DIVISION OF YOUTH AND FAMILY SERVICES v. T.G IN THE MATTER OF L.D A minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2748-10T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.G.,

Defendant-Appellant.

__________________________________

IN THE MATTER

OF L.D.,

A minor.

_____________________________________________________

February 27, 2012

 

Argued December 20, 2011 - Decided

 

Before Judges Messano and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0195-10.

 

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief).

 

Christian A. Arnold, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Arnold, on the brief).

 

Patricia A. Dulinski, Designated Counsel, argued the cause for minor L.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Dulinski, on the brief).

PER CURIAM

Defendant T.G. appeals from orders finding she had abused or neglected L.D., her sixteen-year-old cousin in her custody, by "us[ing] inappropriate forms of discipline," and denying defendant's motion for reconsideration.1 Defendant raises the following points on appeal:

POINT I

 

T.G. WAS DENIED HER RIGHT TO DUE PROCESS OF LAW AS A RESULT OF DYFS'S RELIANCE ON UNFOUNDED ALLEGATIONS PLED AGAINST T.G. IN THE TITLE 9 COMPLAINT FILED AGAINST HER

POINT II

 

THE JUDGE ERRED IN RELYING ON THE IN-COURT TESTIMONY OF L.D.

 

POINT III

 

THERE DID NOT EXIST SUBSTANTIAL, CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING OF NEGLECT AND ABUSE BY A PREPONDERANCE OF EVIDENCE AND THE TRIAL COURT DID NOT PROPERLY APPLY THE LAW TO ITS FINDING OF FACTS

 

 

 

POINT IV

 

THE DIVISION'S FAILURE TO PROVIDE THE RECORDS OF THE PRIOR UNFOUNDED INVESTIGATIONS VIOLATED T.G.'S RIGHT TO DUE PROCESS OF LAW (Not Raised Below)

 

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

On February 18, 2010, the Division of Youth and Family Services (DYFS or the Division) filed a verified complaint and order to show cause against defendant and Y.D., L.D.'s mother, seeking care, custody and supervision of L.D.2 The judge entered an order granting the relief and ordering defendant to show cause on March 5.

We recite with particularity the contents of the complaint in light of arguments defendant has raised on appeal. The complaint specifically alleged that L.D. was abused or neglected pursuant to N.J.S.A. 9:6-8.21c(4)(b).3 The complaint further cited "seven [prior] referrals against [defendant] in regards to L.D.," and listed the specific dates of the referrals and their general nature. In each instance, the allegations were determined to be "unfounded" by DYFS. The complaint referenced an exhibit, P-1, presumably attached, which was characterized as "Other Intake Narrative and Current or Previous Agency Involvement."4

The complaint included allegations stemming from an October 21, 2009 incident, wherein L.D. told his DYFS caseworker that he "ran away" because defendant "made him take his clothes off in front of her and . . . cut off his underwear." L.D. claimed this was punishment because he cut school. He informed the caseworker that defendant "hit him 'upside his head,'" and he could no longer live with her. L.D. stated that defendant had been using physical discipline . . . "since he had been residing with [her]."

The complaint also included details from a December 22, 2009 psychological evaluation of L.D. by Dr. Barry A. Katz. L.D. told Katz that he ran away from defendant because "he did not like the way he was being treated." Defendant punished him by cursing at him, "slapping him across the face," denying him access to the television, and "making him sit in a dark room for extended periods of time." Katz believed L.D. was not "exaggerating his claims." Katz's evaluation was attached to the complaint as an exhibit.

During a home visit on January 14, 2010, the caseworker noted that defendant "did not have any positive things to say about [L.D.]," and claimed she was denied her housing assistance when L.D. was in "the Youth Shelter," which caused her financial strain. L.D. told the caseworker "that he no longer wanted to reside with [defendant]."

