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New Jersey Division of Child Protection & Permanency v. M.W.

Superior Court of New Jersey, Appellate Division

November 18, 2013

M.W. and W.W., Defendants-Appellants. IN THE MATTER OF D.W. AND W.C.W., Minors.


Submitted July 16, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No FN-04-155-12.

Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Eric R. Foley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant W.W. (Shepard Kays, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A Puglisi, Assistant Attorney General, of counsel; Nancy R. Andre, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.W. and W.C.W. (Janet L. Fayter, Designated Counsel, on the brief).

Before Judges Ostrer and Hayden.


These are consolidated appeals from a Title Nine[1] protective services proceeding. Defendants M.W. (Martha)[2] and W.W. (Walter) appeal from the trial judge's March 14, 2012 order, which found that they abused or neglected their two children, D.W. (Donna), born August 12, 2008, and W.C.W. (Wade), born June 22, 2010. They argue that the New Jersey Division of Youth and Family Services (the Division)[3] failed to prove by a preponderance of credible evidence that either parent abused or neglected their children. We disagree and affirm the order as to Martha, but agree and reverse the order as to Walter.

The record reveals the following facts. The Division first became involved with defendants' family on August 2, 2010, after receiving a referral questioning the parents' fitness to care for their children due to substance abuse and mental health concerns. During the ensuing investigation, a Division caseworker, Albert Newkirk, located Martha at a hospital, where she had been admitted for kidney problems. Martha denied suffering from mental illness, but acknowledged that she had completed a rehabilitation program for mental health and substance abuse issues. Martha expressed her fear that Walter, who had attended the same program, had relapsed and was using crack cocaine. Martha stated that the couple had engaged in several domestic disputes wherein the police were contacted, including one incident which led to her incarceration. At the conclusion of its investigation, the Division effectuated an emergency removal and placed the children in foster care.

The next day, Walter met with Newkirk and acknowledged that Martha needed assistance caring for the children because she had "ADHD" and did not take medication. Walter reported he had been diagnosed with bipolar disorder and depression and had not taken medication in three years. Walter admitted that the police frequented their home due to recurrent domestic disputes, but denied any relapse into drug abuse.

The Division filed a verified complaint alleging abuse and neglect on August 4, 2010, and the court granted it custody of both children. After participating in services, Martha and Walter regained custody on March 21, 2011. The court terminated the litigation on June 14, 2011, finding that the conditions that prompted removal had been remediated. The family continued to receive services from the Division, including in-home counseling.

On July 12, 2011, Martha called the Division emergency "hotline" to report that she believed that Walter used crack cocaine while caring for the children. Two Division caseworkers went to the family home that evening and observed it to be appropriate, free of hazards, and well-stocked. Walter had left the home prior to their arrival.

Caseworker Gary Byrne investigated the referral further the next day. Martha was adamant that Walter was using drugs again and executed a safety plan with the Division wherein she would contact the Division immediately if Walter returned.

On August 8, 2011, Martha called Byrne "screaming, upset, irate, [and] angry." "She was shouting in the phone screaming that [Walter] was in the home with his crack-head brother[.]" Byrne could hear Walter screaming in the background "give me the f-ing phone." After alerting the police regarding the ongoing domestic dispute, Byrne proceeded to the home with Division worker Tom Johnston.

Upon arriving, Byrne observed Martha, holding fourteen-month-old Wade in her arms with Donna at her side, screaming and cursing back and forth with Walter outside the family's home. Byrne and Johnston separated the couple and Byrne began to question Walter. Walter, who was very irate, explained that he has been back in the home for three weeks, which Byrne knew was contrary to the safety plan. During the questioning, Martha continued to scream at Walter, who responded in kind.

Johnston repeatedly attempted to redirect Martha inside because "[s]he was holding the infant child in her arms, swinging the child back and forth as she was yelling and screaming at the father." Johnston's efforts were unsuccessful as Martha continued to return and engage in furious name-calling at Walter. Johnston cautioned her to stop as the children could be harmed. When he could not calm Martha, the police were called again.

A police officer arrived on the scene and also attempted to redirect Martha inside the home with the children because the situation was "volatile." When Martha refused, the officer began to take her into custody. She resisted, and tried to punch the officer. According to Johnston, "[s]he was swinging at the officer holding the baby, and the baby almost fell out of her arms." At that point, Johnston grabbed Wade from Martha, and the officer placed her under arrest. Then, Walter ran towards his wife to intervene with the officer, shouting "she's pregnant, she's pregnant."

The officer called for backup and four additional officers arrived to control the scene. The entire incident lasted approximately one hour. Walter was not arrested in connection with the incident.

The Division immediately conducted an emergency removal of the children from the scene. The Division filed a verified complaint on August 10, 2011. At the hearing on the emergency removal, the court granted the Division custody, care and supervision of both children and ordered psychological, psychiatric, and substance abuse evaluations, counseling and supervised visitation for both parents.

On October 5, 2011, Walter admitted to a one-time drug relapse with crack cocaine, which allegedly occurred after the children were removed. Thereafter, on October 13, 2011, the Division amended its verified complaint to include Walter's drug usage as grounds for negligence and abuse.

At the fact-finding hearing on March 14, 2012, the Division presented the testimony of Byrne and Johnston and entered two exhibits, investigation summaries dated August 2, 2010, and July 12, 2011. In his oral opinion, the judge held that Walter and Martha both abused their children by the emotional harm inflicted by allowing them to witness domestic violence. Further, the court found that Martha's actions, while motivated by her concern about Walter relapsing, were inappropriate and harmful. According to the judge, in her "fury, " Martha placed Wade in danger of physical harm in attempting to punch the police officer with the baby in her arms. As to Walter, the court noted his past drug use, Martha's allegations of present drug use, and that he did not "relate" to the children.

