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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.C.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF J.W., Jr., Z.W.

and M.W.,

Minors.

____________________________________

May 28, 2015

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-92-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Frank, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant T.C. appeals from an August 31, 2012 Family Part order, entered following a fact-finding hearing, concluding she abused or neglected her children within the meaning of N.J.S.A. 9:6-8.21(c)(4). The trial judge determined the preponderance of the evidence presented by plaintiff the Division of Child Protection and Permanency (Division) showed defendant's conduct was grossly negligent. On appeal, defendant urges reversal, arguing the Division's evidence was insufficient to meet the requirements of Title Nine. The Law Guardian joins in defendant's request. We reverse.

T.C. is the mother of three children under six years old, the youngest of whom is Z.W. J.W. is the father of the youngest two children. T.C. and J.W. do not reside together and were involved in several domestic violence incidents. In the months prior to the incident at issue, a Family Part judge contacted the Division following a March 2011 domestic violence hearing. Later, in May 2011, T.C. was placed on probation following her conviction for violating the then-existing temporary restraining order. Another domestic violence matter, initiated by J.W., was dismissed in June 2011 following a hearing.

In October 2011, the Division prepared a Safety Protection Plan (SPP), providing T.C. and the children would live in T.C.'s mother's home and J.W. would not be allowed into the residence. The Division was to arrange counseling services for T.C.

On Thanksgiving evening in 2011, T.C. took the children to J.W.'s home to ask for his help in their care. J.W. stated the visit was unannounced. No active domestic violence restraining order was in place.

The parties did not agree on the facts underlying the incident. According to T.C., she requested J.W. care for the children a few more days each week. J.W. replied, if the children were to stay with him, he wanted custody. An argument ensued. T.C. was unwilling to agree to surrender custody. As T.C. placed the two older children in the car and attempted to leave, the argument became physical. J.W.'s family joined the fracas. While T.C. held then thirteen-month-old Z.W. in her arms, J.W. swung at her. Both mother and child were struck by J.W.'s blows: T.C. suffered a lump on her face and bruising under her left eye and Z.W. received a bruise near his left eye. One of J.W.'s family members took Z.W. into the apartment. J.W. then fled. Police were called.

An officer retrieved Z.W. from the home. T.C. and Z.W. were taken to the hospital for medical treatment. T.C.'s mother retrieved the older two children and took them home. The police called the Division. As to J.W., who remained missing, police filed criminal charges and a warrant was issued for his arrest. Following examination, Z.W. was discharged from the hospital's care.

A case worker interviewed T.C. and J.W. After relating the facts surrounding the event, T.C. acknowledged J.W. is a good father and never "gets angry with the children, just with her."

T.C.'s version of events were related during the interview by the Division caseworker. J.W. denied striking T.C. and maintained she and Z.W. were injured accidently when he opened the screen door, hitting them in the face. He also denied all prior domestic violence incidents.

A modified SPP prohibited J.W. from having contact with the children. This ended J.W.'s weekend visitation. Further, T.C. agreed to request entry of a domestic violence restraining order.

Following its investigation, the Division exercised an emergency removal of all three children from T.C.'s care and issued notices, substantiating J.W. for abuse against Z.W. and substantiating T.C. for neglect of Z.W. because she exercised poor judgment and violated the provisions of the October 2011 SPP. The children were placed with T.C.'s mother.

At the close of the fact-finding hearing, which included testimony from the Division caseworker, but not from either T.C. or J.W., the trial judge issued an oral opinion on August 31, 2012. Initially, he noted what he termed "a very, very extensive domestic violence history" between the parties, consisting of twelve complaints and including past physical assaults. It appeared the judge weighed the allegations recited in prior domestic violence complaints, despite noting some were dismissed voluntarily and others were dismissed upon a finding, after trial, domestic violence was not demonstrated. The judge noted on June 24, 2010, a final restraining order had been entered on a complaint by T.C., which was later dismissed shortly after the birth of Z.W.

Reviewing the allegations underlying the Division's Title Nine complaint, the judge found T.C. went to J.W.'s home uninvited despite their extensive history of domestic violence. Further, the judge concluded "her decision to introduce the children into the violent, volatile relationship between herself and [J.W.]," because of their prior domestic turmoil, "placed the children at risk of harm by introducing them into that regularly occurring dynamic." At the same time, the judge accepted as "the more credible version of events" J.W.'s interview statements that he never struck T.C. or Z.W., and that their black eyes resulted when T.C. accidentally fell into the screen door as she was leaving his home. Notwithstanding this finding, the judge concluded T.C.'s "conduct placed the children at risk of harm that they would not have been in had she not brought them into contact with her alleged batterer. It should have been apparent to the ordinarily, reasonable person that there was a potential for violence to erupt between herself and [J.W.]." Therefore, he determined the children were neglected within the meaning of N.J.S.A. 9:6-8.21(c).

Further proceedings were held in the matter, conducted by a different Family Part judge. The children were returned to T.C.'s sole care on June 11, 2013. The litigation, as to her, was terminated on November 6, 2013. T.C. appealed from the order finding neglect.

