Opinion
DOCKET NO. A-1847-14T3
07-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.M., Defendant-Appellant, and C.M., Defendant. IN THE MATTER OF S.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.M. (David B. Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-126-14. Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.M. (David B. Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant H.M. (Mother) appeals, challenging the trial court's January 16, 2014 finding she abused or neglected her daughter, S.M. We affirm.
I.
The following facts are taken from the trial court's factual findings, as well as the testimony and documents admitted into evidence at the hearing. S.M. was born in January 2012. Several months after S.M.'s birth, Mother entered into a relationship with E.R. (Boyfriend). Boyfriend had brutally and repeatedly assaulted Mother, causing numerous injuries and bruises. Boyfriend lives with his alcoholic mother, whom Mother knew he also hit.
S.M.'s father, defendant C.M., is no longer active in S.M.'s life, and was not involved in the dispute that precipitated the Division's involvement. The Family Part made no finding of abuse or neglect by C.M.
On September 27, 2013, when S.M. was approximately twenty months old, Mother was at Boyfriend's house. Mother and Boyfriend got into an argument because Mother refused to be in Boyfriend's music video. Boyfriend punched Mother "a couple of times in the stomach and face," threw a rocking chair striking her back, and beat her with an aluminum broomstick, causing significant bruising and severe pain. Boyfriend then drove Mother to the base of the George Washington Bridge, told her to get a ride from there, and told her to never return to his house.
During this argument, S.M. was at her paternal grandmother's house. Mother stayed at her aunt's house in New York for a few hours, then picked up S.M. at around 2 a.m. on September 29, 2013.
Despite Boyfriend's beating and warning, Mother decided to return to Boyfriend's house with S.M. Boyfriend was not at the house. Mother went to sleep in Boyfriend's bed with S.M.
At around 9 a.m., Boyfriend returned to the house and asked Mother "[w]hat the fuck are you and your daughter doing in my bed?" Mother tried to explain that she had nowhere to go and needed clothes. Boyfriend stated he did not "give a fuck" and he ordered Mother to "[g]et the fuck out of [his] house." Boyfriend hit Mother, punched her in the chest, and slammed her against the wall, saying "[y]ou and your motherfucking baby need to get the fuck out of my house."
Boyfriend then grabbed S.M. by the ankles, and swung her around and hit her head against one or more pieces of furniture. Boyfriend also slapped S.M. once, and said he was "going to rape the shit out of [Mother's] daughter." Boyfriend began taking S.M.'s diaper off and attempted to digitally penetrate her vagina with two fingers. Mother immediately jumped on Boyfriend and started hitting him. Boyfriend threw Mother on the floor, kicked her in the head, and hit her some more. Mother managed to grab S.M., flee the house, and call the police from a neighbor's house.
Officer Keith Ehalt responded to the domestic disturbance call and found Mother and S.M. sitting on a neighbor's porch. Mother reported to Ehalt that Boyfriend had beaten her and that she had bruises from this and previous assaults. Ehalt observed a large red bruise on Mother's right side. Ehalt transported Mother and S.M. to the police station. Mother refused to obtain a temporary restraining order against Boyfriend, stating she "will always love [Boyfriend] and want to be near him at least to be a friend."
Mother initially refused medical treatment for herself and S.M. Mother also did not tell anyone about Boyfriend's assault and attempted rape of S.M. Rather, Officer Ehalt overheard Mother talking on her cell phone about Boyfriend's abuse towards S.M. Ehalt heard Mother say Boyfriend "tried to rape the baby and was swinging the baby around by its ankles." Ehalt then told Mother to hang up the phone and explain the altercation between Boyfriend and S.M. Ehalt reported Mother's allegations to his supervisor, who then contacted plaintiff, the Division of Child Protection and Permanency (Division).
Eventually, Mother agreed to be transported to the hospital to seek medical treatment for herself and S.M. At the emergency room, the treating physician observed numerous old and new bruises and injuries all over Mother's body. S.M.'s injuries included bruises on both of her ankles and a red mark on her face. Emergency room personnel also evaluated S.M.'s vagina and determined that her hymen was still intact and that there was no sign of vaginal trauma resulting from Boyfriend's assault.
