NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.D.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF M.D.S. and

R.D.S.,

Minors.

___________________________________________

July 25, 2014

Submitted March 5, 2014 Decided

Before Judges Grall, Waugh and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-221-09.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, M.D.S. and R.D.S. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.D. appeals from a September 12, 2011 order of the Family Part finding that she abused and neglected her son M.D.S. (Mark)1 in violation of N.J.S.A. 9:6-8.21c. Both the Division of Child Protection and Permanency2 (Division) and the Law Guardian urge us to affirm. Because we agree that there is substantial credible evidence in the record to support Judge Marino's finding of abuse and neglect, we affirm that finding.

D.D. and J.P.S. are the parents of Mark, four-years-old at the time of the events that precipitated the Division's complaint, and R.D.S. (Rob), who was born ten months later. Although the judge found that J.P.S. also abused and neglected Mark, J.P.S. is not part of this appeal. Rob was not the subject of the Division's original complaint and he is not at issue here.

This family first came to the Division's attention in 2008 when it was reported that D.D. had used Mark as a shield to ward off an assault by J.P.S. D.D. admitted that J.P.S. had slapped her while she held Mark but denied that she had used him to shield herself from the blow. The Division determined the complaint was unfounded.

Police contacted the Division six months later after they responded to a 9-1-1 call from D.D. reporting another physical altercation between the couple. D.D. reported that J.P.S. hit her, physically restrained her for forty minutes and smashed her cell phone when she tried to call the police. D.D. eventually managed to lock J.P.S. out of the apartment by convincing him the laptop he wanted was in her car. When he realized the ruse, J.P.S. smashed her car window and dented her door. He then kicked in two doors to get back into the apartment where he grabbed some belongings and left. Police arrested J.P.S., but D.D. declined to apply for a temporary restraining order. Mark was in the apartment at the time.

The Division's investigation uncovered several other police reports of domestic violence between D.D. and J.P.S., not all of which reported J.P.S. as the aggressor. The Division had difficulty making contact with D.D., and she refused to sign a safety plan stating that she and J.P.S. would not live together, would not be together in Mark's presence, would both participate in anger management counseling and that D.D. would seek services at the Women's Resource Center. The Division thereafter filed its complaint seeking care and supervision of Mark.

At the fact-finding hearing, the Division presented the testimony of a psychologist, Dr. Wall, who had conducted an evaluation of Mark. J.P.S. participated in that evaluation but the Division was unable to secure D.D.'s presence. Dr. Wall testified that when he asked Mark what his home life was like, Mark responded by hitting his father. Mark related that the fighting between his parents "is bad and that makes me feel sad." He told Dr. Wall that he hit his friends at school, often after talking about the fighting between his parents. He reported that he had nightmares, difficulty sleeping, and "mentioned that his parents do not play with him" and "fight too much." During the assessment Mark played with an Incredible Hulk doll which, when he pressed it, would recite, "You're making me very angry." As Mark became agitated during the interview, he repeatedly pressed the toy to hear the recording.

As part of his assessment, Dr. Wall asked Mark's daycare provider to complete an Achenbach Caregiver Teacher Report. The provider, who had known Mark for over a year, reported that Mark played "[o]bsessively with knives and guns" and would "kick the teacher and other students when angry." The daycare provider stated in the assessment device that Mark was "very disturbed, easily distressed, insecure, and aggressive with both authority figures and with his peers."

Dr. Wall opined that Mark was mimicking his parents' behavior. He found Mark "very disturbed" and exhibiting some "alarming" symptoms. He stated that Mark "displayed a number of behaviors which are consistent . . . with a child who has been traumatized," including sleeplessness, nightmares, aggressiveness with peers and adults, and agitation. Dr. Wall concluded that, without treatment, the prognosis for Mark was poor. The doctor recommended individual play therapy and peer play therapy to address Mark's trauma and improve his prognosis.3

The police officer who responded to the couple's apartment in 2009 also testified. He described going to the scene and finding a car with a broken window, a dented door, and a child's car seat in the road. He learned from D.D. that she had been in an argument with J.P.S. that had turned physical. D.D. reported that J.P.S. hit her in the face several times, restrained her for about forty-five minutes and broke her cell phone when she attempted to call the police. He observed a red mark on D.D.'s face. He was advised that Mark had been present during the altercation, but found him unharmed.

The Division caseworker testified to the facts gathered in the Division's investigation of the 2008 and 2009 incidents and the couple's prior domestic violence history. She testified that in her interview of D.D. that D.D. stated that J.P.S. held her down and struck her in the face. D.D. also told her that Mark was present and was "clinging" to J.P.S. The worker also interviewed Mark, who told her that he had seen his father hit his mother on other occasions and that his father had damaged the car and kicked in the door in the incident of the prior day.

The worker testified to her review of prior police reports detailing the violence between the couple and explained that the Division had substantiated both parents for abuse and neglect based on Mark being present for the 2008 and 2009 incidents and the couple's history of domestic violence detailed in the police reports.

