NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6145-04T46145-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.J.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF A.J. AND M.J.,

Minors-Respondents.

 

Submitted May 17, 2006 - Decided May 31, 2006

 
Before Judges Conley, Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-12-04.

Yvonne Smith Segars, Public Defender, attorney for defendant (Michael C. Kazer, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Patrick DeAlmeida, Assistant Attorney General, of counsel; James F. Lafargue, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors-respondents, A.J. and M.J. (David Valentin, on the brief).

PER CURIAM

Defendant P.J. is the wife of M.J. (Michael J.). She is the mother of A.J., born March 20, 1993, and M.J., born April 29, 1997. Defendant appeals from an April 26, 2004 order by a Family Part judge, following a factfinding hearing, that she neglected her children as defined in N.J.S.A. 9:6-8.21c(4)(b). We affirm.

P.J. and Michael J. were married in 1992 and divorced during the pendency of this action. In October 2003, the police responded to defendant's home on a report of domestic violence. P.J. was arrested after she allegedly threw something at her husband; he obtained a restraining order against her. On April 8, 2004, the return date of the order to show cause, the Deputy Attorney General represented to the court that P.J. was arrested after pulling a knife and threatening to kill herself while the children were in the house.

On March 23, 2004, DYFS received a referral that P.J. kicked a door in her home; the door struck A.J. and bruised him. On April 6, 2004, after being told something about his father by his mother, A.J. threatened to kill his father; he was taken to Robert Wood Johnson Hospital. Allegedly, P.J. taunted her husband and laughed when A.J. was being transported. The following day at the DYFS office in Perth Amboy, "[P.J.] became discombobulated and began yelling and cursing in the office. She . . . expressed that everyone was blaming her for the distress of her children."

During the factfinding hearing, Vivian Johnson, a DYFS case worker, testified that when she interviewed the children the day after A.J. was taken to the hospital, A.J. told her he had become upset about bills that were not being paid by his father and the cable being turned off; he blamed his father and called him pathetic. Johnson testified that A.J.'s anger continued to increase; she received telephone calls from his school that he was becoming more and more angry. She testified that defendant was giving A.J. too much information, using him to get to her husband because the marriage had broken up.

Michael J. testified at the factfinding hearing that on October 27, 2003, he and defendant had an argument, and as a result she started packing his clothing. He "went to move her out of the way" and "she threw a couple of objects at [him], glass candles that [A.J.] witnessed. At that time [A.J.] was bawling his eyes out." Later that day, P.J. "went in the kitchen, grabbed a knife and threatened to kill herself." At that point Michael J. called the police.

At the factfinding hearing, defendant claimed that her husband "would drag [her] out onto the concrete, kick [her] in [the] head. [She] was holding [A.J.] in [her] arms, he was probably about two, and [Michael J.] smashed [her] head against the wall." She testified that on another occasion Michael J. came up behind her, dragged her to the floor, and struck her several times. She did not call the police on any of those occasions because she was "very ashamed" and Michael J. apologized and said he would never do it again.

The court considered a written report dated April 20, 2004 from social worker Rhea V. Almeida. Among her conclusions, Almeida found that P.J. and Michael J.'s marriage revealed a long and serious history of domestic violence, with the children witnessing many of "these lethal battles." Both children revealed symptoms of post-traumatic stress disorder. The social worker was concerned that the children had been left in a situation where they were exposed to the violence between their parents.

After reviewing the evidence, the court made a number of findings, including the following:

When the Court looks to all of these incidents, there's no question that there's domestic violence in the house, no question at all. And, quite honestly, it goes back and forth, and which both defendants are very credible in that aspect. They both indicate that it's happened between the both of them. So I find them to be very truthful in that matter, because sometimes that's not so easy to admit. But the fact of the matter is, it's there, it exists.

The fact of the matter is, unfortunately, it exists in front of the children. And there's no question that this has had an effect on the children. As stated when you look at S-9, which is the report from Dr. Rhea Almeda, she specifically says that several common effects of family violence on the children are -- she talks about emotional injuries such as low self-esteem, depression, aggression behavior toward others, poor school adjustment, learned victim aggressor roles, alcohol/drug experimentation, and continuation of violent behavior in their adult relationships and expansion of violence into the community.

And she says, "It's fair to say that [A.J.] has demonstrated most of these symptoms. [M.J.] is able to verbalize the violence he witnessed. The violence against him was not as severe as that against [A.J.]. And [M.J.] showed some beginning signs of aggression, but appeared more disconnected from the depressive symptoms."

And these are very important things for the Court, because it's the Court's perspective that under Title 9 if you do or fail to do something that leads to the emotional well-being of the child being harmed, which at this point I find that these children have been harmed by the fact that nothing has happened to deal with that and, in fact, it has occurred. The domestic violence has been continuing. As stated, there was no attempt to get any police involvement, but these children were suffering and, apparently, have suffered at this point in time.

The definition of an abused or neglected child is found in N.J.S.A. 9:6-8.21c(4)(b), which provides, in part:

"Abused or neglected child" means . . . (4) or a child 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 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, . . . .

Here, the trial judge found that the evidence supported a conclusion that the children were neglected as defined in this statute. We agree.

While defendant has herself been a victim of domestic violence, she also has committed acts of domestic violence. The court accepted testimony that she threw an object at her husband in October 2003, took a knife, and threatened to commit suicide. She did this with the children in the house. The evidence also showed that in March 2004, P.J. kicked a door which struck A.J. On one occasion, she shared information with A.J. that made him so angry that he threatened to kill his father. Almeida determined that both children suffered from post-traumatic stress disorder.

Determinations of parental fitness are fact sensitive. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Our scope of review in such a case is limited. New Jersey Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). "We will not disturb the factual findings of the trial judge unless 'they are so wholly insupportable as to result in a denial of justice,' and we will uphold such findings whenever they are supported by adequate, substantial and credible evidence." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). Given "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In the context of our limited scope of review, we find no error. The trial court's findings were supported by the substantial credible evidence in the record. A conclusion that the children were subject to infliction of emotional distress as a result of their exposure to their parents' domestic violence, with some of the incidents attributable to defendant, is wholly supported by the record. The social worker's report substantiated that the children suffered emotionally as a result of witnessing the domestic violence. Accordingly, we affirm substantially for the reasons expressed by the trial judge.

 
Affirmed.

Because M.J. are the initials of both defendant's husband and son, we will refer to defendant's husband as Michael J.

On April 13, 2005, at the request of the Division of Youth and Family Services (DYFS) and with the consent of all parties, the complaint against defendant and Michael J. was dismissed.

(continued)

(continued)

8

A-6145-04T4

RECORD IMPOUNDED

May 31, 2006