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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2387-11T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.O.,

Defendant-Respondent,

and

S.H.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.H., a minor.

__________________________________

November 27, 2012

 

Submitted October 10, 2012 - Decided

 

Before Judges Fisher, Alvarez, and Waugh.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-292-10/FN-02-333-10.

 

Swenson & Doyle, attorneys for appellant (James M. Doyle, of counsel; Jane M. Personette, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary Zec, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Sandra Tataje, Assistant Deputy Public Defender, on the brief).

 

Gregory E. Lake, attorney for respondent C.O., joins in the brief of respondent Division of Youth and Family Services.

 

PER CURIAM

Defendant S.H. (Sally2) appeals the Family Part's December 6, 2011 order finding that she had subjected her daughter A.H. (Amy) to "abuse or neglect" within the meaning of N.J.S.A. 9:6-8.21. We affirm.

I.

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

Sally and C.O. (Charles) had a brief romance which ended several months before Amy was born in November 2006. Because of Sally's resistance to allowing Charles to have any parenting time with Amy, there was protracted litigation in the Family Part. The judge handling the non-dissolution matter expressed concern about Sally's desire for control that was not necessarily in Amy's best interest. Because of the litigation, Charles was not able to have any contact with Amy until shortly before her first birthday, at which time he began supervised parenting time. Charles was eventually accorded unsupervised parenting time on a weekly basis.

Amy came to the Division's attention on April 6, 2010, after Sally took Amy to Hackensack University Medical Center and reported that Amy had disclosed that Charles had inserted a vibrating device into her vagina the previous day. When a Division caseworker and a police detective interviewed Sally at the hospital, they learned that the alleged assault had taken place during parenting time in New York State, where Charles resides. Consequently, the police investigation was referred to the police in the county in which Charles resided, and the initial child abuse investigation was referred to the county's Child Protective Services (CPS) agency. The Division, however, remained involved because Amy was a New Jersey resident.

The police in New York concluded that there was no evidence of abuse. That conclusion was based, in part, on the following: (1) Amy's physical examination revealed no signs of abuse, (2) Sally and her mother gave conflicting accounts concerning Amy's alleged disclosure and their actions, and (3) interviews with guests at a party attended by Charles and Amy at the time of the alleged abuse produced no evidence supporting the allegation.

Both the Division and the CPS agency also concluded that there had been no sexual abuse. In addition to the results of the medical examination, those determinations were based, in part, upon the following: (1) photographs taken of Amy's genital and anal area on April 5 did not show any injury in the vaginal area,3 (2) a video of the party attended by Charles and Amy during the visit at issue showed Amy playing happily and in no visible distress, and (3) the conclusion by the Center for Evaluation and Counseling (CEC) that it could not validate allegations of sexual abuse and its concerns that statements made by Amy had been prompted by Sally.

While the investigation was taking place, Sally continued to make additional allegations of sexual and other abuse against Charles, none of which were substantiated. Sally also insisted that Amy have an additional invasive physical examination and tests that were, in the Division's opinion, unwarranted in light of the results of the initial physical examination. The results of the additional examination and testing involved no indication of sexual abuse.

The Division ultimately concluded that Sally's continuing conduct was harmful to Amy. Consequently, it filed a complaint for care and supervision on May 13. A Family Part judge issued an order to show cause on May 13. The order gave joint legal custody to Sally and Charles, but residential custody of Amy was transferred to Charles. The Division was awarded "care and supervision." The Law Guardian Program was directed to assign a law guardian for Amy. The order also directed that the parties and Amy participate in evaluations by CEC.

The return on the order to show cause was June 29. Case management conferences were held in July, August and September. The fact-finding hearing began with opening statements in November and continued on twelve trial days during December (two days), January 2011 (one day), February (three days), March (four days), April (one day), and July (one day). A total of sixteen witnesses testified, of whom seven were mental health professionals.

On December 6, 2011, Judge Bonnie J. Mizdol issued a written opinion in which she determined that the Division had sustained its burden of proof. She summarized her conclusions as follows:

Based on the totality of the evidence, it is clear to this Court that [Sally] has exhibited a pattern of reckless disregard and that harm to [Amy] has resulted. [Amy] has been subjected to repeated unnecessary medical, physical and psychological examinations. [Sally] has disregarded the fact that her conduct would cause [Amy] harm by planting suggestive seed after seed to elicit disclosures of sexual abuse which simply did not exist. The Court finds that [Sally] attempted to shape and manipulate the child's behavior to further her goal to isolate [Charles] from any meaningful parental relationship with his daughter. Defendant refused to accept the findings of New York Child Protective Services, New York law enforcement, or the Center for Evaluation and Counseling.

