NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.L.V.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4463-06T44463-06T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.L.V.,

Defendant-Appellant,

and

R.V.,

Defendant.

________________________

IN THE MATTER OF

J.V. and R.V. Jr.,

Minors.

_________________________________________________

 

Submitted September 26, 2007 - Decided

Before Judges Payne and Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Somerset

County, FN-18-110-07.

Legal Services of New Jersey, attorneys

for appellant (Diana Dunker and Mary

McManus-Smith, on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz, Assistant Attorney General, of

counsel; Patricia O'Dowd, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian for minor children,

(Noel C. Devlin, Assistant Deputy Public

Defender, on the brief).

PER CURIAM

Defendant, N.L.V. (fictitiously, Nina), appeals from an order of March 20, 2007, following a fact-finding hearing, determining by a preponderance of the evidence that she abused or neglected her children, J.V., a daughter born on October 18, 1999 and R.V. Jr., a son born on May 15, 2002. See N.J.S.A. 9:6-8.21c(4)(b) (defining abused or neglected child); N.J.S.A. 9:6-8.46b (establishing quantum of proof); N.J.S.A. 9:6-8.50 (authorizing entry of order following fact-finding hearing). As a result of our review of the record in light of the arguments of the parties and applicable precedent, we reverse the order of the trial court and additionally require that Nina's name be removed from the State's Central Registry of substantiated child abusers, operated by the New Jersey Division of Youth and Family Services (DYFS). See N.J.S.A. 9:6-8.11.

The hearing process in this matter consisted of a reading into the record of stipulated facts, supported by documentary evidence that was introduced by the parties as exhibits, followed by closing arguments and the submission of post-hearing briefs addressing the issues of (1) the date of focus for a judicial finding of abuse or neglect and (2) whether a psychiatric hospitalization, alone, is sufficient to require a finding of abuse or neglect. A written opinion followed. On appeal, none of the parties objects to the procedures utilized by the Family Part judge in this matter, which conformed to the standards that we articulated in New Jersey Div. of Youth & Family Servs v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

The record establishes that Nina is a twenty-six-year-old Mexican native who married her husband, R.V. (fictitiously, Ramon), in 1999 and came to this country on a visa. Nina speaks little or no English. Ramon, an assistant maintenance worker at the apartment complex where the family resided, is an alcoholic who frequently subjected Nina to verbal and emotional abuse. On May 4, 2006, as Nina prepared her daughter for school, Ramon arrived home, and the couple commenced arguing about Ramon's drinking. Nina then walked the daughter to the bus stop and, on her return, told Ramon to leave the home. Ramon, in turn, told Nina that if he left, he would cancel the apartment lease, take all of his belongings, and leave her and the children with nothing. He then asked Nina what she would do with the kids and nowhere to go. Nina responded that she would take herself and the children to the train tracks and let a train run them over. The couple's young son was not in the room when the statement was made.

Upon hearing Nina's statement, Ramon called the local police, claiming that his wife wanted to kill herself and their children. Because none of the responding police officers spoke Spanish, upon their arrival at the home, the police interviewed only Ramon, who repeated his wife's alleged threats and stated that she had been extremely upset for a couple of days for unknown reasons. Ramon also accused Nina of drinking that day. However, a subsequent blood alcohol test did not confirm that statement, and there is no evidence in the record that would suggest that Nina abused alcohol or any other substance. The police report disclosed that the residence appeared well kept and that the son appeared well cared for and did not have any visible injuries. The police report was faxed to DYFS.

After obtaining Nina's consent, the police transported her to the Somerset Medical Center, where she was voluntarily admitted to its psychiatric unit for observation, remaining there for eight days. Nina arranged for the children to be placed with relatives during her hospitalization. In the course of Nina's initial screening at the hospital, she admitted making the statement that Ramon attributed to her, stated that Ramon was emotionally and verbally abusive, and that she had ceased her employment because she did not want to leave the children at home with her husband. While hospitalized, Nina exhibited signs of depression and expressed feelings of hopelessness and helplessness. However, it is difficult to tell from the hospital record what statements thereafter were actually made by Nina, who experienced difficulties in communicating with English-speaking staff and physicians, and what was assumed as the result of Nina's confirmation that she had uttered the words reported by her husband. Nonetheless, the nursing notes, in particular, contain frequent references to Nina's denial that she ever harbored suicidal or homicidal thoughts or impulses.