The resulting order stated: "the parents engaged in domestic violence in front of the children, Mother was arrested as part of the incident, there were allegations that the father relapsed on crack cocaine and refused a urine screen.[4] He also punched a window during a separate domestic violence incident." The judge terminated the Title Nine litigation on July 10, 2012, as the Division had filed a complaint for termination of parental rights. These appeals followed.


On appeal, Martha raises the following:


We begin with a review of the well-established principles that guide our analysis. The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless 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. of Am., 65 N.J. 474, 484 (1974) (internal quotation marks and citation omitted). Indeed, a family court is entitled to deference on its findings of fact based on its special jurisdiction and expertise in family matters. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010).

Nevertheless, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus, we need not defer to the trial judge's legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990).

The matters on appeal were brought in the Family Court under Title Nine, N.J.S.A. 9:6-1 to -8.73, which address "noncriminal proceedings involving alleged cases of child abuse or neglect[.]" N.J.S.A. 9:6-8.22. In such actions, "the safety of the children shall be of paramount concern." Ibid. A fact-finding hearing is utilized to determine whether a child is abused or neglected. N.J.S.A. 9:6-8.44. At the hearing, the court must ground its decision only on relevant, competent evidence. N.J.S.A. 9:6-8.46(b).

Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances in making its findings. Id . at 33-34 (citing M.C. III, supra, 201 N.J. at 345).

Title Nine defines an abused or neglected child in pertinent part as follows:

[A] child [less than 18 years of age] whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]

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. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999). An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." Ibid.

In G.S., the Court explained that "[t]he phrase 'minimum degree of care' denotes . . . something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id . at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id . at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)). Further, willful or wanton conduct is conduct "done with the knowledge that injury is likely to, or probably will, result." Id . at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Grossly negligent conduct requires "'an indifference to consequences.'" Banks v. Korman Assocs., 218 N.J.Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J.Super. 277, 282 (App. Div. 1951)).

"[A]ny determination that the child is an abused or neglected child 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. While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.Super. 13, 24 (App. Div. 2004), (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

In enacting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the Legislature found "that 'children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.'" N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 585 (App. Div. 2010) (quoting N.J.S.A. 2C:25-18). Nevertheless, the court cannot take "judicial notice of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses" and a legislative declaration is not a substitute for proofs submitted at a fact-finding hearing. S.S., supra, 372 N.J.Super. at 25.

Indeed, "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." I.H.C., supra, 415 N.J.Super. at 584 (citing S.S., supra, 372 N.J.Super. at 22-26). Emotional harm to a child based on the child witnessing domestic violence must not be presumed. S.S., supra, 372 N.J.Super. at 23, 26 (finding that "evidential gaps" regarding alleged emotional harm to the child mandated reversal of trial court's conclusion of abuse or neglect); cf. I.H.C., supra, 415 N.J. at 584-85 (upholding the trial court's finding of abuse and neglect based upon testimony of numerous lay and experts witnesses that the children were emotionally harmed due to witnessing domestic violence).

Here, the trial judge's finding that Donna and Wade suffered emotional harm is manifestly unsupported by the evidence. The Division presented no evidence to demonstrate the alleged emotional harm to the children from observing their parents' domestic violence. See S.S., supra, 372 N.J.Super. at 22-23. As we cannot presume facts not in evidence, we cannot uphold the trial court's finding of abuse and neglect on the grounds of unsubstantiated emotional harm.

However, the record reflects that Martha placed Wade in serious danger of physical injury during the lengthy August 8, 2011 incident. Martha did not act with the requisite minimum degree of care when she repeatedly refused to heed the direction of the caseworkers or police to go inside the home. Instead she continually re-engaged in a screaming match with Walter while swinging Wade back and forth, tried to punch a police officer with Wade in her arms, and almost dropped the baby while resisting arrest. In her fury Martha showed an indifference to the consequences to her son in her arms. The record shows that Martha acted with gross and wanton negligence when she recklessly disregarded Wade's safety on August 8, 2011. See G.S., supra, 157 N.J. at 178-79. Her actions created a substantial risk of harm sufficient for a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4).

On the other hand, the evidence in the record regarding Walter's actions during the August 8, 2011 incident is sparse in comparison. Walter engaged in the heated prolonged verbal altercation with Martha. When the Division caseworkers arrived, they separated Walter from Martha and began discussing the situation with him. While Walter continued to respond to Martha, there is no evidence that he ever put either child in jeopardy of physical harm during the dispute. Additionally, the judge referred to Walter breaking a window during a previous dispute but, again, there was no evidence that the children were harmed, or even present, when the window was broken.

The trial court's only reason, other than emotional harm from the domestic violence, for its finding of abuse or neglect against Walter seems to be his prior drug usage in 2010 and a resumption of drug use alleged by Martha. The relapse Walter admitted to occurred after the children were removed, which was not relevant to the allegation of abuse and neglect that prompted the removal.

The record does not support a finding of abuse or neglect on the part of Walter due to his alleged drug usage. First, relapse alone is not enough, without additional proofs, for a finding of abuse or neglect against a parent. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 330-331 (App. Div. 2011). Second, the Division presented no competent evidence regarding Walter's alleged drug usage after the children were returned to the parents and prior to their second removal. No drug test results were presented. Although Martha asserted to the Division in July 2011 that she believed Walter used drugs in the presence of the children, the Division presented no competent evidence to support this claim. Moreover, in the period immediately prior to the removal, Walter's drug screens were negative for illegal drugs. Consequently, as there is no competent evidence that Walter put the children at risk of harm during the August 8, 2011 event or by his drug use, we must reverse the finding of abuse or neglect as to Walter.

Affirmed in part, reversed in part.

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