 

The defendant's pattern of conduct demonstrated a substantial adverse effect upon her child. With overt and covert attempts she enlisted [Amy], through behavioral modification, to co-join with her to achieve a goal of destruction of [Charles'] relationship. This conduct clearly jeopardized [Amy's] health, safety and welfare.

The judge entered an order finding that Sally had abused and neglected Amy.

On March 9, 2012, a different Family Part judge entered an order terminating the Title Nine, N.J.S.A. 9:6-8.21 to -8.73, litigation. Amy was continued in the joint legal custody of both parents. By consent of the parties, Amy remained in Charles' residential custody, pending the completion of a best interests hearing to be held under the parties' non-dissolution case. This appeal followed.

II.

On appeal, Sally argues that the trial judge erred in finding that she had abused or neglected Amy. Her argument has essentially two aspects. First, she contends that the judge's factual findings are not supported by the record and that the judge should not have found that her conduct was harmful to Amy. Second, she also argues that, even if the record supports the judge's findings, the judge should not have found abuse or neglect, but should instead have continued the Division's involvement without making any finding as to abuse or neglect. In addition, Sally argues that her constitutional rights were infringed because the judge did not conduct the hearing on consecutive trial days.

A.

The Division filed its complaint pursuant to Title Nine, which is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid.

Title Nine provides in relevant part that an abused or neglected child includes one

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 . . . 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).]

 

The language in N.J.S.A.9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and "reckless disregard for the safety of others." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J.294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J.161, 177-79 (1999)); see alsoN.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Such conduct can include failure to take a "cautionary act." T.B., supra, 207 N.J.at 306-07. Simple negligence, however, does not qualify as abuse or neglect. Ibid.

The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). At a fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). The Supreme Court has made it clear that

[b]oth the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted "with scrupulous adherence to procedural safeguards," [N.J. Div. of Youth & Family Servs.] v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. [N.J. Div. of Youth & Family Servs.] v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). As concisely stated by the court in J.Y., "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b).

[N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009).]

 

As we recently stated in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010):

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

B.

The issue before Judge Mizdol was whether Sally's conduct in and around April and May of 2010 subjected her daughter Amy to abuse or neglect as defined in N.J.S.A. 9:6-8.21(c). There was no allegation, and certainly no proof, that Sally's purpose was to harm Amy. Instead, the Division's contention was that the effect of her conduct in repeatedly and aggressively asserting baseless allegations of sexual and other abuse against Charles was harmful to Amy.

Based upon our review of the trial record, as informed by the judge's factual and credibility findings, we conclude that Judge Mizdol's finding that Amy was harmed by her mother's conduct is fully supported by the record. In addition to the stress of the several investigations, Amy was photographed by her relatives with her genitals exposed on several occasions, including at least once prior to the alleged abuse; Sally insisted on an additional physical examination and testing after the first examination was negative; and Amy was noted to have an enhanced knowledge of sexual matters for a child her age. That harm warranted the change in residential custody from Sally to Charles, subject to the conditions in the order terminating the Title Nine case.

The more difficult issue is whether the conduct that caused the harm was properly characterized as "abuse or neglect." The proofs at trial focused on whether Sally's conduct amounted to a "failure . . . 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). As outlined above, such conduct must amount to more than mere negligence. T.B., supra, 207 N.J.at 306-07. The conduct must rise to the level of conduct that is "grossly or wantonly negligent" or "reckless." Id.at 306. The trial judge characterized Sally's conduct as "reckless."

Contrary to Sally's assertion, there is no requirement that the parent actually anticipate that harm will result from the conduct at issue.

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.

 

As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).

 

Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.

 
[G.S., supra, 157 N.J. at 178-179.]

 

Sally asserts that the trial judge "did not endeavor to explain precisely how [her] pursuit of a clear answer as to whether or not [Amy] had been sexually abused constituted grossly or wantonly negligent behavior." The judge, however, found that Sally had in fact received a clear answer, but that she "refused to accept the findings of New York Child Protective Services, New York law enforcement, or the Center for Evaluation and Counseling." The reckless disregard found by the judge stemmed not from Sally's efforts to rule out sexual abuse, an aim shared by the Division staff and all others involved in investigating the initial allegations, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy. The judge further found that Sally intentionally engaged in behaviors well beyond the scope of determining whether Amy had been abused.

[Sally] has disregarded the fact that her conduct would cause [Amy] harm by planting suggestive seed after seed to elicit disclosures of sexual abuse which simply did not exist. . . . [Sally] attempted to shape and manipulate the child's behavior to further her goal to isolate [Charles] from any meaningful parental relationship with his daughter.

