Opinion
DOCKET NO. A-2524-14T4
06-30-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.Q., Defendant-Appellant. IN THE MATTER OF Ma.Q., Mi.Q., and R.Q., Minors.
Jill Horowitz, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Horowitz, on the brief). Georgina Tsakrios, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Tsakrios, on the brief). Joseph Hector Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, attorney; Mr. Ruiz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-436-14. Jill Horowitz, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Horowitz, on the brief). Georgina Tsakrios, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Tsakrios, on the brief). Joseph Hector Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, attorney; Mr. Ruiz, on the brief). PER CURIAM
For purposes of Title Nine, the Legislature defined an abused or neglected child as one "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired" because a parent failed "to exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4). We held in N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), and later in N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584-85 (App. Div. 2010), that the statute's definition might be met in instances where a child has witnessed domestic violence between others, such as the child's parents. See also N.J.S.A. 2C:25-18 (observing that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence"). We have, however, also held 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." I.H.C., supra, 415 N.J. Super. at 584. What exactly constitutes the "additional proofs" referred to may be understood in comparing these two decisions.
In S.S., supra, 372 N.J. Super. at 22, we found an absence of the necessary additional proof where "[n]o witness stated as a matter of fact that evidence of emotional injury to the [twenty-one-month old] child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty." On the other hand, in I.H.C., supra, 415 N.J. Super. at 584, we found sufficient additional proof where that defendant's three-year old son had become "disturbingly combative and disdainful of adult authority" and that he called women "bitch" and "threaten[ed] to kill his sister with a vacuum cleaner" — conduct the experts concluded was "not natural" and "could only be learned conduct" "while in the care of his parents."
What we did not closely examine in those cases — but what is of acute importance here — is the nature of the alleged domestic violence witnessed by the child or children. For the reasons that follow, we interpret the judge's opinion as finding only an act of "ordinary domestic contretemps," and we reject the notion that the Legislature intended to brand a parent an abuser solely by engaging in a single act of "ordinary domestic contretemps." Accordingly, we reverse.
See, e.g., Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).
Here, the Division alleged that, on October 20, 2013, an act of domestic violence committed by defendant K.Q. (defendant) against his wife, S.R., caused emotional harm to their three children as defined by N.J.S.A. 9:6-8.21(c)(4). In January, 2014, the judge granted the Division's request for care and supervision, and permitted the children to live at home with their mother; defendant was restricted from living at home. Defendant, however, was allowed unsupervised visitation, and both parents were ordered to attend individual and joint counseling, while the two older children engaged in play therapy. By May 2014, the judge lifted the restraints and defendant resumed living at home with his wife and children; the Division and the law guardian expressed their support for the reunification of the family, and the family thereafter relocated together to Florida.
At the time, the children, Ma.Q., Mi.Q., and R.Q., were eight years old, six years old, and nine months old, respectively.
In December 2014, the judge conducted a fact-finding hearing to determine whether the children were abused or neglected by defendant. The judge so found, and the litigation was terminated.
Defendant appeals, arguing:
I. AS A MATTER OF LAW, THE TRIAL COURT ERRED IN FINDING THAT "PUSHING AND/OR PEOPLE ARGUING" CONSTITUTED TITLE NINE ABUSE AND NEGLECT OF THE CHILDREN.After carefully examining the record, we conclude that the Division at best demonstrated defendant engaged only in a single event of "ordinary domestic contretemps." Corrente, supra, 281 N.J. Super. at 249-50. Just as such an event cannot give rise to a domestic violence final restraining order, ibid., we likewise hold that a child exposed to occasional "ordinary domestic contretemps" cannot be said to be abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c)(4).
II. CONTRARY TO N.J.S.A. 9:6-8.46(a)(4) AND NEW JERSEY CASE LAW THE TRIAL JUDGE IMPROPERLY BASED HIS FINDING OF ABUSE AND NEGLECT ON THE PRIOR UNCORROBORATED STATEMENT OF ONE CHILD.
III. THE TRIAL JUDGE ERRED BY GIVING UNDUE WEIGHT TO THE EXPERT'S DIAGNOSIS THAT THE CHILDREN SUFFERED FROM AN ANXIETY DISORDER.
IV. EVEN ASSUMING ARGUENDO THAT THE CHILDREN SUFFERED SOME FORM OF HARM - THAT BEING, ANXIETY, IN THIS CASE - THE JUDGE ERRED BY DETERMINING, SUA SPONTE, THAT THE ANXIETY CAME SOLELY FROM THE ALLEGED "PUSHING" INCIDENT WHEN THE EXPERT GAVE FOUR OTHER EQUALLY PROBABLE CAUSES FOR THE CHILDREN'S ANXIETY AND DID NOT DELINIATE WHICH WAS THE SOLE CAUSE.
V. [DEFENDANT'S] NAME MUST BE REMOVED FROM THE CHILD ABUSE REGISTRY.
We note that the Law Guardian also argues that we should reverse the order under review and additionally contends that the expert provided only a net opinion.
