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New Jersey Division of Youth and Family Services,*Fn1 v. E.H

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 10, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
E.H., DEFENDANT-APPELLANT.
IN THE MATTER OF C.C., A MINOR

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-154-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2012

Before Judges Fuentes, Ashrafi and Hayden.

Defendant-mother, E.H., appeals from the September 9, 2011 order of the Family Part terminating the abuse or neglect case against her and continuing legal custody of her son with his long-time, non-relative caregiver. Defendant also challenges the earlier March 23, 2011 order of the court finding that she neglected her then five-year-old child by leaving him alone on multiple occasions with her husband. We affirm.

The persons primarily involved in this case are:

* C.C., the child born in August 2004 and in the custody of his non-relative caregiver since the age of one;

* E.H., now E.C., the biological mother, who seeks to regain custody of her son after voluntarily turning the boy over to his caregiver;

* T.R., the caregiver who took legal custody of the child in August 2005, when neither biological parent was willing to care for him, has raised and cared for the child continuously since that time, and now seeks kinship legal guardianship of the child; and

* D.C., the mother's husband since June 2007, that is, the child's stepfather, who has been physically abusive when left alone with the child during the mother's parenting time.

The litigation involves inter-related Family Part cases for custody and kinship legal guardianship that were interrupted in March 2010 when the Division filed its abuse or neglect case under Title 9. The Division's involvement had begun much earlier, in August 2005, when the unmarried mother left the infant with the child's father and did not return for several weeks. The boy's father could not care for him, and he accused the mother of abandoning the child because of her use of drugs and other illegal activity. The Division contacted the twenty-one year-old mother, and she said she had no money to return to New Jersey from Philadelphia. With both parents' consent, an order was entered on August 16, 2005, granting custody of the child to the caregiver, who is not related to the child by blood but was the girlfriend or companion at that time of the child's maternal grandfather.

The August 16, 2005 order permitted each of the biological parents to have weekend parenting time. A child support order was also entered requiring that the mother pay $52 per week to the caregiver.*fn2 Two months after entry of the original custody order, in October 2005, the mother went to the caregiver's house and demanded to have the child back. The mother said she was going to Las Vegas and taking the child with her. The caregiver refused, and she also declined the mother's offer of $1,000 to relinquish custody. While the caregiver was briefly in a different room, the mother took the infant and attempted to flee in a taxi. The caregiver called the police, and the mother was arrested and charged with interfering with a child custody order. The Family Part suspended the parenting time of the mother as a result of that incident, and the child remained with the caregiver. No additional court orders were entered for almost two years.

In June 2007, the mother married her husband, and she gave birth to their child together several months later. In July 2007, the Family Part denied the mother's first application to regain custody of the older boy from the caregiver. However, the court granted the mother parenting time with the child two afternoons per week on the condition that she complete a drug rehabilitation program and that drug testing screens be made available to the court. The mother was compliant with those conditions and exercised parenting time.

In 2009, the mother applied again to the court for custody of her son. At about the same time, the caregiver filed a complaint seeking kinship legal guardianship of the child pursuant to N.J.S.A. 3B:12A-1 to -7. On October 23, 2009, while those two matters were pending, the court entered an order splitting parenting time between the mother and the caregiver, each having the child for about one-half the week. The October 23, 2009 order also directed that the mother not allow unsupervised contact between her husband and the child. That provision of the order was added because the husband had allegedly been aggressive and threatening during an incident at the child's school and the school had requested that the husband not pick up the child. The court order stated that the husband "shall not provide transportation or day care for the minor child; [the mother] is to be present for his contact with the child."

In November 2009, the mother violated the last-quoted provision of the order by leaving the boy alone with her husband while she went to work. Over the next several weeks, the boy reported to several adults that his stepfather routinely struck and physically abused him when his mother was at work.

On November 21, 2009, the caregiver noticed a bruise under the child's right eye. The child told her that his stepfather had punched him. The caregiver notified the Division, which investigated and confirmed the mark on the right side of the child's face. The child told a Division caseworker that his stepfather watched him when his mother went to work and that the stepfather would hit him and confine him inside a closet. He said the bruise on his face was caused by his stepfather punching him. He said he told his mother about the violence, and she told him not to be around his stepfather "too much."

On December 17, 2009, the Division caseworker interviewed the mother in her home. She claimed her husband did not live with her and denied leaving the child alone with him. The caseworker talked alone with the child and saw a bruise on the left side of his face. The boy told the worker that his "dad" gave him the bruise. During the interview, the boy also said his stepfather was hiding in the bedroom, but the caseworker did not find him there and also did not see evidence of clothing and other personal effects to indicate that the husband was living at the mother's house.

