C.K. & J.T. v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3913-04T43913-04T4

C.K. & J.T.,

Plaintiffs-Appellants,

v.

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Defendant-Respondent,

________________________

IN THE MATTER OF:

K.T.,

A Minor.

_________________________________________________

 

Submitted September 13, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Burlington County, FD-03-1545-05.

Richard C. Klein, attorney for

appellants (Drew A. Molotsky, on the

brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Lewis A.

Scheindlin, Assistant Attorney General,

of counsel, Serena C. Robinson, Deputy

Attorney General, on the brief).

PER CURIAM

Charles Kramer and Jane Taylor-Kramer, residents of New Jersey, were the prospective adoptive parents of K.T., a nine-year-old ward of the State of Maryland placed by its Department of Human Services (DHS) with them in October 2004 through an adoption agency, Children's Choice. Adoption was anticipated to occur on March 22, 2005. Mr. Kramer was employed by DYFS as a caseworker until two weeks before the claims of child abuse that underlie this case were presented. Ms. Taylor-Kramer is an engineer.

On March 3, 2005, allegations of excessive corporal punishment by the Kramers were received by New Jersey's Division of Youth and Family Services (DYFS). On March 4, 2005, a DYFS case manager investigated the allegations by interviewing various people at K.T.'s school. Abuse was not corroborated by school personnel. However, both K.T. and the Kramers disclosed the existence of corporal punishment.

K.T. stated that the Kramers had previously spanked her on her bottom, but had stopped because it left a mark. However, she stated, they then commenced hitting the soles of her bare feet with a rubber spatula as punishment, administering ten or twenty blows, depending on the infraction. The punishment hurt, made K.T. cry and caused her to fear the Kramers. She also stated that she had been instructed to keep the punishment secret.

When interviewed, the Kramers admitted hitting K.T. with the spatula on the soles of her feet and requiring her to stand in a corner for periods of time up to one-half hour. However, they stated that they did so upon the advice of an unnamed psychotherapist who was treating K.T.'s emotional problems. They later claimed that they did so on only three occasions, administered fewer blows, and kept K.T.'s socks on when administering the punishment. The Kramers also admitted to previously spanking K.T., but stated that they stopped the practice when advised that K.T., who had previously been sexually abused, might like it or regard it as sexualized behavior. The Kramers stated additionally that the punishment was psychologically justified as a means of correcting K.T.'s severe emotional and behavioral problems resulting from parental abuse and her stays in at least seven foster homes. The Kramers have never presented evidence to substantiate their claim that they were advised to strike the child in the manner employed. As a final matter, the Kramers acknowledged instructing K.T. that certain family matters were to be kept secret, but that her punishment was not specifically discussed in this context.

On the basis of this information, on March 4, 2005, the DYFS case manager substantiated abuse and contacted the Maryland authorities. That day, a Children's Choice worker removed K.T. from the Kramers' custody as allegedly required by Maryland's guidelines. However, Maryland agreed to allow the potential adoption to remain open for sixty days to permit the appeal of the finding of abuse. K.T. has now been placed with another prospective adoptive family in Maryland. Administrative proceedings of an unspecified nature are occurring in that State. No evidence has been presented that the Kramers have intervened or appeared in those proceedings, and no attempt has been made to make Maryland a party to this action.

Following K.T.'s removal, by letter dated March 30, 2005, the Kramers were advised by DYFS that the allegation of child abuse by Charles Kramer had been substantiated by its Burlington District Office, and that they had twenty days to appeal from this determination. An appeal was filed on April 14, 2005, and a Regional Dispositional Conference Review was held by an administrative review officer on April 28, 2005. By letter dated May 24, 2005, the DYFS Area Director affirmed the decision of the Burlington District Office. Detailed findings of uncontested and contested facts were made. Although the Kramers were informed that they could request the Office of Administrative Law to conduct an administrative hearing on the issue of abuse, the Kramers did not appeal the decision further.

