NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.G IN THE MATTER OF K.G and K.G

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4446-07T44446-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF K.G.

and K.G.,

MINORS.

_________________________________________________

 

Argued March 11, 2009 - Decided

Before Judges Stern, Payne and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Passaic County, FN-16-166-07.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney;

Mr. Harwin, on the brief).

Bernice Toledo, Deputy Attorney General,

argued the cause for respondent (Anne Milgram, Attorney General, attorney;

Andrea M. Silkowitz, Assistant Attorney

General, of counsel; Ms. Toledo, on the

brief).

Noel C. Devlin, Assistant Deputy Public

Defender, argued the cause for minor

children (Yvonne Smith Segars, Public

Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

R.G., the father of a three-year-old son, a ten-year-old daughter, and an adult daughter, appeals from a determination by a Family Part judge that, as the result of an act of domestic violence committed by R.G. on his wife in the presence of the son, R.G. had abused and neglected his minor children.

An "abused or neglected child" is:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

The Supreme Court discussed the statutory minimum degree of care standard in G.S. v. Dep't of Human Serv's, 157 N.J. 161, 178 (1999), stating:

The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

We are guided by the standards just articulated in reviewing the facts of this matter, which follow.

At four o'clock a.m. on October 27, 2006, R.G., who had been drinking and, according to his minor daughter, was drunk, returned home and entered the bedroom, seeking sexual relations with his wife. When she resisted, R.G. assaulted her, placing his hands around her neck, hitting her face and biting her hand. At the time, the couple's son had been sleeping with his mother. When the assault commenced, the son awoke, left the bed and "ran into [the minor daughter's] room screaming, saying that [his] father was hitting and pushing [his] mother." The daughter also awoke, ran downstairs, and she observed her mother leaving the house and R.G. following her. Her mother then returned to the home, locking out R.G., and she called the police. Following the arrival of the police, R.G. was arrested. The mother was treated in a local hospital emergency room, returning home after approximately two hours with a prescription for 600 mg. ibuprofen for pain.

The incident was recounted by the daughter to someone at the daughter's school, and the Division of Youth and Family Services (DYFS) was contacted. DYFS commenced an investigation on October 30, interviewing the mother and both the adult and minor daughters. According to the Incident Report, which was marked as an exhibit at trial, the caseworker attempted to engage the son in conversation, but was not successful. However, she reported that he appeared healthy and clean.

During the initial interview by the DYFS caseworker, the mother reported that R.G. worked two jobs, one at the Paterson Housing Authority, and one at Sears in the Willowbrook Mall. She stated that R.G. went out after work with co-workers. The mother stated that there had been three prior physical altercations between her and R.G. in the course of a twenty-four-year marriage. At the time of the interview, the mother had obtained a temporary restraining order against R.G., who was living with his mother. The report continued:

Worker asked if the children are fearful of [R.G.]. [The mother] stated that the children are not fearful of their father. She explained that they do speak over the telephone to each other. [The mother] stated that [R.G.] loves his children.

The mother stated that R.G. drank every day, but that she was unsure how much he drank outside the home. According to the report, she "explained that [R.G.] does not interact with the children while he is intoxicated." Although she was unsure whether R.G. was intoxicated on the night of the assault, she stated that she smelled alcohol on his breath. The mother declined counseling services offered for herself and the children.

The minor daughter reported to the caseworker that R.G. drank "a lot of beer" and that, when he did so, his behavior changed. She stated that he becomes "mean and angry and begins to yell and then falls asleep." When the caseworker asked the daughter if she was afraid of R.G., she responded

she was not afraid of her father. She explained that she has spoken to her father over the telephone and he apologized to her. [The daughter] denied visiting her father; however, [she] stated that she does miss him and wants to see him.

As a consequence of the incident, R.G. was referred for an evaluation by a certified alcohol and drug counselor (CADC evaluation), which took place on November 6, 2006 and resulted in a diagnosis of alcohol dependence. R.G. was referred for intensive outpatient care, but did not initially attend, stating that his work prevented attendance. Additionally, the mother was referred for domestic violence counseling, but also initially refused treatment. Both parents refused to sign the case plans offered to them. The father returned to the home at Thanksgiving, and has remained there, without incident. During a February 6, 2007 DYFS caseworker's visit, the minor daughter reported that "everything in the home was going well and that her father was 'behaving good'" although he was still drinking. She again denied being fearful of her father.

The adult daughter, who lived in the home, reported that her father drank beer three to four times per week but did not get intoxicated. She stated that her parents' relationship had improved and she denied any further physical altercations between them.

