May 7, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.G. AND M.G., DEFENDANTS-APPELLANTS. IN THE MATTER OF D.G. AND A.G., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2012 -
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 defense counsel for Matthew (MDC) and Linda (LDC):
DAG: The division is seeking findings against both defendants.
COURT: Okay. But we're here today for a fact-finding, which I understand can't really happen without the parties being present. Correct, or what are we going to do today?
DAG: Generally, Your Honor, the defendants don't show. There's been a change in the where we don't actually seek a default against them, but if they have been appointed attorneys and they have been present in previous proceedings, if their attorneys so agree, we can proceed in their absence.
COURT: Is that how you wish to proceed today?
LDC: Yes, Your Honor.
MDC: Judge, we're prepared to proceed in that manner, if, in fact, we're going to stipulate to the documents and actually argue the law and, and I didn't really want to take testimony without my client here, but I think we've all agreed to stipulate that the documents come in; the Court would review the documents and we'd argue what the law was.
COURT: All right. Counsel, have you - -
Defense Counsel, have you reviewed all these documents, and these are the ones that you are stipulating to?
MDC: Yes, Judge.
LDC: Yes, Your Honor.
All parties agreed to this procedure and the court admitted into evidence Hammonton Township police reports; temporary and final restraining orders; and DYFS records including a screening summary, investigation summary, contact sheets, safety protection plan and substantiation letters. After a recess for the trial judge to review the documents, the attorneys presented closing arguments. During the summation of the deputy attorney general, both defendants appeared in court and the judge took a recess to allow them to confer with their attorneys.
When the hearing resumed, the following exchange took place:
COURT: Counsel has now I believe had an opportunity to speak with their clients. Before we continue with the State's argument, is there anything else that we want to add from your perspectives from your clients since you had made your argument?
MDC: No thank you, Judge.
LDC: No, Your Honor.
Neither defendant moved to reopen the hearing or expressed any objection to the manner in which the hearing had been conducted.
At the conclusion of the hearing, the trial court issued an oral opinion finding DYFS had established by a preponderance of the evidence that Linda and Matthew abused and neglected Abby and Danny. Relying strictly on the documents admitted into evidence, the court found that the incident on November 3, 2009, "was an act of domestic violence that was, at least in part, observed by [Abby]." The court found that "conflicts" between Linda and Matthew and Linda and Brian had harmed Abby:
[T]here are continuing conflicts that exist between [Linda] and both of these gentlemen [Matthew and Brian], at times occurring before the children, at times causing, at least [Abby] to indicate that it makes her scared, and for [Danny], since although he says he's not necessarily fearful he does acknowledge that there are continuing arguments.
As to Danny, the court found:
[A]lthough [Danny] was not present during this particular incident on November 3rd, his statements indicate that he was present on other occasions substantiating [Abby]'s statement as to other incidents that had been observed between [Linda] and [Matthew], as well as, although not as a party to this case, [Linda] and [Brian].
The continuing observations of these matters, although, again he doesn't indicate that he was scared or concerned, him being a year older perhaps from a different perspective, and certainly it appears that he has taken somewhat more of a role in protecting his sister, inasmuch as he did indicate that he had to inform his mother that she had left her in the car, the child in the car on another occasion, seems to indicate that he is aware certainly of certain gaps in responsibilities that might be experienced by his parents as to his sister leads me to believe that he likewise is in a situation where the mother has failed to recognize the full risks that may be imparted on him due to her conduct in the way she cares for the children and in her relationships and arguments with both [Brian] and [Matthew].
The court rejected arguments by both defense counsel that N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), was analogous to these facts:
In S.S. the mother of that, in that case was living in a home with, in a situation that was, where she was a victim of domestic violence; that she had been subjected to repeated acts of severe domestic violence and was in a cycle of abuse;
In this case the facts and circumstances are a bit different.
[Linda] was as much as a participant in acts of aggression as [Matthew] might have been. In that while [Matthew] might have spit on her and perhaps used words, [Linda] also acknowledged that she kicked him which exacerbated the situation and she became an offender as well.
The court concluded:
So in a cumulative sense, I find that the State has maintained and has established its burden of proof that the action of November 3, 2009, as well as other actions between [Linda] and [Matthew] on prior occasions, [Matthew] as well as [Brian], with being arguments and incidents that occurred before the children, do establish that [Abby] has been abused or neglected, in that [Linda] has failed to appreciate the risks that she has put this child in by having these altercations in front of the child.
As far as [Matthew] is concerned, likewise, this particular argument, again, which began in the home but allowed to extend outside of the home and other occasions which have resulted as he's indicated as well, arguments and altercations in the presence of the children does rise to a level, I believe, of abuse and neglect where I'm going to find that in this instance the State likewise has established its burden against [Matthew].
The judge then found that the proof was sufficient to establish that both children were abused and neglected according to the statute.
On appeal, both defendants challenge the sufficiency of the evidence of abuse and neglect. In addition, Matthew argues that the trial court abused its discretion in accepting his trial counsel's stipulation as to the admissibility of the DYFS records.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Factual findings which undergird a trial court's judgment 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."
Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)(quoting In re J.T., supra, 269 N.J. Super. at 188-89). Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Ibid.
N.J.S.A. 9:6-8.21(c), in relevant part, defines an "abused or neglected child" as: 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 . . . 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)(4).]
The fact-finding hearing is a critical element of the abuse and neglect process. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). The Division must prove, by a preponderance of the evidence, that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child.
N.J.S.A. 9:6-8.46. The judge's determination, therefore, must be based on competent reliable evidence. N.J.S.A. 9:6-8.46; R. 5:12-4(d). This critically important part of the business of the Family Part demands meticulous adherence to the rule of law. J.Y., supra, 352 N.J. Super. at 265.
