NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.S.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2379-09T2

 

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

 

Plaintiff-Respondent,

 

v.

 

M.S.,

 

Defendant-Appellant.

_______________________________

 

IN THE MATTER OF B.R., G.B.,

and Ro.S., minors.

 

_______________________________

November 8, 2010

 

Submitted October 13, 2010 - Decided

 

Before Judges Parrillo and Espinosa.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-87-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Beth Anne Hahn, Designated Counsel,

of counsel and on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian,

attorney for minor B.R. (Todd Wilson, Designated

Counsel, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor G.B. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor R.S. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Appellant, M.S., appeals from a final Fact Finding Order of the Family Part, which held that, pursuant to N.J.S.A. 9:6-8.21 (c)(4)(b), she had abused and neglected her children by using excessive corporal punishment. We affirm.

The proofs adduced at the fact-finding hearing are as follows. M.S. is the mother of two daughters, B.R., born January 15, 1991, and G.B., born September 10, 1992, and a son, Ro.S., born August 5, 1998. R.S., who is married to M.S., is the biological father of Ro.S. and stepfather of B.R. and G.B. C.B. is the biological father of B.R. and G.B.1 M.S. and R.S. have been married since 1995. Her job as a home health aide in Brooklyn requires that she leave home at 6:00 a.m. and not return until after 11:00 p.m.

The Division of Youth & Family Services (DYFS) first became involved with this family on June 19, 2007, when it received a referral from school personnel that B.R. had come to school and reported that her stepfather, R.S., "keeps trying to mess with her," and had sexual intercourse with her sister, G.B. DYFS investigated the allegations, which no one corroborated, and concluded that they were unfounded.

During the course of its investigation, however, DYFS uncovered evidence of physical altercations between M.S. and her daughters. B.R. told DYFS investigator, Yvette Gardner, that M.S. hits her, grabs her hair, and has, on one occasion, put a shoe in her mouth. She also reported that M.S. is often angry and hits her and G.B. when they do not clean the house or complete their chores. B.R. related an incident that occurred the previous weekend during a family trip to New York in which M.S. yelled at B.R. for not packing enough clothes for Ro.S. A verbal argument became physical when B.R. grabbed M.S. by the neck and the two then began fighting until R.S. separated them.

G.B. confirmed the New York incident. While interviewing G.B., Gardner questioned the child about a scratch near her right eye. Although at first reluctant to respond, G.B. eventually informed Gardner that M.S. hit her after accusing her of stealing M.S.'s earnings. G.B. also reported that M.S. has an anger problem, makes her daughters do all the household chores, and yells at and hits them when the chores are not done.

Ro.S. likewise confirmed that M.S. frequently yells at his sisters for not doing their chores and that she slaps them in the face when she gets angry. Ro.S. also confirmed the New York incident, relating that B.R. and M.S. were fighting after B.R. grabbed at M.S.'s neck and that R.S. broke up the fight.

When confronted with these accusations, M.S. admitted hitting B.R. and G.B., but explained that the girls also hit her. She too confirmed the New York incident, as well as one that occurred the previous day when she grabbed G.B. by the arm and slapped G.B.'s face after she found her earrings in her daughter's room. Although she denied having an anger problem, M.S. admitted she gets upset if the house is not clean when she returns home from work around midnight.

R.S. also admitted grabbing the children and smacking them in the face to discipline them, but stated that he and M.S. were attempting to learn alternative discipline methods. According to R.S., M.S. disciplines with an "old fist," often yelling at her daughters when their chores are not done.

Because of the parents' disciplinary techniques and the ongoing conflict between M.S. and her daughters, DYFS kept the family's file open for services and supervision. On June 20, 2007, M.S. and R.S. signed a Case Plan In-Home Assessment in which they agreed to refrain from using corporal punishment. The family was referred to counseling, but only attended one session.

On August 8, 2007, B.R. and G.B. were seen for a clinical assessment at the Child Protection Center at St. Peter's University Hospital. The evaluation concluded that B.R. and G.B. were likely not in danger of sexual abuse from R.S., but expressed concerns about the relationship between B.R. and her mother and recommended that the two participate in counseling together. On August 10, 2007, DYFS closed the case, as no further services were indicated. DYFS, however, did advise M.S. to follow up with services the family had already been referred to, specifically family counseling at the Strengthening Families Program and individual counseling for B.R.

DYFS's next involvement with this family was on February 13, 2008, when B.R.'s teacher reported that B.R. claimed she had been raped by R.S. the previous day. After a preliminary investigation, on February 15, 2008, DYFS filed a complaint and order to show cause pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, seeking custody, care and supervision of all three children. That same day, the Family Part granted DYFS's request based on B.R.'s allegations of sexual abuse and M.S.'s failure to protect the children from R.S. Two weeks later, at an emergency hearing on March 17, 2008 - following the results of a rape kit and a medical evaluation that produced no physical evidence of a sexual assault - the court ordered the return of G.B. and Ro.S. to the physical custody of M.S. and R.S.

A fact-finding hearing on DYFS's underlying complaint commenced on June 6, 2008 and endured for nine days over a three-month period. Gardner testified as to the results of the agency investigation. B.R. also testified. Although much of her testimony concerned her allegations of sexual abuse by R.S., B.R. also recounted that when she lived with her family, M.S. yelled at her "frequently" and "hit [her] constantly" when she did something her mother did not like. In particular, on one occasion, M.S. made her put a shoe in her mouth to punish her. She further explained that M.S. always hit her on her face, "hard, like a man" would hit, and that the hits would leave marks. M.S. also hit G.B. in the face. B.R. admitted that there were instances when she was the first to hit her mother and mentioned two incidents in which M.S. struck her after being choked by B.R. According to B.R., she and her sister were in charge of caring for the home, and M.S. sometimes forced them out of bed to clean the house when she returned home from work.

R.S. also testified, confirming that M.S. hit her daughters and on occasion would wake them up when she returned from work after 11:00 p.m. to clean the house, even though the girls had to get up at 6:00 a.m. to go to school. R.S. also admitted that, in the past, he had smacked B.R. and G.B. in the face and the back of the head and grabbed them by the neck. He believed this was an appropriate form of discipline "depending on the situation," although he and M.S. have since June 2007 refrained from using corporal punishment in favor of other disciplinary methods. M.S. did not testify at the fact-finding hearing and presented no witnesses on her behalf.

At the conclusion of the hearing, the Family Part judge found that both M.S. and R.S. had abused and neglected their children by using excessive corporal punishment pursuant to N.J.S.A. 9:6-8:21(c)(4)(b). In so finding, the judge credited Gardner's testimony, placed significant weight on R.S.'s admissions of his own and his wife's conduct, which confirmed, in large measure, B.R.'s testimony, and expressed concern over M.S.'s failure to follow up on counseling services arranged by DYFS. In determining that M.S. and R.S. violated N.J.S.A. 9:6-8.21(c)(4)(b), the court concluded:

. . . [T]he evidence in this case is abundantly clear by a preponderance of the evidence that both [R.S.] and [M.S.] have violated this section of the abuse and neglect statute.

 

. . . The Court finds that the evidence of abuse and neglect is proven by a preponderance of the evidence as to . . . excessive corporal punishment and infliction of other acts of similarly serious nature requiring the aid of the Court . . . .

Thus the Court concludes by a preponderance of the evidence that these children were abused or neglected. [T]he Court notes that [M.S.], although present through the entire trial, did not testify, although [R.S. s] testimony about physical altercations, yelling and other incidents that have already [been] detailed factually in great detail, all confirming the abuse and neglect as to [M.S.,] was unrebutted by [M.S.] who chose not to testify.

 

At a compliance review on December 19, 2008, the Family Part judge awarded M.S. and R.S. legal custody of G.B. and Ro.S., pursuant to DYFS's recommendation. B.R. remained in the legal and physical custody of DYFS. At B.R.'s February 11, 2009 permanency hearing, the court approved DYFS's plan of independent living, as B.R. had turned eighteen years old and, accordingly, dismissed B.R. from the litigation.

The protective services litigation continued to be reviewed by the court. On December 8, 2009, the judge terminated the litigation, as G.B. had left her mother's home to live with her biological father, C.B., in Florida. The judge awarded M.S. and C.B. joint legal custody of G.B., and C.B. physical custody of G.B. The judge also awarded M.S. and R.S. joint legal and physical custody of Ro.S., who was deemed safe in his parents' care.

This appeal follows, in which M.S. raises three issues. First, she contends that the trial court's finding of abuse or neglect by excessive corporal punishment is not supported by a preponderance of credible evidence. Second, M.S. claims that she was denied due process because DYFS did not notify her of its intent to seek a finding of abuse or neglect against her until its opening statement at the fact-finding hearing. Third, M.S. claims that the trial court failed to consider the public policy implications of a mother being labeled as a "child abuser" for purposes of the Central Registry - as well as the effects of such labeling on her occupation as a home health aide - when she poses no danger to her children. We reject each of these contentions.

As a threshold matter, we note that our review of a trial court's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially important 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1998)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Id. at 413; see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Therefore, an appellate court "should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (noting that deference is accorded to the trial court's findings unless it is determined that they "went so wide off the mark that a mistake must have been made").

 

I.

M.S. first argues that the trial court erred in considering evidence of corporal punishment prior to the 2008 referral that initiated DYFS's complaint and that, in any event, her conduct did not constitute abuse or neglect under N.J.S.A. 9:6-8.21(c). We disagree.

Title 9 grants DYFS the power to initiate legal action charging a parent or guardian with abuse and neglect, and to seek immediate protective services such as removal of the child from the home. N.J.S.A. 9:6-8:21 to 8:73. In order to determine whether a child is abused or neglected, the court must hold a fact-finding hearing. N.J.S.A. 9:6-8.44. The hearing allows the court to balance the parents' constitutional right to raise their children with the State's obligation to protect children. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 260 (App. Div. 2002). Because a finding of abuse or neglect has a profound impact on a family, id. at 264-65, any such determination must be based on a preponderance of competent reliable evidence. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 552 (1994). See also N.J.S.A. 9:6-8:46; R. 5:12-4(d). We have recently reiterated the evidence required to meet this burden:

Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met. The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience.

[N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (internal quotations and citations omitted).]

If the facts are sufficient to sustain the complaint, the court enters an order finding that the child is abused or neglected and sets forth the grounds for such finding. Ibid.; N.J.S.A. 9:6-8.50(a). In fact, the judge "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and "clearly identify all documentary exhibits relied upon in reaching his or her decision." J.Y., supra, 352 N.J. Super. at 265.

Pursuant to N.J.S.A. 9:6-8.21(c), an abused or neglected child is defined as 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 . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court. . . .

 

[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]

A "minimum degree of care" is "willful and wanton misconduct," implying actions taken "with reckless disregard for the safety of others." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178-79 (1999) (upholding a finding of neglect against a caregiver who gave a severe overdose of a prescription medication to a child under her care without first attempting to verify the correct dosage). The phrase encompasses actions ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 178. A parent or guardian fails to exercise a "minimum degree of care" when he or she is aware of the dangers inherent in a situation and recklessly creates a risk of serious injury to that child. Id. at 181. "Where the conduct has the potential to cause serious injury, the fact that the guardian does not intend to injure the child is irrelevant." Id. at 180. Further, "[e]ven an isolated unintentional injury may form the basis for a finding of neglect where the intrinsic danger of the situation is obvious." Ibid.

