January 23, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF A.M.R., M.F.R. AND A.A.R., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-377-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Payne, Simonelli and Hayden.
Defendant, A.R., the father of minor children A.A.R., born in 1992, and fraternal twins, A.M.R. and M.F.R., born in 1994, appeals from an order of the Family Part, entered on August 20, 2008 following a fact finding hearing, determining by a preponderance of the evidence that A.R. abused or neglected his children, in that he refused to permit A.A.R. to return home,*fn1
failed to ensure that the children were attending school and used excessive corporal punishment on the children, thereby placing the children at significant risk of harm.
On appeal, A.R. raises the following issues:
POINT I THERE DID NOT EXIST SUBSTANTIAL, CREDIBLE EVIDENCE SUPPORTING THE JUDGE'S FINDING OF NEGLECT AND ABUSE BY A PREPONDERANCE OF EVIDENCE AND THE TRIAL COURT DID NOT PROPERLY APPLY THE LAW TO ITS FINDING OF FACTS. POINT II THE TRIAL JUDGE ERRED BY RELYING ON SCHOOL RECORDS WHICH WERE NOT PROPERLY AND TIMELY SUBMITTED BY DYFS INTO EVIDENCE THEREBY DEPRIVING DEFENDANT OF A PROPER DEFENSE. (Not Raised Below.)
A. The School Records Submitted By DYFS As P-4 Were Not Properly Submitted Into Evidence As A DYFS Record Or Pursuant To The Business Record Exception To The Hearsay Requirement.
B. The School Records Submitted By DYFS As P-4 Were Not Properly Submitted Into Evidence Pursuant To The Business Record Exception To The Hearsay Requirement.
C. The Judge Erred By Considering The School Records In H[er] Decision As They Were Not Properly Admitted Into Evidence.
POINT III THE UNTIMELY SUBMISSION OF SCHOOL RECORDS BY DYFS DEPRIVED DEFENDANT [OF] HIS RIGHT TO CROSS EXAMINATION AND DUE PROCESS. (Not Raised Below.)
POINT IV THE FACTS IN THE RECORD DO NOT SUPPORT THE JUDGE'S FINDING OF EDUCATIONAL NEGLECT.
POINT V A.R. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL DID NOT OBJECT TO THE SCHOOL RECORDS' UNTIMELY SUBMISSION. (Not Raised Below.)
Legal proceedings in this matter commenced on April 25, 2008, when the Division of Youth and Family Services (DYFS or the Division) filed a verified complaint and order to show cause against appellant A.R. and his wife, T.C.,*fn2 pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, seeking custody of minor children A.M.R. and M.F.R. A hearing on the order to show cause was held on May 1, 2008, at which time testimony was offered by Nichole Govan,*fn3 a DYFS employee assigned to work with A.R. and his family. Govan attested to the truth of the verified complaint and testified additionally that, at the time, M.F.R., a daughter, was in the custody of a paternal aunt, having been left by her father at the apartment of a woman in Newark who subsequently determined she did not wish to care for the child and dropped her off at the home of the aunt. A.M.R. remained in his father's custody, but had not attended school since April 7, 2008 and had multiple prior absences. A.A.R., the eldest son, had been taken into the custody of DYFS after another paternal sister had filed a family in crisis petition.
Govan testified that the complaint was filed after M.F.R. had called her from a friend's house, stating that she was hiding there out of fear of her father. The police were called. Although they reported that "everything was fine," shortly thereafter, M.F.R. was taken out of school by her father and could not be located by DYFS. Further, when calls by Govan to A.R.'s residence were answered by A.M.R., he refused to disclose to her why he was not in school or where his sister was located. When Govan finally was able to reach A.R., he stated that he was planning to move to North Jersey, where he had enrolled his daughter in an East Orange school. However, A.R. refused to give a residence address, and calls to East Orange schools failed to disclose M.F.R.'s enrollment there. A.R., who had tested positive for marijuana, had declined treatment. At the conclusion of the hearing, custody of A.M.R. and M.F.R was given to DYFS.
An amended complaint was filed on May 22, 2008 to include the third child, A.A.R. At a further order to show cause hearing, counsel for DYFS reported to the court that M.F.R. remained with her paternal aunt. A.M.R. had been placed in a Therapeutic Live-in Care (TLC) shelter,*fn4 and A.A.R., who had emotional problems, was in a residential placement. A.R. continued to refuse services. A fact finding hearing was scheduled.
