January 31, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
J.D., DEFENDANT-APPELLANT, AND K.V., DEFENDANT.
IN THE MATTER OF E.V., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-79-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2011
Decided Before Judges A. A. Rodriguez and Ashrafi.
Defendant, J.D., the father of E.V., a girl born in April 1994, appeals from: (1) the July 29, 2010 order finding that he caused E.V. to become an abused and/or neglected child as defined by N.J.S.A. 9:6-8.21; and (2) the August 19, 2010 order denying reconsideration. We affirm.
These are the relevant facts. Defendant had sole custody of E.V. since 2008. E.V.'s mother (K.V.) is not a party to this appeal. In March 2009, defendant sought the Division of Youth and Family Services' (DYFS) assistance, complaining that E.V., who has been diagnosed with bipolar disorder and attention deficit/hyperactivity disorder, was acting out. DYFS referred E.V. to Devereux Behavioral Health Center (Devereux) to address her anger control problem, oppositional defiance to family and authority figures, childhood trauma, and depression. On July 14, 2009, however, defendant removed E.V. from Devereux against the advice of its staff and without authorization from DYFS.
E.V. resumed living with her father.
On November 8, 2009, there was an incident at a park near defendant's residence. Local police informed DYFS that defendant assaulted E.V. and forcibly attempted to remove her from the area. E.V. needed medical attention after the incident and the local police took her to the hospital.
DYFS performed a Dodd*fn1 removal. At a Dodd hearing, defendant explained that, although he had taken his daughter out of Devereux, he had established family counseling at his home, and was sending her to another program, My Father's House, for drug rehabilitation. He was going to Parent's Anonymous. Judge Mary K. White determined that DYFS "needed to take custody of E.V. immediately," and ordered joint treatment for E.V. and defendant.
At a factfinding hearing on the charges of unauthorized removal from Devereux and the park incident, E.V. testified that on November 8, 2009, between 7:00 p.m. and 8:00 p.m., she was with friends at First Beach park near where she lived with her father. After she had been there about an hour, her father arrived.
E.V. testified that when defendant arrived:
I was with a couple of friends and my dad pulled up and my friends and I were in a circle and they kind of huddled me towards the middle of the circle. He said is E.V. there and my friend answered no. He asked it again and before my friend -- as he was saying no, he grabbed me by my hair, threw me on the ground and just started hitting me and, you know, kicking me. My friend -- and we were just, you know, fighting it and then it went to the car as fighting also. He tried getting me in the car. My friends were yelling more at him to stop. He started yelling back at my friend and then like my friend tried to grab his shoulder like to get him off of me and he hit my friend and that's when my friend hit him back. My friends had him on the ground. They called the cops and the cops told them to keep him restrained till the cops got there.
She added that defendant hit her with a closed fist, and he struck her everywhere. Her jaw subsequently hurt on the left side, as well as her head and stomach. Following the incident, E.V. was taken to the hospital, then to the Together Youth Shelter in Glassboro.
DYFS worker Ryan Thornton testified that he interviewed E.V. in the emergency room. She told him that her friends had been gathered around her to protect her, as they were aware of prior incidents between her and defendant. After relating the physical contact, E.V. indicated to Thornton that she thought defendant had been drinking. Thornton noticed redness on the inside of her lip, but could not really see much swelling.
Thornton spoke with defendant, who initially denied any physical contact, but later acknowledged that though he may have inadvertently pulled her hair, he denied punching her. Defendant also initially denied drinking alcohol the day of the incident, and Thornton told him that the responding officer told Thornton that defendant had smelled of alcohol, after which defendant admitted that he could have been drinking some earlier that day.
Defendant testified about removing E.V. from Devereux. According to him, E.V. had been there for three months, but had received only three counseling sessions. Because he had legal custody of her and concluded that the facility was not providing her any services, he signed her out.
A couple of nights before the incident at the park, E.V. had used defendant's cell phone with his permission. Later, defendant received a text from a boy named Matt, which was intended for E.V. In it, Matt inquired whether E.V. could meet him at First Beach with money because he had "tree," which defendant understood to mean marijuana. Defendant "texted" Matt back as E.V. and requested that Matt come to the house to pick her up. When Matt stated there were too many people in the car already, defendant pressed. Matt's response was that "[the marijuana's] really good and I would love to smoke a blunt with you and take you into the woods and make love to you and have a good time."
Defendant testified that on November 8, 2009, he told E.V. to be home by 8:30 p.m. When she failed to do so, around 9:00 p.m. he drove to the park and saw a circle of boys with E.V. in the middle. The boys told him she was not there, and that he should just leave her alone. Defendant testified that, I didn't know what was going on and I didn't care and I said -- I went in there and I said [E.V.], come on, let's go, you're going home and she said no. And I grabbed her by the scruff of the neck and I brought her over to the car and I put her in the car. And she started hitting me and punching me and kicking me and that's when I got hit from behind and thrown on the ground.
