NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Y.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0374-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Y.C.

Defendant-Appellant.

______________________________

IN THE MATTER OF A.C.,

A Minor.

_____________________________

May 27, 2011

Argued May 16, 2011 - Decided

Before Judges Reisner, Sabatino and Alvarez.

Onappeal fromSuperior Courtof NewJersey, ChanceryDivision, FamilyPart, MiddlesexCounty, DocketNo. FN-12-246-09,and PassaicCounty FN-16-112-10.

Cecilia M.E. Lindenfelser, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Lindenfelser, of counsel and on the brief).

Stephanie S. Anatale, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Diana C. Sierotowicz, Deputy Attorney General, on the brief).

James A. Louis, Deputy Public Defender, argued the cause for minor A.C. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this Title 9 litigation, Y.C. appeals from a December 9, 2009 order finding that she abused her daughter A.C. and from a final order dated August 4, 2010 terminating the litigation. On this appeal, she raises the following issues:

POINT I: THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING OF ABUSE AND NEGLECT AND THE TRIAL COURT BASED ITS FINDINGS ON A MISUNDERSTANDING OF APPLICABLE LEGAL PRINCIPLES.

POINT II: THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE ITS FINDINGS WERE IN CONTRAVENTION OF THE FREE EXERCISE CLAUSE.

The gravamen of the abuse and neglect complaint was that, based on information she obtained over the internet, Y.C. arranged for her seven-year-old daughter to be subjected to a ceremony in which the child was handed over to strangers, pricked with a needle on various parts of her body, and forced to watch animals being strangled and having their throats cut.

We find no merit in Y.C.'s Point II, and the related First Amendment arguments she raises in Point I, because she failed to produce any legally competent evidence that subjecting her daughter to this ceremony was based on Y.C.'s religious beliefs, or even that the ceremony was religiously based. In fact, her trial counsel denied that religion was an issue in the case. Therefore, there is no basis in the record to disturb the trial judge's factual finding that the child's involvement in the ceremony was not based on Y.C.'s religious beliefs. See N.J. Div. of Youth and Family Servs v. M.C. III, 201 N.J. 328, 340-42 (2010). Because the trial judge's finding of abuse and neglect was supported by substantial credible evidence, we affirm.

I

The following summary is based on testimony from a Division of Youth and Family Services (DYFS) case worker at the fact finding hearing, and on documents entered in evidence pursuant to a stipulation from Y.C.'s counsel "as to [their] admissibility." See id. at 348. Those documents were also authenticated as business records by the testifying DYFS case worker, Kenrick Lawrence1, who was the custodian of the records. See N.J.R.E. 803(c)(6); N.J.S.A. 9:6-8.46a(3); R. 5:12-4(d).

Lawrence testified that on May 18, 2009, he was assigned to investigate after A.C. reported to a school official "that she witnessed an animal sacrifice [in which] chickens, [a] goat, and a snake [were] killed. . . . [a]nd she got poked by a needle on her body." The school official reported observing a series of "pin marks" on the child's "toes, feet, hand, back/shoulder area, and forehead."

When Lawrence interviewed Y.C. at her home, she told him that the child liked "to make up stories" and that any marks or scratches on the child were due to skates the child had been wearing or fights "with her cousins." The child initially stated that the marks were from skates, but when Lawrence interviewed her without her mother present, the child told him

that she went to her godfather's house in Passaic where she observed animal sacrifice. She got poked with a needle all over her body. And she was forced to eat the heart of a chicken.

The child told Lawrence that she saw a goat and some chickens being beheaded, and she saw a dead snake. A.C. told Lawrence that she was fearful and crying during the ceremony and that the needles caused pain. Lawrence observed "puncture marks" on her legs, feet, and shoulders. He did not examine the rest of her body "because she was a female." However, a female co-worker also examined the child and found "ten symmetrical marks on the child's body." Lawrence arranged for a doctor to examine the child later that day, in the presence of the female DYFS worker. The doctor found a mark on the child's forehead, "several marks on the front of her shoulders, marks on her shoulder blades, marks on the backs of her calves, marks on the insides of her wrists, and marks on her feet."

After interviewing the child on May 18, Lawrence immediately re-interviewed Y.C., who told him that she was Catholic, that the child did not have a godfather, and that she did not "believe in rituals." She insisted that the marks on the child were from skates and fights with other children. Because Y.C. did not offer a credible explanation for the marks all over the child's body, DYFS removed the child from the home on an emergency basis.2 The child was initially placed with a maternal aunt and was later placed with her father, who did not live with Y.C.

Seventy-two hours after the removal, Lawrence and other DYFS staff members met with Y.C. to discuss the injuries to the child and arrangements for her custody. In that interview, Y.C. admitted attending a "ceremony" with A.C. She stated that the ceremony was "a form of protection." Y.C. clarified that the adults who participated in the ceremony were not relatives of hers or the child, but were persons she found "on the [i]nternet." Y.C. said she told the child that the leader of the ritual was her "godfather," because that was his title in the ceremony.

Y.C. admitted that during the ceremony, A.C. was poked or scratched with "a needle-like object" and that "the goat's neck was slit." Y.C. denied the child's allegation that A.C. was forced to eat part of a chicken's heart, but stated that the heart was placed close to the child's mouth. Y.C. explained that she initially lied to DYFS because the ceremony was supposed to be "a secret."

