October 18, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
C.W., Defendant-Appellant. IN THE MATTER OF N.D.R., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-209-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer K. Russo-Belles, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Grall and Waugh.
Defendant C.W. (Cynthia) appeals the Family Part's June 21, 2012 order finding that she had neglected her son N.D.R. (Nick). We affirm the finding of neglect, but narrow the basis of the finding.
We discern the following facts and procedural history from the record on appeal.
Cynthia and D.R. (Daniel) are the parents of Nick, who was born in November 2008. The family came to the Division's attention through an anonymous tip in April 2010. Upon further investigation, the Division found a recent article in the Atlantic City Press concerning an incident of domestic violence at their home in the same month. The newspaper reported that Cynthia had stabbed Daniel and hit him with a frying pan. She was arrested and charged with aggravated assault and weapons offenses.
A Division worker went to the couple's home, where she found Daniel and Nick. The worker reported that Nick was safe in his home, which she described as clean and comfortable. A family friend was assisting in caring for Nick. Daniel reported that he did not want to press charges against Cynthia, whom he believed was suffering as a result of the recent death of her parents. He also informed the worker that he believed she might be taking drugs and was in need of counseling.
The caseworker proposed a plan under which Cynthia would not be permitted to return home until she had started to receive services. Daniel did not want to sign the plan unless Cynthia, who was still incarcerated at the time, saw and also signed it.
The caseworker then spoke with Cynthia at the county jail. Cynthia reported that she and Daniel were sleeping separately, and that he always smelled of alcohol and motor oil. Cynthia told the caseworker that Daniel regularly abused her, but that, other than slapping her once, the abuse was verbal rather than physical.
Cynthia related that she "snapped" after she sensed Daniel standing over her while she was asleep on a couch. At the time, however, Daniel was actually asleep in his bed. Cynthia reported that she felt a growing rage, went to the kitchen to get a frying pan and knife, and then went to the bedroom. She hit Daniel on the head with the frying pan and dragged the knife across his throat. She then returned to the kitchen, got two more knives, and stuck them into Daniel as hard as she could.
The caseworker explained the proposed case plan. Cynthia agreed to leave Nick with Daniel after she was released, at which time she would sleep at her brother's residence. She agreed to sign the plan, as did Daniel when the caseworker met with him again. During her second visit, the caseworker observed that the home was well supplied with food, childcare items, and age-appropriate toys. Nick had his own crib.
The caseworker concluded that allegations of abuse for Cynthia against Nick were unfounded. However, she also concluded that Cynthia's violent behavior had exposed Nick to a substantial risk of injury, which warranted a finding of neglect. She recommended that the case be closed pending Cynthia's release from incarceration, at which time Cynthia would be in need of services.
Cynthia was released on bail on June 15. A second caseworker went to the home that evening, where she spoke with Daniel and Cynthia. She learned that Daniel picked Cynthia up at the jail following her release and brought her to their home. Cynthia told the caseworker that Nick was not present when the fight occurred and was never in danger. Daniel told the caseworker that the police had initiated criminal charges on their own, that he was not injured, and that Cynthia did not stab him, although she was holding a knife.
The caseworker saw Nick in the bath and observed no marks or bruises. Having concluded that there were no safety concerns after inspecting the home, the caseworker left.
On June 26, a different caseworker went to the home, where Cynthia was caring for Nick. The caseworker observed that Nick was dressed appropriately and smiling. She characterized the home as immaculate and organized. The caseworker explained that the case plan signed by both parents required Cynthia to stay at her brother's home. Cynthia told the worker she did not want to leave the home but eventually agreed to do so. She made arrangements to live with her brother, who also agreed to supervise visits between Cynthia and Nick. The Division's plan was revised to include supervised visits and services for Cynthia.
The Division filed its initial Title Nine, N.J.S.A. 9:6-8.21 to -8.73, complaint seeking only care and supervision for the child on June 28. It was amended on July 9, at which time the Division also sought custody of Nick. The Division placed Nick with D.W., a family friend, who would also be evaluated for supervising parental visits. On August 17, the judge approved joint visits by the parents, supervised by D.W. On November 16, having received a satisfactory report from the parents' domestic violence counselor, the judge approved reunification with Nick.
In March 2011, the Division learned that Cynthia had left Nick with an individual known as "Doc" after she borrowed his car to visit Daniel, who was incarcerated on a non-support warrant involving a child from an earlier relationship. When Cynthia did not return that day to retrieve Nick, Doc contacted the Division, telling the caseworker that Cynthia had left only one diaper and a bottle with him. According to Cynthia, she spent the night at the jail hoping Daniel would be released. She informed the caseworker that she had left sufficient supplies with Doc.
The caseworker spoke to Nick. He said he was not afraid of anyone at the place he was staying, which the caseworker described as clean and appropriate. She observed Nick's diaper and clothing to be appropriate. Having found no problems, the caseworker recommended that the case be closed as unfounded.
