DIVISION OF CHILD PROTECTION AND PERMANENCY 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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

R.R. and E.R.,

Defendants,

and

F.R.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF

E.R., J.R., E.X.R., and J.J.R, minors.

____________________________________________________

July 27, 2016

Submitted July 18, 2016 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-699-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Amy Vasquez, Designated Counsel, on the brief).

Christopher S. Porrino, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; William T. Harvey, Jr., Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant F.R. (Franz)1 appeals from a November 19, 2014 order entered following a fact-finding hearing, concluding that he abused or neglected E.R., Jr. (Ezra), the son of his paramour, R.R. (Reba).

We glean the following facts from the transcripts and the exhibits introduced at the hearing. Franz and Reba are the parents of three children. Ezra is Reba's child from another relationship. The Division of Child Protection and Permanency (Division) first became involved with this family in 2005. Four prior referrals of neglect and physical abuse were all deemed unfounded.

The incident which is the subject of this appeal occurred on June 8, 2014. At the fact-finding hearing, Reba testified that she was in the bathroom when Franz opened the door and accused her of cheating on him after he read text messages on her cell phone. Franz had been drinking and Reba sensed that he was high as well. When Reba told Franz to leave, he tried to grab her. She tried to push him away, but she tripped on the tub and Franz was able to grab her and knock her down.

During the confrontation, Ezra, who was then fourteen, tried to push his way into the bathroom to help his mother. Through the partially opened bathroom door, Ezra observed the altercation through the bathroom mirror. As Ezra was pushing on the door, he screamed "Get off my mom." At the time, Franz had Reba by the neck, but released his grip once he realized Ezra had pushed the door open. Reba explained that Franz did not want Ezra to see the confrontation.

A Division investigative report indicates that Franz had called Reba's mother, L.C.-C., and told her he wanted to kill Reba. The Division was notified of the threat, and a caseworker responded on June 9, 2014. When the caseworker found no one at Franz's residence, she went to Ezra's school.

Ezra was taken out of class and brought to a room to meet the caseworker, but he walked out of the room and refused to speak with her. When a police officer intervened and attempted to convince Ezra to meet with the caseworker, Ezra refused and resisted the officer's attempt to return him to the room where the caseworker was waiting. The officer had to place handcuffs on Ezra and transport him to the police station. Ezra was not charged and was later released to Reba's custody. Later that day, Ezra and Reba's other children were removed and placed with L.C.-C.

In addition to Reba's testimony, the Division introduced the investigative report of this incident, a Division report from 2011, and a drug test result indicating that Reba tested positive for heroin, codeine, and phencyclidine (PCP) on June 13, 2014.

Franz did not attend the fact-finding hearing, although he was represented. The judge determined by clear and convincing evidence that Franz abused or neglected Ezra. On appeal, Franz challenges the trial judge's findings and his impartiality

point i

the lower court erred in finding abuse or neglect because the mere act of allowing a child to witness domestic violence does not equate to abuse or neglect in the absence of specific proof of harm or imminent danger, which is completely absent from this record.

point ii

the trial judge erred in abandoning his impartiality by calling and examining witnesses on behalf of the division, and should have recused himself.

We accord deference to the Family Part's factual findings because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We will uphold the court's findings if they are supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We defer to a trial court's determinations because it observes the witnesses, weighs their credibility, and has the best feel of the case. Id. at 293. We will only set aside a ruling if it was "so wide of the mark that a mistake must have been made." Id. at 279.

Here, the judge found Reba's testimony that Franz choked her, and thereby prompted Ezra "to go in and defend mom that potentially could have saved her life," to be "very credible." The judge found that Franz had a "substantial drug problem [and] . . . is attempting to do substantial harm to [Reba], and was forcing [Ezra] to act to save the mother's life."

The judge distinguished the facts here from those in our decision in New Jersey Division of Youth & Family Services v. S.S., where we held that expert testimony was required to assess whether a twenty-one-month-old child who witnessed domestic violence between his parents suffered psychological harm. 372 N.J. Super. 13, 22-23 (2004), certif. denied, 182 N.J. 426 (2005). The judge concluded that this was not simply a "young child who observed something," but a child who was forced by Franz's conduct "to act to save the mother's life." We agree.