Notably, neither Lawrence's testimony nor the DYFS records in evidence reflect any claim by Y.C. that the ceremony was part of her religion or based on her religious beliefs. When another DYFS worker asked her directly if the ceremony was part of a Santeria ritual, Y.C. did not say that it was. Likewise, when Lawrence specifically asked her if it was a religious practice, she said it was not. She stated that she intended to enlist in the armed services, and that the ceremony was intended to "keep her daughter safe while she was gone." Y.C. also told a DYFS worker that she knew the ceremony was "illegal." On cross-examination, Lawrence testified that DYFS believed the ceremony was a "Santeria ritual." However, there was no testimony or other evidence that Y.C. was an adherent of Santeria.

In her closing argument, Y.C.'s attorney did not argue that what happened to A.C. was part of Y.C.'s religious practice or belief system. In fact, she argued that the case should not "become a case about . . . the appropriateness of the practice of Santeria." Rather, the attorney argued that the only issue was whether the child was harmed. Counsel for DYFS and the Law Guardian agreed that Y.C.'s religious beliefs were not an issue in the case.

In his oral opinion, placed on the record on December 9, 2009, Judge Arthur Bergman found that this was not "a case about religion" and the ceremony was not "an exercise of religion." He found no evidence that any of the participants were practicing a religion. "[B]ased on the testimony and the documents" introduced in evidence at the hearing, he found that the child did "take part in a ritual" in which she was "poked by needles" and saw chickens and a goat being killed. He found that "she had pain inflicted on her" and experienced fear. The judge concluded as a matter of law that those actions constituted abuse, and that Y.C. engaged in neglect by bringing her daughter to the ritual and allowing others to inflict pain and fear on the child. He found that DYFS proved by "more than a preponderance of the evidence" that the child "was neglected and abused." Judge Bergman entered an order memorializing that finding on December 9, 2009.

Thereafter, the child and the mother participated in counseling, and the child, who had been living with her father, was returned to Y.C. The Title 9 litigation was dismissed on August 4, 2010.

II

As previously indicated, Y.C. did not raise any First Amendment issues before the trial court and did not introduce any evidence to support a religious-freedom claim. See Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 713-714 101 S. Ct. 1425, 1429, 67 L. Ed. 2d 624, 631 (1981) ("[o]nly beliefs rooted in religion are protected by the Free Exercise Clause"). In fact, her counsel successfully argued to the trial judge that religion was not an issue in the case. Therefore, we will not consider Y.C.'s First Amendment claims raised for the first time on this appeal. See M.C. III, supra, 201 N.J. at 340-41.

We turn next to Y.C.'s contention that the record does not support the judge's finding of abuse and neglect. Our review of that decision is limited. We must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld wherever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J.257 (2007) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)).

In pertinent part, Title 9 defines an abused or neglected child as:

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, as herein defined, 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, 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. 9:6-8.21c(4).]

In determining whether a child has been abused or neglected in violation of the statute, the parent's intent is irrelevant. Rather, the focus is on the harm to the child.

"[A] Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." . . . "whether the [parent or] guardian intended to harm the child is irrelevant[,]" . . . Because the primary focus is the protection of children, "the culpability of parental conduct" is not relevant.

[M.C. III, supra, 201 N.J. at 344 (citations omitted).]

Further, "[w]here the conduct has the potential to cause serious injury, the fact that the guardian does not intend to injure the child is irrelevant." G.S. v. Dep't of Human Services, 157 N.J. 161, 180 (1999); N.J. Div. of Youth and Family Servs. v. A.R., ___ N.J. Super. ___ (App. Div. 2011) (slip op. at 8). "[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. For example, in M.C. III, the Court agreed with the trial judge that a father committed abuse, where he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct." M.C. III, supra, 201 N.J. at 345. The agency need not wait until a child is irreparably harmed before acting. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

In this case, we find no basis in the record to disturb Judge Bergman's finding that Y.C. was responsible for abuse and neglect of A.C. By her own admission to DYFS workers, Y.C. took her seven-year-old daughter to a group of strangers she found over the internet and allowed them to subject the child to a ritual that involved puncturing the child with a needle-like instrument all over her body and killing live animals in her presence. The child told a DYFS worker that she was in pain, crying and scared. Both DYFS workers and a doctor found puncture marks, some scabbed, on the child's body when they examined her.

Watching a stranger slit a goat's throat and strangle live chickens would understandably be terrifying to a young child.3 Offering the chicken's heart to the child to eat would also naturally be traumatic, as would having strange adults stick her with needles all over her body. Additionally, the risk of blood-borne diseases posed by needle punctures should have been obvious to Y.C. She subjected the child to physical pain, emotional trauma, and the risk of very serious physical harm. We therefore find no error in the judge's conclusion that Y.C. committed abuse and neglect of A.C. in violation of Title 9.

Affirmed.

1 In the transcript his name appears as "Kenneth" but his reports are signed "Kenrick."

2 As a result of this incident, criminal charges were also filed against Y.C.

3 As previously noted, this case does not present First Amendment issues, and our decision should not be read as opining on the practices of any religion. There is no evidence that this ritual was part of the child's family's culture or religion. According to the child, her mother told her she was going to a place where she would be able to "pet" a goat. Instead, she was handed over to strangers who punctured her with needles and forced her to witness a live goat being decapitated.