While we recognize that all parties consented to the manner in which
this fact-finding was conducted, there were disputed issues of fact
that could not be resolved by relying on the reports alone.*fn3
As the only evidence presented here consisted of police and
DYFS reports, there was no sworn testimony and thus, no opportunity
for the trial judge to make credibility findings. The many conflicting
statements contained in these documents could not be resolved without
testimony and an opportunity for the court to assess the credibility
of the witnesses. We cite a few examples.
When Mavilla arrived at Matthew's home, he observed both parties coming out of the house yelling and screaming. Any spitting or kicking that may have occurred was not noted in his report and was apparently not witnessed by him. Linda's version of the confrontation given to Mavilla was different than her statement to the SPRU worker, who expressed doubts as to her credibility:
She was extremely dishonest during this interview with [SPRU] worker and each time she was asked a question, she would place all the blame on [Matthew] and state that he is the criminal not her.
While Linda admitted to Mavilla that she intentionally kicked Matthew after he spit in her face, the SPRU worker's report indicates that Linda claimed any contact with Matthew was accidental ("she kicked her leg up out of reflex").
Similarly, Abby's statement, "mommy punched daddy in the face," is inconsistent with any of the versions given by either defendant. Linda claimed that Abby's statement, "mommy broke glass today" was a reference to an incident at Brian's house where a neighbor broke a window with a soccer ball. Linda maintained that the blood Abby referred to came from a cut finger she suffered while cleaning up the glass. Linda adamantly denied the children's reports of domestic violence between her and Brian, yet the trial court apparently disregarded her denials in finding her "conflicts" with Brian contributed to the harm suffered by the children.
The evidence presented here did not permit the trial court to make findings with any semblance of certitude. Faced with multiple inconsistencies, the judge simply repeated the allegations without deciding whether they occurred. When referring to Matthew's conduct, she stated, "allegedly he spits on [Linda]." As to whether Linda fell or was pushed or whether she kicked Matthew intentionally or accidentally, the judge stated, "[Linda] either gets pushed or falls back or intentionally kicks at him."
A trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. Curtis v. Finneran, 83 N.J. 563, 570 (1980). Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Ibid. (quoting Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (App. Div. 1976)). Parents are entitled to full findings of fact and conclusions of law at the fact-finding stage of a proceeding. J.Y., supra, 352 N.J. Super. 260-261. The findings here fail to satisfy the court's obligation to adequately state the grounds for its determination as required by N.J.S.A. 9:6-8.50(d).
Even assuming that acts of domestic violence had occurred as reported, the evidence was insufficient to establish harm to the children and would not support a finding of abuse and neglect. The trial court's finding that Abby had been harmed by witnessing altercations between Linda, Matthew and Brian was speculative and equivocal:
[T]he fact that the child also indicated that she would hide or cower or somehow try to remove herself from the situation indicated to the court, even without a psychological or any other counseling services, seems that this child is being affected by these arguments and certainly being locked in the car seat where she can neither run away from nor run to perhaps unadvisedly aid her parents, it's certainly clear that puts some stress on the child.
In S.S., we reversed a trial court's ruling that a battered wife committed abuse and neglect by failing to shield her nearly two-year-old child from observing physical acts of domestic violence committed upon her by the child's father. S.S. supra, 372 N.J. Super. at 22-23. The child had witnessed, but not become involved in, the incident of domestic violence, and the Division did not present any evidence of emotional injury to the child. Ibid. In that context, we found no basis for a finding of abuse or neglect against the mother. Ibid.
Here, the trial court's finding that S.S. was inapposite to the facts of this case because of Linda's participation in acts of domestic violence, misconstrues that holding. S.S. did not focus on the relative culpability of domestic violence combatants but instead held that emotional harm to a child as the result of witnessing domestic abuse cannot be assumed. Ibid. The purpose of a Title Nine fact-finding hearing is to determine whether a child has been abused or neglected pursuant to N.J.S.A. 9:6-8.44, not to assign guilt to a defendant. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010).
Here, the trial judge considered the effect of the November 3 incident on Abby, but implicitly acknowledged that more was needed:
I'm satisfied that the child even vocalizing that she runs and hides does indicate to the Court that there is some impact that this child is experiencing. The significance of it, of course, can't be determined without further professional assistance.
As to Danny, the trial court acknowledged that he was not present on November 3, 2009, and "was not scared or concerned" but relied on his presence during past arguments to conclude that he suffered harm.
There is no evidence that the events of November 3 harmed either child. Abby's statement that her parents' arguments would scare her sometimes and she "goes and hides," came in response to the SPRU worker's question relating to incidents that occurred when Abby and Linda still lived with Matthew. The trial judge found that the defendants had been separated for over one year. In addition, the trial judge relied on alleged acts of domestic violence between Linda and Brian that were denied by Linda and did not implicate Matthew.
We therefore conclude that the record does not support the finding that the altercations between defendants or between Linda and Brian caused either Abby or Danny to be abused or neglected as defined in N.J.S.A. 9:6-8.21(c)(4). We thus reverse the judge's conclusion to the contrary as unsupported by the record.
As we are vacating the findings of abuse and neglect as to both defendants, we need not address Matthew's contention that the trial court abused its discretion in accepting trial counsel's stipulation in defendant's absence and by failing to question defendant concerning the stipulation after he appeared in court. We will only note that the doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). Matthew may not contest the admissibility of evidence when his counsel stipulated to its admission at the hearing. Moreover, once he appeared in court, he was given the opportunity to reopen the hearing or object to the proceedings and he declined to do either.
The findings of abuse and neglect as to both defendants are vacated and the names of both defendants shall be removed from the DYFS Central Registry.