In the meantime, on March 23, 2005, the Kramers filed a complaint and order to show cause in the Family Part seeking an immediate return of K.T. and an injunction against any interference by DYFS in the adoption of K.T. by the Kramers, together with other relief. The matter was argued before a Family Part judge on March 30, 2005. At that time, DYFS argued (as summarized by the judge) that

jurisdiction is not vested in this Court, [the action] actually having been taken by an out-of-state agency, and jurisdiction is not vested under the UCCJA, the child not having lived within the confines of New Jersey in excess of six months. That the defendants have failed to join an indispensable party and that the plaintiffs have failed to exhaust their administrative remedies.

By order dated March 30, 2005 - two weeks before the Kramers requested a Regional Dispositional Conference Review of the Burlington District Office's finding of substantiated abuse and almost two months before the May 24 affirmance by the DYFS Area Director of the finding of substantiated abuse made by the Burlington Office - the court dismissed the Kramers' Family Part action without prejudice, finding as fact that the removal had been accomplished by Maryland and thus that the New Jersey courts lacked jurisdiction over it. The judge held that any remedy sought by the Kramers would have to be granted by that State's courts. Additionally, the court found that the Kramers' appeal of the determination that they had engaged in child abuse either was premature, since they had failed to exhaust their administrative remedies, or could be heard only by the Appellate Division pursuant to R. 2:2-3(a)(2).

An appeal from the court's order of dismissal was filed on April 11, 2005. On appeal, the Kramers offer the following arguments for our consideration:

POINT I

This matter is proper for immediate review of the actions of the Division of Youth and Family Services and disposition by the Appellate Division.

POINT II

The trial court's refusal to hear the substance of this matter, the premature substantiation of abuse and removal of the child, and the lack of administrative action, has prejudiced the plaintiffs denying them due process and violating notions of fundamental fairness.

POINT III

The determination of substantiation of abuse by the Administrative Review Officer was in err[or] as the Plaintiff's actions do not fit the statutory definition of "abuse" under N.J.S.A. 9:6-8.21(c), nor do D.Y.F.S. procedures support the removal of this child.

I.

We are satisfied that the decision of the Family Part judge that she lacked jurisdiction over the removal of K.T. by the State of Maryland from the custody of the Kramers in New Jersey was correct. In this connection we note that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in New Jersey at N.J.S.A. 2A:34-53 to -95, vests jurisdiction over matters concerning the custody of K.T. in Maryland as her "home state," since she resided in New Jersey with the Kramers for a period of less than six months. N.J.S.A. 2A:34-54 (definition of "home state"). See also N.J.S.A. 2A:34-65 to -67 (jurisdiction). Specifically, N.J.S.A. 2A:34-67 provides that except when temporary emergency jurisdiction is asserted, a New Jersey court may not modify a child custody determination made by a court of another state. Because the State of Maryland had jurisdiction over K.T.'s removal, we find that New Jersey statutes governing the procedures for removal without court order and subsequent confirmation by a court, N.J.S.A. 9:6-8.29 to -8.32, are inapplicable. The Kramers' reliance on those statutes in connection with this appeal is misplaced.

II.

We also find that the Family Part judge was correct in dismissing the Kramers' challenge to the March 30, 2005 determination by DYFS of abuse as improperly filed in the trial court. In that connection, we agree with the State that, at the time that the Family Part judge dismissed the present action without prejudice, the Kramers had not exhausted their administrative remedies. Indeed, as we have noted, the Kramers filed an appeal from the determination of the Burlington District Office two weeks after the Family Part judge reached her decision. We note as well that the Kramers did not either request a hearing in the Office of Administrative Law following their receipt of the May 24 decision of the Area Director or appeal that decision to us. We do not regard the Kramers' motion to permit the supplementation of the record with the determination of the Area Director to constitute such an appeal or a recognition by us of any equivalence between the Kramers' motion and a properly filed appeal.