Unlike the infant in S.S., who may not have been affected by the violent incident he observed, Ezra was fourteen and manifested signs of emotional distress afterward by acting out to such an extent that he was arrested by the police. No expert testimony was necessary to establish the harmful effect Franz's actions had on Ezra.

In adopting the Prevention of Domestic Violence Act, the Legislature found that "there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18. We are satisfied that the Family Part's findings of abuse or neglect are well supported by the record.

Defendant next argues that the judge abandoned his impartiality by calling and examining witnesses on behalf of the Division, and should have recused himself. This argument lacks sufficient merit to warrant discussion in our opinion beyond the following comments. R. 2:11-3(e)(1)(E).

When the fact-finding hearing began, the deputy attorney general (DAG) representing the Division identified two people at counsel table, but instead of calling witnesses, the DAG proceeded by introducing Division investigative summaries dated November 29, 2011 and June 9, 2014, as well as a lab report indicating a positive drug test for Reba. The DAG then presented a brief summary of the evidence against Franz and Reba.

When the judge asked Reba's counsel if his client wished to testify, he said she did not and he would simply present argument on her behalf. However, during the argument that followed, the judge noted that Reba raised her hand and apparently wanted to say something. When the judge asked Reba's counsel if his client would testify, the following exchange took place

[REBA'S COUNSEL]: Your Honor, the only thing she was going to indicate is that she was sober at the time that the DV incident occurred. She had a test for PCP but she was sober at the time of the incident.

THE COURT: Well should we hear her testimony? Or is everyone willing to stipulate?

[REBA'S COUNSEL]: Your Honor, I'm willing to stipulate to that. I don't know if the Division is, but

THE COURT: Well she's, I mean, you know, with all due respect, counsel, I'm looking at your client who wants to testify. Can she testify, or are you going to stop her?

[REBA'S COUNSEL]: I'm going to suggest that she doesn't because Your Honor I don't think we need to belabor this hearing. Again, my client has a prior Title 9 and a prior Title 30. I take judicial notice of that. We're not going to try to dispute everything. It's just I don't think it's appropriate.

THE COURT: But does dad have a prior Title 9?

[FRANZ'S COUNSEL]: I don't recall. That's conceivable.

THE COURT: Apparently he does not.

[DAG]: I don't believe he does.

THE COURT: Okay. So we have a Title 9 on mom. So what's the harm if she wants to testify?

[REBA'S COUNSEL]: Your Honor, I just don't the testimony is only, as it relates to my client, would only really have to do with [Franz] I guess.

THE COURT: That's right.

[REBA'S COUNSEL]: In this Title 9 finding.

THE COURT: Well maybe she wants to prove the case against [Franz]. Maybe it's bothering her?

[REBA'S COUNSEL]: Your Honor, you can inquire as to whether or not she wants to elicit testimony as it relates to [Franz]. I'm not calling her in terms of her own defense in this case.

THE COURT: Okay. [REBA].

[REBA]: Yes, sir.

THE COURT: Do you want to testify in this matter about the allegations involving [Franz]?

[REBA]: When he, he was on

THE COURT: First I need, I need to hear either yes or no.

[REBA]: Yes.

It is clear from the transcript that Reba wanted to testify and the judge merely afforded her the opportunity to do so. The only reason given by Reba's counsel for his opposition to her testifying was that it would "belabor" the hearing.

The fact-finding hearing is a critical element of the abuse and neglect process. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). The judge, as the fact-finder, is there "to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The judge's determination has a profound impact on the lives of families embroiled in this type of a crisis.

Judges are given wide discretion in exercising control over their courtrooms. State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). The trial judge was required to base his determination on competent reliable evidence, and was unquestionably correct in disregarding the groundless objection by Reba's counsel that his client's testimony would prolong the hearing when Reba clearly wanted to testify.

Affirmed.

1 We employ initials and pseudonyms to preserve confidentiality of the parties involved and for ease of reference.