NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.L. (Deceased) and W.R.,

Defendants,

and

R.S.-L.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF W.L., a minor.

__________________________________

December 9, 2016

Submitted November 17, 2016 Decided

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-103-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Jill Alintoff, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michael Antenucci, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant R.S.L., is the maternal aunt and former guardian of minor child W.L., whom we identify as Walker. Defendant was Walker's legal custodian and cared for him since infancy after the child's mother passed away and his father never became involved in his life.1 Plaintiff, the Division of Child Protection and Permanency (the Division), filed the underlying complaint alleging defendant stabbed then seventeen-year-old Walker with scissors in the course of an argument on July 1, 2014. Defendant appealed from the Family Part order following a hearing, which concluded her conduct amounted to abuse or neglect. We affirm.

The Division took emergency custody of Walker, and filed the underlying emergent complaint seeking his custody, care and supervision. N.J.S.A. 9:6-8.28. A July 3, 2014 order granted the request pending a full hearing. We recite the facts taken from the hearing record. Testimony was presented by Walker, a Division caseworker, a Newark Police officer, and defendant's daughter. Documents were also introduced.

The record shows Walker and defendant argued and he decided to move to another relative's home. On July 1, 2014, he removed a PlayStation console and placed it in his laundry bag, intending to take it with him. Defendant objected, claiming the gaming system did not belong to Walker. A struggle over the bag ensued in which defendant stabbed Walker in the arm with what was described as small "first aid scissors." Walker testified: "I started pulling on the [PlayStation console] and I wasn't letting go. And [defendant] called her daughter to get some scissors to cut the bag. As I was pulling it [defendant] got frustrated at me and stabbed me in the arm."

Walker did not immediately seek medical attention. However, hours later, he went to University Hospital in Newark, where he was treated for the wound to his arm. Hospital staff alerted Newark Police. Officer Gerard Vella contacted the Division.

In conducting its investigation, an emergency response worker for the Division interviewed defendant, who denied using scissors or stabbing Walker. In an interview with case worker Nicole Jackson conducted two days later, defendant speculated Walker wounded himself when he cut the television cords in the apartment.

Walker testified the stabbing caused "a little bit" of pain, and the wound left a scar on his arm. He refuted defendant's account of events. He admitted he had used a large knife to cut the television cords in the apartment, but denied he was injured while doing so. Defendant's daughter also testified. She stated she did not see the incident and denied handing defendant a pair of scissors. Defendant did not testify.

The trial judge presented his findings and conclusions. Despite noting "some inconsistencies" in Walker's statements, the trial judge noted he could "not for the life of me find a motive for [Walker] lying" and credited his testimony. The judge viewed a photograph of Walker's injury and found "he did suffer [an] arm injury, which is consistent with being stabbed by a pair of scissors, and that the injury required medical attention at the hospital." Noting the wound was not "a life threatening injury" the judge nevertheless stated, "it was a serious injury." Following review of the documents and testimony, the judge concluded the Division's proofs, proved by a preponderance of the "substantial, credible evidence," that defendant's conduct caused Walker to be an abused child, as defined under the statute, N.J.S.A. 9:6-8.21(c). He ordered Walker remain in the Division's custody and dismissed defendant from the litigation.

The Division's custody ended on Walker's eighteenth birthday, and the case was dismissed on May 13, 2015. Defendant filed a notice of appeal, challenging the trial court's finding of abuse.2

Our review of a Family Part's order is limited. We give substantial deference to the Family Part's findings of fact, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), and are "bound by the trial court's findings 'when supported by adequate, substantial, credible evidence.'" Finamore v. Aronson, 382 N.J. Super. 514, 519 (App. Div. 2006) (quoting Cesare, supra, 154 N.J. at 412). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (citation omitted). This results because our review of a cold record alone "can never adequately convey the actual happenings in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Reversal is warranted when the court concludes there is insufficient evidentiary support for the trial judge's findings. This may occur when we determine the stated findings are "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) (citations omitted) or if the stated findings are found to be "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, (1974). On the other hand, our review of a trial judge's legal conclusions remains de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant argues "the only evidence that [she] caused [Walker]'s injury is [his] statements, which were neither reliable nor credible." She maintains his clear motive was anger, and suggests he fabricated the story. Alternatively, she asserts even if Walker's statements are believable, the incident described depicts an accidental injury, which was insufficient as a matter of law to support a finding of abuse. We are not persuaded.