The fact finding hearing in the matter was commenced on July 10, 2008, continued on July 30, 2008 and concluded on August 20, 2008. A.R. was the only witness to testify at the hearing. In support of its case, DYFS relied on contact sheets dated February 11 to April 24, 2008, psychological evaluations of A.A.R. and A.R. by Meryl E. Udell, Psy.D. and middle school records admitted without objection after the hearing had ended, but before closing arguments.
DYFS contact sheets dated February 11, 2008 contained Govan's report that custody of A.A.R. was granted to DYFS by the court after A.R. stated that he wished to relinquish parental rights, that he did not want his son, and that the son could not come home. A.A.R. was signed out of school by Govan and taken to a Camden shelter. Later records report A.R. stating that A.A.R. was a "demon" and a "bad seed"*fn5 and that his sister, M.F.R., who also had behavioral problems, was "evil."
On March 4, 2008, A.A.R. disclosed that, while talking on the telephone to his aunt, he overheard M.F.R. yelling at A.R. to stop punching her in the head. A.A.R. stated that he could hear his father striking A.A.R.'s two younger siblings, and he asked Govan to check on them. However, when Govan visited the home, she could find no visible signs of abuse on either child, and the occurrence of such abuse was denied by both. They stated that A.R. had been upset by the size of a cell phone bill, had yelled at them and had taken away their cell phone privileges, but had not hit them. The children and A.R. concurred in stating that A.A.R. simply sought to cause trouble for his father.
Records indicate that on April 8, 2008, Govan was informed by a paternal aunt that A.R. had taken M.F.R. out of school and moved her in "with some woman up North." At the same time, Govan was informed by TSA mentoring services that A.R. had declared the provision of such services unnecessary for M.F.R. since she was living in North Jersey with a friend. As previously stated, in a call to the home on April 9, 2008, A.M.R. refused to answer questions as to why he was out of school or where his sister was located, referring such questions to A.R.
On April 11, 2008, the East Orange office of DYFS confirmed that A.M.R. was residing in the city, and on April 16, Govan learned that M.F.R. had been signed out from her prior school on March 11.*fn6 However, on April 21, 2008, Govan was unable to locate M.F.R. as an enrolled pupil in the East Orange school system, although her enrollment on that day was later shown to have occurred. A.R. refused to disclose where M.F.R. was staying, stating that he did not wish DYFS interfering with his life when he moved to North Jersey.
On April 24, 2008, Govan met with the sister of A.R. who was caring for M.F.R. at her home in East Orange. The sister stated that A.R. had dropped off M.F.R. at the house of a friend in Newark who was unknown to the sister. When the friend determined not to care for M.F.R. any longer, she brought the child to the sister's house with little clothing and few school supplies. The sister reported that she and her mother had previously cared for all three of the children until the death of the mother. During that period, the children did not display any behavioral problems. She stated that the children's lives were "ruined" after they were returned to A.R.'s custody.
The sister confirmed A.A.R.'s report that A.R. had punched the two younger children following the cell phone bill incident. She stated that she was afraid of A.R., who had driven his wife to drinking, beaten her and had knocked out all of her teeth, causing her to leave the home.
In addition to speaking to the sister, Govan spoke to M.F.R., who said that her father had dropped her off at an old girlfriend's house after M.F.R. had been suspended from school for fighting. She was not enrolled in school thereafter, and missed approximately one month of education. Upon further questioning, M.F.R. admitted that her father beat her and A.M.R. as the result of the cell phone incident, and that A.R. would beat A.A.R. and A.M.R. often. M.F.R. stated that her father would hit the children with broom sticks or anything he could get his hands on over "little things," such as A.M.R.'s inability to find his socks. She stated that A.R. treated all three as his personal slaves. Additionally, she stated that most of what A.A.R. had reported regarding A.R.'s conduct was true, and that he wasn't crazy, as her father portrayed him to be. She also confirmed that A.R. had head butted M.F.R.'s mother, causing her to fall down the steps and lose consciousness. M.F.R. stated that she wished to remain with her aunt.
In addition to the contact sheets, DYFS offered into evidence the reports of examinations of A.A.R. and A.R. by Dr. Udell. Dr. Udell issued a report, dated March 4, 2008, regarding A.A.R., who at the time was approximately fifteen and one-half years of age. A.A.R. stated to the psychologist that he had been admitted to the Child and Adolescent Psychiatry Unit at Kennedy Memorial Hospital for nine days as the result of "thoughts of wanting to kill his father after his father tried to convince him to kill himself." He had a history of anger management problems when disrespected. In one incident, he punched two holes in a wall in angry reaction to his mother's denial to DYFS that his father had abused him.
