NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, PLAINTIFF--RESPONDENT,
M.C., DEFENDANT--APPELLANT. IN THE MATTER OF M.C., M.C., JR. AND A.C., MINORS
Argued April 2, 2014
Approved for Publication May 5, 2014.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-71-12.
Christine Olexa Saginor, Designated Counsel, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief).
Cynthia Phillips, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Phillips, on the brief).
Before Judges GRALL, NUGENT and ACCURSO.
[435 N.J.Super. 409] GRALL, P.J.A.D.
M.C. appeals a judgment entered following a fact-finding hearing in an abuse or neglect action that was commenced by the Division pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The judge determined that M.C.'s fourteen-year-old son Matt, six-year-old son Jack, and four-year-old daughter Jill " were abused and neglected children" as defined in N.J.S.A. 9:6-8.21(c)(4)(b). The Division urges us to affirm, but M.C. contends, and the children's law guardian agrees, that the competent evidence in the record is inadequate to establish abuse or neglect. We agree.
Our decision is informed by New Jersey Department of Children and Families v. A.L., 213 N.J. 1, 59 A.3d 576 (2013), a case decided after this judgment was entered. Because there was no evidence of actual harm, the Division was obligated to present competent evidence adequate to establish that M.C.'s children were presently in imminent danger of being impaired physically, mentally or emotionally. Id. at 23, 30, 59 A.3d 576; see N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(a)(4), (b)(1)-(2).
On January 27, 2012, a member of the staff at Matt's school reported Matt's allegation of abuse to the Division. Reportedly, Matt was told that the school would be calling his mother about an [435 N.J.Super. 410] argument Matt had with another student in the gym that escalated into a face-to-face encounter and chest-butting. As reported by the Division's screener who took the call, Matt cried hysterically, " got on his hands and knees," and " begged" school staff not to tell his mother. Matt said he was afraid to go home, explaining that he " gets hit at home" and that M.C. is the one who hits him--sometimes punching, sometimes smacking and sometimes using a belt. He said he was last " beaten up after the Christmas break."
The Division caseworker assigned to investigate the referral, Ms. Badger, went to the family home that evening and spoke separately
with Matt, Jack, Jill and both of the children's parents. Matt was the first child Ms. Badger interviewed. He told her he was taking two medications for bipolar disorder, " ADHD" and anger management.
Matt also advised Ms. Badger that he had not told his mother about his problem at school and did not think the school had told her about it. He said " if he gets into trouble, he is terrified of his dad because he is into physical discipline." Matt said he feels safe when M.C. is not angry but is " very, very scared" when M.C. is angry, which he is " a lot."
Matt said he had bruises in the past, but not presently, explaining that M.C. last hit him about two weeks " before Christmas" because he had gone to wrestling practice instead of homework club after school. When M.C. spoke to Ms. Badger, he acknowledged that he might have " just pushed" Matt and " tapped him [on] his head."
Matt advised Ms. Badger he had not told anyone about the abuse before because he was afraid, and he told her that M.C. slaps him in the face and punches him in the ribs and chest. He claimed that one punch was so hard that it made him cough up blood. The Division never obtained Matt's medical records, and apart from Matt's statements there was no evidence tending to show Matt coughed up blood, had bruises, broken bones or bled. [435 N.J.Super. 411] Jack and Jill told Ms. Badger that Matt gets hit all over his body. Jill said that Matt " 'gets beated' when he is bad" and that her mom and dad hit her on her butt.
Matt's mother admitted that she knew about M.C.'s use of physical discipline and did not approve. She said she assumed that when M.C. took Matt to another room to discipline him, he was giving Matt a " spanking," which was something M.C. did no more than twice a year. Generally, the children were punished by taking electronic devices and other privileges away from them for a time.
Matt told Ms. Badger about a different type of discipline that M.C. meted out once during an event the parties dub " the corner incident." Without indicating the precipitating event or approximate date, Matt told Ms. Badger that M.C. " pinned him" in a corner, made Jack and Jill come into the room, and directed Matt to slap himself in the face and say " 'I'm stupid'" and then slap himself harder and say " 'I'm a retard.'" He said his brother Jack laughed while that was happening. When Ms. Badger asked M.C. about the corner incident, M.C. said " he only told [Matt] to call himself a liar because he lied" and did not say anything about directing Matt to hit himself.
Ms. Badger asked Jack about the corner incident. According to Ms. Badger's report, the six-year-old child " affirmed that his dad made [Matt] smack himself and call himself stupid." He said that it happened one time and he could not " remember what else his dad made [Matt] sa[y] about himself." Jack also told Ms. Badger Jill was present. Ms. Badger did not describe the questions she asked Jack in order to elicit his affirmance of Matt's description of the " corner incident," but she did note that Jack " appeared to laugh and smirk . . . when ask[ed] about [Matt] being hurt."
There was significant and undisputed evidence that M.C. had a problem with drinking. Matt told Ms. Badger that M.C. drinks alcohol on weekends and hurts people when he does. He also said that he and his mother and siblings left the house when M.C. was drinking on weekends to stay with family or in a motel. Matt's [435 N.J.Super. 412] mother, and Matt's uncle who lived with the family, confirmed that the mother and
children spent some weekends away from home because of M.C.'s drinking. Matt's mother also told Ms. Badger that M.C. is " not a very nice person" when he drinks and that he is a " binge" drinker, and Matt's uncle acknowledged that his brother gets " talkative and aggressive" when drinking, ...