On December 30, 2009, the caregiver again notified the Division that the child had been returned from parenting time with his mother and had an injury to his face. The caseworker went to the caregiver's home and saw a scratch and a bruise on the boy's forehead. The boy told her his stepfather had punched him in the head.

In mid-January 2010, the caseworker interviewed the stepfather at his mother's home. He said he lived at that location and only visited at his wife's home from time to time. The worker found clothing and personal effects suggesting that the stepfather was in fact living at his own mother's home. The stepfather denied ever hitting the child. He accused the caregiver of coaching the boy to lie because of the custody dispute and her desire to continue collecting child support from the mother.

At about the same time, the child's one-on-one aide at school reported disturbing statements of physical abuse that the child made to her. The aide had given him the task of drawing pictures in his journal. After the child drew a picture, the aide would ask him to explain what the picture was and worked with him in writing descriptive words. On three separate dates from January 15 through 20, 2010, the child drew pictures that he explained as his father hitting him. The aide wrote commentary on the pictures to record the child's explanation, and she reported the incidents to school officials. One of the pictures depicted the mother with a knife in her hand. The boy explained that his mother had held a knife to his stepfather's head and told him to get out of the house, but the stepfather had refused.

On January 22, 2010, the child was examined by pediatrician Marita Lind, M.D. The boy told the doctor that his stepfather slams him into walls and hits him, including with a belt. He said it happens when his mother is at work and he is alone with his stepfather and younger brother. He said his mother cursed at his stepfather about the abuse and told him never to lay his hands on her son. Although Dr. Lind noted marks showing a healing injury on the boy's forehead, her physical examination did not reveal significant recent injuries or marks that she could identify as signs of physical abuse.

On February 1, 2010, the court entered an order in the custody and kinship legal guardianship cases revising the parenting time of the mother and the caregiver and directing that "[t]he child is to have absolutely no contact with [the stepfather], supervised or otherwise."

The Division filed a Title 9 abuse or neglect complaint against the mother on March 31, 2010. The court held a hearing on April 22, 2010, at which a Division caseworker and the mother testified. The court declined to suspend the mother's parenting time but entered an order to show cause, which included an order of protection against the stepfather pursuant to N.J.S.A. 9:6-8.55. It prohibited the stepfather from having any contact with the child or to be present at the mother's home when the child was there. The order of protection was re-entered on the return date of the order to show cause, May 27, 2010. The court also dismissed without prejudice the custody and kinship legal guardianship matters while it proceeded with the Division's Title 9 case. The public defender was appointed to represent the mother.

The Title 9 fact-finding hearing was held on four dates from November 2010 through March 2011. Witnesses at the hearing were Dr. Lind, the teacher's aide, the caregiver, and the mother. The court accepted in evidence prior court orders and the Division contact notes and reports of its investigations over the years, counsel having stipulated to the admissibility of the documentary evidence except to the extent it might contain inadmissible hearsay. Over the objection of defense counsel, the court also admitted in evidence the child's drawings made in mid-January 2010 and the aide's written commentary on the drawings.

On March 23, 2011, the court entered a fact-finding order concluding by a preponderance of the evidence that the mother "abused or neglected the child in that she on numerous dates after issuance of an ORDER (10/23/09) prohibiting same, allowed her son to be cared for exclusively by [the stepfather] knowing or recklessly disregarding the risk that [the stepfather] would use assaults as a means to control the child." In June 2011, the court issued written findings of fact and conclusions of law in support of its fact-finding order.*fn3

On September 9, 2011, the Family Part held a dispositional hearing and, over the objection of defense counsel, the court terminated the Title 9 case, stating that the custody and kinship legal guardianship complaints would be reinstated and the matter of the child's custody and permanent placement would be determined through those cases. In the final dispositional order of the Title 9 case, the court continued the split parenting time between the mother and the caregiver, leaving legal custody with the caregiver. The order also continued prohibition of contact with the stepfather.

On appeal, the mother contends that: (1) insufficient evidence supports the court's finding that she neglected her child, (2) the court erred in finding that the stepfather had struck or otherwise assaulted the child based on a five-year-old's uncorroborated hearsay statements, and (3) the court erred procedurally in dismissing the Title 9 case without determining legal custody and permanent placement of the child.

