NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1968-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.R.,

Defendant-Appellant.

______________________________

IN THE MATTER OF S.R.,

a minor.

______________________________

March 21, 2013

Submitted March 13, 2013 - Decided

Before Judges Nugent, Haas and Happas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-0042-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth LeFurge, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.R. (Katherine J. Bierwas, Designated Counsel, on the brief).

PER CURIAM

Defendant R.R. appeals from the Family Part's September 28, 2011 order, following a fact-finding hearing, determining by clear and convincing evidence that she abused her seven-year-old daughter, S.R. (Samantha)1 by striking her on several occasions, causing injuries to her head and face. Defendant challenges the trial court's finding that the Division of Youth and Family Services2 (Division) met its burden of proof and she also asserts she was not properly notified that the Division would proceed under the clear and convincing evidence standard. The Law Guardian support's the court's findings. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by Judge Robert Kirsch in his comprehensive written opinion of September 28, 2011.

I.

Defendant is the mother of six children, including Samantha.3 The three oldest children live in Guatemala. Two other children, B.G. (Byron) and A.G (Adam), who are younger than Samantha, lived with defendant and Samantha at the time of the incidents involved in this case. Byron and Adam now live with their biological father, W.G. (Wayne).4

On September 30, 2008, the Division conducted an emergency removal of Samantha, who was then six years old, after defendant admitted she beat the child with a belt. Samantha suffered welts and bruises on her arms, legs, and back. Defendant told the case worker she struck the child after Samantha "made herself vomit and smeared it all over the floor." In a January 26, 2009 order, defendant stipulated "that she hit [Samantha] on the butt 3 times with a belt leaving marks on [the child's] body."

On February 18, 2009, defendant pled guilty to one count of fourth-degree "abuse of child-cruelty-neglect," N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. At sentencing, she was placed on probation for two years. She was also required to attend and complete an anger management program and to comply with all Division recommendations.

Thereafter, the Division provided services to defendant and, by September 2009, she had regained custody of Samantha. The case remained open, however, so that the Division could continue supervising the family.

On March 8, 2010, a second emergency removal was conducted of all three children.5 Samantha was removed after the Division alleged that, in separate incidents occurring in January and March 2010, defendant had pulled the child's hair, punched her multiple times, and struck her in the head with a wooden spoon. Samantha sustained bruises to her face and head. Defendant was arrested on April 15, 2010 and she remained incarcerated throughout the rest of the court proceedings involved in this case.

The trial court did not conduct a fact-finding hearing to address the allegations surrounding the second emergency removal and, instead, it permitted the Division to proceed with its permanency plan to seek a termination of defendant's parental rights. Defendant appealed from this determination and we reversed and remanded the matter for a fact-finding hearing. N.J. Div. of Youth & Family Servs. v. R.R., No. A-0436-10 (App. Div. 2011).

Prior to the remand hearing, defendant pled guilty to one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, arising out of the March 2010 incident. At her plea colloquy, defendant admitted she hit Samantha with a closed fist on the top of her head. On March 25, 2011, defendant was sentenced to three years in prison.

At the remand hearing, the Division presented the testimony of Intake Investigator Claudia McCall and Judge Kirsch interviewed Samantha in camera. Defendant testified on her own behalf and also relied upon the testimony of a Division case manager, Gibran Watson; a friend, Obdlio Marroquin; and the younger children's father, Wayne.

McCall testified the Division received a referral on January 27, 2010 that Samantha had sustained a significant injury to her right eye the day before. Defendant called the police on January 26 to report the child had fallen and struck her face on a toy car. After Samantha was injured, defendant applied a "home remedy" of hot water, salt, and vinegar to the eye, which only made the injury worse. The police called the Division because the injury appeared "suspicious." The child was taken to the hospital, where she remained for four days.

When McCall saw Samantha at the hospital, the child's right eye was swollen. The skin around the eye "was peeling and it was very red[]." The child also had a bruise under her left eye. In response to McCall's questions about the injuries, Samantha said "she fell and hit her face on a toy car." Watson testified he observed a toy car, similar to the one described by the child, in the family's home. Defendant told the case workers she did not see Samantha fall, but stated the child told her that is what happened. At that time, McCall testified the Division could not substantiate abuse and neglect.

On March 4, 2010, however, a school employee called the Division to report that Samantha was complaining of pain in the back of her head. The child had a reddened, raised patch on the top of her scalp. McCall interviewed Samantha, who reported that defendant became upset when the child dropped a glass. Defendant then hit her on the head with a wooden spoon. McCall testified Samantha told her that defendant also pushed her, pulled her hair, and punched her in the stomach.

McCall observed another "mark on [Samantha's] face[,]" but the child did not know how she got it. Samantha told McCall that "her mother hits her a lot and that she's afraid of her mother." McCall spoke to defendant, who denied ever striking the child. Defendant claimed that, "while she was cooking, [Samantha] did say she had something on her head, but she was too busy cooking, so she didn't really check it." Defendant also told McCall that her child "tends to lie a lot and exaggerate."

Watson testified Samantha also told him that defendant had struck her on top of head with a wooden spoon. However, he stated she did not tell him about being struck on any other occasion.

With the consent of all parties, Judge McCall interviewed eight-year-old Samantha on the record, but outside the presence of defendant and all counsel. The attorneys were each permitted to provide the judge with questions in advance and to ask the judge to pose follow-up questions after the initial interview was completed.

With regard to the January 2010 incident, Samantha stated that defendant punched her in the right eye because she had trouble learning to tell time. She did not tell the police what happened because she was scared of her mother. She also admitted she originally said she fell on a toy car. Again, she did not tell the truth at first because she did not want to get into trouble with defendant.

Regarding the March 2010 incident, Samantha told the judge that defendant hit her on the top of the head with a wooden spoon. Her mother then pressed down on the injury, first with a Q-Tip and then with her fingernail. Samantha stated defendant also struck her on many other occasions.

Defendant testified and denied striking Samantha in 2010. She stated the child fell while pushing her brothers in a toy car. Contrary to what she told the case workers, defendant alleged she and Marroquin both saw Samantha fall. Defendant did not seek medical attention for the child and instead applied a home remedy to the injury. She then called the police because she was "very frightened" due to her prior history of child abuse.

Even though she pled guilty to striking the child during the March 2010 incident, defendant testified Samantha had really been injured when she accidentally hurt herself on a dresser drawer. Defendant claimed she only pled guilty to child endangerment because her attorney advised her to do so.

Marroquin testified he had known defendant for about seven years and that she did sewing work for his business. He claimed he visited the family once or twice a week. He stated he was present when Samantha fell on the toy car in January 2010. He claimed he saw a bruise on the child's right cheek, but he did not observe any bruising to her left cheek. A photograph taken of the child, however, clearly depicted both injuries. Although Marroquin testified he was defendant's close friend, he was not aware she had been in jail for almost a year at the time of the hearing. He also claimed that, prior to testifying, he never talked to defendant's attorney, or anyone else, about the January 2010 incident.

Wayne was not present during the incidents. He stated that, due to his work schedule, he did not have much of an opportunity to observe defendant interacting with Samantha.

At the conclusion of the hearing, Judge Kirsch rendered a twenty-five page opinion. He found McCall "to be a measured credible witness," and relied upon her testimony more than that provided by Watson, whose testimony was not always supported by the Division's documentation. The judge found Samantha

to be a most credible witness. She quite clearly indicated that she understood the difference between telling the truth and telling a lie, stating that the truth is "telling the real thing." Her responses were thoughtful and apparently thought-through, and she did not appear to exaggerate or embellish. At numerous times throughout her interview, she consistently restated specific incidents of physical abuse, her mother's specific actions regarding same, and what provoked her mother's assaults.

On the other hand, the judge found defendant "to be a wholly incredible witness." Although she had admitted under oath at her plea colloquy that she hit Samantha, she changed her story at the hearing. The judge also found defendant's testimony was inconsistent, confusing and self-serving.

The judge "did not give much weight" to Marroquin's testimony because it was contradicted by the documentary evidence and inconsistent with Samantha's account. His claim that he was defendant's close friend, but did not know she was incarcerated, also "detracted from his credibility."6

Based on these credibility findings, Judge Kirsch found that defendant had abused Samantha in 2008 by striking her with a belt, "leaving marks on the child's body." With regard to the January 2010 incident, the judge found:

While it is impossible to determine with certainty what exactly transpired on January 26, 2010, in the context of the clearly established pattern of violence both before and after January 26, 2010, sandwiched between two separate criminal adjudications for [defendant's] assaultive behavior on [Samantha], the Court would be divorced from the overwhelming evidence in the record not to give meaningful credence to the child's rendition that her injuries were caused by her mother's deliberate rage.

Thus, the judge concluded the child was injured in January when defendant punched her in the eye. The judge also found defendant had struck and injured Samantha with a wooden spoon in March 2010.

Accordingly, the judge found the Division had proven that defendant abused Samantha by clear and convincing evidence. This appeal followed.7

II.

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) 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 . . . 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.

On appeal, defendant challenges the trial judge's finding that she abused her child within the intendment of this statute. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413.

Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b). In appropriate cases, however, the Division may seek to establish abuse or neglect by a clear and convincing standard. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 120 (2011).

Applying either the clear and convincing or preponderance of the evidence burdens of proof, we are satisfied there was competent, credible evidence in the record to support Judge Kirsch's finding that defendant deliberately struck Samantha on at least two occasions in 2010 and caused serious injuries to the child. As the judge found, the child gave clear and consistent testimony detailing the abuse she sustained. In January, defendant punched Samantha in the eye. In March, defendant struck the child on the top of the head with a wooden spoon, pushed her, pulled her hair, and punched her in the stomach. These actions clearly constitute abuse under N.J.S.A. 9:6-8.21(c)(4).

Contrary to defendant's contention, the judge was not required to simply accept her version of these events. Based upon his opportunity to see and hear the witnesses, Judge Kirsch made detailed and well-supported credibility findings to which we defer. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 616 (App. Div. 2010).

We also reject defendant's argument that the judge "impermissibly relied upon [defendant's] criminal record in making [his] ruling." While the judge could certainly have found that defendant's guilty plea to striking her child in March 2010 collaterally estopped her from asserting otherwise at the hearing, Id. at 625, the judge made no such finding here. Instead, the judge merely pointed out that defendant had admitted to abusing her daughter in March 2010, but then told a completely different story at the hearing in 2011. The judge properly found that this inconsistent testimony destroyed defendant's credibility.

Defendant complains for the first time about how the judge conducted the in camera interview with Samantha. She claims the "questioning should have probed further into [Samantha's] ability to be truthful, or face consequences." However, defendant raised no such objection at the hearing. The judge gave each party the opportunity to present questions for him to ask the child and defendant also had the opportunity to propose follow-up questions. We perceive nothing improper in how the interview was conducted.

Finally, defendant asserts the judge incorrectly permitted the Division to attempt to prove its case by the clear and convincing standard of proof, instead of by a preponderance of the evidence. The Division sought to impose the higher standard upon itself so, if successful in proving defendant abused the child by clear and convincing evidence, it could argue defendant was collaterally estopped in the guardianship trial from arguing otherwise. R.D., supra, 207 N.J. at 120. Before invoking this procedure, however, the Division "must provide advance notice to the parties" of its intent. Ibid. Defendant argues she received insufficient notice of the Division's request. We disagree.

The Supreme Court issued its decision in R.D. on July 20, 2011, the day before the hearing in this case began. On the second day of testimony, August 8, 2011, the Division advised defendant of its intent to seek to prove its case by the clear and convincing standard. The judge offered to give defendant "as much time as [she] needed" to adjust to this development. In view of this accommodation, the judge found the notice provided by the Division was sufficient under the circumstances. We perceive no basis to disturb the judge's reasonable ruling. Moreover, the judge in the guardianship trial subsequently denied the Division's request to collaterally estop defendant from challenging Judge's Kirsch's finding that Samantha had been harmed. Therefore, this issue is now moot.

1 Where appropriate, fictional names are used to protect the privacy of the children and for ease of reference.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 Samantha's biological father was killed in Guatemala in 2011.

4 Samantha is the only child involved in this case. While the Division has also taken actions to protect Byron and Adam, we will not recount those actions in detail here.

5 The two younger children were removed because defendant's home was infested with bedbugs and roaches.

6 The judge found that Wayne was a credible witness, but he was not present during either of the 2010 incidents.

7 Following the judge's finding of abuse, the Division proceeded with its guardianship complaint in which it sought to terminate defendant's parental rights to Samantha. On June 29, 2012, the Family Part entered an order terminating defendant's parental rights. Defendant filed a notice of appeal of that order, which is pending before this court.