The factual record before us is confusing because no family member testified. Instead the "facts" relating to the alleged acts of domestic violence were largely conveyed by the Division's expert, who recounted what he was told by the eight-and six-year-old children about what they believed transpired between their parents. Those children, however, seem to have at times either recounted different incidents or inconsistent versions of the same incidents; in either case, the hearsay statements provided to the court by the Division's expert were, as the judge found, mostly uncorroborated and not capable of supporting a finding of abuse or neglect. See N.J.S.A. 9:6-8.46(a)(4).
In his brief, the Acting Attorney General misstated the limits of N.J.S.A. 9:6-8.46(a)(4). The brief, after correctly observing that the statute permits the admission of a child's prior statements, went on to mistakenly state: "The statute requires however, that a child's statement, 'if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.' N.J.S.A. 9:6-8.46(a)(4)." To the contrary, subsection (4) states in full: "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." We have emphasized the critical phrase that the Acting Attorney General omitted which alters the thrust of the arguments the Division urges in support of the abuse/neglect finding.
The trial judge recognized the limits of N.J.S.A. 9:6-8.46(a)(4). In holding that the corroboration of which the statute spoke could come from another child's statement, the judge logically realized that the so-called corroborating statement would have to be consistent in order to corroborate. Finding inconsistencies in the children's statements, the judge correctly rejected the uncorroborated portions of their statements and, in that way, found a lack of evidence on the Division's more serious domestic violence allegations. In this way, the judge rejected the allegations that defendant at any time put his hand on his wife's throat, punched her, or hit her on the back of the head:
[T]his is an extremely close call. . . . [T]here was some talk about . . . Dad's hand maybe being on Mom's throat and/or [sic] hitting Mom on the back of the head. That's not really corroborated . . . .Notwithstanding the judge's clear rejection of the more troubling aspects of the children's hearsay statements as evidence of abuse or neglect, the Division would have us nevertheless consider other evidence, upon which the judge did not rely, in support of the otherwise uncorroborated claims. Specifically, the Division refers to defendant's own statements, which are contained in a Division report admitted into evidence. Defendant, however, acknowledged only that there was a "physical altercation" that included shoving by both him and his wife that seems to have no consistency with what the children asserted in the statements attributed to them by the Division's expert. In any event, the judge did not rely on this evidence either standing alone or as corroboration for any of the children's statements, and we decline the invitation to make our own findings in this case.
I have no doubt that there was an incident. Exactly what the incident was, I'm not so sure — I'm frankly not so sure anyone truly [knows] . . . exactly what happened. Did somebody punch somebody; did somebody push somebody; did somebody just yell at somebody and then bump into them? [It] get[s] a little confusing. But there's no[] corroboration [for the contention] that [defendant] punched anybody or slapped up anyone in the back of the head.
What the judge found was corroboration for "a pushing incident," but "no corroboration for more than pushing and/or people arguing." Again, he emphasized that "I know there's talk [among the children's versions] about somebody getting hit, but that's not corroborated." Putting aside our consternation about a finding of such potential significance that includes "and/or," we gather — although the judge was not explicit — that the push and argument (or the push or argument) was a reference to an incident where, while at the dinner table, defendant expressed disagreement with his wife's manner of feeding the youngest child during which he allegedly pushed her hand. The judge's findings — and his care in eliminating from consideration all the uncorroborated allegations — permits no other possible understanding of what he ultimately concluded. Considering the context, we cannot view this barely corroborated event as anything more than "ordinary domestic contretemps."
See S.S., supra, 372 N.J. Super. at 26.
In State v. Gonzalez, 444 N.J. Super. 62 (App. Div. 2016), we mandated a new trial because of a judge's repeated use of the phrase "and/or" in a jury charge. We would likewise admonish against the use of "and/or" in judge-made findings of fact because that phrase conveys nothing but doubt about what was actually found.
The ambiguity in "and/or" is readily apparent. In this context, it suggests that the two things joined by "and/or" both happened while at the same time suggesting only one of the two happened. Consequently, it is not clear to us whether the judge believed there was both pushing and arguing or only that there either was pushing or arguing but not both. For purposes of this decision, we will assume that the judge found both pushing and arguing. --------
Of course, we consider what the judge found to have occurred in a different setting than our usual consideration of ordinary domestic contretemps. That is, we examine the findings not in the context of an appeal from a domestic violence final restraining order but from an appeal of a finding of abuse in a Title Nine action that was based on children witnessing the alleged event or events. Nevertheless, we have — as noted earlier — determined that not just any act of domestic violence witnessed by a child may justify a finding of abuse or neglect. In the earlier cases cited above, we expressed concern about the extent to which the witnessed domestic violence caused emotional harm to a child. Here, we conclude that what the children witnessed was not domestic violence but ordinary contretemps of the nature that may occasionally occur in even the happiest of families. Indeed, it is no doubt the rare child who has not witnessed parents engaged in such minor squabbles; we do not think the Legislature, in enacting N.J.S.A. 9:6-8.21(c)(4), intended that such parents be branded "abusers."
For these reasons, we conclude that the order memorializing the judge's finding that defendant abused or neglected the children — and the concomitant listing of defendant in the child abuse registry — cannot stand. In so holding, we need not reach the forceful arguments both defendant and the Law Guardian have raised regarding the expert's finding of emotional harm.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION