NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.R., A.R. and E.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3763-04T43763-04T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.R., A.R. and E.R.,

Defendants-Respondents,

____________________________________

IN THE MATTER OF:

C. and A.,

Minor-Respondents,

and

L.R.,

Minor-Appellant.

_________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Stern, Grall and Levy.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Burlington County, Docket No. FN-03-79-05.

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for appellant L.R.

(Phyllis Warren, Assistant Deputy Public

Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent New Jersey Division of Youth and Family

Services (Serena C. Robinson, Deputy Attorney

General, of counsel and on the brief).

Amy Vasquez, attorney for minor-respondents

C. and A.

No briefs were filed on behalf of respondents

C.R., A.R. or E.R.

PER CURIAM

The Law Guardian for L.R. appeals from a "dispositional" order for "custody and services," entered on March 18, 2005, which continued "the custody, care and supervision" of L.R. and her stepbrothers "within the jurisdiction of the Division" of Youth and Family Services (DYFS) with "physical custody" continued with L.R.'s father, defendant A.R., and stepmother, defendant C.R. The detailed order required defendants to attend psychological counseling and continued suspension of visitation with L.R.'s mother, defendant E.R. Additionally the order specifically provided:

The Division shall provide in-home family counseling one time each week. CTS shall provide individual therapy for [L.R.] as well as behavior assistan[ce].

The court hereby finds, pursuant to Title 30, that the best interests of the children require their care and supervision by the Division.

. . . .

[L.R.] shall not be left under the supervision of her brothers after school; rather, she shall be supervised by an adult at all times. The Division shall assist in this but if it cannot arrange adult supervision. [C.R. and A.R.] shall do so.

The grandparents, [C. & B.L.], shall not have visitation with [L.R.] at this time. They shall have psychological evaluations.

[C.R.] may have unsupervised contact with [L.R.].

Except for the guardian of L.R., the parties consented to entry of the order.

The DYFS complaint sought relief under N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C:12, and the Law Guardian appeals from the trial judge's finding that L.R. was not an "abused and neglected child" within the meaning of Title 9. The Law Guardian apparently seeks this finding as a first step in advance of a possible guardianship or termination action she might request DYFS to pursue. The children had been placed under the "care and supervision" of DYFS on November 15, 2004, but were returned to the physical custody of defendants A.R. and C.R. on November 30, 2004, with an order that C.R. have no unsupervised contact with L.R.

On the first day of the fact-finding hearing, on February 10, 2005, DYFS sought "to withdraw its allegations under Title 9, and pursue a Title 30 action for care and supervision, believing that that is in the best interest of the children." The Law Guardian objected because she believed "there are issues of abuse and neglect that need to be addressed in order for [L.R.] to be protected." The judge "allow[ed] the Division to withdraw its Title 9 allegations" as she believed it was "entitled to do so," but permitted the Guardian to proceed on the claims by "having the Law Guardian carry the burden of proof to proceed with a Title 9 action and carry the burden of proof in establishing before the Court" that one or more of the children were "abused and neglected" by defendants, thereby "placing the child at a risk of harm."

After the two-day fact-finding hearing, Judge Cynthia Covie-Leese rendered a comprehensive opinion in which she found insufficient proof of abuse and neglect under Title 9, but found "under Title 30 that the best interest of [L.R.] require the care and supervision of the Division."

Although there was testimony of abuse at the hands of C.R., and that her father threatened he "would torch the house with DYFS and her in it," if DYFS' involvement had to be continued, L.R. also told a DYFS worker who investigated a referral in November 2004 that "she had lied" and that her paternal grandmother "had told her" to report that C.R. had "hit, pushed, scraped, kicked, scuffed, and punched" her. The school nurse testified as to the concern caused by an October 2004 phone call at school from L.R.'s biological mother, E.R., with whom L.R. had not been in contact since she was removed from her home in May 2003. E.R. reportedly told L.R. that she and her paramour "were going to come and get [L.R.] at her school and they would take her away," which deeply frightened [L.R.] around the time she began making allegations against C.R.

A discharge report prepared by a doctor after L.R.'s hospitalization on January 11, 2005 noted her fear of her natural mother, recantations of prior accusations, and that "[s]he indicated on several occasions that she would like to go back and live with her father, stepmom and their family." Following a subsequent hospitalization the same month for self- injuries, L.R. was again discharged to return home, and additional DYFS services were recommended.

