DIVISION OF YOUTH AND FAMILY SERVICES v. J.K. and J.L IN THE MATTER OF C.K a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2129-10T1

A-2139-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.K. and J.L.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF C.K.,

a minor.

_____________________________________

December 7, 2011

Submitted November 1, 2011 - Decided

Before Judges Reisner and Hayden.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, Docket No. FN-02-70-10.

Joseph E. Krakora, Public Defender, attorney forappellant J.K.(Howard Danzig, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant J.L. (Ruth A. Harrigan, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter D. Alvino, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.K. (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant J.L. (Jane) and J.K. (Jason) are the biological parents of C.K. (Cara), born March 6, 2009.1 In these consolidated appeals we are asked to review separate orders of the family part (1) finding that both parents had engaged in abuse and neglect; and (2) adopting a permanent plan calling for the termination of their parental rights to Cara to be followed by Cara's adoption by her parental grandparents. Based upon our review of the record, we find no basis to disturb the trial judge's decision, and we affirm.

We discern the following facts and procedural history from the record on appeal.

Defendants had been in a romantic relationship since October 2007 and were living together on July 28, 2009. That day defendants had a verbal argument about household tasks that started around 5:30 p.m. and went on for some time. During this time Jason fed Cara, then she was put in a baby swing to sleep around 6:00 p.m. Defendants continued to argue, then Jason decided he would leave because he said Jane was acting like a "maniac." Jane blocked the front door to prevent his departure. When Jane put her hand on the door to stop him from leaving, Jason's fingers got caught in the door, possibly injuring his fingers. He then grabbed her by the neck and pushed her into the kitchen. She went into the living room and picked up a PVC pipe. Defendants continued to argue and then Jane hit Jason on the head with the pipe. He then struck her with such extreme force in the back of her head that she dropped to the ground and lost consciousness for two or three seconds or perhaps longer.

Due to the commotion coming from defendants' apartment, neighbors had summoned the police. When Jane regained consciousness, Jason told her that the police were coming, so she put on a bathrobe to hide the marks from the fight. Both defendants told the police that they had been arguing, but no physical violence had occurred.2 According to the police report, Jason had the infant in his arms when he greeted them at the door. After the police left, Jane called her mother, an EMT, who sent a private ambulance to the apartment to take Jane to the emergency room.

The altercation had occurred in the hallway as well as the kitchen and living room. During most of the incident, four-month-old Cara was present in the apartment in her bedroom about nine feet away and her door was partially open. Jane did not recall Cara waking during the incident but she could not explain why the police reported that Jason met them at the door with Cara in his arms. After the incident, Jason appeared to Jane to be "emotionally distraught," crying and curled up in a ball. Jane feared leaving the baby with him in his "unstable" state so she took Cara with her to the hospital.

After Jane arrived at the emergency room at 9:21 p.m., she reported that she had been assaulted by Jason, which caused the doctor to contact the Division of Youth and Family Services. An investigator for the Division came to the hospital that night and worked out a safety plan with Jane, including that the baby would go with Jane's mother for the night, then Jane and Cara would live with her mother. Upon being released from the emergency room, Jane was taken to the police station to obtain a Temporary Restraining Order and file a criminal complaint, but once there she declined to cooperate. A few days later, Jane told the Division investigator that she regularly took medication for her bipolar disorder, but she had not taken it for a few days before the incident because her apartment was so messy she was unable to find it.

On August 6, 2009, the Family Court granted the Division's complaint for care and supervision of Cara and restrained Jason from contact with the baby except for supervised visits. In September, Jane left her mother's home due to family conflict and reunited with Jason. Soon thereafter, on October 6, 2009, based on the mother's significant suicidal ideation, the court found that continuation of custody with the mother would be contrary to the welfare of Cara and granted the Division custody of Cara with physical custody remaining with the maternal grandmother. In later October, after the maternal grandmother tested positive for cocaine, the Division removed Cara from her home. In December 2009, Cara was placed into the home of her paternal grandparents, where she resided throughout the remainder of the litigation.

In December 2009, the Division filed an amended complaint alleging abuse and neglect. In addition to the violent incident of July 29, 2009, the complaint alleged that the parents had a pattern of instability which placed the baby at a continuing risk of harm. Allegations about Jane included prior substance abuse treatment, current lack of treatment for bipolar disorder, and two psychiatric hospitalizations, and allegations about Jason included numerous positive drug screens for amphetamines and prior history of domestic violence.

On February 1, 2010, at the scheduled fact-finding hearing, Jason failed to appear despite having received notice. Rather than go to trial on all the allegations, Jane entered into a stipulation that she and Jason were engaged in a mutual altercation resulting in her becoming unconscious and that, as a result, neither parent was available to care for Cara. Jane also testified extensively and was subject to cross examination concerning the events of July 28, 2009.