Mother accused emergency room personnel of "trying to take away" her "best friend," meaning Boyfriend. Mother called Boyfriend. This conversation was overheard, and as a result, a police officer took away Mother's phone and warned the hospital staff that Mother was trying to contact Boyfriend.
Mother reported to two Division caseworkers, Lydia Tatekawa and Priscilla Ortiz, that Boyfriend's abuse was not that serious and that he had never harmed S.M. before this occasion. However, Mother told Tatekawa that Boyfriend had been beating her "for months," and that she had taken pictures of the resulting bruising "just in case." Mother also admitted that following the abuse on September 27, she had obtained and ingested a Percocet without a prescription to alleviate the pain. Mother told Ortiz that if S.M. had not been in the house on the day of the most recent abuse, then the Division would not have been involved. Despite the evidence of continuing abuse, Mother declined Division services.
On October 2, 2013, the Division removed S.M. from Mother's care. The Division substantiated Mother for neglect and filed a Verified Complaint seeking care, custody, and supervision of S.M. On January 13, 2014, the trial court held a fact-finding hearing. The Division presented exhibits and testimony from five witnesses. Mother did not present any evidence or witnesses. On January 16, 2014, Judge Mary F. Thurber issued an oral opinion, finding the Division's witnesses "credible and reliable," and finding by a preponderance of the evidence that S.M. was an abused or neglected child.
On October 24, 2014, Judge Margaret M. Foti terminated this litigation under the "FN" docket because a complaint for Termination of Parental Rights had been filed.
Mother appeals the finding of abuse or neglect, arguing:
POINT I - THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT MUST BE REVERSED BECAUSE IT IS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE.
POINT II - THERE IS NO VALUE TO PLACING [MOTHER'S] NAME ON THE CENTRAL REGISTRY, AND THEREFORE NO VALUE IN MAKING A FINDING OF ABUSE OR NEGLECT AGAINST HER.
II.
Mother contends the trial court's finding of abuse and neglect was not supported by sufficient evidence. We must examine "whether there was sufficient credible evidence to support the trial court's findings." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). We "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has the feel of the case that can never be realized by a review of the cold record.'" Id. at 342-43 (citation omitted). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 189 (App. Div. 1993)). "Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken," ibid., and "our intervention is necessary to correct an injustice," N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We must hew to that standard of review.
In this case, both the Division and the Law Guardian supported the finding of abuse or neglect. "[T]he Law Guardian's position [is] of particular significance" because the Law Guardian "has to advocate for the best interests of a child too young to speak for [herself], and represents neither adversary in the case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).
III.
"Title 9 governs acts of abuse and neglect against a child. It provides interim relief for children at risk and outlines the standards for abuse and neglect proceedings against parents and guardians." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013) (citation omitted). Under N.J.S.A. 9:6-8.21(c)(4), a child is abused or neglected if her
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of [her] 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 . . . .
[Ibid. (emphasis added).]
Thus, "'a finding of abuse and neglect can be based on proof of imminent danger and a substantial risk of harm.'" Div. of Child Prot. & Permanency v. E.D.-O, 223 N.J. 166, 178 (2015) (citation omitted). "[C]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)).
The trial court properly found that Mother placed S.M. at substantial risk of serious harm by returning to her abusive Boyfriend's house. The risk of "harms need not be inflicted by the parent personally." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007). "[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." Ibid. "Consequently, a parent's association with third-parties may be an appropriate consideration if those associations harm the child." Ibid.; see also F.M., supra, 211 N.J. at 451 (holding the mother responsible for harm to her children when she "was unable or unwilling to shield her children from a person who clearly presented a risk of harm to her children").
The trial court found that harm to S.M. was reasonably forseeable. However, Mother argues she had no way of knowing that Boyfriend would harm S.M. because he had not previously done so.
