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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1046-12T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

H.L.,

Defendant-Appellant,

and

N.L., Deceased,

Defendant.

__________________________________

IN THE MATTER OF: D.L., a minor.

__________________________________

May 28, 2014

Submitted March 17, 2014 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-348-12.

Joseph E. Krakora, Public Defender, attorney for appellant, (Mary Potter, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, D.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant-mother, H.L., appeals from a judgment of abuse or neglect of her then seventeen-year-old daughter after the two fought physically during an argument and both sustained minor injuries. We reverse.

Defendant-mother argues the Family Part did not make adequate findings that support its abuse or neglect judgment within the meaning of that term in N.J.S.A. 9:6-8.21(c). Citing New Jersey Division of Youth and Family Services v. P.W.R., 205 N.J. 17, 39 (2011), mother contends the Division of Child Protection and Permanency (the Division) never proved that her daughter was actually impaired or was in imminent danger of being impaired as a result of mother's conduct. The law guardian appointed to represent the minor's interests supports reversal of the Family Part's judgment.1

The Division asks that we affirm the Family Part's judgment. It relies largely upon New Jersey Division of Youth and Family Services v. M.C. III, 201 N.J. 328 (2010), as the precedent that should control the outcome of this case. In M.C. III, the Court held that a father who fought with his defiant teenage children and caused injuries to them had abused them within the meaning of the statute. Id. at 345.

While the facts of M.C. III resemble this case, two other appellate decisions issued after the Family Part's fact-finding hearing are also pertinent to our review. In New Jersey Department of Children and Families v. A.L., 213 N.J. 1, 22 (2013), the Supreme Court stated that a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) requires that the Division prove "present or future harm to a child." The Court referred to the statutory requirement that the child was either actually impaired by the parent's conduct or was in imminent danger or at substantial risk of harm. Ibid. In New Jersey Department of Children and Families v. M.C., ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 15), we held that, in the absence of actual impairment of the child, the Division's evidence of past abusive conduct by the parent must be sufficient to prove a present imminent danger that the child may become impaired.

These later decisions, as well as our analysis in Department of Families and Children v. K.A., 413 N.J. Super. 504 (App. Div. 2010), appeal dismissed, 208 N.J. 355 (2011), lead to our conclusion that the teenager in this case was not an abused or neglected child.

Mother was in her mid-fifties at the time this case commenced, and daughter, her youngest child and the only one remaining at home, was a senior in high school. The father had died several months earlier.

On March 5, 2012, the Division filed a complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-11, -12 seeking custody, care, and supervision of daughter. The complaint alleged that mother has been diagnosed with a mental health condition.2 The Division had received several referrals since November 2011 from school and counseling sources and from mother herself regarding escalating problems that mother and daughter were having in their relationship. The Division investigated the prior referrals but did not substantiate abuse or neglect of the child.

The incident that precipitated the current matter occurred on the evening of February 29, 2012. The Division received a referral that the girl had sent a text message to her counselor stating that she had been physically struck and injured by her mother. The counselor had first called the police. A police officer went to the home but was not granted entry. The Division immediately sent two Special Response Unit (SPRU) workers to investigate the incident.

Division worker Kelly Haack-Ortiz and her "SPRU buddy" spoke separately to both mother and daughter. According to Haack-Ortiz's testimony at the fact-finding hearing, mother told her she had gotten into an argument with daughter when she asked her to go to the store to buy ice tea because daughter's boyfriend was coming to visit. Daughter was disrespectful and said she did not have to go if she did not want to. When mother challenged daughter's defiance, the two got into a physical altercation. After the fight, daughter left the home to stay with a cousin.

The Division workers found the girl at her cousin's home and spoke to her. She said her mother had started arguing with her as she put on her coat and a scarf to go to the store. According to the girl, her mother said she was going to get rid of her father's ashes and dog, and then grabbed the girl's scarf and started to choke her. She threw the girl on the couch and hit her in the head with an aerosol can. The girl fought back in defense and then went to her room when the altercation was over. The police came and rang the bell, but mother would not open the door.

