 17, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-l68-09.

Per curiam.



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 found. She therefore issued a supplemental written opinion on March 10, 2011. See R. 2:5-1(b).

In that opinion, she made a series of factual findings based on the evidence she determined to be admissible. The judge found that E.M. attempted to stop D.J. from cutting up her clothing. "[A]fter the altercation started but before anyone was injured, she went downstairs to the kitchen and returned upstairs where the scuffle and struggle continued." She found that the child's statement to the DYFS worker was admissible under N.J.S.A. 9:6-8.46. She concluded that the son was home at the time of the stabbing and he observed the fight and saw his mother cut D.J. She found that D.J.'s initial statement to the police, that he was stabbed, was an excited utterance and admissible in evidence. She further found that Angela Iacona made a spontaneous, excited utterance to Officer Kelly that E.M. stabbed D.J.

With respect to E.M.'s actions, the judge found:

She left the area where [D.J.] was cutting her clothing [and went to] the first floor. She did not bring the child with her to the relative safety of the first floor. She left the child upstairs, and then returned upstairs. She did not attend to him and/or testify she tried to do so. Rather, she resumed the physical altercation. In doing so, she again exposed her son to risk, the risk became reality when the child saw his mother stab [D.J.] causing [D.J.] to bleed profusely.

The judge also concluded that

[E.M.] was demonstrated by the DYFS to be the primary aggressor.

The cutting up of the defendant's clothing did not generate a justified use of a deadly weapon in self defense. The use of the knife created a violent scene and incident which was witnessed by the child, placing him at risk of harm as defined at N.J.S.A. 9:6-8.21.


Title 9, N.J.S.A. 9:6-8.21 to -8.73, defines abuse or neglect as follows:

c. "Abused or neglected child" means a child less than 18 years of age whose parent . . .

(1) inflicts or allows to be inflicted upon such child . . . protracted impairment of physical or emotional health . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof. [N.J.S.A. 9:6-8.21(c).]

At a fact-finding hearing under Title 9, "only competent, material and relevant evidence may be admitted," and the State must prove abuse or neglect by "a preponderance of the evidence." N.J.S.A. 9:6-8.46b. By statute, a child's prior statements concerning the alleged abuse or neglect are admissible, but cannot be the sole basis for a finding of abuse or neglect. "[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46a(4).

Reports prepared by DYFS staff are admissible in evidence pursuant to N.J.R.E. 803(c)(6)(business records) and N.J.R.E. 801(d) ("business" includes a government agency). R. 5:12-4(d). See N.J. Div. Youth and Family Servs. V. M.C. III, 201 N.J. 328, 346-47 (2010); In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). The parties may also stipulate or otherwise consent to the admission of evidence that would otherwise be inadmissible and, having done so, are generally precluded by the doctrine of invited error from taking a contrary position on appeal. M.C. III, supra, 201 N.J. at 341-42.

It is not our role to second-guess a trial judge's evidentiary rulings. We will only disturb those decisions if they constitute an abuse of discretion. State v. Buda, 195 N.J. 278, 294 (2008); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We are also bound by the judge's factual findings, so long as they are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

The factual findings which undergird a judgment in such a case should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and should be upheld whenever they are "supported by adequate, substantial and credible evidence." [Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 483-84 (1974)).]

We consider E.M.'s appellate contentions in light of this well-established law. E.M. first argues that there was no legally admissible evidence that the child was present during the stabbing incident. She contends that Pappas, the DYFS investigator who testified at the hearing, did not interview the child and DYFS did not introduce in evidence the report of the investigator who did interview him. We find this argument unpersuasive.

At the hearing, Pappas explained that her role was to create one report which was a compendium of the reports prepared by each of the investigators who had interviewed the witnesses. The DYFS attorney represented that all of those underlying reports had been provided to E.M.'s counsel, and he did not disagree. The judge permitted DYFS to introduce Pappas' report in evidence as a business record, reasoning that Pappas' report essentially "cut and pasted" all of the other investigators' reports into one document and if her compendium was somehow inaccurate, E.M.'s attorney could cross-examine her on that inaccuracy. We find no error in the judge's evidentiary ruling.