Failure to exercise a minimum degree of care includes "the infliction of excessive corporal punishment . . . ." N.J.S.A. 9:6-8.21(c)(4); N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010). Although not defined in the statute, we have recently concluded that, in determining whether physical discipline rises to the level of "excessive," courts must examine the nature and severity of the contact and any injuries, and whether the parent's actions were reasonable under the circumstances. K.A., supra, 413 N.J. Super. at 511.

In K.A., DYFS instituted abuse and neglect proceedings against a mother who struck her child several times resulting in bruising. Id. at 506. We held that this one-time incident did not constitute excessive corporal punishment given the fact that it was "aberrational" and the response of an inexperienced parent to a defiant, psychologically disruptive child who did not require medical intervention and suffered no permanent harm as a result of the blows. Id. at 512-13. We also noted the mother's immediate remorse and compliance with recommended services. Ibid.

In contrast, in N.J. Div. of Youth & Family Servs. v. C.H., we upheld a finding of excessive corporal punishment against a mother, concluding that "there is absolutely nothing reasonable about inflicting harm, in the form of paddling, upon a five-year-old child because the child told a neighbor that their home was without electricity . . . ." 414 N.J. Super. 472, 481 (App. Div. 2010). In reaching this decision, we took into account the mother s regular use of corporal punishment and her belief that no one could tell her how to discipline her own child. Ibid.

Unlike K.A., supra, in which the incident of physical discipline was singular in nature, here M.S. has exhibited a pattern of inflicting corporal punishment upon her daughters, which continued after DYFS first intervened in 2007 and recommended family services. Moreover, unlike K.A., many of the instances of M.S.'s use of physical discipline were unreasonable by any measure, having been imposed on the daughters for merely failing to clean the house or perform other chores. Furthermore, the corporal punishment on several occasions was excessive. It is readily apparent that repeatedly slapping her daughters in the face near their eyes - "hard, like a man," - leaving marks, and in one instance a scratch near the right eye, creates a very real risk that the children may be seriously injured thereby and that such conduct is taken with reckless disregard for the consequences. Yet another distinction with K.A., where the parent was remorseful and compliant with agency services, here M.S. expressed no regret and continued to believe, as evidenced in her failure to follow through with family counseling, that her infliction of corporal punishment was justified.

Lastly, we find no error in the court's consideration of instances of physical discipline resulting from the 2007 referral even though DYFS closed that matter. We agree with the trial judge, who properly noted that, "[i]n taking the factual version and the testimony of the witnesses, the Court must consider the history and the allegations in this case in the context of the history." Indeed, M.S. offers no legal support for her contrary contention. Rather, a fact-finder's consideration of a parent's history of questionable corporal punishment in determining abuse or neglect is appropriate. See C.H., supra, 414 N.J. Super. at 482. In C.H., we held evidence in an abuse and neglect proceeding of DYFS's experience with the mother in connection with an earlier referral relevant to two issues: (1) her knowledge that the manner in which she disciplined her daughter was of concern to DYFS; and (2) the likelihood that she would continue to expose her daughter to the unjustifiable discipline to which she exposed her daughter previously. Id. at 482. Similarly, in this case, evidence of DYFS's prior involvement with M.S. and her pattern of physical discipline is equally relevant.

In sum, we conclude that the trial court's finding of abuse and neglect against M.S. is supported by sufficient credible evidence. Following a nine-day fact-finding hearing, the Family Part determined that M.S.'s conduct in striking her daughters in the face and on the back of the head during arguments and for not doing their chores, and waking them up in the middle of the night to clean the house, amounted to excessive corporal punishment under the circumstances. We see no reason to disturb the result.

II.

Although never raising the issue below, M.S. now contends she was denied due process for want of notice of the charges against her. Generally, "issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Pressler, Current N.J. Court Rules, comment on R. 2:6-2 (2011). Nevertheless, we have considered M.S.'s argument and find it to be without merit.