The Division workers observed that the girl had "a small bruise on the side of her face and a split lip, and . . . a scratch on her neck." They took her to a hospital for examination. The girl was released from the hospital the same night and did not need further medical treatment. Haack-Ortiz took photographs of the head and neck injuries, which were presented in evidence at the fact-finding hearing.

When the workers spoke to mother again, she was surprised that her daughter had suffered injury, stating that she saw no injury when the girl left the apartment, and that she herself had greater injuries than any suffered by her daughter. Photographs of mother's facial and neck injuries were also taken and presented in evidence at the hearing.

Mother explained further her version of the fight. She said that, when she faced her daughter closely and said "what's your problem," her daughter pushed her and she fell to the floor. Daughter then put her foot onto mother's back to prevent her from getting up. Mother denied choking her daughter and said there was no aerosol can involved in the fight. She speculated that her daughter may have inflicted injury on herself after leaving the apartment. Mother claimed that her daughter was the aggressor in the fight.

After the girl was released from the hospital, she was afraid to return home, stating that her mother's instability might result in more fighting and possible injury to her. She wanted to stay with her older sister, but the Division would not allow that, and she was taken instead to a foster home late that night.

The court's interim orders granting temporary custody to the Division permitted mother and daughter to have supervised visitation. Before long, they reconciled. About four months after the incident, daughter appeared ex parte before the Family Part judge and asked to return home and to be reunited with her mother. After hearing daughter's view of the matter and absence of fear in being reunited with her mother, the court entered an order returning custody of the girl to mother.

Our record includes a transcript of the ex parte interview the judge conducted on July 11, 2012, and the law guardian makes reference to it in arguing for reversal of the court's abuse or neglect finding. The Division objects, stating that it was not even aware that the court intended to interview the girl, and evidence from that interview was not presented at the fact-finding hearing. During the in camera interview, the girl departed from some of her version of the incident that she had conveyed to the Division workers on the night of the incident. No motion has been made to supplement the record. We do not consider the girl's statements in the interview as evidence of what actually occurred on the night of February 29, 2012. Nevertheless, we view the in camera statements of the girl as important for other reasons and will address them further.

At the fact-finding hearing on July 19, 2012, Haack-Ortiz testified about her investigation and the statements made by mother and daughter on the night of the incident. She presented photographs of the girl's injuries in evidence. The only other witnesses were: the police officer, who had gone to the home that night but had not gained entry and had no other information to offer; a Division caseworker, who did not have personal knowledge of any relevant matter and merely offered a prior Division report in evidence; and defendant-mother, who repeated her version of the incident and again denied being the aggressor. The girl did not testify.

The court issued a written decision on July 23, 2012, which recounted the differing versions of the incident and made credibility findings against mother's version as to whether she was an aggressor in the fight. The court concluded that mother was "guilty of abuse or neglect by a preponderance of the evidence after she choked her daughter and . . . assaulted her causing injuries to her neck, lip and head." The court entered a fact-finding order the same day similarly stating that mother "abused or neglected the child . . . pursuant to N.J.S.A. 9:6-8.21(c), as follows: by engaging in a physical altercation with her child causing [the child] to sustain injuries thereby placing the child at substantial risk of harm as stated in the [court's] written decision."

There being no further need of Division services, the court entered a dispositional order on September 18, 2012, closing the case. This appeal followed.

Mother argues that the physical altercation was an isolated incident that did not cause significant injury to the child, and that the child was not at risk of harm when the court conducted the fact-finding hearing. She also argues that the court erred in making a credibility decision in favor of the child's version of the incident. She contends that her version of who started the fight was just as credible as daughter's version, and that daughter's absence from the hearing should have been taken into account when weighing the credibility of the differing versions and evaluating the risk of harm to the child.

The Division argues in response that it proved mother's physical abuse of the child, in particular, because there is no dispute that the child suffered injuries as a result of the fight.

In deciding credibility in favor of daughter and against mother, the Family Part stated in its written decision that the daughter's statements to the Division workers were corroborated by the photographs of her injuries and by the medical evidence, see N.J.S.A. 9:6-8.46(a)(4), and had "remained consistent while the mother's claims [of what had occurred] changed." Mother's causing injuries to the girl's neck, lip, and head was sufficient evidence that mother was "guilty of abuse or neglect."