The trial judge accepted Jane's stipulation and, after additional testimony was given about the incident, found that

both of the parents entered into serious physical assaultive behaviors upon one another, the magnitude of which caused one of the parents to be rendered unconscious. Both utterly disregarded the substantial probability that harm to one another would result from their actions [and] might render them incapable of caring for [Cara]. They acted with reckless disregard for the probable consequences of their actions and the Court finds that [] they failed to exercise a minimum degree of care toward [Cara], facts that are sufficient to hold [them] liable for child neglect under N.J.S.A. 9:6-8.21(c)(4)(b).

The trial judge did not return Cara to either parent's custody due to their instability. In February 2010, both defendants were arrested due to a physical altercation but Jane was then involuntarily admitted to a psychiatric hospital. In early March, 2010, Jason was again arrested and released; later that month both defendants were arrested together and charged with shoplifting.

At the time of the permanency hearing on October 5, 2010, Jane had just started an inpatient drug treatment program in Pennsylvania, after having been discharged from her previous program. Jason was incarcerated on drug and robbery charges but expected to enter a guilty plea and be released to an inpatient drug treatment program. Both defendants urged the trial judge to give them extra time to gain stability. Additionally, the paternal grandmother, with whom the Division placed the baby in December 2009, testified that she and her husband wished to adopt the child.

Finding that the Division had made reasonable efforts to reunite the family, the judge approved the Division's permanency plan of termination of parental rights followed by adoption by the paternal grandparents. The trial court determined that it would not be safe to return the child to either parent as they had failed to comply with court-ordered services and had not demonstrated the ability to provide a safe living environment for their child in the foreseeable future. The Division filed a complaint against both defendants seeking guardianship of Cara on November 15, 2010 and the court dismissed the abuse and neglect proceedings.3 This appeal followed.

On appeal, Jane raises the following issues:

POINT I - THE FACT FINDING ORDER AGAINST [JANE] MUST BE REVERSED SINCE THERE IS NOT SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S LEGAL CONCLUSION THAT [JANE] ABUSED OR NEGLECTED HER CHILD.

POINT II - [JANE] WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE HE FAILED TO PROPERLY ADVISE APPELLANT THAT THE FACTS DID NOT SUPPORT A FINDING OF ABUSE AND NEGLECT AND SHE SHOULD NOT HAVE ENTERED A STIPULATION AT THE FACT FINDING HEARING.

POINT III - THE DECISION TO ORDER DYFS TO FILE A COMPLAINT FOR GUARDIANSHIP SEEKING THE TERMINATION OF PARENTAL RIGHTS WITH ADOPTION MUST BE REVERSED BECAUSE THE ORIGINAL BASIS FOR THEIR REMOVAL IN THE ABUSE AND NEGLECT PROCEEDING WAS RESOLVED.

On appeal, Jason raises the following issues:

POINT I - THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND ABUSE AND NEGLECT.

POINT II - THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FINDING THAT THE ACTION OF THE FATHER CAUSED RISK OF HARM TO THE CHILD.

POINT III - THE TRIAL JUDGE'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND GROSS NEGLIGENCE OR RECKLESS CONDUCT TO SUPPORT A CONCLUSION OF ABUSE AND NEGLECT AGAINST [JASON].

POINT IV - THE STANDARD FOR NEGLECT UNDER TITLE 9 IS BEYOND MERE NEGLIGENCE. IT REQUIRES BOTH AN AWARENESS OF A KNOWN AND SUBSTANTIAL RISK AND RECKLESS DISREGARD OF THAT RISK.

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted). As a general rule, we should also defer to the trial judge's credibility determinations because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfindings." N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Nevertheless, the trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378. Thus, we need not defer to the trial judge's legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990).

The matters on appeal were brought in the Family Court under Title Nine, N.J.S.A. 9:6-1 to -8.73, which address "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, "the safety of the children shall be of paramount concern." Ibid.

Title Nine defines an abused or neglected child in pertinent part as follows:

[A] child [less than 18 years of age] 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 . . . 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.

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

A parent "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. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999). An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S., supra, 157 N.J. at 180-81.

In G.S., the Court explained that "[t]he phrase 'minimum degree of care'" denotes "something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)). Further, willful or wanton conduct is conduct "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Grossly negligent conduct requires "an indifference to consequences." Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951)).

We find no error in the trial judge's conclusion that both defendants failed to exercise a minimum degree of care, thereby placing Cara at substantial risk of injury. Jason and Jane engaged in a protracted verbal and then physical altercation, starting with Jane physically preventing Jason from leaving the apartment, then escalating for an extended period of time into mutual physical combat.4 Jane left the kitchen and went into the living room, got a PVC pipe, then returned to the other room to continue to argue, ultimately hitting him on the head with the pipe. Jason responded with excessive force, striking Jane so hard that she was knocked to the floor unconscious for at least a few seconds. Jane perceived that Jason was emotionally unstable during the fight, but when the police arrived, she chose to deny there was any violence in order to protect Jason. Although Jane did not think that the baby had woken up during this fight, the fight was so noisy that the neighbors called the police, and the police report indicated that Jason had the baby in his arms when they arrived.