Nina was discharged from the hospital on May 12, 2006. The discharge summary indicated as follows:

FINAL DIAGNOSIS:

AXIS I: Major depressive disorder, single episode, severe.

AXIS II: Deferred.

AXIS III: No diagnosis

AXIS IV: Primary social support, financial problems, relationship problems.

AXIS V: GAF of 50/50.

REASON FOR HOSPITALIZATION: The patient is a 26-year-old, Hispanic female, admitted to Somerset Medical Center for increased depression. The patient admits suicidal and homicidal thoughts. She made a statement that she felt like killing herself and also her children by going on the train tracks and taking her children with her. The patient stated that the reason for her depression was her husband, who is an alcoholic.

* * *

CONDITION OF THE PATIENT ON DISCHARGE: Mental status on discharge - denied suicidal or homicidal thoughts. There were no auditory or visual hallucinations or paranoia. Memory and cognition were intact. Impulse control, judgment and insight were fair. However, because of the patient's homicidality, DYFS report was made. Although the patient denied homicidality throughout hospitalization, DYFS asked the patient [to] come to see them prior to going home to determine whether she can have her children.

Following her release from the hospital, Nina did not return to her apartment, but instead resided at her cousin's house, where she remained until August 2006. Nina has not reconciled with Ramon who, subsequent to May 4, underwent alcohol abuse treatment, but relapsed shortly thereafter. DYFS was unaware of Ramon's alcoholism and history of abusive behavior at the time of Ramon's report to the police and the police's original referral premised on Ramon's statements.

On May 19, 2006, DYFS conducted its first interview of Nina, and at that time, Nina denied that she was intoxicated at the time of the incident at issue, but stated that her husband was. She denied any history of mental illness in her family. The children remained with relatives. On May 31, Nina commenced weekly domestic violence counseling, in which she actively participated. A June 16, 2006 substance abuse evaluation disclosed no need for treatment. In July 2006, Nina commenced working six days per week in a relative's grocery store, and she moved into her own apartment in August. She requested that the children be returned to her care by letter to DYFS dated August 9, 2006. However, the request was denied because of lack of evidence of progress in therapy, yet unarranged by DYFS, that addressed Nina's alleged suicidal and homicidal ideations.

On August 18, 2006, more than three months after the precipitating incident, DYFS filed a verified complaint for custody of the two children and for appointment of a law guardian. See N.J.S.A. 9:6-8.21c(4)(b) (abuse or neglect); 9:6-8.33 (originating proceedings); 30:4C-12 (complaint); R. 4:67-1 (summary proceedings); 5:12-1 and -2 (Family Part procedures). At a summary hearing held that day, the court entered an order placing the children in the custody of DYFS and requiring that, on September 20, 2006, the parents show cause why the order should not be continued. Supervised visitation between Nina and her children was permitted on at least a twice- weekly schedule, and DYFS was directed to arrange counseling that addressed Nina's alleged suicidal and homicidal thoughts. On August 30, 2006, DYFS entered a finding of substantiated abuse on the part of Nina, N.J.S.A. 10:129A-3.3(a), triggering the inclusion of her name by DYFS in its Central Registry of child abusers. N.J.S.A. 9:6-8.11. DYFS concluded:

Physical abuse substantiated due to substantial risk of harm. PESS [psychiatric emergency screening services] reports indicate that mother was voluntarily admitted to SMC due to suicidal and homicidal ideation. Mother reported that she did make a statement that she was going to kill herself and children by sitting on the railroad track. Mother denied that there were any previous mental health issues before this incident. She reported that she was feeling depressed for several days due to her husband being abusive towards her, her husband drinking alcohol excessively, financial issues, and feeling isolated (family resides in Mexico). On the day of statements being made [Nina] and her husband were arguing and she was planning to leave him. Mother was discharged from the hospital on May 12, 2006.

