NEW JERSEY DIVIAION OF YOUTH AND FAMILY SERVICES v. A.V.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1547-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

D.V.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF A.V., minor.

_____________________________________

March 1, 2013

Submitted October 31, 2012 - Decided

Before Judges Fuentes, Ashrafi and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-241-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James F. LaFargue, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, of counsel and on the brief).

PER CURIAM

Defendant D.V. (Drew)2 appeals from the November 17, 2010 Family Court order finding that he neglected his twenty-three- month-old son A.V. (Alex), pursuant to N.J.S.A. 9:6-8.21c(4)(b), and the October 19, 2011 order terminating litigation. For the reasons that follow, we affirm.

I.

We discern the following facts from the record. Drew and M.R. (Marie), Alex's mother, had been in a relationship for many years. When Alex was born in May 2008, Marie was seventeen years old and Drew was thirty-two years old. In early 2009, the couple became involved in an incident of domestic violence. Marie obtained a temporary restraining order after alleging that Drew struck and pushed her against the wall while she was holding her eight-month-old son. She failed to return to the court for the final hearing, which resulted in the restraining order being dismissed.

On April 16, 2010, the police were called to Marie's residence. She was arrested for domestic violence and Drew was arrested on a child support warrant. The police placed Alex with Drew's sister Di.V. (Dawn).

On April 19, 2010, Marie called the Division to report the domestic violence incident and to request assistance in getting Dawn to return Alex to her. The Division arranged a family team meeting with both parents and other relatives to work out a suitable arrangement. During the team meeting, Drew and Marie got into a heated argument where they were so "out of control" that the police had to be summoned. The Division conducted an emergency removal of Alex and gave temporary physical custody to the paternal aunt.

At the preliminary hearing on the order to show cause, Marie was present with an attorney and Drew was present without an attorney. The investigating Division caseworker, Gladys Garcia, testified that she was the affiant of the verified complaint and that the information contained was true and accurate. No one asked Garcia any questions. The Family Part judge determined, based upon the verified complaint and attached documents and Garcia's statements, that

the removal of the child was necessary to avoid an ongoing risk to the life, safety or health of the child. Continuation of residence in the home would be contrary to the welfare of the child due to the allegation that defendants engaged in domestic violence in the presence of the child.

Specifically, the court found "imminent danger" because the child was "in between parents during [an] episode[] of domestic violence."

On February 17, 2011, a second Family Part judge presided over the fact-finding hearing. Division records were admitted without objection, except for defendant's standing objection concerning included hearsay. Garcia testified about conversations she had with the parents concerning the April 16, 2010 incident. Garcia described her conversations with Marie as follows. Marie reported that she and Drew began arguing after she told him that she did not want to be with him anymore and she planned to move to Pennsylvania to be with family. Drew stated that he would not allow her to take Alex with her. He then began throwing things at her while she had the baby in her arms. She responded by punching him in the face. Drew then punched the television, cracking it and injuring his hand. He pushed Marie, then grabbed the baby from her arms. She scratched him on the neck while he was holding Alex. Then Drew pushed her again. Marie ran from her home and called the police.

When the police arrived, Marie admitted that she had scratched Drew's neck and caused his swollen eye but stated that he was pulling her hair. Because Drew had visible marks, the police arrested Marie and charged her with assault.

Before the family team meeting, Drew spoke to Garcia and only partly confirmed Marie's report about the April 16, 2010 incident. He admitted they were engaged in a verbal argument that turned physical after Marie told him she was leaving with Alex to live in Pennsylvania. He acknowledged that the child was present during the fight. According to Drew, Marie was very violent and had been the aggressor during the fight but he did push her.

At the end of the fact-finding hearing, the judge rendered an oral opinion. First, she found Garcia to be a credible witness. She then pointed out that she did not consider any included hearsay in Garcia's investigative report, but did consider the statements of the parents since they were admissions of parties. The judge found that the parties engaged in a verbal dispute which became physical. Marie was holding the baby most of the time, including when Drew was throwing things at her, when she punched Drew, and when he pushed her. The judge also found that Drew sustained injuries to his face and neck, although Marie reported she had been acting in self defense. The judge highlighted that Alex was not injured.