On April 13, 2007, DYFS filed a verified complaint for care and supervision against R.G. and his wife. In the complaint, DYFS stated:

Allegations of neglect were substantiated against [R.G.] as the children were in the home and [the son] was in the bed with his parents when his mother was assaulted. Since that time, both [parents] have refused to sign a case plan and have allowed their worker only limited access to the home. In addition, [R.G.] has failed to comply with recommended substance abuse treatment and/or anger management classes. This coupled with the parents' history of domestic violence and the children's admission of continued alcohol use places the children at risk of harm.

An order to show cause was signed on May 29, 2007, scheduling a hearing on June 11, 2007. Following the show-cause hearing, the judge ordered R.G. to undergo substance abuse treatment, and both anger management and domestic violence counseling. The mother was ordered to undergo domestic violence counseling. Custody of the children was continued with both parents.

A fact-finding hearing on DYFS's complaint of abuse and neglect was conducted on October 22, 2007, at which time testimony was given by Lindsay Slack, a DYFS caseworker assigned to the matter in April 2007. Slack reported the incident as set forth in the Incident Report. During cross-examination, Slack stated that the son was uninjured in the altercation, and she admitted that she did not have any information as to how close the son was to his parents during the incident. After stating that she had unsuccessfully attempted to speak with the son, the following colloquy regarding the children occurred:

Q . . . You did not get a psychological evaluation on [the son] to determine whether or not -- if he observed abuse or domestic violence in the home, whether he was emotionally scarred by that?

A Correct. We did not.

Q You did not, correct? Okay. So you don't know what effect, if any, observing the DV had on him. Is that right?

A Correct.

* * *

Q Okay. And from [October 27, 2006] until now there was no reason to remove the children from the home. Is that right?

A Correct.

Q Because you deem that they are safe. Is that right?

A Correct.

Q Okay. During the investigation in [the Incident Report], [the mother] stated that the children are not fearful of their father. Is that right?

A That's correct.

At the conclusion of the hearing, the judge found no grounds for a finding of abuse and neglect on the part of the mother. However, he concluded otherwise with respect to R.G., ruling that DYFS had established abuse and neglect by a preponderance of the evidence. In that regard, the judge stated:

I'm satisfied that there is a history of alcohol abuse on behalf of [R.G.], which is verified by the children as well as [the mother]. Also there was a number of altercations in the past, three, or apparently the [mother] was physically abused. The incident in question, what happened is simply the children are awakened. They hear what goes on, so to speak. [The mother] runs out of the house. [R.G.] follows her. He gets locked out.

* * *

Okay. From what's before me, I'm satisfied that [R.G.] has engaged in an act of abuse and neglect, simply in the instant of having the young child in bed, attacking the mother in the way he did that evening, and knowing that the child was in bed at that point, as well as his alcohol abuse, his -- the prior incidents between the parties. I have no doubt in my mind that there was an act of abuse and neglect on behalf of [R.G.] . . . .

As a consequence of the judge's factual finding, R.G.'s name remains in the Central Registry of substantiated child abusers maintained by DYFS. N.J.S.A. 9:6-8.11.

Immediately following the fact-finding hearing, a compliance hearing took place, at which time the law guardian for the children reported that, as of a visit on October 5, 2007, "the kids are doing okay. They're in school, they seemed happy, and we didn't have any concerns with regard to the children." Further, counsel for DYFS reported with respect to R.G.:

[A]fter initial -- some initial reluctance and hesitation to engage in therapy [R.G.] has been doing extraordinarily well. He's begun his DV counseling at Cope. He's getting DV counseling and anger management at Cope. He's attending substance abuse counseling at Straight and Narrow, as well as Barnert. We've had all positive progress reports and negative urine screens, which is the way that it should be. His attendance is very well, is good.

Counsel for DYFS reported at the hearing that the mother had not been compliant with domestic violence counseling. However, at a later compliance hearing it was disclosed that, as of November 15, 2007, the mother had attended six out of six counseling sessions. At a compliance hearing conducted on April 7, 2008, counsel for DYFS requested that the case be dismissed, stating: "Both parents have completed their DV-anger management classes. [R.G.] has completed his substance abuse counseling, and we have positive school collaterals from the children's schools." An order of dismissal was thereupon entered. This appeal followed.

On appeal, R.G. argues that DYFS failed to prove by a preponderance of the evidence that witnessing the act of domestic violence caused emotional harm to the son -- the only person to have seen the incident. In support of his argument, R.G. relies on our opinion in New Jersey Div. of Youth & Fam. Serv's v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005) and various unpublished decisions.