A.A.R. reported that his parents separated because "[his] father used to beat on [his] mother and us, but mainly us." At one point, his mother had escaped from the home in Detroit with the children, going first to New Jersey and then to Georgia. However, A.R. retrieved A.A.R. and placed him with his paternal grandmother, where he remained for three or four years before returning to his father in Detroit. Thereafter, he again lived with his grandmother, in a shelter, and then in a residence in an undesirable location for children in South Jersey.
A.A.R. stated that his father used to take him to work with him, and as a result, he missed too many days of school - in excess of forty-five - and failed ninth grade. His father wanted him to learn a trade, rather than attend school. At the conclusion of the evaluation, the doctor recommended A.A.R.'s placement in a residential treatment facility, individual therapy, and as the result of admitted use of marijuana, random drug screens, with treatment if any of the screens were positive.
In a report, dated July 14, 2008, regarding her evaluation of A.R., Dr. Udell reported that A.R. had admitted that he hit his children with a belt. However, he stated that he ceased when he found out such punishment was prohibited. He denied that the beatings had ever left marks or caused bleeding.
With respect to schooling, A.R. stated that he had kept M.F.R. out of school after her fight with another student to permit scratches on her face to heal. He admitted that he took his son A.A.R. to work with him, but stated that he did so only if the son missed the school bus.
A.R. confirmed that he smoked marijuana, and that he had been arrested and placed on probation for marijuana possession in 1990. He had not attended substance abuse treatment. Testing disclosed that A.R. suffered from "unmanageable levels of stress related to parenting or parent-child interactions." Additionally, there was stress of "clinical significance" on Parent-Child Dysfunctional Interaction and Difficult Child subscales. A.R.'s overall Stress Index was also clinically significant. The doctor recommended that A.R. complete substance abuse treatment, undergo random drug screens, engage in family and individual therapy, and participate in reunification with A.M.R. if visits with him went well.
As stated, A.R. testified on his own behalf at the fact finding hearing. His testimony was frequently non-responsive, rambling and contradictory. Nonetheless, he did admit to administering corporal punishment to all three of his children before he learned that such punishment was improper. With respect to A.M.R., A.R. testified on direct examination:
Yes, I've spanked [A.M.R.] and also before I knew about the belt situation, I - I whipped him with a belt.
You know and then once I found out from the worker, because you know, no public address went out, or, you know, nothing, billboards, or none [of] that, because I came up in the belt culture.
You know, and our parents they didn't hit you in the head, or nothing like that, they spanked you on your legs or your behind, and that's was all it was, and then you did what they say [to] do.
When asked whether the punishment had left marks, A.R. responded:
Did I leave marks on him? You can - I'm not saying that I left marks for life on him or anything like that, but you know, I can't say that it might not have been a mark or nothing, you know on him, but I wasn't trying to - to hurt my kids.
With respect to the cell phone incident, A.R. admitted on direct examination to having "popped my daughter on the head with - with two fingers" and on cross examination to having hit both A.M.R. and M.F.R. with two fingers, because he had been told that he could not use a belt. He, a 315-pound man, admitted that his actions "possibly could" have caused welts, but he noted that on the following day, Govan had found no marks. He also admitted that, after M.F.R. was disciplined in school for fighting, he had threatened to "tear [her] up," by which he meant to spank her. In response, M.F.R. had fled the house and called the police.
A.R. also admitted on direct examination that the sister with whom A.A.R. had temporarily stayed, together with A.A.R., had obtained a restraining order against him.*fn7 Although A.R.'s description of domestic violence with his wife differed from that reported by the children, he admitted that as a result, the police "helped to get her out of my apartment."
On cross-examination by DYFS, A.R. again admitted that he had spanked the kids. He testified:
Yeah, I agree to that, because like I said, I came up in a culture of belts, and when my family - my mother and father whipped me with belts, you know what I'm saying, and I thank them to th[is] day that they did it, because it made me a better person because the law could be whipping me down right now.
A.R. stated that: "None of my kids have ever got anything worser than the next." A.R.'s "thing" with a belt was "seven strikes."
With respect to schooling, A.R. admitted to taking A.A.R. to work with him two years earlier, stating that he did so at A.A.R.'s request. Additionally, he admitted to taking his son to work when A.A.R. missed the bus, and that A.A.R. habitually missed that transportation. A.R. claimed that he could not afford to arrange for his children's transportation to school if they missed their bus, and that he did not own a car. A.R. additionally stated that all children had missed approximately two weeks of school in November 2006 at the time of their grandmother's death. A.R. admitted that A.A.R. had to repeat a school grade, which he said was the eighth, but he professed not to know that A.A.R. had missed more that forty-five days of school that year. A.R. did not accompany his children to the bus stop to insure that they boarded the bus.