The judge distinguished our decision in N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), on a number of grounds. First, in S.S., one parent was the victim, and here both parents admitted they were involved in an argument that led to a physical confrontation with punching and pushing. The judge noted, "This child was in Mom's arms when she punched [Drew] and it he grabbed the child from her. So this child isn't sitting watching domestic violence, this child is in the middle of a physical fight." Second, the judge observed that in S.S. the trial judge had found the child suffered emotional harm from domestic violence. By contrast, the judge here stated:

This court is focusing on the imminent risk of physical harm to this child, because this child was in the middle of a physical altercation. Not just emotional . . . I'm not even going to emotional harm; it's not even a consideration for this Court.

Because I find by a preponderance of the evidence, that abuse or neglect occurred in this case because of the imminent risk of harm to the child, because the child was in the middle of this physical alteration.

During this altercation, the judge noted, the child could have been "punched," "pushed," "fallen or been dropped," and injured. What was clear, the judge found, was that neither parent took steps to protect the child. Consequently, the judge concluded that both Marie and Drew had abused and neglected Alex within the meaning of N.J.S.A. 9:6-8.21(c)(4).

After the fact-finding hearing, the judge ordered both parents to participate in services designed to stabilize the family and promote reunification. Drew made two motions for reconsideration of the finding of abuse and neglect, which the judge denied. After Alex remained in placement for a year, the judge held a permanency hearing and approved the Division's plan of termination of parental rights followed by adoption by Dawn. After the Division filed a guardianship complaint, the Title Nine complaint was dismissed. Drew filed this appeal.

On appeal, Drew raises the following contentions:

POINT I - [DREW]'S FUNDAMENTAL PARENTAL RIGHTS TO HIS CHILD WERE VIOLATED BECAUSE THE TRIALCOURT'S FINDINGAT THE ORDER TO SHOW CAUSE DID NOT MEET STATUTORY REQUIREMENTS.

POINT II - THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT WAS NOT SUPPORTED BY COMPETENT, MATERIAL, RELIABLE EVIDENCE AS THERE WAS NO SHOWING OF HARM TO THE CHILD.

POINT III - THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT WAS NOT SUPPORTED BY COMPETENT, MATERIAL, RELIABLE EVIDENCE AS THERE WAS NO EVIDENCE TO SHOW WHAT HAPPENED ON THE NIGHT IN QUESTION AND BY WHOM.

POINT IV - [DREW] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE FACT-FINDING PROCEEDINGS (not raised below).

II.

The court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). These safeguards are designed to serve two functions: to protect innocent parents against government interference with their fundamental right to parent and to spare children unnecessary emotional trauma. See ibid.

The Division brought this case under Title Nine, N.J.S.A. 9:6-1 to -8.73, the statute covering non-criminal abuse and neglect of children. Title Nine requires that, after a child has been temporarily removed from his or her parent's custody, a fact-finding hearing must be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.44. The evidence presented at a fact-finding hearing must be competent, material and relevant. N.J.S.A. 9:6-8.46(b)(2).

An "abused or neglected" child is defined as one who is less than eighteen years of age and

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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with the 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).]

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. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999). 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)).

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 (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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 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 (1995).

At the Title Nine fact-finding hearing, the Division must present prima facie evidence that a defendant had committed an act of abuse or neglect against a child by competent, relevant and material evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); J.Y., supra, 352 N.J. Super. at 262. To meet its evidentiary burden, the Division's reports may be admitted into evidence when qualified as business records, as they supply a high degree of reliability as to the accuracy of the facts contained therein. M.C. III, supra, 201 N.J. at 347; In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). Nevertheless, when such documents contain additional hearsay, such as the statements of third parties, there must be an independent basis for the admission of the included hearsay. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010). Further, a hearsay exception exists for statements made by a party-opponent, even when not contrary to the party's interest. N.J.R.E. 803(b)(1).