Title 9 specifically provides that the agency's records are admissible in an abuse and neglect hearing: (3) any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.

[N.J.S.A. 9:6-8.46a(3).]

This section further provides that the preparer's personal knowledge may affect the weight of the evidence but not its admissibility:

All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility. [Ibid.]

Finally, an admissible business record may include a statement contained in a writing created "from information supplied by" a person with first-hand knowledge. N.J.R.E. 803(c)(6).

Here, E.M.'s attorney had an opportunity to cross-examine Pappas concerning whether she had accurately transcribed the original investigator's report into her own report. Or, if he found he did not have copies of the original investigator's notes, he could have brought that to the judge's attention. He did not. The evidence was admissible, and E.M. had a fair opportunity to challenge its accuracy. If her attorney chose, for whatever reason, not to cross-examine her based on the investigator's original notes, that is not a basis for argument on this appeal. M.C. III, supra, 201 N.J. at 342. It was for the judge to decide what weight to give the evidence. N.J.S.A. 9:6-8.46a(3).

We likewise find no merit in E.M.'s argument that the judge erred in admitting Iacona's and D.J.'s statements as excited utterances. N.J.R.E. 803(c)(2). Again, in reviewing the judge's evidentiary rulings, we are not deciding whether she could possibly have reached different conclusions, or whether we would have ruled differently if we had made those decisions at the trial level. We owe "substantial deference" to the judge's decisions, and we will only disturb them if they were an abuse of discretion. Benevenga, supra, 325 N.J. Super. at 32 (citation omitted); State v. Buda, supra, 195 N.J. at 294. In this case, the judge made a careful and deliberate evaluation of each statement, required DYFS to lay a foundation before deciding to admit the statements in evidence, and gave cogent reasons for admitting the evidence. We find no abuse of discretion in her rulings.

As the Court reaffirmed in Buda,

"[t]he essential elements of an excited utterance are 1) 'a statement relating to a startling event or condition;' 2) 'made while the declarant was under the stress of excitement caused by the event or condition;' and 3) 'without opportunity to deliberate or fabricate.'" [Id. at 295-96 (quoting State v. Branch, 182 N.J. 338, 365 (2005).]

The element of continuing stress or excitement is crucial:

[T]he crucial element is the presence of a continuing state of excitement that contraindicates fabrication and provides trust-worthiness. Thus, in this fact-sensitive analysis, a court must determine whether the facts and circumstances reasonably warrant the inference that declarant was still under the stress of excitement caused by the event. [Id. at 293 (quoting State v. Cotto, 182 N.J. 316, 327-28 (2005).]

Iacona's statement, "[s]he stabbed him," was made spontaneously to the first responding police officer, shortly after the incident, when the witness was exhibiting clear signs of being excited and under the stress of the event. The witness's later recantation, following a telephone conversation with her friend E.M., goes to the weight, not the admissibility, of her statement. Id. at 297-98 (affirming admissibility of child's statement that his father beat him, even though the child also said that he fell out of bed and nobody beat him). Likewise, we find no abuse of discretion in the judge's decision that D.J.'s statement, made soon after the assault, when he was still bleeding heavily and woozy from the effects of the wound, met the standard for an excited utterance. Id. at 296-98.

Next, E.M. argues that the child's statement should not have been admitted in evidence because it was uncorroborated. That argument evinces a misperception of the law. A child's statement is admissible, under N.J.S.A. 9:6-8.46a(4). However, somewhat akin to the residuum rule in administrative hearings, the judge cannot base a finding of abuse or neglect solely on the child's uncorroborated statement. N.J. Div. of Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). See Weston v. State, 60 N.J. 36, 51 (1972) (hearsay is admissible in administrative hearings but factual findings require a residuum of legally competent evidence).

Further, the corroboration required by the statute need not be "direct" or "offender specific." Z.P.R., supra, 351 N.J. Super. at 435. The corroboration may consist of circumstantial evidence making it more likely that the child's statement is true. "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Id. at 436. For example, in a case involving alleged child sexual abuse, evidence of the child's "age-inappropriate sexual behavior" could constitute corroboration. Ibid.