On September 20, 2006, the return day of the order to show cause, custody by DYFS was continued, and Nina was ordered to continue therapy.

Spanish-speaking psychologist Melissa Rivera Marano conducted a court-ordered evaluation of Nina on September 11, 2006. She concluded in a report dated October 2, 2006:

In regards to [Nina's] threat to harm her children it is this examiner's belief that the words came from desperation and were not an expression of true intention. It is this examiner's belief that Ms. Lopez was experiencing symptoms of depression, as well as, symptoms associated with victims of abuse as [Nina] described her husband as emotionally abusive. . . . There was no evidence in this evaluation of psychiatric symptoms that would prevent [Nina] from caring for her children.

Additionally, Dr. Marano indicated that Nina had "presented as sincere in her desire to reunify with her children and was able to articulate a clear plan as to how she would be able to accomplish this."

Following receipt of Dr. Marano's October 2, 2006 report, on October 10, DYFS sought an order authorizing the return of the children to Nina's care. An order granting the requested relief and requiring in-home counseling was entered on October 19, 2006. However, DYFS was unable to arrange such counseling with a Spanish-speaking counselor. It therefore sought a revised order permitting the return of the children without counseling. Legal and physical custody of the two children was transferred to Nina by order dated November 22, 2006, six months after they were initially placed by Nina with relatives.

At a later proceeding on December 20, 2006, Ramon stipulated to child neglect as the result of his alcohol abuse. A fact-finding hearing with respect to Nina occurred on February 28, 2007. At the hearing, both Nina and the law guardian argued that there was no evidential basis for a finding of abuse or neglect, whereas DYFS made contrary arguments. In a written opinion dated March 19, 2007, the Family Part judge hearing the matter decided that his focus in determining whether abuse or neglect had occurred should be on May 4, 2006. He further stated:

The court agrees with the Division that the fact that [Nina] did not kill herself and/or her children does not eradicate the risk that was created by her actions on May 4, 2006, as it was not possible at that time for the Division to assess whether the threat would be carried out. The court finds that risk was present on May 4, 2006 when [Nina] threatened to get in front of a train with her children and wait for the train to strike them and that this was the situation that existed at the time DYFS acted appropriately in taking steps to ensure the safety of the children. The court finds that the psychological report of Dr. Marano from October 2, 2006 does not remove the threat that was present on May 4th.

Additionally, the judge addressed the significance of Nina's hospitalization, concluding:

The court finds that [Nina] was psychiatrically hospitalized for eight (8) days and that the need for said hospitalization resulted from her mental incapacity at that time during which she was unable to care for her children. The court finds that the mental incapacity suffered by [Nina] on and around May 4, 2006 rendered her unable to care appropriately for her children and therefore the Division acted properly. The court finds that whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm is the test and the court is satisfied that the threats made by [Nina] posed a threat to her children on May 4, 2006 and into the future for so long as she remained psychiatrically hospitalized. The court finds that at the time the Division received the referral there was no possible way to determine whether the threats were made with any intent to act, but instead the Division acted properly by acting upon the possible irreparable harm that could occur. The court finds that by a preponderance of the evidence the defendant abused or neglected the children in that she made threatening statements of homicide and suicide involving the children and then was psychiatrically hospitalized for eight (8) days during which time she was unable to care for her children.

The judge thereupon entered orders finding abuse or neglect on the part of Nina and dismissing the protective services litigation.

The judge's determination of abuse or neglect in this case was premised upon N.J.S.A. 9:6-8.21c(4)(b), which provides:

c. "Abused or neglected child" means

. . . (4) . . . 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 . . . to exercise a minimum degree of care . . . (b) 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 other acts of a similarly serious nature requiring the aid of the court.

On appeal, Nina, supported by the law guardian, challenges the judge's findings of abuse or neglect as thus defined, arguing that they are unsupported by the evidence and that they improperly focus solely on May 4, 2006. We agree, concluding that the evidence presented did not support the conclusion that Nina, in fact, placed her children at risk on May 4, 2006; that an evaluation of whether her conduct placed them at risk in the future required a broader focus than that employed by the judge; and that the evidence, viewed through a suitably broadened focus, did not disclose a risk of substantial harm to either child as the result of Nina's conduct.