However, we have held in a related context that a finding of substantiated abuse is subject to judicial review in the Appellate Division, because the finding must be filed in the State's Child Abuse Registry, N.J.S.A. 9:6-8.11, where it is available for review by authorized persons and agencies. N.J.S.A. 9:6-8.10a. See In re Allegations of Physical Abuse at Blackacre Academy, 304 N.J. Super. 168, 177 (App. Div. 1997). Inclusion in the Registry has significant social and economic consequences because of the limitations placed on contact with children by registrants. New Jersey Div. of Youth and Fam. Servs. v. D.F., 377 N.J. Super. 59, 66-67 (App. Div. 2005); New Jersey Div. of Youth and Fam. Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005); New Jersey Div. of Youth and Fam. Servs. v. M.R., 314 N.J. Super. 390, 399-02 (App. Div. 1998); In the Matter of Allegations of Sexual Abuse at East Park H.S., 314 N.J. Super. 149, 163 (App. Div. 1998).

Under the standard of Blackacre Academy, the March 30, 2005 determination of substantiated abuse by the Burlington District Office, which was served at the hearing in the Family Part was, at the time, seemingly a final order subject to review. As we noted previously, the Kramers chose the wrong forum for that review in raising issues related to the finding in the Family Part.

It is unclear to us whether the Kramers properly perfected their appeal from the March 30 order when they filed their notice of appeal on April 11, 2005. If so, that action deprived the Area Director of jurisdiction over their subsequent request for a dispositional review. If not, then neither the March 30 disposition nor the May 24, 2005 finding is properly before us. Nonetheless, in the interest of justice and as a consequence of our recognition of the consequences arising from a finding of child abuse, we will consider the merits of the Kramers' substantive arguments as they pertain to the finding of such abuse contained in the May 24 decision - arguments that have been fully addressed by DYFS on appeal. Placing jurisdictional issues aside, we are satisfied that the May 24 determination constitutes a final decision following dispositional review pursuant to N.J.A.C. 10:120A-3.2(n) and N.J.A.C. 10:120A-1.3. See also N.J.S.A. 9:6-8.70.

Despite the Kramers' arguments to the contrary, we find no procedural errors in the proceedings leading to a finding of substantiated abuse that warrant reversal, since the investigation by DYFS of the report of child abuse was concluded by a finding of substantiation within the time limits set by N.J.A.C. 10:129A-3.3(c), and the Kramers were timely notified of that finding and of their appellate rights as required by N.J.A.C. 10:129A-3.4. Further, the dispositional review was conducted in a timely fashion following the Kramers' application on April 14, 2005, and the agency's decision was made within the sixty-day period that the regulations require. N.J.A.C. 10:120A-3.2(l). Finally, we find that the Kramers were informed of their rights to a further review in the form of a hearing in the Office of Administrative Law. Id. We recognize that the Kramers sought a shorter time frame for administrative consideration of the allegations against them that would have conformed to the sixty-day window afforded by Maryland during which the possibility of adoption remained open. However, in the absence of any showing of bad faith on the part of DYFS, we find nothing to suggest the fundamental unfairness that the Kramers claim existed in the handling of their case. In toto, the proceedings took seventy days, a period that we do not find to have been excessive in the circumstances.

Meaningful consideration of the decision of the Area Director following dispositional review is made more difficult as the result of the absence of a contested hearing before an administrative law judge and a record of that hearing. The administrative review officer's report nonetheless discloses the uncontested fact that the Kramers were aware that K.T., the nine-year-old child they intended to adopt, had been the subject of prior child abuse, had been removed from her parents' custody at the age of three, and had previously been assigned to at least seven foster homes. As the result, she was both behaviorally and psychologically impaired. As a means of behavior modification, the Kramers first spanked K.T. on her bottom and, after being advised not to do so, employed a procedure whereby they required K.T. to lie on her bed on her stomach, and they then hit the soles of her feet with a rubber spatula. K.T. claimed that the process hurt, made her cry and made her fear the Kramers. Ms. Taylor-Kramer, having undergone the punishment as an experiment, confirmed that the procedure was painful, even when wearing socks. There was disagreement as to the frequency of the punishment. However, there was no evidence of an intent by the Kramers to cease inflicting the punishment, which they regarded as entirely justified, until the desired changes in behavior had occurred. Although they stated that they had been advised that it was appropriate, no mental health professional corroborated the statement. No medical evidence was presented to demonstrate physical injury as the result of the punishment. Psychological evidence consisted of statements by K.T. to her case manager that she now feared the Kramers.