Our standard of review on appeal is narrow. A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). We also defer substantially to the trial judge's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Having reviewed the record, we affirm the March 23, 2011 fact-finding order for the reasons stated in the written opinion of Judge Mary K. White dated June 29, 2011. The judge carefully analyzed the evidence, made logical credibility findings, and reached appropriate conclusions. We add the following to address directly the specific arguments the mother raises on appeal.

N.J.S.A. 9:6-8.21(c)(4) defines a child as abused or neglected when the child's 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 . . .

(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. [Emphasis added.]

"[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). The Division was not required to prove that the mother intended to harm her child by means of excessive corporal punishment committed by her husband.

"Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. Gross negligence falls on a continuum of conduct from ordinary to gross based on the level of risk created, and it is determined on a case-by-case basis. Dep't of Children and Families v. T.B., 207 N.J. 294, 309 (2011). A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. In this case, neglect of the child can be found if the mother's disobeying the October 23, 2009 order and leaving the child alone in the care of her husband was wanton, reckless, or grossly negligent.

The primary factual question is whether there was sufficient evidence that the mother knew or should have known her husband might use excessive corporal punishment to discipline the child. The Division had the burden of proving that form of gross negligence or wanton conduct by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).

During her cross-examination at the fact-finding hearing, the mother admitted leaving her son in the care of her husband in November 2009, which was after entry of the court's October 23, 2009 order directing her to supervise all contact of the child and her husband. The mother claimed that only the February 1, 2010 order prohibited her husband from having contact with the child. At the end of the hearing, counsel for the mother sought to recall her to the witness stand to testify that she was confused about dates when she admitted violating the October 23, 2009 order. The judge said she would consider counsel's proffer and decide upon further reflection whether it would make any difference to her ultimate decision in the case. Subsequently, the judge found that the mother had neglected the child without permitting her to be recalled for further testimony.

We find no abuse of discretion in the judge's decision to forego the mother's additional testimony. The mother had learned during the fact-finding hearing the significance of the October 23, 2009 order and its provision requiring that she be present to supervise her husband's contacts with her son. She could not credibly change her testimony about the relevant dates that she left the child in her husband's care. In fact, the boy had reported in November 2009 that his stepfather watched him while his mother was at work. Judge White acted well within her discretionary authority in rejecting the mother's belated attempt to claim confusion about dates. The judge was entitled to view the timing of the proffer as itself discrediting the mother's claim, and so, the new testimony could not enhance the mother's credibility otherwise.

With respect to the mother's disclaimers of her husband's aggressive, violent disposition, she conceded that he was a large man, 250 pounds, with a loud, intimidating voice. Although both the mother and the husband claimed a misunderstanding had occurred at the child's school, evidence supported a finding that he had engaged in aggressive, threatening conduct, causing school officials to withhold permission for him to pick up the child from school. Most important, several adults had seen physical signs of injury to the child. The child's statements indicated that the mother knew her husband was being physically abusive, and her response at first was to advise him to stay away from his stepfather. Later, she attempted by verbal threats to stop the stepfather's violent behavior against her son. All of this evidence pointed to her knowledge of the abuse and her ineffective response for the protection of the child.

The facts proven in this case are substantially more serious than the ordinary negligence found in those cases where a mother left her sleeping four-year-old alone at home because she mistakenly believed that the child's grandmother was present, T.B., supra, 207 N.J. at 297, or where a mother allowed her children to walk from a playground to a condominium within her line of sight, and the children accidentally locked themselves in the home, N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009). Here, the mother failed to protect her son from physical beating. Her claims that her husband did not strike the child, or counsel's arguments that there was inadequate proof of her knowledge, were contradicted by the evidence that Judge White found credible.

The mother argues that the only proof that the stepfather beat the child came from uncorroborated statements of the child, and those statements were hearsay and not sufficient by themselves to prove that the abuse occurred. For purposes of Title 9 abuse or neglect cases, N.J.S.A. 9:6-8.46(a) provides: "In any hearing under this act . . . (4) 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 Z.P.R., supra, 351 N.J. Super. at 435-37, we explained that corroboration for a young child's accusatory statements will seldom be as explicit as an admission of wrongdoing by the person accused. Corroboration may take different forms in different cases; it "need only provide support for the out-of-court statements." Id. at 436.

Here, Judge White found corroboration in the material consistency and persistence of the boy's accusations, which she found were "very credible." Over a two-month period, the boy told five different adults in independent settings that his stepfather was beating him. He told the caregiver, his mother, a Division caseworker, his school aide, and Dr. Lind. While his descriptions grew in graphic detail over time, such as by stating that he was thrown down stairs and his brain was shaken inside his head, the judge focused on his consistent reports of being struck and thrown against walls as a means of discipline. Also, the boy's emotional condition on one occasion when he described a particularly troubling incident to his school aide was consistent with the reality of his reports.

