NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6424-04T46424-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.W.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF N.F.,

A Minor.

____________________________________________

 

Submitted February 16, 2006 - Decided March 9, 2006

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor N.F. (Kenyana Holloway-Hardee, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

N.W., the biological mother of thirteen-year old N.F., appeals a final order of abuse and neglect entered in the Division of Youth and Family Services' (DYFS) complaint for child abuse and neglect filed pursuant to N.J.S.A. 9:6-8.21. As a result of the order, N.F.'s biological father, D.F., was given custody of the child. Visitations with N.F. were temporarily suspended and N.W. was ordered to engage in domestic violence, substance abuse and psychiatric counseling.

The premise for DYFS' complaint was the allegation that on November 11, 2004, N.W. drove N.F., then eleven-years old, while she was intoxicated thereby creating a risk of physical injury, N.J.S.A. 9:6-8.21(c)(2), and also slapped him a number of times, thereby placing N.F.'s "physical, mental or emotional condition" in "imminent danger of becoming impaired" by "unreasonabl[e] inflict[ion] [of] . . . harm . . . ." N.J.S.A. 9:6-8.21c(4)(b).

The incident involved N.W.'s reaction to seeing D.F. with his girlfriend. As a result, N.W., an admitted alcoholic, went off the wagon. D.F. had visitation of N.F. that day and was to pick him up at the bus stop. His son was not there when he arrived, so he drove to N.W.'s house where he waited. Shortly after, N.W. pulled up in her vehicle with the child. There was a confrontation, during which N.W. appeared visibly intoxicated. She would not allow N.F. to go with D.F., and sent N.F. into the house instead. According to the DYFS caseworker who responded later that day, N.W. admitted to having picked up N.F. in her car, admitted to having been drinking and to having slapped N.F. on his face, chest and arms. She told the caseworker she would do it again if she had to. Both N.W. and her mother, who was in the house at the time, claimed that N.W. had only slapped the child once on his right leg. N.W. denied driving N.F. in an intoxicated state. But D.F. corroborated the fact that, indeed, N.W. was driving N.F. in an intoxicated state.

In entering his order, the trial judge made the following findings of fact and conclusions of law:

This Court has to make a decision as to who the Court believes. I have the testimony of [the DYFS caseworker], where she testified [N.W.] admitted to her that she picked up her son. I have the testimony of [the DYFS caseworker] that [N.F.] said that his mom drove him home from school. I have the testimony of [D.F.] saying that she drove up behind him, and he stayed in the car, had nothing to do with her. I have the testimony of [N.W.'s] mother that [N.W.] was home all day. I also have the testimony of [N.W.'s] mother that she didn't know her daughter was drinking. And I have the testimony of [N.W.] that she took her bottle of wine and went home to drink it.

I find that the testimony of [N.W.] that she did not pick up her son at school and the testimony of her mother that she did not pick up her son at school is simply not credible, and the Court rejects that testimony. This Court finds that [N.W.], after she had been drinking, went and picked up her son at the bus stop and drove him home. This Court finds, being under the influence of alcohol, being angry at [D.F.], not because she saw him on the highway but because of the years of dispute, being angry that he would have the audacity to want to spend an extra twenty minutes with his son, she forces her son inside, and for reasons simply unknown and unfathomable to the Court, then starts to question her son about his alleged lying and assaults her son. This Court believes and accepts and finds [the DYFS caseworker's] testimony credible that this child was hit more than once. This Court rejects the testimony of [N.W.] and her mother that this child was hit only once.

. . . .

Having observed [N.W.'s] testimony, her demeanor at counsel table, on the witness stand, her apparent and clear and convincing anger, I simply did not find her to be a credible witness. I don't find it credible that she only had two to three glasses of wine and that she poured the bottle of wine down the drain. I don't find it credible that she was home all day. To prove that she wasn't, she admitted at two-thirty she was in a liquor store. This Court rejects her testimony that she did not drive with her son and, as I indicated, this Court accepts and finds - accepts the testimony of [the DYFS caseworker] and [D.F.] and finds that in fact [N.W.], having had sufficient amount alcohol to make her intoxicated, drove with her son.

This Court finds that for whatever reason she got angry when she saw [D.F.] and his fiancée having a good time together, that the next thing that she did, she went out and decided to buy a bottle of wine. This Court finds that, in fact, she was intoxicated. And this Court finds that she took her anger out on her son when [D.F.] showed up early to pick up his son.

. . . .

Having determined and made all those findings, this Court does enter a judgment of abuse and neglect against [N.W.] under N.J.S.A. 9:6-8.21, paragraph (c), subsection (2) and subsection (4)(b). She created a substantial risk of physical injury to her son by other than accidental means by driving with her son while she was under the influence of alcohol. And she committed an act of abuse by unreasonably inflicting or allowing to be inflicted harm on her child.

This Court by a preponderance of the evidence enters this judgment of abuse and neglect against [N.W.].

These findings and conclusions are well supported by the record, the applicable law and the judge's credibility assessments. We have no occasion to interfere. E.g. Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Yet, on appeal, N.W. contends:

THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING PRIOR STATEMENTS OF N.F. AND BASING ITS FINDINGS THAT DEFENDANT ABUSED AND NEGLECTED N.F. BY RELYING ON PRIOR STATEMENTS BY N.F. WITHOUT INTERVIEWING THE CHILD.

We disagree.

 
N.F.'s statements to the caseworker were admitted through her testimony. Such statements, if corroborated by other evidence, are admissible in an abuse and neglect proceeding. N.J.S.A. 9:6-8.46a(4); New Jersey Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div. 2002). Here, there can be no question that the statements were corroborated through the caseworker's testimony of N.W.'s admissions and D.F.'s testimony, both of which the trial found credible. And, while R. 5:12-4 does provide a trial judge with discretion to interview a child in camera, N.W. never asked for that and, more importantly, N.F.'s statements to the caseworker were not the sole uncorroborated basis for the judge's decision. Contrast New Jersey Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 168-69 (App. Div. 2003) (child should have been interviewed where mother had requested an interview and the finding of abuse and neglect without the child's prior out-of-court statements was "thinly supported").

Affirmed.

The order directs the matter return for a "Further Dispositional Hearing" but does not contain a date for such hearing. The record does not reflect whether N.W.'s progress, if any, warrants reassessment at this point. We assume if it does, counsel has, or will, apply for such a hearing.

(continued)

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6

A-6424-04T4

RECORD IMPOUNDED

March 9, 2006