September 4, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
J.M., Defendant, and B.A., Defendant-Appellant. IN THE MATTER OF J.M., J.M., E.M. and B.A., Jr., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-315-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sharon Piccioni, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David R. Giles, Designated Counsel, on the brief).
Before Judges Parrillo, Sabatino and Maven.
Following a fact-finding hearing in this Title 9 litigation filed by the Division of Youth and Family Services (Division) against defendant B.A. (Brian) and J.M. (Jenny),  the trial judge concluded that Brian had abused and neglected the couple's four children by exposing them to domestic violence. The judge's July 22, 2011 order specifically determined that:
The children were present when a domestic violence incident occurred in 2007, and were aware of, heard, and were possibly present at domestic violence incidents since that date. [Brian] admittedly engaged in violent "love taps" in front of the children, which constituted inappropriate violence within the home as well. As a result of witnessing those incidents, [Joey] has experienced emotional harm, evidenced by his physically violent conduct toward his sister [Janine] and his comment, "You want me to do you like my dad did my mom?" The court therefore finds that [Brian's] conduct did constitute abuse and neglect under N.J.S.A. 9:6-8.21(c).
Brian appeals the abuse and neglect finding. He raises the following contentions:
I. THE "ABUSE OR NEGLECT" FINDING AGAINST [BRIAN] SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S DETERMINATION THAT THE CHILDREN'S EMOTIONAL CONDITION HAS BEEN IMPAIRED AS A RESULT OF EXPOSURE TO DOMESTIC VIOLENCE IS COMPLETELY UNSUPPORTED IN THE RECORD AND HAS NOT BEEN ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE.
II. BECAUSE THE TRIAL COURT'S "ABUSE AND NEGLECT" FINDING AGAINST [BRIAN] IS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, HIS NAME SHOULD BE EXPUNGED FROM THE CENTRAL REGISTRY OF CHILD ABUSERS.
We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
On December 12, 2010, the Division received a referral from a Cooper Hospital staff member who expressed concern for the minor children due to reported domestic violence occurring at Jenny's home. That day, Jenny was home with the one-year-old-child while the other three children were at Brian's home. When Brian arrived at Jenny's house to pick up the child and some clothing, he discovered that Jenny had a male and a female visitor in her home. The referent reported that Brian said, "Bitch[, ] what did I tell you about having company in the house[?]" then punched Jenny on her face and body, dragged her by her hair, and banged her face into the window. Jenny contacted police, and she was transported to Cooper Hospital for medical attention.
Later that day, a Division caseworker interviewed Jenny at her home and observed clumps of hair on the floor. Jenny acknowledged seeking a domestic violence restraining order against Brian in 2004, but she "dropped the charges." Jenny showed the caseworker the new temporary restraining order received as a result of her recent assault and informed the caseworker that she did not plan to drop the order "this time."Brian was later arrested and charged with simple assault.
On December 15, 2010, the Division filed a verified complaint and order to show cause seeking care, custody and supervision of the four minor children. The basis of the complaint was the domestic violence between Brian and Jenny, and Brian's arrest for simple assault against Jenny.
At the hearing on December 15, 2010, the Honorable Deborah Silverman Katz, J.S.C., ordered that the children be placed in the care and supervision of the Division and granted physical custody of the children to Jenny. The judge also ordered supervised visitation with Brian and the children, a domestic violence assessment for Jenny, and psychological evaluation, anger management, and domestic violence counseling for Brian.
On January 28, 2011, Judge Silverman Katz continued the order for care and supervision of the children; however, she temporarily suspended Brian's supervised visitation until he complied with Division services.
In a May 20, 2011 hearing before the Honorable Angelo J. DiCamillo, J.S.C., Jenny stipulated to a Title 30 finding that her family was in need of services, pursuant to N.J.S.A. 30:4C-12. Jenny testified that the children did not witness the December 12, 2010 assault, but they had witnessed two prior incidents of domestic violence against her by Brian in 2007. Jenny agreed to attend domestic violence counseling and to comply with the children's court-ordered participation in the "Palace Program." The court directed the Division to amend its complaint to include the prior acts of domestic violence, and adjourned the fact-finding hearing for Brian. On June 21, 2011, the Division filed the amended verified complaint incorporating the additional allegations.
The fact-finding hearing for Brian occurred on July 6, 2011. During that hearing, the court heard testimony from Jenny and Brian, and considered two Division court reports and Brian's prior criminal convictions. Jenny testified about a previous domestic violence incident that occurred while she and Brian lived together in 2007. She stated that she was in the kitchen doing the dishes, and the children were in the living room. Brian angrily told her to go upstairs to clean the children's room and hit her. The children were scared and ran up the stairs. Brian came upstairs also telling her to "[h]urry up and clean that room." Jenny testified that, at other times, Brian would tell the children to go upstairs or go play before he hit her.