With respect to A.M.R., A.R. initially testified that he was an honor roll student until custody was taken by DYFS, and for that reason, A.R. did not need to review his report cards. However, on cross-examination, he admitted that A.M.R. had failed seventh grade in the 2006-07 school year, and thus that he was not on the honor roll at relevant times.
A.R. denied that he had ever been contacted by the school regarding his children's educational performance or absences, but only when the children had been involved in violence. He later testified that school notes and report cards had been intercepted, and that he had found a stash of them in his children's rooms upon moving from South Jersey. However, A.R. admitted to knowing that M.F.R. was doing very poorly in school, and that there had been talk of holding her back for a year. Nonetheless, despite knowing the identity of the school's guidance counselor and his phone number, A.R. had never tried to contact him.
A.R. testified that M.F.R. had a violent streak which had led to the fight with a fellow student on March 11, 2008. A.R. was not adequately able to explain why he had failed to enroll M.F.R. in school in the period from March 11 or 31 to April 21, 2008. As to other unexcused absences, A.R. supposed that his children had failed to go to school without his knowledge, had arrived at school late and had been reported as absent for the day, or had failed to hand in notes providing an excuse for the absence. A.R. was of the opinion that any time lost from school could always be made up later.
Following closing argument, the trial judge rendered an oral opinion in the matter finding the three children to be abused or neglected within the meaning of N.J.S.A. 9:6-8.21. In that regard, the judge relied on A.R.'s admission that he had beaten his children, although he claimed to have stopped doing so when he was informed that it was impermissible. Nonetheless, the judge found his infliction of excessive corporal punishment was grounds for a finding of abuse. With respect to educational neglect, the judge observed:
[A.R.'s] commitment to the education of his children is ephemeral at best. Whether he actively allowed them to miss excessive days of school or passively failed to ensure their attendance is irrelevant. [A.A.R.] missed so many days of school in one year that he was forced to repeat a grade. [A.R.] drove [M.F.R.] to another county, refusing to alert the Division to her whereabouts, and failed to enroll her in a new school for over a month. [A.R.'s] actions caused his children to receive inadequate education for excessive periods of time.
Although the judge noted that A.R. had offered some testimony that was favorable to his position, she noted multiple inconsistencies in his testimony and a lack of corroboration to testimony that he had closely followed M.F.R.'s progress through a "paper trail." She thus found A.R.'s testimony to lack credibility.
Following a series of compliance hearings, on December 6, 2010, a final order terminating the litigation was entered after A.M.R. and M.F.R. had been returned to the legal and physical custody of A.R. and the conditions leading to their removal had been remediated. A.A.R., who was over the age of eighteen at the time the litigation was terminated, lives independently.
N.J.S.A. 9:6-8.21c defines an abused or neglected child, in relevant part, as
(4) . . . 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 or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . education . . . though financially able to do so or though offered financial or other reasonable means to do so, or (b) . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment
In an abuse or neglect case such as this, the Division bears the burden of establishing by a preponderance of the evidence that the children at issue are abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J. Div. of Youth & Family Serv's v. M.C. III, 201 N.J. 328, 343 (2010) (quoting N.J.S.A. 9:6-8.46b). Nonetheless, N.J.S.A. 9:6-8.46a declares admissible as prima facie evidence of its content "any writing . . . 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 . . . public institution or agency . . . 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 . . . [the] public agency . . . ." Moreover, the statute provides that "previous statements made by [a] 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." Ibid.
In a Title 9 proceeding, the culpability of the parent is not the issue. As the Court stated in M.C. III, We explained in G.S. v. Department of Human Services, that "[t]he legislative history of Title 9, precedent and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent. 157 N.J. 161, 176 (1999). We emphasized that "whether the [parent or] guardian intended to harm the child is irrelevant[,]" ibid., and that when "a parent or guardian commits an intentional act that has unintended consequences, that action is considered 'other than accidental' within the meaning of Title 9." Ibid. Because the primary focus is the protection of children, "the culpability of parental conduct" is not relevant. Id. at 177. [M.C. III, supra, 201 N.J. at 344.]
On appeal, A.R. argues that the evidence adduced at the fact finding hearing was insufficient to support the Family Part judge's conclusion that he had inflicted excessive corporal punishment on his children. In this regard, he notes that bruising was never detected by the Division, he argues that the allegations of abuse by A.A.R. and M.F.R. were insufficient or not credible, and he asserts the children's allegations were not corroborated. Further, A.R. claims that his testimony with respect to the absence of any intent to harm the children and his willingness to change his methods of punishment provided evidence that his conduct was not excessive. We disagree.