"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. Div. of Child Prot. & Permanency v. A.L., 213 N.J.1, 17-18 (2013)). Title 9 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 [9] 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).

An "abused or neglected child" is defined this way 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 . . . .

"Accordingly, Title 9 initially looks for actual impairment to the child. . . . '[A] finding of abuse [or] neglect can be based on proof of imminent danger and a substantial risk of harm.'" Dep't of Children & Families v. E.D.-O., 223 N.J 166, 178 (2015) (quoting A.L., supra, 213 N.J.at 23). "[S]trict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J.at 179. Consequently, 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).

During a fact-finding hearing held pursuant to N.J.S.A.9:6-8.44, the Division must prove abuse or neglect by 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 Child Prot. & Permanency v. P.W.R., 205 N.J.17, 32 (2011) (holding 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. 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).

The statutory standard requires something more than ordinary negligence to hold an 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.

We recognize "the elements of proof are synergistically related." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.320, 329 (App. Div. 2011) (citation and internal quotation marks omitted). 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 v. T.B., 207 N.J.294, 309 (2011) (describing "continuum between actions that are grossly negligent and those that are merely negligent"). In this regard, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. V.T., supra, 423 N.J. Super.at 330 (citation omitted).

Here, the only recitation of the incident came from Walker's testimony and defendant's comments as related by the Division's caseworker's testimony, as defendant chose not to testify. Considering the evidence, the judge credited Walker's recitation of events, asserting defendant stabbed him in the arm in the course of an argument. The judge also rejected defendant's suggestion to caseworker Jackson that Walker's arm injury was self-inflicted. It matters little that Walker was angry or disrespectful with defendant, as she suggests. The judge believed Walker and found his words were supported by the photographic evidence, and not contradicted by other credible evidence. The judge found defendant's actions reflect an intentional act, which caused Walker's actual injury.

We further reject defendant's suggestion Walker's statements must be corroborated by independent evidence to support a finding of abuse or neglect. This argument confuses the application of the corroborative requirement of N.J.S.A. 9:6-8.46(a)(4), which provides a child's recorded statement to the Division is not independently sufficient to support a finding of abuse or neglect. Here, the judge's credibility assessment was made based on consideration of Walker's live testimony, not his recorded statements. Testimony alone can provide evidential support of a finding of abuse or neglect. See N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546-47 (App. Div. 2014) ("Contrary to defendant's contention, R.A.'s statements did not need to be 'corroborated' in order to be considered as proof of abuse or neglect").

Equally unavailing is defendant's argument the injury, even if caused by her conduct, "falls far short of gross negligence or reckless disregard for [Walker]'s safety as required by N.J.S.A. 9:6-8.21(c)(4)(b)." Importantly, a court need not wait until a child is actually harmed or neglected before it can act to address parental conduct adverse to a minor's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super.222, 235-36 (App. Div.) (Carchman, J. concurring) (citing In re Guardianship of D.M.H., 161 N.J.365, 383 (1999)), certif. denied, 200 N.J.505 and 201 N.J.272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). See alsoE.D.-O., supra, 223 N.J.at 178. ("Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.") (quoting D.M.H., supra, 161 N.J. at 383). The focus is the conduct, not the injury suffered. G.S., supra, 157 N.J. at 175 ("A parent or guardian can commit child abuse even though the resulting injury is not intended"). In this matter, the stabbing of a minor in anger falls squarely within the ambit of the type of harmful conduct N.J.S.A. 9:6-8.21(c) was designed to protect children against.

We reject as lacking merit defendant's additional arguments that: (1) the harm to Walker is militated by his age; and (2) proof Walker was stabbed by scissors must be supported by expert evidence. R. 2:11-3(e)(1)(E). See N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 28 (2013) (noting expert testimony only is necessary only when "the evidence presented does not demonstrate actual or imminent harm").

Next, noting N.J.S.A. 9:6-8.21(c) gives seven definitions of an abused or neglected child, defendant contends the order was insufficiently specific as to which subsection her conduct violated. As support, she cites N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40 (App. Div. 2012). We disagree.

