NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0279-12T11

A-2401-12T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.E. and T.A.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF K.B., a minor.

_________________________________

April 14, 2014

Submitted February 24, 2014 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket No. FN-07-267-12.

Joseph E. Krakora, Public Defender, attorney for appellant D.E. (Mark P. Stalford, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant T.A. (John A. Salois, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Liana Dinallo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendants D.E. and T.A. appeal from the Family Part's finding in a Title Nine case that they abused and neglected D.E.'s nephew, who was in her custody. Both defendants argue the judge erred because he relied on out-of-court statements made by the child about the manner in which defendants physically punished him for misbehavior. T.A., who is unrelated to the child but lived in the same two-family house, also argues the judge erred because Title Nine did not apply to her since she is not a "parent or guardian" and had no responsibility of caring for the child. We reject these arguments and affirm the Family Part's order.

I.

In October 2011, the New Jersey Division of Youth and Family Services, which has since changed its name to the Division of Child Protection and Permanency ("the Division"), filed a complaint and order to show cause pursuant to N.J.S.A. 9:6-8.33 and N.J.S.A. 30:4C-12 seeking custody, care, and supervision of K.B., who was then seven years old. In addition to D.E. and T.A., the child's parents were also named as defendants in the complaint, but they have not been involved in this case. The child's father is deceased, and his mother was not caring for him because of her drug addiction. The Family Part awarded the Division temporary custody of the child pending a hearing.

In March 2012, Judge Garry Furnari held a two-day fact finding hearing to adjudicate the allegations of abuse and neglect. The judge heard testimony from two Division caseworkers and both defendants and reviewed documentary evidence and photographs. He found that both defendants had abused the child by using excessive corporal punishment to discipline him, including with a whip. The matter was then concluded and dismissed as to T.A., and at a later time, it was also concluded and dismissed as to D.E. because she no longer sought reunification with the child. Both defendants appeal from the Family Part's findings of abuse or neglect.

After the appeals were filed, we permitted the Division to supplement the record with a September 4, 2012 Initial Decision of Administrative Law Judge Michael Antoniewicz ("A.L.J.") following an administrative hearing pertaining to an earlier allegation of abuse or neglect against defendants. The A.L.J.'s decision was adopted by the Division on October 15, 2012, as its final agency decision substantiating abuse or neglect.

The following facts were developed at the Family Part's and the A.L.J.'s hearings. The child K.B. was born in August 2004. Because of his father's death and his mother's drug addiction, he lived with his maternal aunt, D.E., at least from the time he was four years old until the Division removed him from her care in October 2011. D.E. and the child lived in the upstairs apartment of a two-family house in Irvington. T.A. became a tenant in the first-floor apartment in October 2009. There was conflicting evidence about the nature of defendants' relationship. The Division received information from a family member of D.E. that defendants were intimate partners and shared a bedroom. The child also told a Division caseworker that T.A. sometimes stayed in D.E.'s bedroom. Both defendants, however, denied they had an intimate relationship and claimed they were only friends and T.A. paid rent and lived in the downstairs apartment.

Nevertheless, there was no dispute that soon after moving into the house, T.A. began taking care of the child in the mornings and afternoons, and she took him to and from school while D.E. worked. The child referred to T.A. as his aunt, and he told a Division caseworker that T.A. bathed him in the mornings and got him ready for school.

Before the child's removal from the home, the Division had received three prior referrals that the child may have been abused. The first occurred on February 10, 2010. School officials reported that the child had missed nine days of school and, when he returned, his hand was swollen. The child told school officials that D.E. had hit his hand with a comb or brush. D.E. denied the allegation and claimed the child had an allergic reaction after eating seafood and had been sick. The Division deemed the referral of abuse unfounded, but it obtained D.E.'s agreement to a case plan stating she would refrain from physical punishment of the child.

The second referral occurred about a month later on March 19, 2010, when school authorities reported bruises on the child's face and body. During the ensuing investigation, T.A. admitted she hit the child with a belt because a teacher told her he had misbehaved in school. As a result, the Division substantiated D.E. and T.A. for abuse and neglect. Both defendants entered into and signed a safety plan on March 19, 2010, which required that D.E. not allow T.A. to care for the child and by which T.A. indicated her intention to move out of the house.

The third prior referral occurred on November 17, 2010, and primarily alleged safety concerns relating to another child in D.E.'s care. During that investigation, Division caseworkers determined that T.A. seemed to have ready access to D.E.'s apartment. She was present when the caseworkers were there to question D.E. T.A. was still living downstairs and admitted she was still caring for K.B. She denied knowing about the restriction in the March 19, 2010 safety plan, although she had signed the document. The Division substantiated the allegations of inadequate supervision against D.E. and T.A. The A.L.J.'s September 2012 hearing and the Division's resultant final agency decision confirmed the substantiation of abuse or neglect.

The referral that led to the proceedings now before us occurred almost a year later, on October 14, 2011. The referent indicated that the child had a bruise or welt on his arm and that D.E. told the child not to say anything about the injury. Upon questioning by Division caseworkers, D.E. denied she had hit the child or allowed T.A. to babysit for him. When the child was initially asked about his injury, he also denied being beaten. Later, when the Division interviewed the child at his school, he said he was punished with a metal stick by both defendants. The child was afraid to say this initially because D.E. told him not to tell anyone about the bruises or he would get in trouble and she was in the next room when a Division caseworker was initially questioning him. Through an examination by the school nurse, the Division corroborated the beatings with evidence of bruises on the child's forearm, back, and side, some of which had been inflicted at an earlier time. The child also said that T.A. usually gave him a bath in the morning and dressed him for school.

The Division removed the child from the home and, with the court's approval, placed him in foster care.

After his removal, the child was admitted to a hospital for threatening to hurt himself. During a visit by D.E., he told her he was sorry he had lied about being beaten. However, he later told a Division caseworker that he apologized to D.E. because he wanted to go home. He said he had not lied about being beaten.

At the fact finding hearing, the Division placed in evidence photographs of the child's injuries. After hearing defendants testify, the judge found their denials of excessive punishment and T.A.'s lack of contacts with the child were not credible. The judge was convinced by the child's statements, the photographs, and other corroborating evidence that both defendants had used excessive corporal punishment in disciplining the child, and that D.E. had allowed T.A. to care for the child in violation of the safety plan she had signed in March 2010.

II.

On appeal, both defendants argue the trial court erred in its primary finding that they abused or neglected the child. A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "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. E.P., 196 N.J. 88, 104 (2008); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). This deferential standard of review is especially appropriate because of the Family Part s "specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

An appellate court may expand its highly deferential scope of review when the alleged error does not involve credibility of witnesses but instead turns on the trial court's application of the law to the underlying facts and the implications the court draws from those facts. G.L., supra, 191 N.J. at 605. Nonetheless, an appellate court should only disturb the trial court's findings and conclusions if they are "so wide of the mark that the judge was clearly mistaken." Ibid.

Defendants challenge the Family Part's reliance on the child's out-of-court accusations, especially because he recanted them and admitted to D.E. that he had lied. But N.J.S.A. 9:6-8.46(a)(4) provides that, in a Title Nine hearing:

previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.

Here, the child told Division caseworker Daniels that he lived with his two aunts, that T.A. bathed him in the mornings and dressed him for school, and that both aunts punished him for bad behavior or for soiling himself. He said they hit him with "a metal stick with three wire prongs at the end." In connection with the recent injuries, the child said D.E. hit him on his arm on Friday for misbehaving at school, and T.A. hit him on his head on Saturday for urinating on himself. The child later told Division caseworker Cleckley that T.A. caused the injury to his arm. The child also told the caseworkers he was afraid of his aunts, telling Daniels that he initially denied being abused because he was afraid of D.E., and that he did not feel safe returning to his home because of the whippings. To Cleckley, the child primarily expressed fear of T.A.

In challenging the veracity of the child's accusations, D.E. contends the Division did not present any of the "most effective types of corroborative evidence" referenced in New Jersey Division of Youth and Family Services v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003), namely, "eyewitness testimony, a confession, an admission or medical or scientific evidence." But corroboration need not be in the specific forms listed in L.A. It "'need only provide support for the out-of-court statement.'" Ibid. (quoting Z.P.R., supra, 351 N.J. Super. at 436).

The Division's evidence corroborated the child's out-of-court statements. The judge found that the child's allegations of abuse at the hands of both defendants were supported by the pictures of his wounds and his fear of both defendants. In addition, the testimony of defendants was not credible because they denied facts that were clearly shown by the record and that one or both had admitted in the past, for example, the fact that T.A. had beaten the child with a belt buckle in March 2010 and that she continued to care for him when Division caseworkers found her in the home in November 2010. There was ample evidence to support the child's allegations of abuse and T.A.'s continuing role in caring for and supervising him.

Furthermore, the child's alleged recantation was reported only by D.E., and it was explained by the Division caseworker's testimony. In the end, the child did not recant the allegations that he had been beaten. The court did not err in relying on the child's statements to find that both defendants had abused or neglected him. N.J.S.A. 9:6-8.46(a)(4).

III.

T.A. argues the Family Part erred because she is not a person subject to a finding of abuse or neglect under Title Nine. N.J.S.A. 9:6-8.21(c) defines "an abused or neglected child" as one whose "parent or guardian" has failed to provide "proper supervision or guardianship . . . including the infliction of excessive corporal punishment." T.A. argues she was not the child's parent and had no legal responsibility as his guardian.

The definition of "parent or guardian," however, includes "any person, who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care." N.J.S.A. 9:6-8.21(a). In the related context of criminal child endangerment as prohibited by N.J.S.A. 2C:24-4(a), the Supreme Court has interpreted essentially the same language used in Title Nine to include "those who have assumed a general and ongoing responsibility for the care of the child." State v. Galloway, 133 N.J. 631, 658-61 (1993); accord State v. McInerney, 428 N.J. Super. 432, 442-43 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013). This "general and ongoing responsibility" does not require a formal or legal relationship with the child, and instead "may arise from informal arrangements." Galloway, supra, 133 N.J. at 661. "It may be based on a parental relationship, legal custody, or on less-structured relations; or it may arise from cohabitation with the child's parent." Ibid. The requirement, however, is not satisfied when a person only assumes "temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting." Id. at 661-62.

Here, the evidence shows that T.A. assumed a general and ongoing caretaking responsibility for the child. The child told Division caseworkers that, on a typical day, T.A. bathed him, dressed him, and took him to school. According to the child, T.A. had bathed and dressed him on the Friday and Saturday preceding the Division's receipt of the latest referral. T.A. lived in the same two-family house as the child. Although she and D.E. testified T.A. lived in a separate apartment, there was much evidence that she was frequently in D.E.'s apartment and had been given regular caretaking responsibilities for the child.

T.A. was so enmeshed in the child s family life that he called her his aunt. Most important, T.A.'s relationship with D.E. and the child was close enough that she had undertaken the responsibility in the past to discipline him for bad behavior. T.A. admitted after the March 2010 incident that she would pick the child up from school and that the child's teacher had reported his misbehavior to her, thereby prompting her to punish the child with a belt and buckle. She tried to describe the beating as mild, but the child's injuries showed otherwise.

T.A.'s testimony that she was living at her mother's house in October 2011 was simply not credible as a defense. The November 2010 disclaimers of both defendants that they were unaware that T.A. was not permitted to care for the child were contradicted by their own signatures on the March 19, 2010 safety plan. Months later, T.A. was still at the house and had not ceased her mistreatment and abuse of the child. Whether or not T.A. was spending time at her mother's residence in October 2011, she continued to have access to the child and continued to punish him excessively.

T.A. had assumed a "general and ongoing responsibility" for the child's care on a regular basis, not "temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting." Galloway, supra, 133 N.J. at 661-62. The Family Part had jurisdiction under Title Nine to find as it did that T.A. had abused the child.

Affirmed.

1 These back-to-back appeals are consolidated for purposes of opinion.