At the fact finding hearing, defendant admitted that he then weighed a slimmed-down 315 pounds, that he hit his children with a belt equally, and when he did so, he administered seven lashes, thus corroborating A.A.R.'s and M.F.R.'s statements with respect to the administration of corporal punishment. Although A.R. stated that he never inflicted permanent injury, he did not deny that temporary injuries occurred. Further, although he testified that he ceased such punishments when told that they were impermissible, he was still administering or threatening to administer them at the time that M.F.R. was suspended from school as the result of instigating a fight - approximately one month before this action was instituted. The record thus reflects a sustained course of conduct, not an isolated incident arising from excessive frustration. Compare, Dep't of Children & Families, Div. of Youth & Family Serv's v. K.A., 413 N.J. Super. 504 (App. Div.) (finding a single act of violence, leaving bruises, was not improper or unreasonable in the aggravated circumstances presented), certif. granted, 204 N.J. 40 (2010), certif. dismissed, 208 N.J. 355 (2011).
We recognize that "[t]he law does not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment. The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case." State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). Further, in this case, the absence of an injury such as enumerated in N.J.A.C. 10:129-2.2 precludes a finding of excessive corporal punishment, per se. K.A., supra, 413 N.J. Super. at 512. However, in light of evidence of A.R.'s size, his admission to habitually inflicting seven lashes with a belt as punishment on all of his children, and his inability to rule out injury to them, we find sufficient credible factual support for the judge's determination that the punishment was excessive and abuse thus occurred. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences of those acts, the law may hold him responsible. G.S. v. Dept of Human Serv's, Div. of Youth & Family Serv's, 157 N.J. 161, 179 (1999).
We likewise find adequate support for the judge's determination that A.R. committed educational neglect. We reject his contention that the judge erred in relying on unauthenticated school records pertaining to A.A.R. and M.F.R., supplied to her just prior to closing arguments. The record discloses that, at the conclusion of the case, counsel for the Division sought additional time to procure these school records and to introduce them as P-4 in evidence. In response to the judge's inquiry, counsel for A.R. stated that she had no objection to that proposal. Similarly, the law guardian declined to object. Further, A.R.'s counsel interposed no objection when the content of the records was discussed by the Division's counsel during closing argument. In very similar circumstances, the Supreme Court has rejected arguments on appeal against the admission of evidence, consisting of a screening summary and other documents, that had been introduced into evidence at the fact finding hearing by consent, holding that such arguments were barred by the doctrine of invited error. M.C. III, supra, 201 N.J. 340-42. As the Court stated there:
The record is clear that defendant consented to the admission of the relevant documents. . . . Importantly, by consenting to the admission of the documents, defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides. That is, if defense counsel had objected to the Screening Summary and other documents, and the trial court agreed with those objections, the Division could have taken steps to satisfy any evidentiary requirements needed for the admission of the documents or presented a witness or witnesses in place of the documents. [Id. at 341.]
Moreover, the Court noted that counsel's willingness to rely on documentary evidence might have reflected a strategic decision designed to avoid the impact of live testimony, and that it would be unfair for counsel to adopt a different position on appeal. Id. at 342. The Court's observations in both respects are equally applicable here.*fn8
In M.C. III, the Court noted that it would not apply the doctrine of invited error if it were to "cause a fundamental miscarriage of justice." Id. at 342 (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 508 (1996)). However, it found no such injustice to exist. Similarly, we find none here. A.R. admitted that A.A.R. had failed a grade in school, as had A.M.R., and that M.F.R.'s grades were very poor. Additionally, he admitted that A.A.R. "habitually" missed his school bus, and on such occasions, A.R. took the boy to work with him. He also admitted that, because M.F.R.'s grades were poor, the school suggested that she be held back for a year, but that he had never consulted with the school regarding her performance. As a final matter, A.R. admitted that M.F.R. had not been enrolled in school for a significant period in the spring of 2008, and failed to provide a sufficient explanation for that fact. Thus, there was ample evidence, without consideration of the school records, to support the judge's finding of educational neglect, and we reject A.R.'s argument suggesting that such evidence was lacking.*fn9
As a final matter we reject defendant's challenge to the Division's use of documentary evidence as the sole support for its case. Such evidence was admissible pursuant to N.J.S.A. 9:6-8.46a and b, and was corroborated by A.R.'s own testimony. The evidentiary requirements of Title 9 were thus met.