Internal corroboration existed as well for the boy's statements regarding his mother's knowledge of the abuse. According to the boy, his mother said to the stepfather, "you don't put your hands on my son," and at one point threatened him with a knife and ordered him out of her house. The judge reasonably viewed these descriptions as likely beyond the ability of a five-year-old child to invent without having experienced the incidents. The child's statements were also consistent with the mother's own testimony that she had told her husband when she married him that he had no right to discipline her son.

There was also external corroboration for the child's accusations, namely, the observations of several witnesses of signs of injury to his face, and the report of the aide regarding his descriptions of the pictures he drew. While Dr. Lind could not reach a conclusion that the facial marks she observed were caused by physical abuse, she also did not exclude that possibility.

The mother argues that the caregiver had a motive to coach the child to fabricate accusations of abuse so that she would continue to receive child support. We find no merit in that argument. The amount of support was minimal, the mother was chronically in arrears, and the caregiver did not have a history of seeking enforcement of the support order. On one occasion, the caregiver received $2,000 from an income tax refund payable to the mother, and it appears that otherwise the caregiver would receive sporadic payments of weekly child support. The relatively small amounts paid to the caregiver hardly compensated her for years of caring for this child, who is not her blood relative.

As argued skillfully in the mother's brief on appeal, perhaps none of the evidence we have recounted independently proved that the boy was telling the truth about the abuse. But cumulatively, there was ample corroboration for the boy's accusations. The judge did not err in crediting his out-of-court statements and finding that he had in fact been beaten by his stepfather. Moreover, there was corroboration that supported the judge's finding that the mother was aware of her husband's violent proclivities and yet left the child in his care, apparently believing that her admonitions to him would be sufficient to protect the child. They were not.

We conclude there was no error under N.J.S.A. 9:6-8.46(a)(4) in the judge's reliance on the boy's several out-of-court statements to find that his mother had neglected him by leaving him alone with her husband.

Here, as in G.S., supra, 157 N.J. at 181, the mother failed "to exercise a minimum degree of care" in that, although "aware of the dangers inherent in a situation[,]" namely, her husband's use of severe corporal punishment on a five-year-old child, she "recklessly create[d] a risk of serious injury" to the child by failing to comply with the October 23, 2009 court order prohibiting the husband from being alone with the child. The Division proved that the child was neglected by his mother within the meaning of N.J.S.A. 9:6-8.21(c)(4).

Raising procedural objections to the Family Part's final dispositional order of September 9, 2011, the mother argues that the court was required to hold an evidentiary hearing and determine whether it was safe to return the child to her custody. "A dispositional hearing must be held to determine the appropriate outcome of the case." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009); see also N.J.S.A. 9:6-8.50. In G.M., the Court listed the options available for disposition in accordance with N.J.S.A. 9:6-8.51 to -8.56, and added that the Family Part "shall state the grounds for any disposition made." 198 N.J. at 399-400.

In this case, the Family Part determined that the appropriate disposition of the Title 9 abuse or neglect case was to continue the status quo of legal custody in the caregiver and the shared parenting time with the mother. The final disposition of legal and residential custody would be determined in the custody and kinship legal guardianship actions that preceded the Title 9 case and would now be resumed.

The court's disposition was not a violation of the Supreme Court's directive in G.M. When the Division filed the Title 9 complaint, legal custody of the child had been with the caregiver for four-and-a-half years, and there was a shared parenting arrangement in place. The child was not removed from the custody of the mother by the Title 9 action, and her parenting time was not significantly reduced. Unlike G.M., there was no placement or safety issue with respect to custody and placement that required a hearing in the Title 9 action.

The mother argues that dismissing the Title 9 action deprived her of court-appointed counsel that was available only for the Title 9 action. But the mother had no right to counsel at the expense of the government when the private custody and kinship legal guardianship actions were pending earlier. The fact that she was found to have neglected her child in the Title 9 case does not place in her in a better position as to the right to counsel than she was before. Nor does the court's finding of neglect inure to her benefit in litigating the custody and kinship legal guardianship cases in the form of court-appointed counsel. She received assistance of counsel for the abuse or neglect case. Her due process rights were not violated.

We find no error in the judge's final disposition order on the Title 9 case.

Affirmed.


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