There was a second referral later in March. D.W. alleged that Cynthia had dropped Nick off at her home, was using drugs, and went to the hospital due to a nervous breakdown. The Division's investigation revealed that Cynthia had admitted herself to a psychiatric facility for treatment of depression and cocaine use. Cynthia told the worker that she made plans for Nick to stay with D.W. while she was in treatment. She admitted that she had been using drugs while caring for Nick, that she had sold her television and computer to buy drugs while Nick was present, and that she and Daniel were behind in their rent payments and electric bills. The Division removed Nick from Cynthia's custody and placed him with D.W. The Division also substantiated Cynthia for neglect of Nick.
On December 6, 2011, the judge entered an order returning Nick to the custody of his parents. The order was conditioned on their continued compliance with services.
The Title Nine factfinding hearing began on March 30, 2012. Although Cynthia and Daniel attended court that morning, they left before the matter was actually heard in the afternoon. Both sides introduced documents into evidence. The hearing resumed on June 15. At the trial judge's request, Cynthia provided brief testimony. She maintained that she had not used illegal drugs between 2008 and March 2011, and that she had been "clean" since her admission to the treatment facility that March. She testified that she was not using drugs at the time she attacked Daniel in April 2010.
On June 21, the judge placed a brief oral decision on the record. Her decision was based on the documents introduced by consent and the brief testimony given by Cynthia. The judge concluded that the Division had not sustained its burden of proof with respect to abuse or neglect of Nick by Daniel. With respect to Cynthia, the judge found neglect based upon the attack on Daniel and the drug use in March 2011. The implementing order was entered the same day, as was a separate order terminating the Title Nine litigation. This appeal followed.
On appeal, Cynthia argues that the trial judge erred in finding that her conduct "inflicted harm or created a substantial risk of imminent harm to her son by failing to exercise a minimum degree of care." Both the Division and the law guardian disagree and urge us to affirm the order. Cynthia also argues that the trial judge erred in relying on the documentary evidence without requiring the testimony of the Division's witnesses.
We briefly address the evidential issue raised by Cynthia, which we find to be without merit and not requiring extended discussion. R. 2:11-3(e)(1)(E).
The documents at issue were redacted by counsel to address hearsay issues and were admitted into evidence with the consent of the parties. On March 30, Cynthia's attorney told the judge: "I've had the chance to review all the documents and I'm okay with them." He also told the judge that he had "explained that to [Cynthia]" and that "[s]he was okay with it." Having agreed to the procedure, Cynthia cannot now object. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339-42 (2010).
In addition, Cynthia did not seek to testify at the hearing, although the judge had her sworn and questioned her about her drug use. Her attorney could have questioned her about other issues at that time or she could have been offered as a witness earlier in the proceedings.
We now turn to the substantive issues raised by Cynthia, as to which we first outline our standard of review.
As we stated in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J.Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010):
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J.Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J.Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
In this case, we note that the judge's findings of fact are based primarily on the documents introduced by consent, with only brief testimony having been taken from Cynthia.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is:
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.
The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
Title Nine provides in relevant part that an abused or neglected child includes one:
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, as herein defined, 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.
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J.Super. 247, 254-56 (App. Div. 2012). Such conduct can include failure to take a "cautionary act." T.B., supra, 207 N.J. at 306-07. Simple negligence, however, does not qualify as abuse or neglect. Ibid.
There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.
[G.S., supra, 157 N.J. At 178-179.]
We start our substantive discussion with the issue of whether Cynthia's drug-related conduct in March 2011 amounted to neglect under N.J.S.A. 9:6-8.21(c)(4).
With respect to that issue, the trial judge made the following findings:
We go into the incidents regarding the apparent relapse of [Cynthia]. And, if it were just a relapse or caring for the child under the influence I might feel differently, but in that situation there was [Cynthia] leaving the child in the care of an individual without adequate supplies and without any means of contacting her.
There was also the very serious -- and I have to agree with the Law Guardian on this -- the very serious series of incidents where [Cynthia] allowed the child to be present during drug buys and use of drugs and selling the drugs.
. . . [I]t certainly wasn't good judgment, [and] it certainly put this child in an imminent risk of harm by virtue of the illegal activity and the substantial risk of harm that attends to anyone in that situation, including [Cynthia], herself.
And, when you use drugs when you're caring for a child you always run the risk that you're going to overdose and leave that child without any supervision whatsoever, and that places him in substantial risk of physical harm, and that's failing to exercise a minimum degree of care.
And, there's using drugs, and there's being substantially under the influence, and the type of drug that [Cynthia] indicated was her drug of choice[, cocaine, ] is one that really doesn't allow for an individual to care for children while under the influence of [it].
I was interested in knowing how long [Cynthia] had been clean, because one of the other factors I need to consider is if the situation that led to these incidents . . . I almost wish that [Cynthia] had advised me that she was under the influence when she attacked [Daniel], because . . . I couldn't imagine how she couldn't have been under the influence. And, . . . I feel like I had to make a credibility call on that. I felt that she was using.