He did not hit E.V. at all, let alone with a closed fist. At the point where he was pushing E.V. into the passenger seat from the driver's side, he was hit in the back of the head, fell and was restrained.
At the hearing, defendant denied drinking alcohol before E.V. left for the park. He explained that his admission to Thornton was that he had a cocktail after having left the police station, not before he went to get E.V. at the park.
At the conclusion of the hearing, the judge found from the disputed testimony that DYFS had proven by a preponderance of the evidence that defendant caused E.V. to be an abused or neglected child as defined in N.J.S.A. 9:6-8.21. She made the following findings.
1.[Defendant] did unilaterally decide to remove E.V. from the Devereux House before her treatment was completed, contrary to court order and without an aftercare plan for her. [Defendant] was arrested on old bench warrants shortly after E.V. was removed from Devereux. Consequently, she stayed temporarily with her grandmother while dad was in jail, which interfered with resumption of outpatient drug treatment and counseling for E.V. pursuant to an aftercare plan.
2. The court's analysis of this issue and the Division's proof includes review of the court orders in place which required E.V.'s Devereux placement as necessary to her well being and safety. These orders and the findings upon which they are based are subject to judicial notice.
3. Those prior orders noted E.V.'s need for substance abuse treatment and counseling, as well as the necessity that she live apart from [Defendant] while she received that help, because of demonstrated violence in the home between E.V. and her father, predating this incident, in addition to E.V.'s drug abuse. The risk that an assaultive incident, such as the one which occurred between [Defendant] and E.V. on November 8, 2009 was harm which the court orders of the spring of 2009 for E.V. to participate at Devereux were intended to prevent.
According to the judge, "it was clear that [defendant] consumed alcohol before going" to the park to get E.V. His consumption, combined with strong narcotic medication which he was prescribed for chronic pain and his history of substance abuse, indicated that he should not have consumed any alcohol before interacting with E.V. The judge did not find credible defendant's testimony regarding how the incident occurred or when he had consumed alcohol that day. Despite the mutuality of the fight between defendant and E.V., the judge found that, as the parent, defendant's striking of E.V. "at this public park, leaving visible injury, is assaultive and an act of abuse and/or neglect, unless he acted out of legal necessity (in defense of or protection of E.V. from imminent assault and/or other crime), and/or in self defense." (emphasis omitted).
The judge concluded that defendant's assault of E.V. while under the influence, and his "premature removal of her from Devereux and lack of sustained effort to assure she received equivalent treatment after her program removal, are acts of abuse and neglect under Title 9."
Defendant moved for reconsideration. He argued that the court's findings related to the Devereux removal were not based on evidence adduced at trial. According to defendant, the judge's July 2009 order required Devereux to provide treatment updates and information on E.V.'s care. Defendant argued that Devereux's feedback was inadequate or nonexistent. E.V. had not received a psychological or psychiatric assessment since her admission on May 6, 2009. In fact, she had only met with a counselor individually three times and had two group training sessions.
The judge rejected this argument. She denied defendant's motion for reconsideration for failure to demonstrate that her findings were mistaken.
On appeal, defendant contends that:
THE APPELLATE DIVISION SHOULD REVERSE THE FINDING OF FACT AGAINST THE FATHER THAT HE ABUSED AND NEGLECTED HIS DAUGHTER AS IT WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND THE TRIAL COURT IMPERMISSIBLY EXPANDED THE LEGAL DEFINITION OF CHILD ABUSE AND NEGLECT.
DYFS and the Law Guardian for E.V. urge affirmance as to the park incident. As to defendant's removal of E.V. from Devereux, the Law Guardian agrees with defendant that it did not constitute abuse or neglect, while DYFS would not reach the issue.
We recognize that defendant was facing a difficult situation in attempting to protect and provide guidance to a teenage child with behavioral problems. We need not address the issue of what authority defendant had as a custodial parent to remove his daughter from Devereux without approval of the court because he perceived inadequate treatment. The trial court's findings of abuse at the First Beach park incident are sufficient to sustain its judgment.
Defendant's appeal of that judgment is essentially a challenge to the judge's factual findings and credibility determinations. We reject that challenge and affirm.
Our standard of review is well-settled. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We do not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. N. Bergen Twp., 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).
Moreover, when reviewing the factfinding of a judge in family matters, we "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). In addition, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" Id. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Here, we conclude that the findings of the judge and credibility determinations find support in the proofs. We have no warrant to intervene.