In response to the court's question regarding the need for the children to attend counseling, Jenny stated that their son, Joey, plays roughly with his sister, Janine, and was heard saying, "You want me to do you like my dad did my mom." She testified that this incident occurred twice. Jenny further acknowledged that the violence Brian had exhibited toward her in the past was affecting the children.
Brian also testified at the hearing. Although he denied ever being involved in domestic violence with Jenny, he stated:
[Division Counsel]: And, have you ever been involved with domestic violence with [Jenny]?
[Brian]: Me and [Jenny], . . . we don't get into it like that, you know. We might grab each other and wrestle . . ., but it's nothing physical or brutal or there is blood blushing, you know. I love my kids. I raised them. I don't do that in front of my kids.
. . . .
[Division Counsel]: When the children are not present[, ] do you lay a hand on her?
[Brian]: No. Me and [Jenny] never got into a physical thing. We probably get into a wrestle. I might grab her, you know . . . . But we don't get into nothing physical were there's blood blushing where you gotta call the police.
Brian also denied busting Jenny's lip or getting physical, but again acknowledged that they have wrestled. He explained:
[Brian]: We wrestle all the time. I might come in the house and grab her and just, you know, throwing around, and kids playing around too, because that's how we play . . . .
[Division Counsel]: Were you ever charged with busting her lip?
[Brian]: I never got charged . . . . The police was called, and charges were dropped . . . . I have a lot of records where the police were called, but I never been charged with nothing.
The court then questioned Brian:
[The Court]: [Brian], can you describe what you mean when you say that you and [Jenny] would wrestle?
[Brian]: It was like a love-type wrestle, you know.
[The Court]: A love-type wrestle?
[Brian]: Love taps, this, here and there. I mean, I might smack her on the ass, and say, you know go upstairs and clean the room, you know.
Like, . . . it would be like love taps. It's nothing like with [a] closed fist, you know.
. . . .
[The Court]: [C]ould the children have been present during some of these love taps?
[Brian]: I mean, I had spoke to her several times, and I said maybe we need to stop playing like that, because they may take it serious . . . and think that, you know, that we're actually going at each other, you know.
When the court asked if Jenny would say that the love taps and wrestling was "getting out of hand, " Brian responded, "Yeah. Because one incident she had hurt herself, and I had to, actually, take her to the hospital. I don't even remember when, because we was playing a little bit too rough. We . . . had gotten too rough with it."
On July 22, 2011, Judge DiCamillo rendered a written decision based on the evidence and testimony from the two fact-finding hearings. He concluded that the Division had established by a preponderance of the evidence that "the children's emotional condition has been impaired as a result of exposure to [Brian's] domestic assaults on their mother [Jenny]." The judge found that Joey's statements to Janine, "You want me to do you like my dad did my mom, " while hitting her, was sufficient evidence that he suffered emotional harm as a result of witnessing Brian's domestic assaults on his mother. Undergirding the court's conclusion are its findings that "[Joey] witnessed domestic violence at age two, has frequently been told to leave the room so that his father could beat his mother in private, has heard those beatings, and has repeatedly witnessed his father's violent 'love taps' against his mother."
The court ruled that additional expert testimony was not necessary to support a finding of statutory emotional harm under the present facts. He found that Jenny's testimony was credible, and
[Joey's] conduct toward his sister is so strongly corroborative of emotional harm that additional evidence is not necessary for a finding of abuse and neglect, especially in conjunction with the New Jersey Supreme Court's previous finding in State v. Kelly, that family members learn to "perceive the battering cycle as normal, especially if they grew up in a violent household." 97 N.J. 178, 191 (1984).
The scope of appellate review of a trial court's fact-finding in an abuse and neglect case is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts have special jurisdiction and expertise with issues involving the welfare of children; therefore, appellate courts should accord deference to family court fact-finding and credibility determinations. Id. at 412-13; see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). As a general principle, a Family Part judge's findings of fact and conclusions of law will not be disturbed unless a reviewing court is "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation omitted). There are two exceptions to this principle, which broaden the scope of appellate review. First, where the judge goes so wide of the mark as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." Matter of Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (citations omitted). Second, "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." Id . at 188-89 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Defendant argues that the court's finding of emotional impairment was unsupported in the record and not established by a preponderance of the evidence. He contends that the court erred in reaching its conclusions due to the unreliability of Jenny's testimony and the lack of any reliable evidence that the children witnessed any domestic violence. We disagree.