D.D. also testified at the fact finding hearing. With regard to the 2009 incident, she explained that the couple had been arguing over J.P.S.'s laptop, which she had hidden and refused to return because she wanted to look at something she had earlier seen on the computer. The argument turned physical after he hit her "a few times" and smashed her cell phone to keep her from calling the police. D.D. testified that while J.P.S. was holding her on the floor, she picked up the wood support for the center of her box spring and "told him I was going to hit him with it, but I didn't. I just put it back down." D.D. explained that she was trying to break free but "didn't want to try so much 'cause I didn't want to get hurt."

D.D. also testified that she called Mark into her bedroom after J.P.S. had hit her and smashed her cell phone and while he was still restraining her on the floor. She asked Mark to bring her the house phone from the living room so that she could call the police. She testified that although J.P.S. was "mad," he did not yell at Mark but merely took the phone from the little boy when he brought it into the bedroom. While not able to remember whether she was crying at the time, D.D. explained that she was upset but that both she and J.P.S. sat calmly on the floor so as not to frighten Mark. D.D. did not believe that Mark was able to see his father kick in the door to their apartment but allowed that he may have heard him do so.

On cross-examination, D.D. admitted that she and J.P.S. had engaged in numerous violent arguments over the years, many resulting in police involvement, and that they had each applied for domestic violence restraining orders against the other. She admitted that J.P.S. had tripped her when she was pregnant with Mark, dragged her by the hair and "beat her up." While denying that she had used Mark as a shield in the 2008 incident, she admitted that she was holding him and "irate and screaming" while "being smacked" by J.P.S. She also admitted that Mark had been present for "a few" other of their violent encounters and had witnessed J.P.S. hit her. She acknowledged telling the Division caseworker after the 2008 incident that she and J.P.S. were ending their relationship but noted that it was her intention at the time.

Judge Marino found the Division proved by a preponderance of the evidence that J.P.S. and D.D. neglected Mark "by placing his physical and emotional health in imminent danger as a result of the failure of each party to exercise minimum care in exposing [him] to an environment plagued by violence." Acknowledging that it is impermissible to simply assume that witnessing domestic violence has so negative an effect on a child as to always warrant a finding of abuse, especially against the battered victim, N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), the judge specifically addressed the harm to Mark on this record.

Reviewing the facts, Judge Marino found evidence, "unrebutted by either [parent,] of actual harm" to Mark as a result of his exposure to their violent relationship. Accepting Dr. Wall's expert opinion based on facts established in the record, she found that Mark was traumatized by the "volatile, violent environment" in which he has spent his whole life. The judge found the consequences evident in Mark's aggressiveness and distractibility as well as the nightmares he suffered, none of which his parents attempted to refute or explain.

Further, the judge found that neither parent was willing to accept the obvious effects their violent relationship is having on their young son. Both appeared to believe that "their relationship problems do not have an impact" on Mark and lack any insight into the consequences he suffers as a result of their violent behavior.

Judge Marino specifically addressed, and rejected, D.D.'s argument that she should not be found to have neglected Mark as a result of the 2009 incident because she was the victim of domestic violence by J.P.S. The judge underscored that D.D. "called [Mark] into the bedroom where she and [J.P.S.] were fighting," obviously indifferent to the risk that posed to the child. Although claiming to have done so in order to obtain a phone so that she could call the police, D.D. did not make that call until after J.P.S. kicked in the door of the apartment after she had succeeded in locking him out.

Further, the judge noted that D.D. "has taken no action to protect [Mark]" from the long-standing violence of her relationship with J.P.S., despite Mark having witnessed many violent arguments and J.P.S. having hit her when Mark was in her arms. The judge found that D.D. "made no effort to obtain ongoing counseling or to remove [Mark] from the dysfunction or violence of her relationship with [J.P.S.]" and "did not even seek out a temporary restraining order" after the 2009 incident. Finding that D.D.'s neglect of Mark "is far more extensive than the events of this one evening," the judge found that this matter could not be fairly characterized as "a case of 'blaming the victim.'"

D.D. appeals arguing that the trial court erred in finding that Mark witnessed domestic violence and suffered actual harm and that she failed to exercise a minimum degree of care for him. D.D. also argues that the trial court relied on inadmissible and incompetent evidence in coming to these conclusions. We reject those claims.

D.D.'s arguments are premised almost entirely on alleged errors in the judge's fact finding. We, however, are not free to overturn the factual findings and legal conclusions of a trial judge "unless we are 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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Our review of the trial court's factual findings in this abuse and neglect proceeding is strictly limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc., supra, 65 N.J. at 484.

D.D. admitted that she and J.P.S. had engaged in numerous violent arguments over the course of several years and that Mark had witnessed at least "a few" of them. She conceded that she had been holding Mark and screaming when J.P.S. "smacked" her in 2008 and that she herself had drawn Mark into their violent encounter in 2009. Accordingly, it is beyond dispute that Mark, as Judge Marino found, had been exposed to the domestic violence between his parents.