III.

We find no error in the trial judge's conclusion that Drew failed to exercise a minimum degree of care to protect his son from a substantial risk of serious physical harm. N.J.S.A. 9:6-8.21(c)(4). Drew engaged in a verbal and then physical altercation during which he threw things at Marie, pushed her and grabbed the baby away from her. Contrary to defendant's 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) ("[T]he Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child.").

Relying on the holding in S.S., Drew argues that the judge's finding was erroneous since the child was not harmed and because witnessing domestic violence does not equate with psychological harm to a child. Defendant's reliance on this case is misplaced. In S.S. we declined to presume that witnessing domestic violence "had a present or potential negative effect on the child sufficient to warrant a finding of abuse against appellant - the battered victim." S.S., supra, 372 N.J. Super. at 26.

We agree with the trial judge that this case is easily distinguished from S.S. The record amply supports the judge's finding that both parties were active participants in the altercation, during which Alex was in the center of the heated confrontation. Unlike the innocent battered spouse in S.S., who made significant efforts to protect her child by retreating behind a locked door, the record is devoid of any effort made by Drew to reduce the risk of harm to the baby. Our concern here is not the potential emotional harm from witnessing the violence between his parents but the very significant risk to a twenty-three-month-old baby of being caught in the cross-fire of these two angry and battling adults. Consequently, as Drew failed to exercise a minimum degree of supervision and, thus, put his child at a significant risk of harm, we affirm the trial court's holding that he engaged in an act of abuse or neglect.

Having reviewed defendant's 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 brief comments.

Drew argued that he was denied effective assistance of counsel at the fact-finding hearing. In order to establish that a defendant in a Title Nine case has been denied effective assistance of counsel, defendant must show that counsel's performance was "objectively deficient," meaning that it fell "outside the broad range of professionally acceptable performance." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007); see also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 347 (App. Div. 2007) (recognizing the right to effective assistance of counsel in Title Nine proceedings). Additionally, it must be shown that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." B.R., supra, 192 N.J. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)). A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

Here, Drew contends that counsel was ineffective because she failed to call any witnesses, such as the arresting officer, the domestic violence response team counselor, or the doctor at the hospital. However, he failed to provide any certifications from absent witnesses to demonstrate what their testimony would have been. Further, no one disputed that Drew had deep scratches, and that the police arrested Marie as the aggressor. The judge made a finding that Drew had sustained scratches. Drew has failed to establish that, even if these witnesses had been called, there was a reasonable probability that the results of the hearing would have been different. Accordingly, we conclude that defendant did not establish his ineffective assistance of counsel claim.

Drew also argues that the trial judge's findings at the first hearing after Alex was removed failed to meet the statutory requirements. We disagree. As we previously explained in J.Y., the process of involuntary removal of a child from his home is done through a summary proceeding, see R. 5:12-1(a), which requires the filing of an order to show cause and verified complaint. J.Y., supra, 352 N.J. Super. at 259 (citing R. 4:67). "In order to determine the 'sufficiency of the application' not only for purposes of setting a return date but more importantly for ordering emergency relief, the judge must consider and apply the statutory standards found in both Title 9 and Title 30." Ibid.

When a child is removed from a home without a court order, a preliminary hearing must be held the next day. N.J.S.A. 9:6-8.31a. "[I]f the court determines that continued removal is necessary to avoid an ongoing risk to the child's life, safety, or health, it shall affirm the removal of the child to an appropriate place or place him in the custody of a suitable person." N.J.S.A. 9:6-8.31b. Here, the record reflects that the judge made the mandated finding. We perceive no merit in Drew's contention that the judge was required to apply the standards contained in N.J.S.A. 9:6-8.28, which concern removal orders before the preliminary hearing.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families. The reorganization included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We use fictitious names to protect the privacy of the parties and the child.