June 5, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
E.S. AND C.B. DEFENDANTS-APPELLANTS. IN THE MATTER OF K.B., S.S., ST.S., I.B. AND D.G., JR., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
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 probably outside with a boy and she was probably in someone's house." She testified that her mother did not try to stop her father from hitting her.
In response to the judge's question, K.B. testified that in addition to choking her, E.S. hit her in the jaw three times, and then followed her into her bedroom and continued hitting her and yelling at her about being "outside with some boy." She told her father that she was going to call the police, but he broke her cell phone in half. The next morning, she packed up her possessions, intending to leave. Her mother noticed she wasn't putting on her school uniform and asked where she was going. When K.B. replied that she was going to the police, her mother told her that she should go to school instead because she had too many absences. She then told K.B., "I don't know why you're going anyway, you're the one with the problem." K.B. left the house with her baby and went to the police station.
C.B. testified next. She denied giving K.B. permission to leave the apartment. She testified that she was dozing on the couch, when she heard "shoes" at around 1:00 a.m. She "jumped up" and told K.B. that she "better not leave my house," but she saw the girl tiptoeing out the front door. About fifteen minutes later, C.B. sent E.S. a text message stating "[y]our angel has left the house." He arrived some time thereafter, and there was an "altercation" between E.S. and K.B., which C.B. tried to break up. She denied saying that K.B. "deserved the beating" and denied ever telling DYFS that she did not want her back. However, she admitted telling DYFS that K.B. could only come home if DYFS would not continue to be involved with her family.
According to C.B. she ran a strict household, with mandatory church attendance several times a week and a 10:30 p.m. curfew. For the past year, she had a hard time getting K.B. to observe the curfew. She felt that K.B. was disrespectful to her and was absent from school too often.
Describing the incident on May 13, C.B. insisted that there was no "physical altercation." Rather E.S. and K.B. were "arguing" and she was "in between the two telling her to hush and him to go to work." She insisted that when six-year-old I.S. told DYFS that he saw E.S. hitting K.B., the child must have confused what he saw that night with what he saw when he watched wrestling on television. Asked about whether she refused to allow K.B. to come home from foster care, C.B. confirmed that she refused to let her come home without the baby, because if "[s]he's not going to bring the baby home, she's not going to be a mother, why should I?"
E.S. testified that he and C.B. had been separated for many years. On the night of May 13 at about 1:00 a.m., while he was working the night shift, he received a text message from C.B. stating that K.B. had left the house. He phoned C.B. to see if the girl had returned, and when C.B. replied that she had not, he told her he would leave work and come to her house. When he arrived, K.B. was outside the house "with some guy." He "pointed at the building" and told her to go inside. He started walking toward the building but when he saw that K.B. was not following him, he grabbed her by the jacket and said "let's go."
As they went upstairs, K.B. started yelling at him. He pushed her into the apartment, and she was "yelling and cursing at me," so he grabbed her jacket again and said "who do you think you're talking to." At that point, K.B. "swung" at him to get him "off her" and she hit him. He was "surprised" and at that point he "grabbed her" and "hit" and "slapped" her across the mouth. He later stated that he only slapped her "[o]ne time." He denied punching her or choking her, and insisted that after he slapped K.B., C.B. intervened and told him to go back to work. He admitted that the other children were crying "because when I yell I yell." After a few more minutes of yelling back and forth, he left the apartment and returned to work. E.S. explained that he was angry and "scared" to have his daughter out on the street late at night because it was not safe, and this was not the first time he had to "bail her out" of a dangerous situation.
The medical reports from the emergency room indicated that K.B. had facial and scalp contusions, a small laceration inside her lower lip, and a series of small red marks on her neck. The doctor noted she had jaw pain, and right facial and neck pain, and diagnosed her with facial contusion and strangulation injury.
Immediately after the hearing, Judge Foti placed an oral opinion on the record, finding that C.B. and E.S. "abused and neglected their child" during the May 13 incident. She specifically found as fact that E.S. "caused physical injury upon his daughter [K.B.] who sustained jaw pain, marks to the neck and right side of the face and laceration on the bottom lip." The judge found that C.B. was not a credible witness, in part due to inconsistencies in her testimony. The judge noted that C.B. testified that "she broke up the altercation between [E.S.] and [K.B.] three times and then stated that there was no physical altercation." She found C.B.'s testimony about I.S. seeing a "wrestling move" to be "incredible."