S.S. is of course distinguishable, because it concerns a finding of abuse and neglect entered against a battered spouse, found to have been holding her infant in her arms when at least one of her spouse's attacks occurred. In the absence of any evidence of present or potential physical or emotional harm to the child, we found that he could not be deemed abused or neglected by the battered spouse pursuant to N.J.S.A. 9:6-8.21c(4)(b). S.S., supra, 372 N.J. Super. at 22-23. We further declined to take judicial notice "of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses." Id. at 25. In this regard, we noted the wide divergence among experts as to the effects of domestic violence upon children, and the view of United States District Court Judge Jack Weinstein that "the children can be -- but are not necessarily -- negatively affected by witnessing domestic violence." Id. at 26 (quoting Nicholson v. Williams, 203 F. Supp. 2d 153, 197 (E.D.N.Y. 2002), on appeal sub nom Nicholson v. Scopetta, 344 F.3d 154 (2d Cir. 2003) (certifying to the New York Court of Appeals questions of state law essential to consideration of the constitutional issues recognized by the District Court), certified questions answered, 820 N.E.2d 840 (N.Y. Ct. App. 2004), vacated in part and remanded in part, 116 Fed. Appx. 313 (2d Cir. 2004)).

Here, the focus of the appeal is not on the battered wife, but rather, it is on the batterer. In the circumstances presented, we find it reasonable for DYFS to have concluded that R.G.'s children were at risk of injury, particularly since R.G.'s wife did not obtain a permanent restraining order, R.G. returned to the home within one month of the incident at issue, and he continued for a substantial period to consume alcohol -- conduct that appeared to have precipitated his domestic violence. N.J.A.C. 10:129-2.1(a). It is clear that neither DYFS nor the court must "wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Nonetheless, as we recognized in S.S., "the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46(b)) the probability of present or future harm." S.S., supra, 372 N.J. Super. at 24. When judging the likelihood of future harm, we have directed judges to focus not only upon events at the time of the removal, but on conduct thereafter, if causes for concern have been significantly alleviated. Id. at 24.

In reviewing the record in this matter, we note that, contrary to precedent, the Family Part judge failed to make any finding as to whether either the son or the daughter were abused and neglected children as statutorily defined, concluding only that R.G. had committed an "act of abuse and neglect under the statute." See Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976) (requiring finding in child abuse or neglect case, at a minimum, that the child has a physical, mental or emotional condition that is either impaired or in imminent danger of being impaired), aff'd o.b. 74 N.J. 196 (1977). That gap in his opinion may have arisen as the result of the dearth of evidence on the subject introduced at trial.

In that regard, the evidence is insufficient to support the conclusion that R.G. was grossly or wantonly negligent in assaulting his wife while his son was present in the bed, thereby exposing him to a substantial risk of harm. The record does not establish that, before the attack occurred, R.G. knew that the child was in the bed or that he had any reason to anticipate his presence; it establishes only that he recognized the child's presence at some time -- most likely, when the boy awoke and ran from the room. The son's distance from the mother in bed when the attack commenced was unknown. According to the DYFS witness, neither child was physically injured in the episode. The daughter was not even in the same room where the incident occurred.

Further, there is no evidence of substantial emotional harm resulting from the act of domestic violence. Neither child expressed any fear of their father. The record reflects that R.G. took the children trick-or-treating four days after the event, and maintained contact with them during the month that he was absent from the home. Following the incident, neither of the children manifested any signs of emotional injury stemming from the event. As admitted by DYFS's witness, neither child received a psychological evaluation to determine the effect of the domestic violence on him or her, and the witness did not know what the effect of observing the violence had been. At most, the record substantiates the transitory alarm experienced by both children at the time that the incident was taking place. Nor does the record reflect that imminent danger of harm existed after the incident. Significantly, the children were never removed from the house, even after the return of R.G., because DYFS deemed them to be safe. Although DYFS continued to monitor the family, no evidence was discovered of additional episodes of violent conduct. The record reflects that, at the time of the fact-finding hearing, R.G. was actively engaged in substance abuse and domestic violence counseling. Both parents had successfully completed all mandated counseling at the time that the action was dismissed on April 7, 2008.

We therefore conclude, following our careful review of the record in this matter, that although the record fully supports the claim that R.G. committed domestic violence, it does not support the further claim that his domestic violence caused either his son or minor daughter to be abused or neglected as defined in N.J.S.A. 9:6-8.21(c)(4). We thus reverse the Family Part judge's conclusion to the contrary as unsupported by the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

 
The court's finding of abuse and neglect by R.G. is reversed.

As reported in the Incident Report, R.G. worked Monday through Friday from 8:00 a.m. to 4:30 p.m. for the one employer, and from 4:30 to 8:30 p.m. and on weekends at another.

Although the CADC evaluation of R.G. was admitted into evidence, the evaluator determined only that R.G. was alcohol dependent, not that he had abused or neglected his children or even that he had the capacity to do so. Moreover, the judge admitted the report only to illustrate the sequence of services provided to R.G., and not for its truth. Our further consideration of the admissibility of the document is therefore not required.

(continued)

(continued)

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A-4446-07T4

RECORD IMPOUNDED

May 11, 2009