DYFS received a referral from L.D.'s maternal grandmother, D.D., at midnight on January 21, 2010. L.D. expressed a desire to run away from home again, and D.D. claimed that defendant had physically abused L.D., "strip searched" him, and cursed at him "all the time." Later that day, at approximately 5 a.m., L.D. contacted a DYFS "hotline" and told the caseworker he could no longer live with defendant.

DYFS conducted an investigation. Caseworkers spoke to D.D., and J.H., defendant's daughter. J.H. denied that her mother treated L.D. differently from her own children. She claimed that L.D. always ran away whenever he was disciplined and that the "stripping incident never occurred."

However, the workers interviewed L.D.'s school guidance counselor who said that "during every meeting they [had] with [defendant], she would belittle [L.D.] and call him a liar in front of his face." The counselor added that L.D. "expressed to her that he was being physical[ly] abuse[d] at [defendant's] home." The workers also interviewed the school nurse, who advised that L.D. "is always looking for food, and informed her that he does not eat in the morning." In April 2009, the nurse made a referral to DYFS because she observed scratches on L.D.'s neck and "multiple bruises on his left arm."5 L.D. claimed defendant hit him "because he took to[o] long while taking out the garbage."

The Division's workers spoke to defendant's sister, L.G.-W. She claimed that she cared for L.D. when defendant went to work and locked L.D. out of the house without food or money. L.G.-W. claimed that defendant "physically and verbally abused [L.D.] since he was in her care," would "withhold food" from him, and "use the board payments for her own children."

The Division workers spoke to defendant. She denied hitting L.D. and claimed she disciplined him by "tak[ing] away his television and ground[ing] him." When confronted with the numerous past allegations of abuse, defendant stated "that [L.D.] lies about everything and . . . she treats him the same way as her children."

The verified complaint concluded that the investigation of the most recent referral "was unfounded" as to an "allegation of physical abuse," "but there was substantiation for emotional abuse." DYFS sought care, custody and supervision of L.D. "[b]ased on the ongoing emotional abuse . . . including [defendant] not treating [L.D.] and her children equally and her use of inappropriate methods of punishment."

On February 17, 2010, Katz conducted a bonding evaluation with defendant and L.D. He noted "signs of distance and a lack of warmth in their interpersonal interactions." Katz opined that "[i]f the allegations by [L.D.] are valid then it would indicate that [defendant] has been acting out her anger upon [L.D.] in an abusive and inappropriate manner. Such a pattern of behavior can lead to emotional, behavioral and cognitive disturbance in a child." Katz also opined that even if "the allegations of abuse and neglect are not substantiated, the bonding date still revealed that [L.D.] does not get the emotional warmth and nurturance from [defendant] the he is in need of."

The judge conducted a fact-finding hearing on June 15 and 29, 2010. Various documents supporting the allegations in the complaint were admitted into evidence. DYFS caseworker Carlos Berrero testified that he was assigned to L.D.'s case from September 2009 to March 2010. During that time, the Division remained involved "due to [L.D.'s] behavior," which included running away from home, and L.D.'s "allegations that he was being abused." Berrero visited L.D.'s high school, conferred with school administrators, drove L.D. home from school, and visited defendant's home.

L.D. testified that defendant started to physically abuse him ten years earlier, and that defendant's boyfriend "punch[ed]" him and "thr[ew] [him] around." Defendant would not allow him to "get on rides and stuff" during family trips, and would punish him for extended periods of time by ordering him to "stay in [his] room," except to go to school, and forbidding him to watch television. L.D. admitted that in the past, when DYFS was investigating prior allegations of abuse, he told the Division "that it didn't happen."

L.D. testified that defendant never showed him verbal affection or praise, never hugged or kissed him, and never told him that she loved him. He admitted running away from home because he wanted to live somewhere else. L.D. recounted one incident where defendant "dragged [him] in the car and . . . started beating [his] head in." When they got home, defendant ordered him to take his clothes off, and when he refused, she "rushed [him] to the ground," took his clothes off, and showed him to "her daughters" who lived in the house. Defendant permitted her daughters to access the family refrigerator, but L.D. "wasn't allowed to go in the refrigerator without asking." On cross-examination, L.D. claimed that he lied to DYFS about the incidents of prior physical abuse because he "was scared."

In an oral opinion placed on the record, the judge concluded that "the evidence . . . rises and falls essentially on [L.D.'s] testimony." While recognizing the inconsistencies in L.D.'s accounts of some of the incidents, the judge nonetheless found that he was "consistent in relating . . . the story" of being forced to remove his clothing. Noting L.D.'s explanation that he recanted some of the prior claims of abuse because he was "afraid," the judge explained that "some of that was . . . influenced by . . . defendant."

The judge concluded that "the Division . . . has been able to prove . . . by a preponderance of the evidence, that [L.D.] was an abused child by virtue of what appeared to be a prior history of some physical abuse." Defense counsel objected, noting "[t]hat was all unfounded." However, the judge determined that "the reason it was unfounded . . . is that after reporting the abuse . . . [L.D.] admitted that he recanted . . . even though he knew he was lying to the Division." The judge repeatedly found L.D. to be credible, and specifically concluded that L.D. was credible in his report of the incident in which defendant forced him to strip as punishment.

Thereafter, an extended discussion occurred between the judge and all counsel as to whether the court could consider prior allegations of physical abuse that were investigated by DYFS and determined to be unfounded. The judge requested briefing on the issues, and concluded he would enter "the finding" because the case was "going into backlog tomorrow." He then treated defendant's legal arguments as a motion for reconsideration and granted that motion pending submission of the parties' briefs. In the written order filed on June 29, 2010, the judge determined defendant abused or neglected L.D. "in that she used inappropriate forms of discipline as set forth on the record." The order further provided that defendant's "motion for reconsideration of the Court's fact[-]finding decision [was] granted." The order contained a briefing schedule.

Whatever the parties submitted to the trial judge is not part of the appellate record. On December 29, 2010, the judge issued a written opinion denying defendant's motion for reconsideration. He noted:

The thrust of defendant's argument on reconsideration is that basing a finding of abuse on allegations that were previously unfounded by the Division "is unconstitutional in that it violates the defendant's fundamental procedural due process rights." . . . As succinctly asserted further in [defendant's] brief, "There is no way that an unfounded allegation will constitute a claim for which the Division can seek a finding against this Defendant."

 

The judge rejected any claim that defendant was prejudiced because she was unable "to prepare a defense . . . to allegations previously undisclosed." The judge concluded "that a DYFS finding of unfounded or unsubstantiated is [not] a bar to a subsequent hearing before the court on a complaint duly filed under Title 9." On January 24, 2011, the judge entered an order denying defendant's motion for reconsideration, and this appeal followed.

II.

Defendant first argues that "the judge's unexpected finding that [defendant] had physically abused L.D. denied [defendant] the most basic elements of due process: notice of the charge against her and the opportunity to defend against that charge." DYFS and the Law Guardian counter by arguing that defendant was aware of the prior allegations of physical abuse "and had more than sufficient time to prepare and present a defense against the allegations." Moreover, both the Division and the Law Guardian argue that the judge concluded defendant used "inappropriate methods of punishment," including "both . . . past instances of physical abuse as well as the incident in which L.D. was forced to strip by [defendant]."

Defendant relies extensively upon the Court's holding in New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17 (2011), which was decided after the trial and denial of defendant's motion for reconsideration. However, we think the case is distinguishable and provides no support for defendant's position.

In P.W.R., supra, 205 N.J. at 20-21, the defendant argued that she was deprived of an adequate opportunity and notice to defend against claims that she abused or neglected her teenage stepdaughter, and that the evidence was insufficient to support such a finding. At the preliminary hearing following the removal, the Division's supervisor recounted the child's "allegations of corporal punishment." Id. at 27. However, she also testified that "the allegation of physical abuse was 'unfounded' because [the child] 'had no injuries,' and the hits 'did not rise to the level of . . . abuse.' She stated that those complaints were the only issues that caused the removal, but informed the court that the investigation was not fully complete." Id. at 27. The judge determined removal was appropriate based, in part, upon "a past history of beatings." Id. at 28.