The judge found that C.B. not only failed to intervene to calm the dispute, but "may have actually instigated the altercation . . . by texting . . . a rather snide statement that your angel has left the house." She found that when E.S. arrived, he may have misunderstood what was going on between his daughter and her friend, but he went "too far" in his reaction. She noted that E.S. admitted he dragged K.B. into the house and slapped her. The judge found that the medical documentation was "overwhelming that [K.B.] sustained a variety of injuries to her face, her neck, her lip," described as "facial contusion and a strangulation injury."
Judge Foti found K.B.'s testimony credible, because it was detailed, clear, and consistent with what she had told DYFS when "first interviewed." She believed that K.B. was afraid to return home. She also found that C.B. barred her daughter from returning home. She concluded that C.B. abused and neglected K.B. by failing to protect her from E.S. She also believed that C.B. instigated the situation and then "ramp[ed] up" the situation between E.S. and K.B., and refused to take the daughter back after the incident occurred. The judge stated that she did not "have one doubt that the things that the Division has alleged have actually happened."
Our review of Judge Foti's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We owe particular deference to a trial judge's credibility determinations and to the "the family courts' special jurisdiction and expertise." Id. at 412-13 (1998). Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child as: a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent . . . 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; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined. [N.J.S.A. 9:6-8.21(c)(4)(b), (5); see also N.J. A.C. 10:129-1.3(1)(iv)(2), (v) (elaborating on definition of "abused or neglected child").]
In a Title 9 action, to prove that a child is abused or neglected, "it is well established that DYFS" must prove its charge "by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.44). Evidence may include "any writing, record or photograph . . . made as a memorandum or record . . . relating to a child in an abuse or neglect proceeding," so long as it meets the admissibility requirements set forth in N.J.S.A. 9:6-8.46(a)(3). P.W.R., supra, 205 N.J. at 32. DYFS is allowed to submit into evidence reports by its personnel and professional consultants, pursuant to N.J.R.E. 803(c)(6) and 801(d). Ibid. In entering an order finding abuse and neglect, the trial court "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and clearly identify all documentary exhibits relied upon in reaching his or her decision. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).
In adjudicating a charge of child abuse, the trial court may consider "previous statements made by the child in relating any allegations of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). However, a statement by the minor victim alone is insufficient to justify a finding of abuse and neglect. P.W.R., supra, 205 N.J. at 33; N.J.S.A. 9:6-8.46(a)(4). The child's accusation must be corroborated by independent evidence. Ibid. "Proof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained or exist except by the reason of the acts or omission of the parent . . . shall be prima facie evidence that a child . . . is an abused or neglected child." N.J.S.A. 9:6-8.46(a)(2).
On this appeal, E.S. contends that
I. THE FINDING OF ABUSE/NEGLECT BASED ON THE FACTS OF THIS CASE WAS REVERSIBLE ERROR
A. K.B.'s Testimony Was Not Credible.
B. E.S's Slapping Teenage K.B. As Discipline And Forcing Her Back Into The Home Did Not Rise To Child Abuse Pursuant To The Statutory Standard.
II. THE COURT ERRED BY PROHIBITING K.B. FROM TESTIFYING IN OPEN COURT AS OPPOSED TO IN CHAMBERS.
In her appellate brief, C.B. raises these arguments:
I. THE FINDING OF ABUSE/NEGLECT AGAISNT C.B. WAS NOT SUPPORTED BY COMPETENT EVIDENCE AS REQUIRED BY N.J.S.A. 9:6-8.46(b).
II. THE COURT ERRED IN RELYING UPON THE UNSWORN TESTIMONY OF K.B.
III. THE COURT ERRED IN NOT REQUIRING THE EXAMINING PHYSICIAN TO TESTIFY, OR IN THE ALTERNATIVE, PERMITTING THE PHYSICIAN'S STATEMENTS WITHIN AN EXAMINATION REPORT TO BE ENTERED INTO EVIDENCE.
Having reviewed the record in this case, we find no basis to disturb Judge Foti's thorough and well-reasoned decision, which is supported by substantial credible evidence and is entirely consistent with applicable law. R. 2:11-3(e)(1)(A). Except as discussed below, defendants' appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We find no error in the judge's decision to allow K.B. to testify in chambers. This procedure is specifically authorized by Rule 5:12-4(b). See also N.J. Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 5-7 (App. Div) certif. denied, 91 N.J. 572 (1982). In this case, defendants subpoenaed K.B. to testify, and the Law Guardian and DYFS moved to quash the subpoena. As Judge Foti correctly noted in ruling on the motion, she had discretion not to require K.B.'s testimony at all, because the child's hearsay statements about the abuse were admissible, and DYFS had produced ample corroboration of those allegations. See P.W.R., supra, 205 N.J. at 33; N.J.S.A. 9:6-8.46(a)(4). In fairness to defendants, she required K.B. to testify, albeit in camera as the Court Rules allow.