Mother cites N.J. Div. of Youth & Family Servs. v. N.M., 438 N.J. Super. 419 (App. Div. 2014). In N.M., the mother informed her Division caseworker that she had a new boyfriend, Jeffrey. Id. at 423. The Division contacted Jeffrey to conduct a background check, but he refused to provide any information, and the Division warned the mother of his refusal. Ibid. The same day she received the warning, the mother took her children to the park to meet Jeffrey. Ibid. Jeffrey followed her home, forced his way inside her building, and raped her while the children watched. Id. at 424. We rejected the trial court's conclusion that "a person who declines to provide the Division with personal information should be assumed to be dangerous." Id. at 428. We stressed that in the Mother's "brief relationship with Jeffrey, there was no history of violence, no indication that he had a criminal record, and simply no way for her to foresee that a daytime meeting in a public park would result in a brutal and horrific rape." Ibid.
Here, by contrast, Mother knew of Boyfriend's history of violence, even against his own mother. As the trial court found, Boyfriend had brutally assaulted Mother on numerous prior occasions. Mother admitted he had been beating her "for months." Only hours before, Boyfriend had engaged in what the trial court found was "extreme domestic violence." He punched Mother in the chest, beat her with an aluminum broomstick, and threw a rocking chair at her. Mother admitted Boyfriend had told her never to return to his house. Thus, it was foreseeable that Mother's return to Boyfriend's house would place S.M. at substantial risk of harm.
In her reply brief, Mother notes that Boyfriend stated in a Division interview that he told Mother she could return to the house but that she had to stay away from him; however, Boyfriend contradicted that statement in the same interview. Those statements were contained in a Division report that was admitted as an exhibit. However, Boyfriend did not testify at the fact-finding hearing, and the trial court specified that it "did not consider any hearsay statements of non-present witnesses that may have been included in those exhibits." Mother now argues that Boyfriend's statement about allowing her to return was admissible. However, a "'hearsay statement[] embedded in Division records' from persons other than Division personnel and affiliated professional consultants 'may not be admitted unless it satisfies an exception to the hearsay rule.'" N.J. Div. of Child Prot. & Permanency v. N.T., ___ N.J. Super. ___, ___ (App. Div. May 31, 2016) (slip op. at 18-19) (quoting N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 385 (App. Div. 2014)). Boyfriend's statement does not satisfy any exception to the hearsay rule. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 467 (App. Div. 2014).
In returning to Boyfriend's house with S.M., Mother failed to exercise a "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(6). 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., 157 N.J. 161, 181 (1999). "'[M]inimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Conduct is "willful or wanton" if it is "done with the knowledge that injury is likely to, or probably will, result," or if "actions [are] taken with reckless disregard for the consequences." Ibid. "[U]nder a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Id. at 179.
Here, Mother was aware of the dangers inherent in returning to Boyfriend's house even though he had severely beaten her and warned her not to return. In a failure of supervision, she nonetheless brought S.M. to her abusive Boyfriend's house. As the trial court found, Mother did so with knowledge that "injury [was] likely to, or probably [would], result" to S.M. Id. at 178. In any event, as the trial court also found, Mother's return to Boyfriend's house "recklessly create[d] a risk of serious injury to" S.M. Ibid. To place S.M. in an environment with such a volatile and dangerous individual clearly placed her in imminent danger and substantial risk of physical harm, as the trial court found. Therefore, Mother "is liable for the foreseeable consequences." Id. at 179.
Because we affirm this finding, we need not consider the trial court's additional findings that Mother also placed S.M. at substantial risk and imminent danger of foreseeable harm if S.M. witnessed an assault on Mother, or if the assault rendered Mother unable to provide supervision to the toddler.