 

Sally argues that the conclusion that she prompted Amy is contrary to the evidence, pointing to the testimony of CEC evaluator Laurie Silverman, M.A., that Sally presented as though her concerns were genuine. CEC clinician Stephanie Kurilla, M.A., also testified that she did not think that Sally was telling Amy that she had been sexually abused. However, the judge also heard testimony and reviewed exhibits supporting the assertion that Sally was, in fact, prompting Amy. The judge's factual finding that there was prompting is appropriately supported in the record.

Division supervisor Kelly Nestor testified that by April 13, Division caseworker Sylwia Rhein was reporting

concerns . . . based on [Sally] subjecting [Amy] to multiple interviews regarding the sexual abuse, multiple medical exams, gynecological exams, photographing the child's vaginal area before and after visits with her father, videotaping the child and consistently asking her questions regarding the sexual abuse, and her continuous calls to the Division with different allegations and conflicting allegations in regards to sexual abuse.

 

Kurilla testified that she had reviewed a videotape, taken by Sally, in which Sally questioned Amy, "[asking] several times who did this to you, who did it, who did it, and [Amy] began to cry and said daddy." Kurilla found the repetitive questions "concerning," noting that even if a child has no response to a question, if asked the same question repeatedly she eventually will answer.

Kurilla also testified to concerns raised by her own interview of Amy. Even when she asked Amy about other topics, Amy kept bringing the conversation back to Charles. She reported that Amy told her "mommy said I have to tell my story," referring to the alleged incident with Charles. Kurilla asked Amy how Sally acted when Amy told her about the incident, and Amy said Sally was "happy" and "smiling." Kurilla testified that it seemed that because Sally was convinced abuse had taken place, she "continued to give [Amy] the sense that she was [abused]" and consequently, Amy "was having a memory of being sexually abused by her father created for her."

The written report of an interview conducted by New York investigators Marie Fabiano of Child Protective Services and Jeffrey Devolve of the sheriff's department documents that when Amy was asked "if anyone . . . told her to say she doesn't like her daddy," she said, "mommy, mommy, mommy, Nanna and Pah," the latter two being her maternal grandparents. When the investigators told her "she was doing well" and "it had been a long day with different people asking her [a] lot of questions," Amy replied: "I know the answers to the questions because mommy tells me."

Under Title Nine, the adjudication of abuse or neglect also involves consideration of the likelihood of "further injury" to the child. The purpose of the act is

to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

 

[N.J.S.A. 9:6-8.8(a).]

 

Sally asserts that her behaviors in the period between April 6 and the change in residential custody were context-driven and reflected temporary stressors. The judge disagreed, relying in part on Kurilla, an expert in conducting child abuse and neglect risk assessments, who opined that Sally's "narcissism" made her "unable to put the child's needs above her own" and rendered her unaware of the ways her "histrionic" and "delusional" reactions to Charles were traumatizing Amy. The judge also relied upon the prior history of litigation between Sally and Charles, in which there were concerns about Sally's motivation.

As was the case with the finding that Sally was prompting Amy, the fact that there is conflicting opinion in the record does not undercut the judge's findings, which were based upon her overall assessment of the testimony and exhibits, as informed by her credibility findings. The judge did not credit Sally's "statement that sometime in fall 2010 she accepted that no sexual or physical abuse [occurred] and that [she] was never angry with [Charles]." She observed that

[e]very one of [Sally's] words and her body language during her testimony demonstrated just the opposite. Clear from her testimony is that she is of the opinion that [Charles] was and is the cause of everything that has happened. Her demeanor tells a story far from the enlightenment or therapy progress described by [the witnesses who disagreed with Kurilla].

 

Consequently, we are convinced that Judge Mizdol's conclusion that Sally's conduct amounted to "abuse or neglect" in the sense of conduct that was "reckless" is fully supported by the record.

C.

We have reviewed Sally's remaining arguments and 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.

The judge did not abuse her discretion in making a finding of "abuse or neglect" rather than just continuing the Division's services to Amy and her parents. As we have already concluded, the record fully supports a finding of "abuse or neglect." There was no reason for the judge to defer making such a finding.

Pursuant to Rule5:3-6, the trial should have taken place on consecutive trial days. However, the trial record reflects that delays were caused by scheduling, including consideration of Sally's work schedule, the availability of counsel, the availability of experts and their reports, and the judge's trial calendar. We also note that the issue of continuous trial days was not raised before the trial judge. In any event, we find no prejudice to Sally and certainly no deprivation of her constitutional rights.

The judge was able to consider and rule upon parenting time issues during the trial. By the time of the final trial day in July 2011, Sally had been granted unsupervised parenting time with Amy every other weekend from Friday to Sunday and once each week for several hours.

III.

For all of the reasons set forth above, we affirm the order on appeal.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use pseudonyms to refer to the individuals in this case for the purpose of clarity.

3 Pictures were taken by Amy's maternal grandfather both before and after the visit at issue.