On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FN-09-000346-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
In this Title Nine*fn1 case, E.S. (father) and C.B. (mother) appeal from a September 29, 2010 order, finding that E.S. physically abused their seventeen-year-old daughter, K.B., by inflicting facial contusions, jaw pain and strangulation injuries, and finding that C.B. failed to protect the daughter from E.S.'s abuse, instigated and worsened the conflict between them, and then abandoned her daughter. For the reasons that follow, we affirm the order on appeal.*fn2
On May 13, 2010, the Division of Youth and Family Services (DYFS or Division) performed an emergency removal (DODD removal) of K.B. and her baby, after K.B. reported that her father had beaten her up and her mother had encouraged the beating. At the initial hearing on May 17, 2010, required after the DODD removal, Judge Margaret M. Foti found sufficient prima facie evidence to warrant the Division's continued involvement with the family. A fact-finding hearing was held on September 29, 2010 to adjudicate the charges of abuse and neglect.
The following evidence was presented at the September 29 hearing. DFYS caseworker Julia Borres testified that at 11:30 a.m. on May 13, 2010, she interviewed K.B. at the Jersey City Medical Center. K.B told her that she lived with her baby, D.G., Jr., her mother, C.B., and two siblings.*fn3 According to K.B., at about 1:30 a.m. that morning, she went outside the family home in response to a phone call from a friend asking her to return his cell phone charger. As she was standing outside, her father, who did not live with them, drove up in his car. K.B. reported to Borres that the father jumped out of the car, "pulled her by her hair, dragged her upstairs and pushed her inside [her apartment]." Once inside, the father struck her in the arm and the abdominal area and punched her in the face several times. According to K.B., her mother, C.B., was present and encouraged the father, saying that K.B. "deserved it, she's the one with an attitude." After going to sleep for a few hours, K.B. went to the police station and reported the incident. They arranged for an ambulance to take her to the hospital. K.B. told Borres that she was afraid to go home because her mother "allows her dad to come into the home."
Borres testified that, while at the hospital, she personally examined K.B. for injuries. She observed "several scratches just to her neck and her chest area." Borres also authenticated several photographs of K.B. that were taken by a co-worker, and they were introduced in evidence at the hearing.
Borres later interviewed K.B.'s six-year-old brother, I.B., who told her that he witnessed the incident. He told Borres that he heard K.B. and E.S. "arguing or fighting and that he saw [E.B.] twisting her arm and punching her everywhere." Asked to elaborate, he told Borres that "everywhere" meant "in the chest and the stomach." She also interviewed another sibling, twelve-year-old S.S., who told Borres that she heard E.S. "yelling coming up the stairs" and saw him push K.B into the apartment. S.S. then saw K.B. putting her hands up "as her father was hitting her." S.S. recalled that E.S. slapped K.B. "about ten to fifteen times." On cross-examination, Borres admitted that S.S. and E.S. both told her that C.B. tried to separate K.B. and E.S. during the incident.
Borres went to K.B.'s home to interview C.B. However, the mother opened the door "halfway" and "stated that she has nothing to say, that the Division could keep [K.B.]. She's the one that . . . has a problem, it's not the parents." The Division considered this to be neglect, for "not allowing her daughter to come back into the home." During a later family meeting, C.B. told the Division that she did not want K.B. back because the girl did not obey her curfew. Borres admitted that K.B. did not want to return home.
Borres also authenticated, as a business record, a pre-placement physical examination form, which she had asked a hospital physician to fill out in the emergency room. She explained to the doctor that this was a DYFS form, needed so that K.B. could be placed in foster care. He completed it in her presence. She also identified certified copies of K.B.'s medical records that were part of the Division's file.
After Borres testified, the judge took testimony from K.B. in chambers, pursuant to Rule 5:12-4(b), asking questions submitted in advance by the attorneys. The in-chambers questioning was simultaneously transmitted into the courtroom so the attorneys could listen to it and submit follow-up questions. According to K.B., on Wednesday May 12, she went to school, came home and went to church, and then spent the rest of the day at home with her sixteen-month-old baby, who was ill. Shortly before 1:00 a.m. on Thursday, May 13, she was at home with her mother and the baby when she received a phone call from a schoolmate, D.B., saying he was on his way home from work and asking if he could stop by to pick up a cell phone charger he had lent her earlier that day. She told her mother she was going outside to return the charger, and her mother said "okay, don't be too long."
K.B. stood outside on the front steps talking to D.B., who was telling her about "a food fight . . . in the cafeteria" at school that day. As they were talking, she saw her father's car "pull up, slowly" and stop. Her father got out of the car and grabbed her by the hair. She denied confronting her father or "get[ting] in his face" before he grabbed her. He dragged her into the building and up two flights of stairs, by her braids. At some point she asked him to stop pulling her hair, because it was starting to come out, and he switched to pushing her up the stairs.
As he pushed her into the apartment, she hit a table. K.B. recalled that she was against the table facing her father "and then he was just choking me with my back leaning across the table. . . . And then he was yelling in my face." She tried to defend herself by "grabbing his hands off of my neck because I really couldn't breathe." Her siblings S.S. and I.B. were nearby "watching and . . . crying." At some point, her mother, who had been lying on the couch, got up and started talking to her father, telling him "I didn't know where she was, she was ...