N.J.S.A. 9:6-8.21 defines an "abused or neglected child, " in relevant part, as follows:
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 . . . 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 . . . by any other acts of a similarly serious nature requiring the aid of the court . . . .
A finding of abuse or neglect must be based on a preponderance of the evidence and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b); see N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).
As used in the statute, "the 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). "[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." Div. of Youth and Family Servs. v. S.S., 372 N.J.Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005). In other words, a parent who is found guilty of abuse or neglect must have acted with "reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179.
"Abuse and neglect cases are generally fact[-]sensitive." P.W.R., supra, 205 N.J. at 33. "Each case requires careful, individual scrutiny" and, oftentimes, "reported cases are idiosyncratic." Ibid. A trial court must base its findings on the totality of the circumstances, since "'[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]'" individually and/or cumulatively. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 329-30 (App. Div. 2011) (alteration in original) (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J.Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011)). Importantly, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
We turn to defendant's legal argument that the Division was obligated to present expert testimony opining that the children's observations of his violent behavior towards their mother caused them harm. Very recently, in New Jersey Department of Children and Families v. A.L., 213 N.J. 1, 22 (2013), a Title 9 action was brought against a mother who used drugs while pregnant but gave birth to a healthy baby. Our Supreme Court discussed the proofs needed to establish either actual harm or substantial risk of harm. Id. at 22-23. The Court emphasized that
[j]udges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm. Instead, the fact-sensitive nature of abuse and neglect cases . . . turns on particularized evidence.
When, as here, the evidence presented does not demonstrate actual or imminent harm, expert testimony may be helpful. Competent expert testimony, stipulations, or other evidence could shed light on the facts introduced.
. . . .
[However], [t]o be clear, we do not require expert testimony in abuse and neglect actions. In many cases, an adequate presentation of actual harm or imminent danger can be made without the use of experts.
[Id. at 28-29 (emphasis added) (citations omitted).]
This pronouncement builds upon a key decision of this court, which is frequently cited in Title 9 case law. In that case, S.S., supra, 372 N.J.Super. at 15-17, we considered whether a battered wife could be found to have abused her twenty-one-month-old son where: (1) the infant was present and at times in her arms, albeit unharmed, while she was repeatedly physically attacked by her husband during a single incident lasting more than an hour; (2) she returned home to her husband with the infant after initially fleeing the scene following the first assault; (3) she allegedly initially refused to obtain a restraining order against her husband; and (4) she also sought to facilitate her husband's return home following his arrest. Notably, a caseworker who examined the infant after the incident found no sign of physical abuse or any indicia of emotional trauma, and the trial court likewise made no finding of actual or potential physical harm to the child. Id. at 19-20. However, the trial court was persuaded that the wife had abused her child based upon her actions during and after the attack which, in the court's view, indicated that she did not understand the emotional harm that exposure to domestic violence had caused and would cause in her son. Id. at 22.
In finding that the Division never met its burden of demonstrating harm to this particular child, the S.S. court emphasized that it could not simply "take judicial notice of the fact that domestic violence necessarily begets emotional distress or some other psychic injury in child witnesses." Id. at 25.
In the present case, there is ample evidence to support the conclusion that Brian had committed acts of domestic violence upon Jenny and the children, particularly Joey who had witnessed or heard some of the violent incidents. The judge rightly emphasized the mimicking conduct of Joey while playing with his sister. The judge took particular note of Jenny's testimony of prior acts of domestic violence, some of which resulted in police contact, temporary restraining orders, and emergency medical attention, as well as Brian's testimony regarding the love taps and his manner of "play."
Based upon the decisions in A.L. and S.S., we reject Brian's contention that the testimony of a psychological expert was "required by law" before the trial court could find that the parties' children had sustained emotional harm from witnessing the domestic violence. As noted by our Supreme Court in A.L., supra, 213 N.J. at 28, factual evidence or expert testimony, or both, may be relied upon in Title 9 proceedings. Further, this was not a case where absolutely no factual evidence of emotional harm was presented below. Although the testimony regarding Joey's imitative behavior was limited, it directly confirmed that he was exhibiting heightened aggression and had begun to pattern his behavior after that of his father in an attempt to control and intimidate those around him. We therefore concur with the trial judge's conclusion that the Division proved the necessary elements of an abuse and neglect finding by a preponderance of the evidence.
We find the remaining claim raised by Brian, seeking removal of his name from the Central Registry, to be moot given our affirmance of the order below.