It is clear from the testimony that L.R. "said different things to different people, depending on who [was] present," as noted by the DYFS caseworker Drew Barrett. At the time Barrett last saw L.R., she reported that C.R. "was not hitting her [and] that things were going good with" A.R. and C.R. at home.

Dolores Ostrow, L.R.'s therapist since May 2003, who still sees the family, testified that L.R. "contradicts herself a lot," but that her fears and behavioral difficulties "started with the [phone call] incident at school because she was so terrified that she was going to be taken back by her mother because she had told [Ostrow] of the various abuses that had happened while she was in her mother's care." According to Ostrow, L.R. told her "she was lying when she said that [C.R.] had kicked her, punched her, hit her in the eye, and that none of those things were true." L.R.'s therapy with Ostrow ended in January 2005 when L.R. had suicidal ideations and more intense "in-house" therapy began. Dr. Ostrow believed "the more intensive therapy that DYFS was offering at home" was appropriate, but she continued "dealing with the parents." There was additional testimony that L.R. truly feared being returned to the home of her natural mother, E.R., which affected her conduct, behavior, and statements.

In declining to find that the charges of abuse and neglect were proven, Judge Covie-Leese stated:

Indeed, based on the evidence before me, it appears more likely than not first that this is an emotionally troubled child and I believe it was stated repeatedly during the course of this fact finding trial that no[]one disputes this is an emotionally troubled child, but that she was likely caused to act out as a result of fears of being taken back to her natural mother. This is supported by the time frame of her troubled behavior given [teacher] Gayle Poedubicky's testimony that [L.R.] was fine during September and began to exhibit her behaviors in the end of October and beginning of November which is a time frame which is consistent with the mother's phone call [to the school].

The nature of [L.R.]'s behavior which included the use of animal sounds, which is consistent with the behavior that she exhibited while in the mother's care, her attention getting behavior as described by both the teacher and the nurse, her self-reporting of fears and dreams to Kennedy Hospital, her fears and dreams of being in the presence of her biological mother and boyfriend, her inability to sleep as a result of fears, her inability to sleep when documented by witnesses throughout this trial, was physically verified by observance of [L.R.] and attested to Kennedy Hospital with regard to the bad dreams she was having, and, furthermore, her inconsistent emotions as I set forth before, wanting to see her father and stepmother and then not wanting to see them and then wanted to see them again, the wanting to see and not see her grandmother, the difficulties with her own therapist.

All in all, however, in sum, I cannot confirm that acts of abuse and/or neglect took place. Therefore, I am going to dismiss the allegations under Title 9 against [C.R.].

On this appeal the law guardian argues:

POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR

OF LAW BY REFUSING TO ACCEPT [A.'S]

STATEMENTS AS CORROBORATION OF [L.R.'S]

ALLEGATIONS OF ABUSE OR NEGLECT, ESPECIALLY

SINCE THEY NOT ONLY WERE CONSISTENT WITH THE

ALLEGATIONS, BUT ALSO BECAUSE THEY PROVIDED

ADDITIONAL DETAIL.

POINT II THE TRIAL COURT FAILED TO CONSIDER THE

MOTIVATION OF THE PARTIES AND ITS EFFECT ON

THEIR CREDIBILITY, AND TO RECOGNIZE THAT THE

CHILDREN'S RECANTATION, RELUCTANCE OR UNWILL-

INGNESS TO COME FORWARD WITH INFORMATION WAS

A DIRECT RESULT OF THE FEAR, INTIMIDATION AND

PRESSURE TO WHICH THE PARENTS SUBJECTED ALL OF

THE CHILDREN, TO PREVENT DISCLOSURE.

POINT III THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF

LAW IN REACHING ITS DETERMINATION BY FAILING TO

CONSIDER THE TOTALITY OF CIRCUMSTANCES AND THE

SYNERGISTIC RELATIONSHIP AMONG MANY FACTORS,

INCLUDING, AMONG OTHER THINGS, [L.R.]'S EMOTIONAL

FRAGILITY AND THE SENSE OF FEAR ENGENDERED IN

L.R. BY THE THREATS AND THE HIGH LEVEL OF

VOLATILITY IN THE HOME.

POINT IV THE TRIAL COURT'S FOCUS ON [L.R.'S] BEHAVIOR,

RATHER THAN THE PARENTS' BEHAVIOR, IS CONTRARY

TO THE LAW OF THIS STATE WHICH IS INTENDED TO

PROTECT ALL CHILDREN, NOT JUST THOSE WHO ARE

WELL-BEHAVED, FROM ABUSE AND NEGLECT.

