April 5, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF N.B., A MINOR.*FN1
On appeal from the Chancery Division, Family Part, Hudson County, Docket No. FN-09-246-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012 --
Before Judges A.A. Rodriguez and Ashrafi.
Appellant challenges the finding against her of abuse or neglect towards her then seventeen-year-old daughter, N.B. We reverse.
It is undisputed that on January 15, 2010, there was a physical altercation between appellant and her daughter. This resulted in Daughter being treated at the Jersey City Medical Center. The hospital staff contacted the Division of Youth and Family Services (DYFS).
DYFS conducted an investigation and filed a notice of emergency removal of Daughter and her two-month-old son, Z.B., from the custody of Appellant.
Five days after the incident, there was a hearing to review the temporary removal. Tiffany Meredith, a DYFS caseworker, testified regarding her interviews with three people who witnessed the altercation: Appellant, Daughter and appellant's boyfriend, W.W. According to Meredith's testimony, Daughter was staying at Appellant's house with Z.B. At around 1:00 a.m. on January 15, 2010, Daughter was on the computer. Appellant, awakened by Z.B.'s crying, told Daughter to get off and go tend to Z.B. Daughter did not comply. Appellant returned, reached down, unplugged the computer and reiterated her demand. The argument then escalated into blows. Daughter claimed that Appellant was holding Z.B. while the physical altercation occurred.
W.W. told Meredith that Daughter had attacked him with a butcher knife which left some scratches on his arm. After W.W. subdued Daughter, Appellant called the police, who took Daughter to Jersey City Medical Center.
Meredith's report, which was submitted into evidence, noted that hospital staff reported bruising and swelling around Daughter's left eye. According to Meredith, when she responded to the hospital, Daughter's "left eye was swollen, slightly swollen."
After Daughter was discharged, Meredith spoke to Appellant, who reported being fearful of Daughter's return. She did not want Daughter to return to her home because of Daughter's knife attack against W.W.
On July 12, 2010, there was a fact-finding hearing at which Meredith testified consistent with her prior testimony. Daughter did not testify.
Appellant testified that she was in bed on January 15, 2010. At around 1:00 a.m., Z.B., who was sleeping in the bed with her, began to cry because it was his feeding time. When she brought him to Daughter, Daughter placed him in a swing next to the computer and gave him a pacifier. Appellant went back to bed. She came back out when Z.B.'s crying continued. Appellant unplugged the computer. Daughter became upset and swung her fists at Appellant, who was hit in the shoulder/face area. Appellant was scared because Daughter is strong. Appellant was physically hurt when Daughter struck her. Z.B. remained in the swing during this time. W.W. came out to try to separate the two. He pushed Daughter towards the kitchen. Daughter threw a plastic chair at W.W. and Appellant.
Then Daughter came running out of the kitchen with a knife. W.W. picked up the plastic chair and tried to hold her back with it. Daughter cut both W.W. and Appellant on their arms with the knife. W.W. struggled with Daughter and sat on her. Appellant called the police.
When the police arrived, a neighbor took Z.B. into her apartment. Appellant was sure that Z.B. was in the swing the entire time, because Z.B. was screaming. Appellant wanted Daughter arrested, and was surprised that the police only brought her to the hospital.
On cross-examination, Appellant admitted striking Daughter in the course of the fight. She reiterated that Z.B. was in the swing the entire time. She admitted she had been drinking that evening. When questioned about Daughter's injury, Appellant stated:
I didn't see no injury. I saw [Daughter] that next day when Tiffany [Meredith] brought her to my house. If you all say it's an injury, yes, I'm responsible. But I fought her back. She's strong.
In her closing statement, the law guardian argued against a finding of abuse or neglect because this was a fight between a mother and daughter in which both were equal combatants. Further, the more credible testimony regarding Z.B. was that he was placed in the swing the entire time, as it would be difficult for events to have played out with Appellant holding Z.B., as Meredith testified.
The judge found that it was irrelevant who threw the first punch, as Appellant "was the adult on site." As the adult, she was obligated not to allow the argument to escalate to physical violence, especially with her grandchild so close by. Accordingly, the judge made a finding of abuse and neglect against Appellant. The judge found by a preponderance of the evidence abuse or neglect of Daughter by Appellant through physical harm causing injury to Daughter's eye.