A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This deferential standard of review is especially appropriate because of the Family Part s "specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

Before addressing further the Family Part's evaluation of the evidence, we turn to the statute to determine what proofs were necessary to support the allegations of abuse or neglect. The Division must prove a child to be an abused or neglected child by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). Abuse or neglect is defined by statute. In parts that could be relevant to this case, N.J.S.A. 9:6-8.21(c) states:

"Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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 or guardian, as herein defined, to exercise a minimum degree of care . . . (b) . . . 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; . . .

[(emphasis added).]

In this case, neither the Division's complaint nor the trial court's decision cited a specific subsection of this statute. Although subsections (1) and (2) refer to "physical injury," there was no evidence of "serious or protracted disfigurement" or of "protracted loss or impairment" of health, bodily organ, or bodily function, as also required by those subsections. It appears, therefore, that the Division's complaint, and the evidence it presented at the hearing, sought a finding under subsection (4)(b), that the child's "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired" because the mother "unreasonably . . . inflicted harm" upon the child.

The statute does not require that the parent intended to harm the child. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Furthermore, "we evaluate a claim of abuse by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children[.]'" K.A., supra, 413 N.J. Super. at 511 (alteration in original) (quoting G.S., supra, 157 N.J. at 176).

There is no dispute that the fight in this case caused minor injuries. Daughter had a swollen lip, a small bruise on her forehead, and a scratch on her neck. There is no evidence, however, that these injuries "impaired" the girl physically or mentally, as required by the language of N.J.S.A. 9:6-8.21(c) (4)(b). While one might say there was "emotional" impairment in that the girl was afraid to go back home, there was minimal evidence of the severity of any emotional effect upon the girl, and whatever emotional reaction she had on the night of the incident had long dissipated by the time of the court's in camera interview of the girl and the fact-finding hearing.

Consequently, the issue before the court was whether the girl's "physical, mental, or emotional condition . . . is in imminent danger of becoming impaired" as a result of her mother's conduct. Ibid. In fact, the Family Part's written decision and order did not include a finding that the girl had been "actually impaired" as a result of the minor physical injuries she suffered on February 29, 2012. Rather, the court's July 23, 2012 order stated that mother's conduct had "plac[ed] the child at substantial risk of harm."

Contrary to our subsequent holding in M.C., supra, ___ N.J. Super. at ___ (slip op. at 16-17), the Family Part gave no indication in its written decision or order that it had evaluated whether daughter was presently in danger or at substantial risk of harm when the fact-finding hearing was conducted. Just days earlier, the court had approved the girl's return to her home with her mother, apparently concluding that the girl was in no danger. We stated in M.C.:

A finding that a child "is in imminent danger of becoming impaired" where, by all accounts, the dangerous condition has been remediated to the point that the family has been safely reunified and can remain safely together without additional supervision or therapeutic services, is difficult to square with the language of N.J.S.A. 9:6-8.21(c) (4).

[Id. at 18-19.]

This view of the statute is consistent with the Supreme Court's holding in A.L., supra, 213 N.J. at 22, that the Division must prove either present or future harm to the child.

At the time of the fact-finding hearing, mother and daughter had been reunited, and there was no evidence that the girl faced a present danger. Without proof of physical, mental, or significant emotional impairment caused by mother's conduct on the evening of February 29, 2012, the court had insufficient evidence to find that daughter was an "abused or neglected child" within the meaning of the statute that she was in imminent danger or at substantial risk of harm.

In addition, at the time of the fact-finding hearing on July 19, 2012, the Family Part did not make any reference to the girl's July 11 in camera statements. Yet some of those statements were inconsistent with the girl's reporting of the incident to the Division workers on the night of February 29. The court found daughter more credible because her version had remained "consistent," but in fact, she had modified her view of the incident by the time the judge spoke to her directly. More important for purposes of assessing present or future danger, the girl's statements reflected no fear of her mother's conduct.