POINT V THE DECISION OF THE TRIAL COURT SHOULD BE

REVERSED AND THIS COURT SHOULD MAKE ITS

OWN FINDINGS SINCE THE MOST SIGNIFICANT AND DIRECT INFORMATION AVAILABLE TO THE TRIAL

COURT ABOUT THE ALLEGATIONS DID NOT COME IN THE

FORM OF TESTIMONY BUT BY A REVIEW OF THE OUT-

OF-COURT STATEMENTS OF THE PARENTS AND THE

CHILDREN.

We conclude that there is no basis for disturbing the contested finding of the trial court that the Law Guardian did not sustain her burden on the Title 9 case. DYFS does not appeal or question the result. The Law Guardian's arguments are premised on her assessment of credibility, which was for the Family Court to decide. We cannot exercise "original jurisdiction to enter findings of fact and conclusions of law" as requested by the Guardian. As the Guardian recognizes, and indeed emphasizes, the parties and various witnesses had their own motives and interests, and some said different things in the presence of different people. Credibility in this case was, therefore, critical to resolution of the matter, and there is a sufficient and adequate record on which to uphold the judge's opinion based on her assessment of the record and the testimony of the witnesses who testified before her. See, e.g., N.J.S.A. 9:6-8.21c, -8.46; N.J.S.A. 30:4c-11.1; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); New Jersey D.Y.F.S. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). This is particularly true "[b]ecause the entire case was premised on disputed testimony and the credibility of witnesses" and of those who gave different statements - some inconsistent - at different times, and because of "the special expertise of the family court," which was familiar with the background and prior proceedings involving the removal of L.R. from her mother's home. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

We therefore reject the guardian's request that we find that "[L.R.] was an abused or neglected child within the meaning" of Title 9 and that we should make original fact-finding, which if we did, might require placing the child in the custody or guardianship of DYFS in addition to removal from the home of her father, while DYFS does not request us to do so.

The final judgment requires therapy for L.R. and continuing DYFS jurisdiction. In fact, L.R. and her stepbrothers remained "under the custody, care and supervision" of DYFS while placed with defendants. The court's Title 30 jurisdiction was to expire on May 30, 2005, and the March 18, 2005 order so noted "unless extended by the court for good cause shown." See N.J.S.A. 30:4C-12. However, the record has been supplemented to include a May 19, 2005 order which continues L.R.'s "sexual abuse" therapy and the family's "in-home therapy," involvement of the guardians and other conditions of dismissal, and permits reopening of the matter "if there is not compliance with the conditions of dismissal."

We find that the record supports the March 18, 2005 order under review and affirm the judgment.

 

L.R. had previously been removed from the mother's custody based on allegations of sexual abuse within that home. E.R. does not participate in this appeal.

We have no transcript of the January 11, 2005 hearing resulting in an order to this effect.

After further colloquy with counsel, the judge rejected requests "that [L.R.] be removed from the home" and made various determinations concerning the conditions and terms of the dispositional order with respect to all parties. The terms of the judgment and its conditions are not the subject of this appeal except as described herein, and C.R., A.R., E.R. and the paternal grandparents have not participated in the appeal.

L.R.'s paternal grandmother, C.L., was an aide at L.R.'s elementary school and had a troubled relationship with her son. L.R.'s teacher and school nurse from the same school testified at the hearing and gave testimony which the Guardian relies on in support of her contentions.

The guardian for the stepbrothers joins the request.

DYFS' brief, dated August 18, 2005, reads, in part:

The Division takes no affirmative position on appeal because this case is still open with the Division. As stated above, the Division continues to provide care and supervision services to this family to monitor the child's progress. The fact that the Title 9 matter was dismissed has no bearing on the Division's involvement, or on the quality of services the Division provides for this family. In fact, the Division is fully complying with Judge Covie-Leese's detailed Dispositional Order dated March 18, 2005.

. . . .

Thus, because the Division continues to provide services to this family through care and supervision, the Division takes no position on the present appeal filed by the Law Guardian.

As already noted, DYFS' subsequently filed brief before us reveals it continues to provide the "care and supervision" and monitors L.R.'s progress and compliance with the judgment.

(continued)

(continued)

12

A-3763-04T4

RECORD IMPOUNDED

November 4, 2005