NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2744-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

W.R.,

Defendant-Appellant.

_______________________________________

November 21, 2012

Submitted October 3, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from a Decision of the Division

of Youth and Family Services, Department of Children and Families, Docket No. AHU-10-0418.

Janet L. Porro, attorney for appellant

(Ms. Porro and Janet S. Del Gaizo, on

the brief).

Jeffrey S. Chiesa, Attorney General,

attorney for respondent (Andrea M.

Silkowitz, Assistant Attorney General,

of counsel; Virginia Class-Matthews, Deputy

Attorney General, on the brief).

PER CURIAM

Defendant-mother W.R. appeals from a December 27, 2011 final decision of the Director of the Division of Youth and Family Services ("the Division") finding that she abused or neglected her nine-year-old son when she engaged in acts of violence in his presence against her estranged husband. We affirm.

I.

The following evidence was developed in a hearing before an Administrative Law Judge (ALJ).

During the early months of 2010, defendant-mother and her husband were living separately. The couple shared custody of their three children, including the nine-year-old son. Typically, mother would pick the children up from school on weekdays. Father would then pick them up at mother's house in the evening, and they would spend weeknights with him.

On February 10, 2010, a Wednesday, mother sent a text message to father asking him to come and shovel snow from her driveway. During the text messages that followed, mother also proposed that she and father have sexual relations, to which he agreed. According to father, he informed mother that he would be bringing their son to help with the shoveling.

When father and son arrived, father could tell that mother had had "a drink or two" because he "could smell it on her." But he thought that she seemed "fine." She was "talking normal . . . no problems at all." The son was questioned after the domestic violence incident, and he also said that his mother "smelled like alcohol," but he had not seen her drinking and denied having ever smelled alcohol on her breath before.

After the shoveling, mother made lunch for the son, and he went to watch television in the living room. Mother and father went to her bedroom. After some time, the boy called out to them that he wanted to go home, and father and son left mother's house. They had driven only a few blocks when father received a text message and then a call from mother asking him to return. Mother was upset and crying and said she wanted to talk to father. He drove back, having been out of her house for only "five or ten minutes."

Upon his return, father immediately noticed that mother's demeanor and level of intoxication had changed. She now appeared "drunk." She was crying hysterically, her speech was slurred, and she "just didn't seem right." Father's observations were later corroborated by the police officer who answered the domestic violence call, Officer Caffrey. He described mother as "highly intoxicated" based on the "odor of alcoholic beverage emanating from her." A family friend, who was called to help and saw mother about the same time as the officer, told a Division caseworker that mother's eyes were bloodshot and that she smelled of alcohol as if "she was still drinking."

After father and son returned to mother's house, son resumed watching television in the living room while father and mother went to her bedroom to talk. Mother then became "extremely agitated" and began yelling at father about an affair he had had. The son heard the yelling, and he heard a door slam. Father testified that he said to mother, "I'm not going to get into a fight with you," and that he attempted to leave. Mother grabbed his jacket, ripping it. As father made his way to the kitchen, mother repeatedly punched him in the back of the head. Son told a Division caseworker that he watched as his mother hit his father and that mother "jumped on his father and started hitting him."

Father attempted to distract mother by throwing a water bottle to the floor. He also positioned a chair to put space between them. Mother picked up the chair and tried to throw it at father, but she missed, instead hitting son's bike. Son was standing on the other side of a child gate separating the kitchen from the living room, about four to five feet from where mother and father were fighting. There was no evidence or allegation, however, that son was in danger of being hit with the chair or that mother threw the chair toward him.

Father opened the child gate and took son by the hand to lead him toward the door. Son was "shaken up," "upset," and "crying." He was yelling to his parents to "please stop fighting. As father stepped out of the house with son, mother grabbed onto son and pulled him back inside. She slammed the door, leaving father on the other side. She yelled through the door that she was "going to call the cops" and tell them father raped her. She then called 911. Son later confirmed that mother followed through on her threat.

Meanwhile, father went to his vehicle and sent a text message to the family friend to "please help." He then returned to the house, and son opened the door. Mother was still holding onto his arm. Father took the boy's other hand, saying "come on, Buddy, we're going." Mother pulled back, tugging the child between the two. Father "stepped between the two of them, . . . pried her hand off . . . and . . . put [his] back to her and walked outside with [son]." A short time later, the police arrived.

Son then became even more upset because the police immediately arrested father based on mother's false charge that he had raped her. Son was left "standing in the middle of the street." At that point, mother came outside and told "everybody" that father had raped her.