In C.H., a panel of this court reversed a trial court which "single-mindedly" compared the case before it to a prior case. C.H., supra, 428 N.J. Super. at 66. That is not what occurred here. Rather, the order specified the conduct found to support the conclusion Walker was an abused or neglected child, namely defendant stabbed him during an argument.

Defendant also suggests the judge erroneously admitted hearsay evidence contained in the Division's file. Specifically, she cites a reference to the treating emergency room physician's statement regarding treatment of Walker's injury and Walker's statement contained in the police report. She further challenges the admission of records detailing her prior interactions with the Division.

As limited by N.J.R.E. 803(c)(6) and 801(d), Rule 5:12-4(d) permits the Division to admit as "prima facie" evidence during a Title 9 proceeding, reports prepared by Division personnel. Here, the Division's "Investigation Summary" included a short paragraph relating the investigator's interview with the treating physician. The report reads, in pertinent part

The doctor did not speak to [Walker] in depth about the incident but states that the child's injury is not severe . . . . The child suffered a small stab wound to the upper right arm according to the treating physician. The doctor feels that the injury is consistent with being stabbed by a small sharp object.

At the commencement of trial, the judge commented: "With regard to any hearsay statements of non-parties who are not testifying I will not rely upon or utilize any of those statements." When defendant raised a specific objection to the doctor's comments, the judge overruled the objection, stating "I'll hear it when testimony comes in, but it doesn't sound like it's a complex diagnosis that was really disputable at this particular point. I'll hear what the testimony is and I'll deal with it at that point."

Defendant is correct that embedded hearsay may not substantiate abuse or neglect. See N.J. Div. of Child. Prot. & Permanency v. N.T., 445 N.J. Super. 478, 500-03 (App. Div. 2016) (excluding as hearsay portions of the Division's records, submitted for admission under the business records exception, which contained "complex diagnoses" warranting cross examination). However, in this matter, the judge did not refer to the doctor's hearsay statement of Walker's injury to support his conclusion on that issue. Rather, to determine defendant stabbed Walker with scissors the judge specifically relied on Walker's credible testimony and his own observation of photographs of Walker's arm taken two days after the incident.

As to the Division's contact sheets, the trial judge properly viewed the evidence as "significant history." It is clear

in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child. N.J.S.A. 9:6-8.46(a) states that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian." Thus, the statute itself provides for admissibility of evidence about other children.

[N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010)].

See also Rule 5:12-4 (allowing admission of the Division's records). In this light there was no error in admitting the documents.

We also conclude admission of the police report, which contains statements attributed to Walker, was proper. The officer testified and identified his report. Further, Walker testified and related what happened. Finally, the report was used to establish the time Walker sought police assistance following the incident.

Generally, N.J.S.A. 9:6-8.46(a)(4) allows "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence." One caveat is standing alone hearsay statements of a child are insufficient to prove abuse or neglect. See N.J. Div. of Child. Prot. & Permanency v. J.A., 436 N.J. Super. 61, 67 (App. Div. 2014) ("Stated another way, a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect."). These principles were fully followed.

Defendant's final challenge attacks as an abuse of discretion, the failure to sequester Walker during the October 21, 2015 hearing and omission of Walker's competency to testify. The claims are unavailing.

Motions for sequestration are left to the sound discretion of the trial court. Morton Bldgs v. Rezultz, Inc., 127 N.J. 227, 233 (1992). Contrary to defendant's contention, there is no legal mandate to sequester a minor who was the victim of abuse or neglect. We do not conclude the judge erred in considering Walker as a party to the case, who retained the right to remain in the courtroom throughout the proceedings. Id. at 234, (citing Smillie v. Lerner, 10 N.J. Misc. 484, 485 (Sup. Ct. 1932)). Finally, we note defendant offers no support for her claim Walker tailored his testimony to match that of prior witnesses. Also, there is no evidential support showing the seventeen-year-old was not competent to testify. R. 2:11-3(e)(1)(E).

Affirmed.

1 Walker's father, W.R. resides in Georgia. He was contacted by the Division at the beginning of this case, but declined to participate. W.R. has not participated in this appeal.

2 We permitted appellant to file her appeal "as filed within time," as granted by our September 29, 2015 order.