The judge also permitted the attorneys to submit questions for her to ask K.B., and those questions were vetted in an extensive in limine proceeding on the record before the in camera interview commenced. The interview was broadcast live to the courtroom, and the attorneys were given the opportunity to submit follow-up questions. We approved a similar procedure in S.S., supra, 185 N.J. Super. at 6-7. Having read the transcript of the in camera proceeding, we find that Judge Foti's questioning of K.B. was searching and even-handed. It was clear, even on a cold record, that K.B. was crying during part of her testimony, but the judge nonetheless questioned her in a thorough but sensitive manner. We find no abuse of discretion or other error in this process.
We also find no basis to second-guess the judge's finding that K.B.'s testimony was credible and the parents' testimony was not. As the judge noted, there was a stark contradiction between E.S.'s admission that he hit K.B., albeit in response to her allegedly striking him, and C.B.'s insistence that there was no physical altercation.
The medical evidence of strangulation marks on the child's throat corroborated her testimony that E.S. choked her, and the laceration to her inner lip corroborated her description of her father striking her forcefully in the face. Those medical records, which were certified by the hospital, were the hospital's business records even if they were not the Division's business records under Rule 5:12-4(d), and they therefore were admissible in evidence. N.J.S.A. 9:6-8.46(a)(3); N.J.R.E. 803(c)(6). See N.J. Div. Youth and Family Servs. v. M.C. III, 201 N.J. 328, 347-38 (2010). The hospital records also contained admissible statements made by K.B. for the purpose of medical diagnosis. N.J.R.E. 803(c)(4). In addition, the DYFS worker testified to her first-hand observation of marks on K.B.'s face and chest, and K.B.'s siblings corroborated the abuse. See N.J.S.A. 9:6-8.46a(4).
We likewise find no merit in E.S.'s contention that his actions did not rise to the level of child abuse. His reliance on P.W.R. is misplaced. In that case, the Court held that a parent slapping a disrespectful teenager's face, "with no resulting bruising or marks," was "hardly admirable" but was not child abuse. P.W.R., supra, 205 N.J. at 35-36. However, P.W.R. reaffirmed the holding in an earlier case, M.C., III, supra, in which a father's assault on his daughter that included punching and choking her, was found to be child abuse. P.W.R., supra, 205 N.J. at 33 (citing M.C., III, supra, 201 N.J. at 345).
Likewise, Division of Youth and Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), on which E.S. relies, is distinguishable. There, the mother of a severely developmentally disabled child reacted to her own frustration, stress, and isolation by hitting the child on the shoulder. We found that this incident was the result of extremely unusual and trying circumstances, and was "aberrational" and unlikely to recur. Id. at 512-13. The facts in the case before us are quite different.
Based on K.B.'s account of the incident, which Judge Foti found credible, E.S. launched a full-scale physical assault on his daughter, which included dragging her upstairs by her hair, and punching, slapping and choking her. This incident left the child with visible scratches and bruises, strangulation marks, and a laceration on her inside lip. It resulted in a trip to the emergency room where the doctor diagnosed "strangulation" as well as facial contusions and jaw pain. Even if E.S. strongly disapproved of his daughter's behavior, his conduct went far beyond anything that could be construed as a reasonable response to the situation and clearly constituted child abuse. N.J.S.A. 9:6-8.21(c)(4)(b). See M.C. III, supra, 201 N.J. at 345; N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).
We also conclude that the record supports the finding of abuse and neglect against C.B. Her arguments to the contrary are primarily based on her version of the facts, which the judge did not find credible. Thus, her reliance on P.W.R. is misplaced. The credible evidence established that C.B. not only stood by while E.S. physically abused their daughter but she also encouraged him while the assault was going on.
After DYFS became involved, C.B. abandoned her daughter by refusing to let her come home unless DYFS refrained from any further involvement with the family and unless K.B. brought the baby home with her. As an adult parent, C.B. was responsible for the welfare of her teenage child, even if she disapproved of that child's lifestyle. "If she isn't going to be a mother, why should I," was not a legally acceptable approach to C.B.'s parental responsibility.
C.B. objects that the judge did not administer a formal oath to K.B. before conducting the in camera interview. Having failed to raise that issue in the trial court, C.B. may not raise the issue for the first time on appeal. See M.C., III, supra, 201 N.J. at 342. However, even if we consider the issue, in the circumstances of this case, we find no "fundamental injustice" or abuse of discretion in the manner in which the judge conducted the interview with K.B. Ibid.; see N.J. Div. Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 168 (App. Div. 2003) ("[T]rial judges have broad discretion in abuse and neglect cases . . . to conduct a private examination of a child.").