M.S. was on notice well in advance of the fact-finding hearing of DYFS's concern about, and investigation into, her use of corporal punishment. Indeed, in June 2007, M.S. and her husband signed a case plan expressly agreeing to refrain from using corporal punishment to discipline their children. Moreover, in August 2007, DYFS recommended that the family complete the Strengthening Family Program to allow M.S. to learn new coping techniques to assist her in addressing the children in family conflicts. At the Order to Show Cause hearing on March 3, 2008, DYFS requested services for M.S., including a psychological evaluation and parenting classes.

Most significant, DYFS's verified complaint clearly references allegations from 2007 that M.S. hit her daughters "all the time when they do not their chores," and describes the incidents involving the shoe in B.R.'s mouth, the missing earrings, the scratch near G.B.'s eye, and the family trip to New York. The complaint also specifically referenced the 2007 case plan wherein M.S. and R.S. agreed to refrain from using corporal punishment to discipline their children.

Lest there be any doubt, at the commencement of the fact-finding hearing on June 6, 2008, DYFS's attorney and the law guardians for all three children specifically mentioned M.S.'s use of corporal punishment in their opening statements. On June 16, 2008, the second day of trial, the judge expressly stated that she would consider all allegations in the complaint. Moreover, on August 5, 2008, counsel for M.S., as part of a motion to dismiss at the conclusion of DYFS's proofs, argued that there was insufficient evidence for the court to make a finding of excessive corporal punishment against M.S. As noted, the nine-day fact-finding hearing occurred over a three-month period. At no time did M.S. ever claim a lack of adequate notice of the allegations against her or request an adjournment or additional time to remedy any perceived prejudice. Quite the opposite, the record reflects M.S. was afforded a full and fair opportunity to prepare and present a meaningful defense.

Under the circumstances, we conclude that M.S. was given adequate notice of the abuse and neglect charge based on DYFS's allegation of excessive corporal punishment. We perceive no deprivation of due process here.

III.

Lastly, M.S. contends her placement in DYFS's Central Registry pursuant to N.J.S.A. 9:6-8.11 is against public policy and may adversely affect her employment opportunities. This argument also lacks merit.

The public policy underlying Title 9 is the protection and safety of children. N.J.S.A. 9:6-8.8; see also J.Y., supra, 352 N.J. Super. at 262 ("The consistent legislative concern running through the entire statutory scheme is the 'safety of children' as a 'paramount concern.'") To further this policy, Title 9 requires that DYFS forward to the Central Registry within seventy-two hours any substantiated report about individuals who have committed acts of child abuse or neglect. N.J.S.A. 9:6-8.11. Thus, the Legislature has mandated M.S.'s placement in the Central Registry upon the court's finding of abuse and neglect against her, even though inclusion therein may negatively impact her employment opportunities.

In any event, it appears that M.S.'s concerns regarding her employment are without a valid basis. While reports of child abuse and neglect are kept confidential, N.J.S.A. 9:6-8.10(a) requires DYFS to disclose information in the Central Registry to, among others, "[a]ny person or entity mandated by statute to consider child abuse or neglect information when conducting a background check or employment-related screening of an individual employed by or seeking employment with an agency or organization providing services to children." N.J.S.A. 9:6-8.10(a)(13). As a home health aide caring for the elderly, M.S. does not work with children. Title 9 does not contain a provision permitting the release of Central Registry information to home health aide employers. Thus, there is no real risk that a current or potential employer in this field could access such information. On this score, M.S. neither presented evidence at the fact-finding hearing that she is in jeopardy of losing her job nor does she claim as much in this appeal. Indeed, any claim of future harm from being listed in the Central Registry is speculative at best.

A

ffirmed.

1 C.B. was named as a defendant in this litigation, as was R.S., but did not participate. R.S. did not appeal from the final judgment finding that he abused and neglected his stepchildren.