Our standard of review is narrow. We defer to the Family Part's factual findings "'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)). "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) (quoting In re Guardianship of J.T., 269 N.J. Super.172, 188-89 (App. Div. 1993)). The trial judge's interpretation of the law and the application of such legal conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

"New Jersey's child-welfare laws balance a parent's right to raise a child against 'the State's parens patriaeresponsibility to protect the welfare of children.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J.165, 178 (2014) (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J.1, 17-18 (2013)). Title Nine is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J.161, 171 (1999) (citing N.J.S.A.9:6-8.8); see alsoN.J.S.A.9:6-8.21 to -8.73 (governing protection of abused and neglected children). "To that end, Title Nine provides for the civil prosecution of a parent or guardian who abuses or neglects a child." Y.N., supra, 220 N.J.at 178 (citing N.J.S.A.9:6-8.33).

"The statute in question addresses harm to a child . . . ." A.L., supra, 213 N.J.at 8. An "abused or neglected child" is defined in N.J.S.A.9:6-8.21(c)(4)(b)

"Abused or neglected child" means a child less than 18 years of age . . . 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, as herein defined, 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 . . . or by any [] acts of a [] serious nature requiring the aid of the court . . . .

Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super.53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J.at 181-82). Applying the statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J.at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id.at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. SeeN.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J.294, 309 (2011).

The State bears the burden to present proofs to establish abuse or neglect, as defined in the statute. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011); N.J.S.A.9:6-8.46(b). "[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and [] only competent, material and relevant evidence may be admitted." N.J.S.A.9:6-8.46(b). See alsoN.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.13, 24 (App. Div. 2004) (holding the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child (citation omitted)), certif. denied, 182 N.J.426 (2005). "Strict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J.at 179.

In this matter, the judge found T.C. neglected the children merely by bringing them to their father's home. Such a finding is unsupportable as neglect under the statute. J.W. was entitled to visitation and regularly cared for his children on designated weekends; T.C. stated J.W. never hurt the children and was a good father; there was no restraining order in place precluding contact between the parents or between J.W. and the children; and the October 2011 SPP prohibited J.W. from visiting T.C.'s home but did not specifically contain a corollary provision enjoining visits to J.W.'s home. Under these facts, we cannot conclude T.C.'s conduct was grossly or wantonly negligent.

The Division presented no evidence "demonstrating harm to [the] child, as contrasted to harm to [the mother], arising from the domestic violence that had occurred." S.S., supra, 372 N.J. Super.at 25. No evidence showed J.W. had previously harmed the children or posed a significant risk that he would do so. SeeN.J. Div. of Youth & Family Servs v. D.F., 377 N.J. Super.59, 70 (App. Div. 2005). We agree T.C. should not expose the children to volatility. However, the overall family dynamics, her need for help in caring for the children, and a desire to foster their relationship with their father must be reviewed when considering her conduct.

We note T.C.'s repeated request for assistance through domestic violence temporary restraining orders, some of which were thereafter voluntarily dismissed, alone do not support she posed harm to the children. The mere reading of the parties' prior domestic violence complaints is suggestive, but not determinative of the nature of the parents' relationship. All relationships are complex and include intertwined emotions, parents' needs to raise children born of the relationship, and financial interdependence. Adding elements of domestic violence inserts a "pattern of abusive and controlling behavior which injures its victim[s]." Corrente v. Corrente, 281 N.J. Super.243, 246 (App. Div. 1995). Moreover, there remains the hope and belief that things will change. SeeA.B. v. L.M., 289 N.J. Super.125, 131 (App. Div. 1996) ("The sad fact is that apparent reconciliation between people with a long history of domestic violence seldom marks the end of their difficulties."); see alsoState v. Kelly, 97 N.J.178, 193-94 (1984) (delineating the distinct phases of domestic violence which include tension-building and minor battering incidents leading to a batterer's more serious violent conduct followed by a batterer's extreme contrition and loving behavior with promises to seek help). Here, the Division should have extended counseling services to T.C. to assist her understanding of this cycle of violence. Importantly, T.C. was shown to be a loving, caring, attentive mother. No facts show the children were injured by or even present during any prior parental altercations. Under these facts, we reject the revictimization of the victim by charging her with neglect. D.F., supra, 377 N.J. Super.at 70-71.

We also must consider the trial judge's finding that the injury to Z.W. was an accident, nothing more. Although the judge incorrectly termed his factual findings as credibility determinations, which can only be made by assessing testimony not documents, seeBarblock v. Barblock, 383 N.J. Super.114, 122 (App. Div.) ("The credibility of the parties' contentions may wither, or may be fortified, by exposure to cross-examination and through clarifying questions posed by the court."), certif. denied, 187 N.J. 81 (2006), he considered the evidence and concluded the child's injury was unrelated to the parties' past volatile history. Therefore, the Division presented no evidence proving T.C. failed "to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship," or by unreasonably allowing harm or the substantial risk thereof to be inflicted by allowing the children to see their father. SeeN.J.S.A.9:6-8.21(c)(4)(b).

The order of neglect against T.C. is vacated. Her name shall be immediately removed from the central registry.

Reversed.