Officer Caffrey testified at the hearing that son was "visibly upset, crying" at the scene. Son also acknowledged to a Division caseworker that he was "very upset" about the incident, and that he "had never seen his mother act that way."

The police eventually determined that the sexual relations between mother and father had been consensual, and they never carried through with charges of sexual assault against father, releasing him the same day.

For her part, mother claimed she could remember nothing about the incident after the initial time that father and son had come to shovel snow. She admitted that she had two bottles of wine in the house, and she recalled drinking from both. She claimed she drank the wine because she did not think that the children would be coming to her home that day.

Based on this evidence, the Division concluded that mother had abused or neglected her son within the meaning of N.J.S.A.9:6-8.21c.

II.

On appeal, mother makes two principal but related arguments. She contends there was insufficient evidential support for the Division s finding that her conduct placed her son in imminent danger of harm. She also challenges the Division's legal conclusion that she acted in a grossly negligent manner toward her son, arguing that she was unaware of her conduct because she was intoxicated and that she drank because she did not expect to see her children that day.

Our review of the Division's final decision is limited. In re Herrmann, 192 N.J.19, 27 (2007). We "must defer to [its] expertise and superior knowledge" in its field, and so will not reverse its decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (internal quotation marks omitted). However, we owe no special deference when the question is the legal consequences that flow from established or undisputed facts. See N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 543 (App. Div. 2011).

Under the relevant subsection of the applicable New Jersey statute, an:

"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 . . . 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 . . . .

[N.J.S.A. 9:6-8.21c.]

The facts of this case, viewed in their totality and in light of the standard of review, support the Division's finding that the nine-year-old child's emotional and physical well-being was in "imminent danger of becoming impaired" during the domestic violence between mother and father. The evidence demonstrated that mother was heavily intoxicated; that she hit and punched father while son looked on; that she threw a chair, apparently trying to hit father; that she grabbed son by the arm and pulled him back into the house when father tried to remove him from the frenzy; that, when father was admitted into the house again, she refused to let son go although he was staying at father's house that day; that father had to pry her hands off son to get him loose; and that she called the police and, in the child's presence, accused father of raping her, her false accusation leading to father's arrest as son watched standing alone in the street. The evidence also showed that, during much of this incident, son was crying and very upset, and he was yelling at his parents to "stop fighting." Furthermore, son remained upset and continued to cry after the violence ended.

Relying on the holding of New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), mother argues that the child was not physically injured and that witnessing domestic violence in itself does not equate with psychological harm to the child. In S.S., the Division substantiated charges of child abuse or neglect against a battered wife whose infant child was present and in her arms as she was being choked by her husband. Id. at 16. When the mother initially refused to seek a restraining order against her batterer, the Division took emergency action to remove the child and charged the mother with abuse or neglect. Id. at 17-18. A physical exam of the child produced no evidence of injuries or abuse. Id. at 19-20.

We reversed the Family Part's conclusion that the infant had been abused or neglected. Id. at 22. We stated that the Family Part judge made no factual finding of actual or potential physical harm to the child, and that the judge's finding of potential emotional harm was based solely on a general assumption that witnessing domestic abuse "negatively impact[s]" a child. Ibid. We refused to make the same assumption. We held that evidence of actual or potential harm to the child is necessary to substantiate charges of abuse or neglect. Id. at 28.

In S.S., however, the defendant-mother was the victim of domestic violence initiated by her husband. Here, mother was not the victim; she was the batterer. She initiated the domestic violence in the child's presence. Moreover, the Division based its determination of neglect on actual evidence of harm, not a general assumption that all children who witness domestic violence will be psychologically harmed.

Father testified that son cried throughout the incident. Son himself told a Division caseworker that he was "very upset by the incident," and that he was "crying." Officer Caffrey testified that son appeared "scared" and "upset." And the family friend told the Division caseworker that son was "crying so hard he could hardly catch his breath," and that she had "never seen a child so upset before."2 Taken together, the testimony and statements gathered by the Division provided substantial support for a finding that son actually suffered emotional harm by witnessing the domestic violence and his mother's conduct.

There is also support in the record for a finding that son was placed at risk of physical harm. Mother's throwing of the chair while son stood nearby threatened his safety. And mother's repeated refusal to unhand son and allow him to go home with father placed the child in danger of physical harm. It goes without saying that the Division "need not wait to act" until a child is actually harmed. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Mother also relies heavily on one of this court's unpublished decisions, which reversed a finding of abuse or neglect against a father who committed domestic violence against his wife without knowing that his son was in the room. But here, mother knew that son was in the room or standing nearby. Her actions put him in actual physical and emotional danger.