The proofs also establish that Mark suffered actual harm as a result. Dr. Wall conducted an extensive assessment of the child, seeking background information from J.P.S., who accompanied him to the evaluation, Mark's daycare provider, and interviewing Mark. The doctor described in detail the alarming symptoms the child was displaying and the basis for his opinion that Mark was mimicking his parents by his aggressive behavior. The judge accepted Dr. Wall's expert's opinion that Mark had been traumatized by his exposure to their violent relationship. D.D. did not rebut those conclusions or dispute the facts on which they were based. Because the judge's findings are amply supported by substantial credible evidence in the record, they bind us in deciding this appeal.

Although our scope of review is expanded in considering the legal implications to be drawn from established facts, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007),

we do not conclude that the judge went wide of the mark in determining that D.D.'s failure to shield Mark from the violent relationship she has maintained with Mark's father for the whole of the child's life, with the resulting consequences detailed in the record, constitutes abuse and neglect under N.J.S.A.9:6-8.21.

The Supreme Court has explained that whether a parent has failed to exercise a minimum degree of care for a child must be analyzed "in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J.161, 181-82 (1999). We agree with Judge Marino that the proofs establish that neither the 2008 nor 2009 violent encounters between his parents, into which Mark was drawn, were isolated events in his young life. The danger to Mark from his constant exposure to that violence, physically and emotionally, was manifest. D.D.'s failure to protect her child from the obvious effects he is now suffering was done in reckless disregard of his safety and constitutes a failure to exercise minimum care. We specifically reject D.D.'s argument that as the victim of domestic violence she should not have been deemed to have neglected Mark. D.D. adduced no proof that the violence she suffered had impaired in any way her ability to protect her child.

D.D.'s arguments about the judge's evidentiary rulings require only brief comment. R.2:11-3(e)(1)(E). We grant substantial deference in Title 9 cases to the trial judge's discretionary evidentiary rulings and "will only reverse when the trial judge's ruling was 'so wide of the mark that a manifest denial of justice resulted.'" New Jersey Div. of Youth & Family Servs. v. M.G., 427 N.J. Super.154, 172 (App. Div. 2012) (quoting State v. Carter, 91 N.J.86, 106 (1982)). We find no such error here.

D.D. objected to the introduction of police reports from 2004 through 2009 of domestic violence disturbances involving herself and J.P.S. and the testimony of the Division witness regarding her review of those reports and of a criminal complaint against D.D. for aggravated assault against J.P.S. D.D. contends that the court erred in determining that the probative value of the reports and the testimony outweighed any prejudice to her under N.J.R.E.404(b).

N.J.S.A.9:6-8.46a(3) expressly provides for the admission in Title 9 cases of documents such as the police reports admitted here. Further, we held in New Jersey Division of Youth & Family Services v. I.H.C., 415 N.J. Super.551, 575-76 (App. Div. 2010), that "the risk, or pre-disposition, that a defendant may harm [a child] is expressly admissible in an abuse or neglect case despite the general evidentiary prohibition contained in N.J.R.E.404(b)." We noted that a defendant in such cases is far less likely to be prejudiced by the admission of evidence under a 404(b) balancing analysis because a judge, and not a jury, sifts and weighs the evidence. Id.at 576. The record reflects that Judge Marino conscientiously considered D.D.'s arguments in admitting the evidence of which D.D. complains. We are satisfied that the judge's rulings were well within her considerable discretion.

D.D.'s argument that testimony by the caseworker and Dr. Wall regarding the information provided at Dr. Wall's request by the daycare provider is without merit. D.D. fails to cite any testimony by the caseworker mentioning the information, and the Achenbach checklist report from the daycare provider does not appear to have been admitted in evidence. As Dr. Wall provided the document to the daycare provider for completion, it would appear to be the type of report he would regularly rely upon in evaluating a child. SeeIn re Civil Commitment of A.X.D., 370 N.J. Super.198, 201-02 (App. Div. 2004).

Finally, we reject D.D.'s claim that the Division's reliance on the 2008 incident was improper as it deemed the allegation of abuse or neglect as unfounded at that time. N.J.S.A.9:6-8.40a requires the Division to expunge from its records all information relating to any incident it deems unfounded. The Division has adopted an implementing regulation, N.J.A.C.10:129-8.2(a), which provides that such unfounded reports are to be expunged within three years barring enumerated exceptions. As the 2008 report was not three-years-old at the time the Division substantiated the 2009 incident, and D.D. has raised no challenge to the regulation, we do not find its use here improper.

Having carefully reviewed the record with respect to the arguments raised on appeal, we affirm the finding of abuse and neglect substantially for the reasons expressed by Judge Marino in her written opinion of August 22, 2011.

Affirmed.

1 We refer to the children by fictitious names in order to protect their privacy.

2 The Division was then known as the Division of Youth and Family Services.

3 After Dr. Wall completed his testimony, the Law Guardian advised the judge that Mark had been expelled from school following an incident in which he grabbed another child and threw him to the ground causing bruises. She reported that Mark was thereafter enrolled in a different school where he was achieving academically, but had recently engaged in a lunchroom fight.