At the subsequent fact-finding hearing, a Division caseworker and the child's grandfather testified. Ibid. The judge concluded that the defendant had "physically abused" her stepdaughter, neglected her by failing to provide appropriate medical care and heat in the home, took the child's paychecks and used the money to support herself, and isolated the child from her extended family." Id. at 29.

Before the Court, the defendant "[did] not dispute that she occasionally slapped [her stepdaughter] in the face as a form of discipline," but she contended that it was not excessive corporal punishment. Id. at 35. In addressing the defendant's due process and substantive challenges to the finding that she physically abused her stepdaughter, the Court noted:

Although hardly admirable, we agree that such occasional discipline does not fit a common sense application of the statutory prohibition against "excessive" corporal punishment. . . . Indeed, DYFS itself found the allegation of physical abuse to be unfounded. That should have put the matter to rest. Before the Family Part, DYFS seemingly agreed; it did not argue that [the stepdaughter] was physically abused. Despite the deferential standard that we apply to the findings of the Family Part courts who hear the oft-difficult and wrenching abuse and neglect actions, we cannot credit the finding of physical abuse made here by the trial court.

 

A slap of the face of a teenager as a form of discipline -- with no resulting bruising or marks -- does not constitute "excessive corporal punishment" within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). . . . In this matter, where DYFS labeled the physical abuse "unfounded," the trial court abused its discretion by utilizing the slaps as a basis for a finding of physical abuse. It also caused a fair notice violation because no lay person served with the DYFS complaint in this matter would reasonably read the complaint to indicate that a claim of physical abuse would be advanced at the hearing. But, more importantly, our reversal of this finding goes to its core. The proofs simply were insufficient to support a finding that [the defendant] physically abused [her stepdaughter].

 

[Id. at 35-37 (footnote omitted) (citations omitted).]6

 

In this case, the Division's complaint listed seven prior instances of unfounded allegations of abuse or neglect against defendant. At the fact-finding hearing, DYFS did not assert these incidents proved defendant physically abused L.D., thereby justifying the Division's continued care and custody of L.D. Instead, it was the Division's position that the facts surrounding these "unfounded" incidents were relevant to place defendant's long-standing relationship with L.D. in the proper context. In his closing statement at trial, the Deputy Attorney General representing DYFS argued that L.D.'s testimony proved "emotional abuse by [defendant]," culminating in the "stripping" incident, to which L.D. credibly testified.

In this case, unlike P.W.R., where despite the Division's assertion that there was no physical abuse the judge nonetheless found there was, DYFS produced L.D. as a witness. See id. at 36-37. It did not rely upon unfounded allegations regarding the incident. Instead, L.D. testified and explained his reasons for lying to DYFS whenever it investigated prior allegations.

Defendant has not argued that L.D.'s testimony was irrelevant or otherwise inadmissible. Indeed, there was never any objection of this nature at trial. In short, we do not accept the contention that the holding in P.W.R. automatically bars the admission of evidence regarding "unfounded" prior allegations of abuse or neglect at a Title Nine fact-finding hearing.

The record also does not support defendant's claim of lack of notice and a concomitant inability to fairly defend against the allegation. As noted, defendant did not object to L.D.'s testimony, after which there was a two-week hiatus before the fact-finding hearing continued and Berrero testified. There was no request for a further continuance or for additional discovery, and defendant elected not to testify or produce any witnesses herself.7 It was clear after L.D. testified that DYFS intended to rely upon his testimony to establish the relationship that existed between him and defendant. We reject defendant's due process claims.

III.

In Point II, defendant argues that L.D.'s testimony was not credible given the Division's own findings regarding prior allegations, and L.D.'s "penchant for lying and wish[] to live with his grandmother." In Point III, defendant contends that the evidence was insufficient to support any finding that she abused or neglected L.D.