In reaching our conclusions, we place principal reliance on our decision in New Jersey Div. of Youth & Family Servs v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), a case in which we reversed a finding of abuse or neglect entered against a battered wife following a physical attack on her by her husband. As in S.S., we do not question the need for intervention by DYFS at the time of or following the May 4 events. See id. at 23. A substantial threat to the welfare of the two children had been reported, and it was the duty of DYFS to ensure the safety of the children in this context by enforcing their separation from their mother while her intent in uttering the threats at issue was being ascertained. See N.J.S.A. 9:6-8.8 (denominating the safety of the children as the abuse act's primary concern). When Dr. Marano determined that the "words came from desperation" and were not a true expression of intent, DYFS promptly and properly moved for an order permitting reunification. It is not the conduct of DYFS, but the subsequent judicial adjudication of abuse or neglect that is the focus of Nina's appeal.

The scope of our review of a nonjury case is normally limited. Under the familiar standard of Rova Farms, the judge's factual findings should not be disturbed unless "they are so wholly unsupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, an exception to this rule exists "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Matter of Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (quoting Snyder Realty, Inc. v. BMW of N. Amer., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989). In that circumstance, the traditional scope of review is expanded. J.T., supra, 269 N.J. Super. at 189. Nonetheless, deference will be accorded unless it is determined that the trial judge's findings went so wide of the mark that the judge was clearly mistaken. New Jersey Div. of Youth & Family Servs v. G.L., 191 N.J. 596, 605 (2007). We employ G.L.'s standard in this case as the result of the stipulated trial record and the absence of testimony or other evidence providing a foundation for a credibility determination.

In this case, the Family Part judge, after a review of the evidence, determined first that the fact that Nina did not kill herself or her children on May 4 did not "eradicate the risk" created by her actions, because it "was not possible at that time for the Division to assess whether the threat would be carried out." However, N.J.S.A. 9:6-8.21c(4)(b) does not permit a judicial finding of abuse or neglect premised on the existence of a "risk," alone. The risk must be "substantial."

In some situations, the seriousness of the risk posed by parental conduct can be immediately perceived, and thus a focus solely on events precipitating a referral is appropriate. However, in the present situation, involving the utterance of words that could be interpreted as threatening harm, but not involving any accompanying threatening conduct whatsoever, the seriousness of the risk cannot be evaluated by focusing on the words alone at the time of their utterance. Both an evaluation of the circumstances occasioning the words and the actor's prior and subsequent conduct is required in order for a determination to be made whether the perceived threat was an idle one, made in desperation, as Dr. Marano claims was the case here, or whether the threat was a manifestation of an intent to carry out the threatened deeds. The judge's narrow focus on events as they appeared at the time DYFS was notified unnecessarily precluded consideration of this vital supplemental information.

In this case, Nina's threat, unquestionably, caused no immediate harm to either of her children. Nina's daughter was at school; her four-year-old son was apparently in another room, and there is no evidence to suggest that he heard the threat and was harmed by it. No alarming conduct or utterance that would have placed the children at risk preceded the events of May 4. Indeed, the record suggests that, at the time of the incident at issue, both children were happy, well-adjusted and properly cared-for. Any harm, thus, could only result from future conduct. And as we observed in S.S., a case in which DYFS conducted an emergency removal following an incident of domestic abuse, justifying its conduct on the basis of the harm to which the abused mother allegedly exposed her infant child: "We see no reason, when judging the likelihood of future harm, that the court focus solely on events at the time of the removal if causes for concern have been significantly alleviated." 372 N.J. Super. at 24.