Mother also argues she should not be found to have abused or neglected S.M., because she protected S.M. by grabbing her from Boyfriend's hands and fleeing the house. However, Mother had already placed S.M. in imminent danger and substantial risk of harm by willfully and wantonly bringing S.M. to her abusive Boyfriend's house. Moreover, Mother's grossly negligent and reckless behavior was further evidenced by her conduct after her flight. Mother did not tell the police that Boyfriend had slapped S.M., swung her around, caused her to hit her head on the furniture, and attempted to digitally rape her. Mother refused to let S.M. receive medical care. Only because Officer Ehalt overheard Mother's phone conversation did the police and Division learn of the abuse of S.M. and provide medical treatment. Even thereafter, Mother evinced an intent to return to Boyfriend, tried to contact him, and complained that people were trying to keep her from him. Thus, Mother evidenced no intention of actually protecting S.M. from being exposed to Boyfriend even after he physically abused S.M.
Mother alleged that she returned to Boyfriend's house because she had nowhere else to go and needed clothes. However, as the trial court found, that is no reason to expose a child to a violent physical abuser. Moreover, the trial court did not credit that unsupported allegation, noting that Mother could have contacted her aunt, S.M.'s grandmother, the police, or an agency to seek help, or gone to a shelter as she had previously. If Mother needed clothes from Boyfriend's house, she could have waited to return alone when she could have someone watch S.M. Despite these options, Mother voluntarily exposed S.M. to Boyfriend's wrath.
In her reply brief, Mother cites N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div.), certif. denied, 182 N.J. 426 (2005), and Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59 (App. Div. 2005). Those cases are distinguishable. In both S.S. and D.F., the claims of abuse or neglect were only based on children witnessing domestic violence, and we found no harm to the children. D.F., supra, 377 N.J. Super. at 61; S.S., supra, 372 N.J. Super. at 28. Here, S.M. was not merely a witness to violence, but was herself physically assaulted, subjected to an attempted sexual assault, and was in imminent danger of such harm. Thus, a finding of abuse or neglect was appropriate because Mother placed S.M. at substantial risk of harm.
Like the trial court, we are aware that Mother was the injured victim of severe domestic violence, and that her return to her abuser may not be uncommon among victims of domestic violence. However, Mother also had a parental and legal obligation to protect S.M. from such abuse. Because her gross negligence placed S.M. in imminent danger and substantial risk of harm, we uphold the trial court's finding of abuse or neglect.
IV.
Mother also challenges the inclusion of her name on the Child Abuse Central Registry. However, the Legislature requires that when the Division receives a report that a child has been abused or neglected, the Division "shall also, within 72 hours, forward a report of such matter to the child abuse registry operated by the division in Trenton." N.J.S.A. 9:6-8.11 (emphasis added); see also N.J.S.A. 9:6-8.10; N.J.A.C. 10:129-1.3. If the Division finds that the report is substantiated, and "[i]f the finding of child abuse or neglect is upheld, the person's name remains in the Central Registry." D.F., supra, 377 N.J. Super. at 66. The Legislature has decreed that "[t]he child abuse registry shall be the repository of all information regarding child abuse or neglect." N.J.S.A. 9:6-8.11 (emphasis added). The word "shall" is "mandatory." State v. Thomas, 188 N.J. 137, 150 (2006) (citation omitted). Mother has not provided any authority to justify ignoring the commands of the Legislature.
Mother nonetheless argues that her name should not be included on the Central Registry because it could "'injure[] [her] good name'" and "limit[] [her] 'capacity to obtain employment in a vast array of education-related jobs.'" See D.F., supra, 377 N.J. Super. at 66 (citation omitted). She cites D.F. and S.S., which "questioned the appropriateness of inclusion of the mother's name in the Central Registry when the only allegation against her was that she had failed to take effective steps to remove her husband from the home before he committed additional acts of domestic violence" witnessed by children. Id. at 69 (citing S.S., supra, 372 N.J. Super. at 27-28).
Those cases are inapposite. In D.F., the Division "did not perceive a sufficient threat to the child to warrant the filing of a protective services action," and we reversed the Division's substantiation that the mother neglected the child. Id. at 61, 71. In S.S., we reversed the trial court's finding that the mother abused or neglect the child. S.S., supra, 372 N.J. Super. at 28.
Here, by contrast, we have affirmed the finding that Mother abused or neglected S.M. Accordingly, inclusion of Mother's name on the central registry is not only required but appropriate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION