NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T1

A-0627-13T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.C. AND J.Z.,

Defendants-Appellants.

______________________________________________

IN THE MATTER OF A.G. AND J.C.,

Minors.

_______________________________________________

December 18, 2014

Submitted October 15, 2014 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-296-12.

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

Joseph E. Krakora, Public Defender, attorney for appellant J.Z. (Arthur David Malkin, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.G and J.C. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

In this consolidated appeal, father, John and mother, Joanne1, appeal from a finding that they abused and neglected their daughter, Jane, and that Joanne abused and neglected her son, Adam. The finding was based upon Joanne's exposure of her children to a pattern of acts of domestic violence upon her by John, committed in their presence. The Law Guardian urges us to affirm the finding. After careful consideration of the record, we vacate and remand.

On January 10, 2012, the New Jersey Division of Youth and Family Services (Division)2 filed for the protection, care and supervision of the minor children. At the order to show cause hearing conducted on January 11, 2012, testimony was presented by a Division caseworker. At the conclusion of the hearing, the court granted the Division care and supervision of the children finding, "it would be in the best interest of the children." The court noted, "there is a long history of domestic violence in this case. And despite a final restraining order that was granted on March 25, 2011, and despite the fact that [Joanne] completed her domestic violence counseling . . . she let [John] into the home." The court ordered that Joanne undergo a psychological evaluation.

On February 27, 2012, at the return of the order to show cause hearing, the court ordered Adam and Jane remain in the care and supervision of the Division, Joanne submit to a psychological evaluation, and John, who was incarcerated but produced for the hearing, participate in anger management.

A compliance review hearing was held on May 14, 2012. Thereafter, the court ordered Joanne to comply with in-home family counseling services. John was ordered to participate in a psychological evaluation, anger management, and permitted to have supervised parenting time with Jane upon his release. The children were to be provided with in-home family counseling services.

On July 20, 2012, after the compliance review hearing, the court ordered Joanne and the children continue to receive in-home counseling services. It was further ordered that John participate in a psychological evaluation and attend anger management and batterer's intervention counseling.

A fact-finding hearing was conducted on July 20, 2012, and again on August 29, 2012. Testimony was presented by Division caseworkers and Union City police officers. The court also viewed the taped interview that a detective from the Hudson County Prosecutor's Office conducted with Joanne.

The testimony and the taped interview that the judge relied upon reveal the following facts. On March 7, 2010, Union City police officers responded to a verbal dispute at Joanne's residence. Upon the officer's arrival, they spoke to Joanne who stated that she had a "verbal dispute" with John which escalated to the point where John "punched her multiple times in the ribs," assaulted her with a chicken leg and smeared sauce in her face. The officer observed a contusion and redness in the area of Joanne's ribs. Joanne refused medical attention.

Both children were present in the home when the assault occurred. They were in a bedroom. The officer described their demeanor as appearing "scared." After John admitted to assaulting Joanne, he was placed under arrest. Since Joanne did not want to press charges, the officer signed the complaint.

One of the responding officers was familiar with the domestic violence history of Joanne and John, having responded to Joanne's residence on "eight or nine occasions." In April 2010, upon responding to a call to Joanne's residence, the officer observed the door and lock "smashed in, like pushed in, or broken in." The officer gained entry through another door. The officer was aware Joanne had two children from responding to previous calls. The home was in "disarray" with broken wood scattered throughout the residence and paint all over the floor. Joanne advised the officer John came to her home intoxicated, forced his way in through the front door and after an argument, spilled paint all over the floor. John also threatened to kill Joanne before leaving.

On August 22, 2011, the same officer responded to Joanne's residence. He found the front door open and Joanne crying. She had red marks on her neck. Joanne reported John had sexually assaulted her while the children were present. After the sexual assault, as described in detail by Joanne, John cooked food. After locking herself in a closet, Joanne called the police. Whereupon, John fled the premises.

In May 2011, police responded to the residence. The officer was advised by Joanne when she arrived home with her children, John was outside her residence. John was upset Joanne would not answer his phone calls. As Joanne attempted to enter the residence with the children, she told John to leave. John forced his way into the house, then grabbed her phone. Joanne ran to a closet with another phone and called 911. John fled. Joanne advised the officer that John accused her of having an affair with a co-worker and threatened to kill them both. The officer described Joanne as "in fear." The incident occurred in the presence of the children. According to the officer, the children appeared to be in "distress" and were standing by their mother, "next to her, making sure that she was okay."

On September 7, 2011, the same day as the referral, a Division investigator went to Joanne's home and spoke with the children. Adam, eight-years old at the time, told the investigator John visited the home for the past three months. Adam stated that John slept over the night before and slept in his mother's room. Adam recalled that about three weeks prior, John came over. John was drunk and argued with his mother. Joanne sent the children to their bedrooms. While in his bedroom, Adam could hear arguing and "bad words." Adam told the investigator he was afraid of John when John lived with them.

Jane, six-years old at the time, told the investigator that John visited the home "very often." Jane stated John slept over the night before and was there that morning. She said John slept in her mother's room. Jane heard John and her mother arguing after she and Adam were sent to their bedrooms. She said John was "mean" because he was drunk.

Joanne related to the investigator that on August 22, 2011, John came to her home and requested to see Jane. Even though John was intoxicated, Joanne let him enter. Once inside the home, John began calling Joanne names. She asked him to leave but John refused. Joanne said she sent the children to their rooms. John then began removing her clothes. She resisted and John touched her vagina through her clothing. Joanne denied a sexual assault occurred and denied any penetration, despite having previously provided a detailed recorded statement to the Prosecutor's Office depicting the sexual assault. Joanne confirmed John slept over the night before in violation of the March 25, 2011, final restraining order. Joanne reported that John slept in the children's room. When confronted with the children's statements where John slept, Joanne said the children were "confused." Joanne told the investigator she was receiving domestic violence counseling through the Women Rising program.

Another Division caseworker involved with the family interviewed the children. The children reported John's continued involvement with their mother, including sleeping overnight at the house and attending family affairs. During the visit, the caseworker observed John's phone number on Joanne's caller I.D. When confronted, Joanne denied contact with John as well as John's attendance at family events. Joanne could not explain why John's number was on her caller I.D. When questioned regarding Jane's statement about John's continuing contact, Joanne stated Jane "often makes up things and confuses dates and . . . times and events."

Based on these facts, the court found the Division proved, by a preponderance of the evidence, both Joanne and John neglected the children.

On appeal, Joanne and John challenge the judge's finding. Our review of the court's factual finding of 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, 411-12 (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 412-13. Unless the trial judge's factual findings "'went so wide of the mark that a mistake must have been made,'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted), 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. See Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). "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).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines a "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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or through offered financial or other reasonable means to do so, or (b) 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[.]3

A court does not have to wait until a child is actually harmed before it can act in that child's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.

In finding neglect, the court must base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

In reaching the determination of abuse and neglect the court concluded

Thus, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), the Court finds by a preponderance of the evidence that both the mother and father are guilty of neglect after they placed the children at imminent risk of danger when both were in violation of the final restraining order. There is evidence that the mother continuously allowed the father back into the home, in violation of the restraining order. [Joanne] acted with reckless disregard when she repeatedly allowed [John] into the home. Both children stated that [John] was in the home on more than one occasion, and [Joanne] continues to allow him to sleep over, despite the fact that he committed acts of Domestic Violence against her requiring involving police intervention. This conduct indicates an unwillingness or inability to protect the children from a risk of harm.

We have held that beyond a child witnessing acts of domestic violence there must be established a connection between the witnessing and emotional distress in a child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 25-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). In S.S. we reversed a finding that S.S. abused or neglected her infant son by failing to appreciate the continuing risk of harm posed by the presence of the son when she was physically attacked by his father and while she initially sought to remain in the violent relationship. Id. at 15. We concluded it could not be assumed "the present case was one in which witnessing domestic abuse had a present or potential negative effect on the child sufficient to warrant a finding of abuse against appellant the battered victim." Id. at 26.

In N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010), the Division and the Law Guardian presented testimony from three expert witnesses at the fact-finding hearing. Two licensed psychologists testified the children (ages two and three) were manifesting the effects "of the coercive and violent relationship of their parents." Id. at 584. We held that abuse and neglect was substantiated premised upon "credible evidence that professionals in the field accept the general proposition that domestic violence in the home harms children . . ." Id. at 584-85. We also noted the Legislative's finding and declaration in the Prevention of Domestic Violence Act (PDVA) that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." Id. at 585 (citation omitted).

Here, no expert testimony as to the actual or potential emotional harm to Adam and Jane was proffered by the Division, Law Guardian or defendants. Prior to the hearing, the Division requested an evaluation be conducted of the children presumably for the purpose of demonstrating a causal relationship between their exposure to the domestic violence and the emotional effects upon them. The request, for reasons not stated within the record, was denied by the court. Notwithstanding the denial, the Division did not, of its own accord, obtain an expert for presentation in its case.

An evaluation of the children was not requisite for the purpose of presenting expert testimony. In I.H.C., the Division offered the testimony of a psychologist with an expertise in domestic violence who testified based upon her review of sixty documents. The psychologist did not interview the parents or evaluate the children in person. In the absence of an evaluation, the psychologist opined about the negative effects of the abuse in the home on the three-year old son. Further, predicated upon a referral by the Division, Joanne, Adam and Jane received counseling from the Urban League of Hudson County prior to and subsequent to the fact-finding hearing to "address domestic violence and the affects it has on the children." The Urban League Counselor provided a report of the counseling services after the hearing which noted the "children appeared to be well." No testimony from the counselor was offered by the Division at the fact-finding hearing.

On appeal, the Division argues that the court properly found abuse and neglect based upon the risk of harm posed by the "environment" rather than the emotional consequences to the children. We disagree. In reaching a determination of abuse and neglect the court is required to find that a child's physical, mental or emotional condition has been "impaired or is in imminent danger of becoming impaired . . ." N.J.S.A. 9:6-8.21(c)(4). Further, as the Supreme Court noted in G.S. v. Dep't of Human Servs., 157 N.J. 161, 182 (1999), the inquiry should "focus on the harm to the child."

In reaching our determination we cannot assume without sufficient supporting evidence of the type and quality presented in I.H.C. there was harm, or the potential of harm, to Adam and Jane caused by their witnessing acts of domestic violence. S.S., supra, 372 N.J. Super. at 28. While we are informed by the legislative declaration of the PDVA relative to the deleterious effects upon children who witness domestic violence, we are unable to notice the declaration as a fact. Id. at 25.

We are therefore constrained to vacate the trial judge's finding of abuse and neglect due to the absence of expert testimony. We remand so as to provide the Division with the opportunity to submit this lacking information and, of course, to allow defendants the opportunity to respond to it or offer their own experts. The trial judge should conduct a case management conference in the near future and proceed with the continuation of the hearing as soon thereafter as practicable. In light of this disposition, we do not reach the remaining issues raised in this appeal.

Vacated and remanded. We do not retain jurisdiction.

1 We use fictitious names in order to protect the identity of the children.

2 Now the Division of Child Protection and Permanency.

3 This statutory definition applies to both a neglected child and abused child.