Contrary to defendants' argument, the Division does not have to prove that the child actually incurred physical or emotional harm. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575 (App. Div. 2010) ("the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child"). From the facts as testified to by Jane, she recklessly placed keeping Jason in the apartment and not having him arrested above her child's safety. Additionally, Jason's use of excessive force against Jane just nine feet from the baby's room also evinced a reckless disregard for the consequences, which also placed the child at risk of serious injury during the protracted battle and its aftermath.

Defendants' reliance on N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), is misplaced. There the issue was

whether, under the facts of this case, a battered wife can be found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked by his father and because, after the attack, the wife initially sought to remain in the violent relationship.

[Id. at 15.]

In this case, Jane stipulated to a lengthy mutual combat that resulted in her being rendered unconscious and Jason being emotionally distraught and neither parent able to care for the baby. Unlike the innocent battered spouse in S.S., who made significant efforts to protect her baby by retreating behind a locked door, Jane sought out the conflict by refusing to let Jason leave the apartment. She also left the room and returned with the pipe, and later refused to tell the police about the potential dangerousness of the situation. Further, there is no indication that, after his initial attempt to leave, Jason tried to extricate himself from the protracted argument, to refrain from responding with excessive force, or to seek the help of the police when they came. Our concern here is not the potential emotional damage from hearing this protracted fight, but the very significant risk to the four-month-old infant, who was merely nine feet away, of being caught in the crossfire between two battling adults, one armed with a pipe and one willing to use tremendous force. Consequently, as neither parent exercised a minimum degree of supervision, we affirm the trial court's finding that they both engaged in acts of abuse or neglect.

Having reviewed defendants' remaining claims, we find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Jane also argues on appeal that she was denied effective assistance of counsel at the fact-finding hearing. The Sixth Amendment to the federal constitution requires states to provide all criminal defendants with effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court promulgated a two-part test to determine whether a criminal defendant has been denied effective assistance of counsel, which has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on a claim of ineffective assistance, the defendant must show: 1) counsel's performance was objectively deficient and fell outside the broad range of professionally acceptable behavior; and 2) but for counsel's unprofessional errors, there is a reasonable probability the result would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Because of the fundamental liberty issues at stake, New Jersey has extended the right to effective assistance of counsel to termination and abuse and neglect cases. New Jersey Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007).

Jane argues that she was deprived of effective assistance of trial counsel because her attorney should have advised her not to enter into a stipulation since the facts did not support a finding of abuse and neglect. However, as we have found that the facts stipulated to did constitute abuse or neglect under Title Nine, Jane has failed to prove that counsel's performance in allowing her to stipulate was deficient. Moreover, Jane, who has not denied the truth of her testimony, has failed to produce any evidence that the result would have been different if she had not stipulated. Thus, we find that Jane has not meet either part of the Stickland test in this claim.

Jane also claims ineffective assistance of counsel due to her attorney's short absence from the courtroom. Following Jane's testimony and stipulation, her attorney left the courtroom for a short time while the fact-finding hearing proceeded against Jason. After just a few minutes of testimony, Jason's attorney objected to proceeding without Jane's attorney present, and the court adjourned the hearing temporarily until he could appear. When the hearing resumed, Jane's attorney was able to address the evidentiary issue involving his client and to participate in the remainder of the hearing. While Jane claims that his brief absence amounted to ineffective assistance of counsel, she provides no explanation of how the result of the hearing, where she had already stipulated and testified, would have been different if her attorney had been there for those few minutes. See State v. Scherzer, 301 N.J. Super. 363, 453-54 (App. Div. 1997) (" a temporary absence is not such a defect as to prevent a court from pursuing the issue of harmless error."). Thus, we reject Jane's claims that her counsel provided ineffective assistance as she has failed to provide sufficient evidence to satisfy the two-part Strickland test.

Jane also argues that the trial court should not have accepted the permanency plan and ordered the Division to file for termination of parental rights. We disagree. Our Supreme Court has recognized that a delay in securing permanency for a child may continue or add to the harm a child has suffered. In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999). We are satisfied that the judge's decision to approve the plan and terminate the Title Nine proceedings was in Cara's best interests. The record supports the judge's findings that it was time to proceed to the next stage so that the issue of permanency could be resolved under the more exacting standards in a guardianship case. See N.J.S.A. 30:4C-15.1(a).

Based upon the foregoing, we affirm the orders finding abuse and neglect against both parents and approving the permanency plan.

Affirmed.

1To preserve their privacy, we refer to the defendants and their infant child by pseudonyms.

2 Jane later told the police at the hospital that she lied because she did not want Jason to be arrested or to get into trouble.

3 We have been informed that on June 1, 2011, Jason made a voluntary identified surrender of his parental rights to Cara so that his parents may adopt her.

4 Jane stated that the argument took about twenty-five minutes but she also testified that it began about 6 p.m. and she did not get to the hospital until 9:21 p.m., so it may have lasted much longer.