N.J.S.A. 9:6-8.21c provides in relevant part that

"Abused or neglected child" means a child . . . (4) . . . whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of . . . his parent or guardian (b) . . . unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . .

The focus in a determination of whether abuse has occurred is on "the kind of 'harm' to the child" and not on the mental state of the parent. State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991). This is so because "[t]he main goal of Title 9 is to protect children 'from acts or conditions which threaten their welfare.'" G.S. v. Dept. of Human Servs. Div. of Youth and Fam. Servs., 157 N.J. 161, 176 (1999) (quoting Demarest, supra, 252 N.J. Super. at 331). See also N.J.S.A. 9:6-8.8 (stating the purpose of the child abuse statute is to provide for the protection of the child). Thus, the focus of those reviewing the Kramers' behavior must be on the consequences of the punishment to K.T., not upon the Kramers' motivations for inflicting it. "Focusing on the guardian's intent . . . would prevent the State from safeguarding children in a substantial number of child neglect situations." G.S., supra, 157 N.J. at 176.

In the present case, the administrative review officer found, and the Area Director agreed that abuse had been substantiated under standards established by N.J.S.A. 9:6-8.21c as the result of admitted evidence of punishment, by striking the soles of K.T.'s feet with a rubber spatula, that the officer found to be inappropriate and neither necessary nor justified. In reviewing these conclusions, we must give considerable weight to the agency's interpretation of the abuse and neglect statute, G.S., supra, 157 N.J. at 170, bearing in mind its expertise in the area. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The agency's findings upon dispositional review are binding upon us when supported by adequate, substantial, credible evidence. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

After a careful review of the record, we affirm the conclusions reached by the agency. In doing so, we emphasize the fact that the punishment inflicted on K.T. was the result of a thoroughly considered course of conduct on the part of the Kramers that, nonetheless, lacked any demonstrated psychological justification or necessity. The Kramers meted it out through the use of an inert instrument, and by doing so lost their opportunity to physically assess the strength of their blows or their physical impact upon a nine-year-old child. Nonetheless, they were aware as the result of experiments upon Ms. Taylor-Kramer that the punishment hurt, and they were reminded of that fact by K.T.'s reaction to it. This punishment occurred despite the Kramers' knowledge of K.T.'s prior emotional injuries, and despite an apparent lack of knowledge or inquiry as to its effects upon K.T.'s already fragile emotional state. She said that as the result of the punishment she feared them. We find no reason to challenge this statement.

Accordingly, the determination of the trial court to dismiss the Kramers' challenge to the removal of K.T. from their custody is affirmed. Having elected to consider the Kramers' challenge to the dispositional determination by the Division of Youth and Family Services of abuse and neglect as set forth in its May 24, 2005 decision, we affirm it as well.

 
Affirmed.

These names are fictitious.

The therapist was later identified as Ronnie Rausenbach, an employee of Children's Choice, who is not licensed in the United States as a provider of psychological therapy or in any other discipline. Plaintiffs also claim that the child's psychologist, Janice Moore, recommended "minor physical reinforcement" and had suggested the use of a rubber spatula.

These guidelines have not been identified in connection with this appeal.

The opinion refers to abuse by Ms. Taylor-Kramer. However, the factual findings refer to both parties. This appeal has been filed on behalf of both Kramers.

We permitted the Kramers to supplement the record with the May 24, 2005 decision of the Area Director and the findings of fact and conclusions of law supporting that decision.

By doing so, the Kramers waived the trial-type hearing to which they were entitled to challenge their inclusion in the Child Abuse Registry. New Jersey Div. of Youth and Fam. Servs. v. D.F., 377 N.J. Super. 59, 64-66 (App. Div. 2005).

The Kramers' statements as to whether K.T. wore socks during the punishment were inconsistent.

(continued)

(continued)

16

A-3913-04T4

RECORD IMPOUNDED

October 5, 2005