When this broader focus is employed, it becomes clear that Nina's words were not intended as a precursor to action, and that Nina posed no risk, let alone a substantial risk, to her two children. As the record demonstrates, Nina's statement arose from her perception of helplessness when confronted by an abusive husband's threat to render her and her two children homeless and penniless. Moreover, Ramon's report of that statement to the police appears in hindsight to have arisen from improper motives, unrelated to any well-founded concern for Nina and the children. Since May 4, Nina has addressed the causes of her emotional condition through voluntary hospitalization and battered-woman counseling. She has left her husband, she has regained employment and independence, and she has established a home for the children apart from their abusive father in a community where she has the companionship and support of family members. Evidence of a substantial risk of future harm is wholly lacking.

The Family Part judge additionally found as a basis for his conclusion that Nina had abused or neglected her children that, for eight days, she was mentally incapacitated, hospitalized, and thus unable to care for them. We cannot accept that conclusion. During her hospitalization, Nina was treated for what was diagnosed as a single episode of severe depression occasioned by marital discord, financial difficulties and isolation. At the time of her hospitalization, Nina had no history of mental illness, and she has never exhibited any signs of psychosis or other mental condition that would in any respect endanger her children. The record contains no evidence of a recurrence of her depression now that she is removed from its causes. Although it is true that Nina was not present in the home during an eight-day period from May 4 to 12, there is no suggestion that she failed to provide for her children's care by relatives during this period of time, or that at any other time she endangered them.

We do not doubt that, in the appropriate case, evidence of a parent's severe and debilitating mental illness can provide a basis for a determination of harm to a child. See, e.g., New Jersey Div. of Youth & Family Servs v. A.G., 344 N.J. Super. 418 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). However, this is not that case. The record reflects that Nina suffered from a transitory condition, for which she received appropriate treatment, and that she has recovered. As such, her illness was no different from severe pneumonia or any other physical illness requiring hospitalization. We are unaware of any cases in which a finding of abuse or neglect was premised upon evidence of such a physical illness, relatively brief hospitalization, and recovery, and we fail to see why the existence of a transitory mental condition should require a different result.

In conclusion, we emphasize that a determination by DYFS of a need for protective services and of substantiated abuse or neglect and a final determination by the court of abuse and neglect, although related, remain separate concepts. In a case such as this, a finding of a need for the former does not automatically compel an affirmative finding as to the latter. Were it otherwise, the role of our courts would be relegated to that of rubber-stamps, not that of independent fact-finders, serving as a necessary judicial check upon the actions of DYFS as we envisioned in S.S., supra, 372 N.J. Super. at 23-24.

We regard the necessity of independent judicial fact-finding on issues of parental conduct, and a measured consideration of all of the evidence relevant to a determination of the presence or absence of abuse or neglect to be particularly important in light of the consequences arising from inclusion by DYFS of a parent in its Central Registry of child abusers following its substantiation of charges consequences that we have fully discussed elsewhere. See, e.g., Division of Youth & Family Servs v. D.F., 377 N.J. Super. 59, 66-67 (App. Div. 2005); S.S., supra, 372 N.J. Super. at 27; In the Matter of Allegations of Sexual Abuse at East Park High School, 314 N.J. Super. 149, 163 (App. Div. 1998).

Our review of the evidence in this case compels the conclusion that such inclusion of Nina's name by DYFS was improvident, and that the Family Part judge was mistaken in not recognizing that fact. We thus require expungement.

 
The court's finding of abuse or neglect is reversed; DYFS is directed to remove the name of N.L.V. from its Central Registry of child abusers.

A dispositional order terminating the protective services litigation was simultaneously entered, and thus direct appeal was proper. See New Jersey Div. of Youth & Family Servs v. L.A., 357 N.J. Super. 155, 164-65 (App. Div. 2003).

Axis I records clinical disorders and other conditions that may be a focus of clinical attention. Axis II records personality disorders and mental retardation. Axis III records general medical conditions; Axis IV records psychosocial and environmental problems; and Axis V records a global assessment of functioning. A score of 50 on Axis V indicates serious symptoms. See American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders at 25, 32 (4th ed. 1994).

Dr. Marano was the only mental health professional to interview Nina in her native language.

(continued)

(continued)

19

A-4463-06T4

RECORD IMPOUNDED

November 19, 2007