I think [Daniel] thinks that she was using, and I do think she was, but the fact that she was not willing to admit to that, I think that shows that she was not clean as long as she says she was.
Our review of the record convinces us that those findings of fact are fully supported in the record. With respect to the use of drugs at the time Daniel was attacked, we defer to the judge's credibility determination that Cynthia was not being truthful when she denied using drugs at that time.
We find no abuse of the judge's discretion in her determination that Cynthia's cocaine use during March 2011 amounted to neglect of Nick. Daniel was not available to assist her with childcare at the time. Nick was in her primary care during a period of close to a month when she was using cocaine. The judge's concerns with respect to the dangers inherent in that situation are both well-founded and reasonable, especially in light of the judge's finding that Cynthia was using cocaine at the time she attacked Daniel in 2010. In addition, Cynthia admitted that she was involved in drug transactions in the home while Nick was there.
Under those circumstances, when "an ordinary reasonable person would understand that [the] situation poses dangerous risks and acts without regard for the potentially serious consequences, " that person "act[s] with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179; see N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J.Super. 467, 481 (App. Div.), certif. denied, 203 N.J. 439 (2010). Consequently, we affirm the finding of neglect with respect to the cocaine use.
We now turn to the issue of whether Cynthia also neglected Nick within the meaning of N.J.S.A. 9:6-8.21(c)(4) when she attacked Daniel.
The judge made the following findings with respect to that issue:
The concern I had with that incident is that [Cynthia] could have killed [Daniel]. She could have killed [him] . . . [and] it was a very serious incident.
[Cynthia] provided statements in the investigation of this matter that the first knife wasn't sharp enough. She could have killed [Daniel] the first time if she hadn't determined that the first knife wasn't sharp enough.
She went back. She got another knife, and that this was all as a result of her anger against [Daniel], which she described as, you know, she sat and thought about it before she attacked [him]. And, yet [Cynthia] testified, and there was no indication in the discovery other than the allegations that [Daniel] and his wife were arguing over her alleged crack use or crack cocaine use.
[Cynthia] says she was not under the influence of any drugs when that incident occurred, so that incident is all the more serious because . . . there's no comfort in telling ourselves that it was because [Cynthia] was under the influence of a serious drug that was causing that mood swing.
She almost killed [Daniel]. It was a very serious attack. It seemed to have come out of nowhere. The parties had a history of maybe some domestic turmoil, but nothing of this nature, and . . . it's concerning.
. . . .
And, I find that with that incident [Cynthia] did not physically injure the child, but she did put him in substantial danger of . . . his mental or emotional health being affected by the murder of his father, and the child having to go on in life without his father, potentially. And, . . . that incident put the child in substantial risk of that harm mentally and emotionally.
The judge's factual findings concerning the incident are supported by the record, particularly Cynthia's own statements. The core issue on appeal, however, is whether the potential harm resulting from the killing of one parent by another is abuse or neglect, an issue as to which the judge cited no cases.
The parties cite 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), which is not helpful either way because the facts are so dissimilar. In that case, we reversed a finding of abuse and neglect against a mother who was holding her child when the child's father engaged in domestic violence. Here, the mother was the domestic abuser and the child was not directly involved.
The law guardian relies on N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551 (App. Div. 2010). In that case, the trial judge had cited S.S. for the proposition that the "act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs." Id. at 584. We nevertheless reversed the trial judge's finding of no abuse or neglect based on the expert testimony concerning the parents' psychological problems and the likely effect of the home environment on the children. Id. at 585-86.
In this case, Nick was approximately nineteen-months old and, as already noted, not a witness to the domestic violence. There was no testimony, expert or otherwise, that he was adversely affected to any significant degree by what actually happened. The trial judge based her finding on the hypothetical proposition that Nick would have been adversely affected had Daniel died. There is, however, no expert testimony concerning the issue that the absence of a parent for a child Nick's age, for whatever reason, is generally considered to be potentially damaging.
We find an insufficient basis in the record before us for a finding of neglect, as defined in N.J.S.A. 9:6-8.21(c)(4), based solely on the possibility that Cynthia's attack on Daniel could have resulted in his death with unspecified, consequent harm to Nick.
Nevertheless, we note the judge's finding, based on her credibility assessment following Cynthia's testimony, that Cynthia was using cocaine at the time of the attack, is supported in the record. We have already affirmed the finding that Cynthia's cocaine use while caring for Daniel was an act of neglect. In our view, the incident of April 2010 provides further support for that finding, although it does not amount to a basis for a separate finding of neglect.
In summary, we affirm the finding of neglect based on Cynthia's use of cocaine in March 2011, as supplemented by the finding of cocaine use in April 2010. We reverse the order on appeal to the extent it relies on the potential of harm to Nick had Cynthia actually killed Daniel, which we view as overly speculative on the record before us. We remand to the Family Part for correction of the June 21, 2012 order, and to the extent necessary the central registry, to conform with this opinion.
Affirmed in part, reversed and remanded in part.