On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-101-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Guadagno.
In these consolidated appeals, defendants L.G. (Linda)*fn1
and M.G. (Matthew) appeal from the determination by a Family
Part judge that they abused and neglected their four-year-old
daughter, A.G. (Abby) and five-year-old son, D.G. (Danny). The judge
found the children were harmed as the result of witnessing acts of
domestic violence between Linda and Matthew and between Linda and
another man, not a party to this action. We conclude that the evidence
presented was insufficient to support the findings of abuse and
neglect and reverse.
The fact-finding hearing was conducted without testimony and entirely through stipulated Division of Youth and Family Services (DYFS or the Division) records and police reports.
Thus, we glean the facts in this matter solely from those documents.
Linda and Matthew are married but they separated in 2008. Since then, Linda has had custody of both children and lived at various times with her parents; a friend, Brian; and on occasion, with Matthew.
On November 3, 2009, Linda drove to Matthew's home to pick up some personal items. Danny was in school and Abby was with Linda. When Linda went into Matthew's house, she left Abby in the car, strapped in her car seat. Once inside, Linda and Matthew began to argue. Matthew dialed 911 but then hung up. The "abandoned" 911 call was tracked, and Sergeant Mavilla of the Hammonton Police Department responded. When Mavilla arrived at Matthew's home, he observed defendants "exiting the residence yelling and screaming at each other." Mavilla got out of his patrol car and attempted to separate them but they continued to yell profanities at each other until Mavilla threatened to arrest them.
Linda told Mavilla that she and Matthew were arguing over "property" when Matthew spit in her face and she kicked him. Mavilla's report does not indicate that Matthew provided any specifics as to the incident and notes only that he called 911 and claimed to be the victim of domestic violence but refused to apply for a restraining order.
Mavilla arrested both defendants and charged them with simple assault and disorderly conduct. They were taken to the police station along with Abby, and DYFS was notified. Two DYFS Special Response Unit (SPRU) workers came to the police station and, after speaking with Mavilla, interviewed both defendants and Abby. Danny was picked up from school by his maternal grandparents and interviewed by the SPRU workers later in the day.
According to the SPRU worker's report:
Worker asked [Abby] about what happened today with mommy and daddy. She tells worker that mommy punched daddy in the face and that mommy broke glass today and had blood on her fingernails. She tells worker that her mom and dad used "bad words." [Abby] is asked about living with her father. She tells worker that her mom and dad would yell, hit, punch, kick and squish faces with their fingers. Worker is told that they usually stop fighting but sometimes she is scared and goes and hides. She tells worker that she has been pushed down when her mom and dad fight. There are no marks of [sic] bruises on [Abby].
Abby also related several violent physical confrontations between her mother and Brian. After one fight with Brian, her mother punched Brian who "flicked" her back with the result that her mother could not see out of her eye. Abby said that when she does something wrong at Brian's house, she gets sent to the car or locked in her bedroom.
Danny, who was not present during the November 3 incident, told the SPRU workers that he had seen his mom and dad fight and yell at each other. He also stated his mom fought with Brian and they used "bad words."
Linda told the SPRU workers that she and the children had spent the night before the incident with Brian and had gone to Matthew's to get her and the children's belongings. Linda and Matthew began to argue and Matthew snatched a suitcase from her hand, causing her to fall backward. She then kicked her leg up "out of reflex" when Matthew spit in her face.
Matthew was interviewed but the SPRU report does not indicate that he provided any details to the worker about the November 3 incident.*fn2
The DYFS caseworker crafted a safety plan whereby the children would temporarily reside with Linda's parents.
On November 10, 2009, the Division filed an order to show cause, seeking care and supervision of the children. Neither parent appeared and after hearing the testimony of a DYFS caseworker, the court found that both children required care and supervision by DYFS. On December 7, 2009, both parents were notified by letter that DYFS had substantiated neglect against them as to Abby.
A fact-finding hearing was scheduled for May 12, 2010. Initially, neither defendant appeared, prompting the following exchange between the court, the deputy attorney general (DAG), and ...