In this case, there was corroboration for the court's findings, beyond the child's statements. E.M. admitted that she and D.J. were fighting. She also admitted that she stabbed D.J. with a knife, although she claimed it happened in self-defense. The excited utterances of Iacona and D.J. also provided corroboration that E.M. "cut" D.J. with a knife. Thus, on the same day that the incident occurred, the child was able to describe what he saw, and the details he related were consistent with admissible evidence. That was sufficient to support an inference that he was present during the incident.

In light of the entire record, we also reject E.M.'s argument that the judge's decision was not based on substantial credible evidence. To the contrary, the child's statement, the excited utterances by Iacona and D.J., and E.M.'s admission that she stabbed D.J., support the judge's findings. Officer Kelly's testimony as to his own observations also support the judge's decision.

On cross-examination, Officer Kelly testified 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." Defense counsel, whose question elicited this testimony, did not ask that it be stricken as non-responsive or disregarded as hearsay. See M.C. III, supra, 201 N.J. 340 (invited error doctrine precludes challenge on appeal to evidence presented without objection at trial). There was also evidence, in the form of Officer Kelly's personal observation of D.J.'s wounds, to support a conclusion that E.M. was not acting in self-defense but rather swung the knife at D.J., producing a series of triangular cuts on his stomach, and then stabbed him in the leg.

We also note that E.M.'s testimony actually supports the reliability of Iacona's excited utterance to Kelly and undermines the trustworthiness of Iacona's later statement that she did not know what happened. According to E.M., Iacona was physically present in the room during the domestic violence incident. Therefore, Iacona was in a position to witness the stabbing.

Finally, although specific credibility determinations would have been helpful, we can readily infer from the judge's factual findings, as set forth in her opinion, that she did not find E.M. to be a credible witness. We cannot fault that conclusion. Even on a cold record, E.M.'s story, that she was acting in self-defense, does not carry the ring of truth. The extent and placement of D.J.'s wounds belies her initial explanation to the police that she accidentally stabbed D.J. once in self-defense, and her trial testimony that D.J. stabbed himself during the struggle.

Finally, we find no error in the judge's conclusion that E.M. failed to "exercise a minimum degree of care" to protect her son from the "substantial risk" of serious physical and emotional harm. N.J.S.A. 9:6-8.21(c)4). She engaged in a physical altercation with D.J. in the child's presence, culminating in her stabbing D.J. with a knife in front of the child. Contrary to her appellate argument, DYFS did not need to prove that the child actually incurred physical or emotional injury. G.S. v. Dep't of Human Services, 157 N.J. 161 (1999). Moreover, E.M. placed winning the argument with D.J., or protecting her clothing from destruction, above her child's safety and well-being. Her conduct was "grossly and wantonly negligent." Id. at 178.

Defendant's reliance on New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), is misplaced. In that case, DYFS sought a finding of abuse and neglect against the child's mother, who was the victim of domestic violence. As the court stated:

At issue is whether, under the facts of this case, a battered wife can be found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked by his father and because, after the attack, the wife initially sought to remain in the violent relationship. [Id. at 15.]

In that context, the court declined to presume that witnessing domestic violence put the child at risk of harm:

We thus cannot assume (as did DYFS and the family court judge) that the present case was one in which witnessing domestic abuse had a present or potential negative effect on the child sufficient to warrant a finding of abuse against appellant-the battered victim. [Id. at 26.]

In this case, the judge found that E.M. was the aggressor, who not only perpetrated domestic violence in the child's presence but did so with a deadly weapon. Further, unlike the innocent battered spouse in S.S., who made significant attempts to protect her child by retreating with him behind a locked door, E.M. sought out the conflict by going back downstairs for a weapon. See id. at 24 (the court should focus separately on the conduct of the violent spouse and the battered spouse). In addition to the potential for emotional harm from seeing E.M. stabbing D.J., the child could have been physically injured in the "cross-fire" between these two battling adults, one of whom was armed.


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