With respect to the mother's knowledge that she was risking harm to her son, the "minimum degree of care" requirement recognizes that, in order to label an individual a child abuser, it is not enough to show that the child was subjected to a risk of harm. Rather, the Division must show that the risk arose through culpable conduct on the part of the responsible adult.

In G.S. v. New Jersey Division of Youth and Family Services, 157 N.J. 161, 175 (1999), the Supreme Court held that, under the abuse or neglect statute, "[a] parent or guardian can commit child abuse even though the resulting injury is not intended." The conduct targeted by the statute includes that which is "grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Applying this standard, the Court held that a caregiver who administered an entire bottle of medication to a child without intending harm was nevertheless reckless, and therefore, guilty of neglect of the child within the meaning of N.J.S.A. 9:6-8.21c. G.S., supra, 157 N.J. at 182-83.

Recently, the Supreme Court confirmed this standard of culpable conduct in T.B., supra, 207 N.J. at 309-10. Although the Court reached a different result from G.S., it reiterated that failure to exercise a minimum degree of care "requires grossly negligent or reckless conduct." Id. at 306. In T.B., a mother had inadvertently left her sleeping four-year-old alone at home while she went out to dinner. Id. at 297. She mistakenly believed, but did not confirm, that the child's grandmother was at home. Ibid. The Court concluded that the mother's actions were "plainly negligent," but not reckless or grossly negligent. Id. at 309-10. Consequently, she was not guilty of abuse or neglect of the child. Id. at 310.

In A.R., supra, 419 N.J. Super. at 540, we found gross negligence where a father put his ten-month-old son to sleep on a twin bed without rails, near a hot radiator, and the child suffered severe burns after falling out of the bed. Our conclusion rested on the recognition that an ordinary adult would "understand the perilous situation in which the child was placed." Id. at 546. The severity of the risk raised the case to one of gross negligence.

In contrast, we found only ordinary negligence, and thus insufficient evidence of abuse or neglect, where a mother allowed her children to walk from a playground to a condominium, which was within her line of sight, and the children accidentally locked themselves in the home. N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009).

In this case, the ALJ and the Division concluded that mother's actions amounted to "wanton and grossly negligent" conduct. We agree. Mother knowingly committed violent acts in the vicinity of the child without regard to his physical and psychological welfare.

Mother contends that, because she did not expect to see the children on the date of the incident, she cannot be found grossly negligent for drinking wine, which she argues precipitated the entire event. Even if we were to excuse mother's intoxication when father and son first arrived at her house to shovel snow, her argument still ignores that abuse or neglect of the child occurred at a later time, after she urged father to return to the house knowing that son was with him.

Certainly, mother knew or should have known she was intoxicated when she texted and called father to come back to the house. She knew son was present when she punched and hit father. She threw a chair as son stood a few feet away. She must have heard him crying and yelling as the fight continued. Indeed, the child was the object of a "tug-of-war" between the parents as father tried to take him to safety and she refused to let him go from her grasp. At a time when she clearly knew or should have known that she was drunk, and that the child was present, she engaged in acts of domestic violence while the child stood and cried nearby.

The evidence amply demonstrated that mother exposed son to a serious risk, and that she exhibited at least grossly negligent disregard for his emotional and physical well-being.

In addition, summoning the police with false allegations of rape, and being the cause of father's arrest in front of the child, was also reckless or grossly negligent conduct that risked impairment of the child's psychological health. The Division was correct to conclude that the facts shown by the evidence amounted to wanton and gross negligence.

In sum, we agree with the Division's conclusion that mother abused or neglected her son by her violent and irrational conduct while intoxicated.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families. The law includes the renaming of the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Because the family friend did not testify at the hearing before the ALJ, mother argues that we should reject her statements as "uncorroborated hearsay." Hearsay is admissible in an administrative proceeding, N.J.A.C. 1:1-15.5a, as long as the fact findings are supported by "some legally competent evidence," N.J.A.C. 1:1-15.5b. See also Weston v. State, 60 N.J. 36, 51 (1972) (holding that, while it is common to consider hearsay in administrative matters, conclusions must be supported by a "residuum of legal and competent evidence"). The friend's statements and the Division's findings had ample corroboration by live, non-hearsay testimony.