It is well recognized that appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (internal quotation marks omitted in original). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation and internal quotation marks omitted). And, when the issue presented turns on a legal conclusion derived from the Family Part's fact-finding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).

In this case, the judge was obviously impressed with L.D.'s credibility. The judge carefully considered and assessed the clear inconsistencies and vagueness as to dates within the testimony. In the end, the judge was convinced that the essential details of L.D.'s relationship with defendant were accurate. We find no basis to reject the judge's careful "first-hand credibility judgments about the witnesses who appear[ed] on the stand." M.C. III, supra, 201 N.J. at 342 (citation omitted).

We turn, therefore, to defendant's contention regarding the legal conclusions the judge reached upon the found facts. "Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." P.W.R., supra, 205 N.J. at 31. "[T]he legislative history of Title 9, precedent and public policy support the conclusion that 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." M.C. III, supra, 201 N.J. at 344 (second alteration in original) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.

At the fact-finding hearing, the Division was required to prove by a preponderance of the evidence that L.D. was an abused or neglected child within the statutory definition. A.R., supra, 419 N.J. Super. at 543. "Whether a child is 'abused or neglected' is quite frequently 'fact sensitive.'" Id. at 544 (quoting P.W.R., supra, 205 N.J. at 33). "When determining whether or not a child has been abused or neglected, the trial court must base its findings on the totality of the circumstances, since [i]n child abuse and neglect cases the elements of proof are synergistically related." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (alteration in original) (citation and internal quotation mark omitted). Indeed "[e]ach proven act of neglect has some effect on the [child]. One act may be substantial or the sum of many acts may be substantial." Id. at 329-30 (second alteration in original) (citation and internal quotation mark omitted).

In this case, having found L.D. to be credible, the judge's determination that defendant "used inappropriate forms of discipline" and, as a result, L.D.'s "emotional condition ha[d] been impaired or [was] in imminent danger of becoming impaired," N.J.S.A. 9:6-8.21c(4)(b), was correct. The two evaluations performed by Katz amply supported that conclusion. When Katz first evaluated L.D., in December 2009, he noted that L.D. had "run away from the foster home numerous times." He was a "poor student with most courses either failing or barely passing." Katz noted behavioral problems "that included stealing, lying and taking food without asking." Katz further explained, "[i]f the allegations made by [L.D.] . . . are valid . . . it would support his assertion that his behavioral problems were related to problems he has experienced in the care of [defendant]." Katz recommended L.D. undergo "individual psychotherapy" on a "long-term basis," and further noted that premature termination of such "therapy . . . would only increase [L.D.'s] feelings of loss and trauma." Katz noted similar findings in the bonding evaluation he conducted two months later, and confirmed the lack of "emotional warmth and nurturance from [defendant]."

Affirmed.

1 Defendant's notice of appeal also lists an interim order entered on September 15, 2010. However, the entry of that order is irrelevant to our consideration of the essential issues presented on appeal.

2 Y.D. did not participate in the litigation. The identity of L.D.'s father has never been established; the complaint also named "whomsoever [sic] the [f]ather of [L.D.] [m]ay [b]e" as a defendant.

3

Defining an abused or neglected child as 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 . . . 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. 9:6-8.21c(4)(b).

4 Defendant's appellate appendix does not include this attachment to the complaint, although it appears to have been an exhibit subsequently admitted in evidence at the fact-finding hearing.

5 The April 2009 incident is one of the unfounded physical abuse referrals referenced elsewhere in the complaint.

6 In a footnote, the Court made clear that although DYFS had included the unfounded allegation of physical abuse in the complaint, it "made no such assertion at trial . . . . Nevertheless, the trial court erroneously used the claim as support for its finding of physical abuse." P.W.R. supra, 205 N.J. at 36 n.15.

7 In this regard, we refuse to consider the issue raised by defendant in Point IV. There was never any request to see additional reports made to the Division, and defendant never made any such request to the trial judge. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (noting that, with rare exception, it is "a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available").