NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.W.

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NOT FOR PUBLICATION WITHOUT THE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.

T.W.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.L. and A.W.,

Minors.

___________________________________

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-135-12.

Joseph E. Krakora, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant T.W. appeals from a February 14, 2012 order, entered following a fact-finding hearing, determining that she abused or neglected her two-year-old daughter, A.L., by assaulting the child's father, T.L., and causing an injury to the child during a dispute over custody. Defendant challenges the trial court's finding that her conduct constituted abuse or neglect under Title Nine.1 The Law Guardian supports the judge's finding that the Division of Child Protection and Permanency (the Division) met its burden of proving abuse or neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons expressed by Judge Garry Furnari in his oral opinion.

The following facts were adduced at the hearing. Defendant has a history of mental health issues and the Division has been providing services to her and her children since 2010.2 On May 16, 2011, the Division received a referral indicating that defendant had attempted to commit suicide by taking an overdose of prescription medicine. Defendant was admitted to a psychiatric facility "for safety." The report of her "mental status examination" stated that defendant was "tearful, extremely depressed, overwhelmed, [and] very negative in her thought processing."

On June 1, 2011, the Division received a referral that the "East Orange Police Department responded to a domestic violence call between [defendant] and her ex-boyfriend, [T.L.]. During the physical altercation[, defendant and T.L.] trampled over their [two]-year old daughter, [A.L.], causing [the child] to sustain [a] cut to the back of her head." Defendant and T.L. were transported to the police station where defendant was charged with domestic violence, assault, and endangering the welfare of the child.

A Division investigator spoke to T.L. at the police station. T.L. stated that he and defendant do not live together, but they shared custody of A.L. Because defendant was homeless, T.L. went to the child's pre-school to pick her up, intending to have the child live with him. The school called defendant, who then went to the school to retrieve the child. When the parents could not agree as to which of them should take the child, T.L. called the police, who permitted defendant to leave with A.L. after defendant told them she would be staying at her relative's home.

T.L. later went to the home and found defendant and A.L. sitting on a curb. He stated that defendant "got upset when he asked to see his daughter and she yanked her away." Defendant then "started hitting and scratching him." T.L. stated that defendant "held onto [A.L.] while she was hitting him so as she was running after him, [the child] fell and hit her head on the ground."

On June 1, 2011, Officer Shanika Gerald was dispatched to investigate the altercation. When the officer arrived at the scene, she saw defendant and T.L. "going back and forth with each other" verbally arguing as defendant held A.L. The child was crying and Officer Gerald noticed that the child was bleeding from the back of her head. Defendant initially told the officer that T.L. had knocked over the child, but then stated that she and T.L. were both pulling on the child, which caused her to fall and cut the back of her head. The officer saw that T.L. was bleeding and he had scratches on his arms and chest. T.L.'s shirt was also ripped "straight down the middle." On the other hand, defendant was uninjured. Defendant did not allege that T.L. had struck her during the altercation.

Officer Gerald testified that defendant "stated that there was some type of custody battle between herself and [T.L.] and that she didn't want him to take the child." The officer determined that, based on the injuries sustained by T.L., defendant was the aggressor and placed her under arrest.

Nikita Shell, a Division caseworker, was driving past the scene of the incident when she saw defendant and T.L. arguing. Shell did not observe the physical altercation but, after she stopped to speak to the couple, she saw that T.L.'s shirt was torn and he had marks on his chest. The child had "blood . . . coming out of her head, like she had [an] open scar." Shell testified that defendant showed no sign of injuries.

Defendant testified that she went to A.L.'s school because a staff person told her that T.L. was at the school and wanted to pick up the child. Defendant left the school with A.L. and went to her cousin's house, where she waited with the child outside on the street. About twenty minutes later, defendant testified that T.L. "ran up on" her and grabbed A.L., causing the child to fall to the ground. Defendant stated that T.L. then punched her in the face with a closed fist. Defendant stated she grabbed T.L.'s shirt and it "ripped a little." Defendant initially admitted that she did not seek medical attention, but later claimed that the police sent her to the hospital "actually two times." No hospital records were produced to corroborate this claim.

Based on these facts, Judge Furnari found that the Division proved by a preponderance of the evidence that defendant abused or neglected A.L. by striking T.L. while she held the child, causing A.L. to fall and cut her head. The judge specifically found that defendant's account of the altercation was not credible because it was "completely at odds with both logic . . . and what others say of the circumstances." He stated there was "not one iota of support to demonstrate that [defendant] had been the victim of some assault by [T.L.]." Rather, based upon the testimony of Officer Gerald and Shell, the judge determined that T.L. "was scratched up and his shirt was ripped" by defendant. The judge stated:

I'm satisfied that [A.L.] was injured when the child went to the ground because I don't think that [defendant] was focused on what was in the best interest of her child. She was focused, focusing on[,] it seems to the Court, reasonable inferences, making sure that [T.L.] wasn't going to have any involvement with her child.

And unfortunately, the child was hurt.

On appeal, defendant argues that the judge erred by finding that she abused or neglected A.L. We accord deference to a trial court's factual determinations when they are supported by substantial, credible evidence. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Therefore, the trial judge's factual findings should not be disturbed unless they "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). Applying this standard, we discern no reason to disturb the judge's findings and affirm substantially for the reasons that he expressed. We add the following comments.

We reject defendant's argument that there was insufficient evidence of abuse or neglect. In pertinent part, N.J.S.A. 9:6-8.21c(4) defines an abused or neglected child as:

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 [a] 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[.]

A court does not have to wait until a child is actually harmed before it can act in that child's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 201 N.J. 272 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344. In determining a case of abuse or neglect, the court must base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46b; N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

Here, there is ample evidence in the record to support the judge's conclusion that defendant, while holding A.L., attacked T.L., ripping his shirt and scratching him on his chest and arms. Because defendant was so focused on attacking T.L., A.L. "went to the ground" during the incident and the child sustained a cut on the back of her head. We therefore discern no basis for disturbing the judge's finding that defendant abused or neglected A.L.

We also reject defendant's contention that the judge improperly admitted the Division's business records into evidence. The documents were admissible pursuant to In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969), N.J.R.E. 803(c)(6), and Rule 5:12-4(d).

Affirmed.

1 N.J.S.A. 9:6-8.21 to -8.73.

2 Defendant is the mother of five children. A.L. is the only child involved in this appeal.