Appellant now challenges the finding of abuse or neglect against her, contending that the judge's "decision must be reversed because there was insufficient evidence to find abuse and neglect." Appellant also contends that her "name must be removed from the Central Registry of Abuse/Neglect Perpetrators." DYFS urges affirmance; and the Law Guardian for Daughter urges reversal.
Appellant argues that the State presented inadequate evidence to allow the trial court to make a finding of abuse or neglect against Appellant. The finding was "based solely on the testimony of one Division caseworker and documentary evidence that included only emergency removal letters, a Special Response Unit report and the same caseworker's investigation report." We agree.
The law guardian agrees that the abuse and neglect finding should be reversed because of the altercation's mutuality, and the lack of medical evidence of injury; Daughter maintains her eye injury was caused by W.W., not Appellant.
N.J.S.A. 9:6-8.21(c) provides a variety of definitions of conduct by a parent or guardian against a child less than eighteen-years-old which constitutes abuse or neglect. The definitions potentially applicable to this case are where the parent:
(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ;
(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 or guardian, as herein defined, 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court. [N.J.S.A. 9:6-8.21(c).]
N.J.S.A. 9:6-8.46 provides the evidentiary bases for proving abuse or neglect. Essentially, it may be proved through evidence of injuries to the child which are "of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian . . .[,]" and through a written or photographic record memorializing 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," subject to slightly lessened foundational requirements. Also, "previous 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."
In a fact-finding hearing for an abuse or neglect case, a judge's role is "to determine whether the child is an abused or neglected child as defined herein." N.J.S.A. 9:6-8.44; N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). DYFS must prove its case by a preponderance of the evidence through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b). Where a judge makes findings that are "based on unspecified allegations, hearsay statements, [or] unidentified documents," the twin purposes of the statute are imperiled: "(1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, commensurately, (2) that no parent should lose custody of his/her child without just cause." J.Y., supra, at 265. Therefore, the judge's finding of abuse or neglect must have a solid basis of reliable competent evidence. See N.J.S.A. 9:6-8.46; R. 5:12-4(d). N.J.S.A. 9:6-8.50 requires that the findings be made on the record, and articulated with particularity. See J.Y., supra, at 265.
"[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." G.S. v. Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999). Rule 5:12-4(d) allows DYFS "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants," and provides that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." We have held that this rule allows admission of such evidence "only if it satisfies the prerequisites for admissibility set forth in N.J.R.E. 803(c)(6)," the business records exception to the hearsay ban. N.J. Div. of Youth and Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010).
Applying that standard here, we conclude that the finding of abuse and neglect must be reversed. We reject on legal grounds the judge's finding that Appellant abused or neglected Daughter because Appellant was the adult and was obligated not to allow the argument to escalate to physical violence, especially with her grandchild so close by.
Appellant's testimony was undisputed that she was first assaulted by Daughter and she acted in self-defense. The testimony clearly established that the daughter assaulted W.W. with a kitchen knife. This attack was unprovoked. All Appellant did was unplug the computer.
This testimony was undisputed because Daughter did not testify at the fact-finding hearing. Rather, the only contrary version of events, and the only one from which an abuse or neglect finding could have been based, came from Meredith's account of what Daughter told her had happened. Although Title 9 and the applicable court rules make such statements admissible, the lack of corroborative testimony from Daughter made Meredith's testimony alone an insufficient evidentiary basis for the judge to have made an abuse or neglect finding under these facts. N.J.S.A. 9:6-8.46(a)(4).
We also note that Daughter, who was born on November 16, 1992, was, at the time of the incident, close to adulthood and already a mother herself. Although Daughter is a child within the meaning of Title 9, her maturity and life experience permits her conduct in this occasion to be judged against the standard of conduct of a young adult. Clearly, she was the aggressor and Appellant was the object of Daughter's assault.
Thus, we conclude that the evidence presented at the fact finding hearing was insufficient to support the finding of abuse or neglect. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).