We cannot tell on this record what effect the girl's in camera discussion had on the court's credibility determinations and fact-finding. In light of M.C., the seventeen-year-old girl's reconciliation with her mother and her view of the Title 9 proceedings as beyond her need for safety and protection are significant factors for purposes of the Family Part's evaluation of the case.

An appellate court may expand its highly deferential scope of review when the alleged error does not involve credibility of witnesses but instead turns on the trial court's application of the law to the underlying facts and the implications the court draws from those facts. G.L., supra, 191 N.J. at 605. In New Jersey Division of Youth and Family Services v. M.M., 189 N.J. 261, 279 (2007), the Supreme Court cited with approval our holding in In re Guardianship of J.T., 269 N.J. Super. 172 (App. Div. 1993), establishing a broader scope of appellate review where the issue is not the facts that the trial court found but evaluation of those facts under the applicable law. In J.T., we held there are two exceptions to the strictly limited scope of appellate review from a decision of a trial judge sitting without a jury.

First, where the judge goes so wide of the mark as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979); Maggio v. Pruzansky, 222 N.J. Super. 567, 577 (App. Div. 1988). Second, "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," the traditional scope of review is expanded. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989).

[J.T., supra, 269 N.J. Super. at 188-89.]

In this case, we do not view the Family Part's credibility determinations as "wide of the mark." Our disagreement with the Family Part is in the omission of the relevant interview evidence, and in the implications to be drawn from the evidence as a whole.

As in K.A., supra, 413 N.J. Super. at 512, the court should have taken into consideration mother's fragile mental state because of her husband's recent death and the difficulties she was having in maintaining a healthy relationship with her daughter. The reason that a parent strikes a child is relevant to a determination of whether the conduct constitutes abuse. Ibid. Daughter was openly defiant to her mother and apparently reacted to the mother's confronting her by pushing her mother back physically. The fight seems to have been a battle of equals in strength and aggression, since both suffered similar injuries. In that sense, the evidence differs from the fight of the bigger, stronger father in M.C. III, supra, 201 N.J. at 336-37, with his two teenage children, which resulted in the children being injured. Nor was there any evidence in M.C. III that the danger of harm to the children had been remediated by the time the Family Part conducted a fact-finding hearing.

We conclude on this record that the incident of February 29, 2012, did not cause the level of harm to the child that impaired her or that demonstrated an imminent danger or substantial risk of future harm. It is important in our evaluation of the record that daughter was only a few months from the age of majority at the time of the hearing, and expressed no apprehension about reunification with her mother.

In our analysis of the case as it developed over time, we intend no criticism of the Division in acting promptly and effectively in assisting daughter and investigating the matter. As we said in M.C., supra, ___ N.J. Super. at ___ (slip op. at 22), this "was one of the Division's success stories." The teenager was protected, the danger was remediated, and the family was safely reunited. The Division intervened effectively to protect the child. In the Family Part, the matter could have proceeded under Title 30 to provide services to the family and to facilitate its reunification. See A.L., supra, 213 N.J. at 18-19.

Nor do we mean to criticize the Family Part for not anticipating our analysis and holding in M.C., supra, ___ N.J. Super. at ___ (slip op. at 15), with respect to the focus of the hearing on present or future danger where the child has not been actually impaired by the parent's conduct. In the end, the goal of the Division and the Family Part is the "safety of the child[]" and "not [determining] the culpability of parental conduct." A.L., supra, 213 N.J. at 18 (quoting N.J.S.A. 9:6-8.8(a); G.S., supra, 157 N.J. at 161).

Reversed.3

1 At the Title 9 fact-finding hearing, the law guardian argued that mother's abuse of daughter was proven. On appeal, the law guardian has changed positions.

2 Mother's mental health diagnosis was the subject of some dispute at the Title 9 hearing, but we do not view the evidence on that issue as significant to the appeal.

3 Since we reverse the finding of abuse or neglect, DCPP shall take steps to remove H.L. from its child abuse registry based on this matter. See N.J.S.A. 9:6-8.10a, -8.11; A.L., supra, 213 N.J. at 26.