NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.M.

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NOT FOR PUBLICATION WITHOUT THE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.

S.M.,

Defendant-Appellant,

and

A.M.,

Defendant.

____________________________________

IN THE MATTER OF O.M., A.M., and

I.M.,

Minors.

____________________________________

September 11, 2015

Submitted February 4, 2015 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-54-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Cary L. Winslow, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant Saadiq1 appeals from a March 12, 2013 Family Part order determining that he abused or neglected his children by exposing them to domestic violence with his wife, defendant Aneesah. Aneesah has not appealed the trial court's finding of environmental neglect against her. The Law Guardian joins with plaintiff New Jersey Division of Child Protection and Permanency (Division) in opposing Saadiq's appeal. We affirm.

I.

Saadiq and Aneesah have six children. Their two eldest children are adults. The four minor children are seventeen-year-old Aida, fifteen-year-old Omar, eleven-year-old Ibrahim, and six-year-old Abdullah.

According to the Division's verified complaint, on Friday, March 2, 2012, the Prospect Park Police Department responded to a domestic violence incident at defendants' home after a neighbor alerted them that Aneesah was standing outside in the rain, visibly upset, and bleeding from her lip. After Saadiq returned home, he began to argue with Aneesah. He grabbed her, scratched her face, and then punched her, lacerating her upper lip. Three of the couple's children witnessed the incident: Omar, who was upstairs and heard the altercation, and Abdullah and Ibrahim, who both came downstairs when they heard the argument and witnessed their father punch their mother in the face. The police arrested Saadiq and charged him with simple assault. They offered Aneesah an opportunity to seek a restraining order but she declined.

The police referred the matter to the Division's Special Response Unit. The Division worker interviewed Aneesah, as well as Omar, Abdullah, and Ibrahim. Aneesah told the Division worker that Saadiq would become physically abusive every Friday after he returned home from the mosque. She explained that this time, Saadiq told her and their daughters to get out of the house and to live on the street. Aneesah told Division workers that Saadiq controlled the family's finances. She described previous physical abuse as "much worse" than the current incident.

Ibrahim and Abdullah both told the Division worker that their father hit their mother multiple times that evening. When asked whether this was a common occurrence, they both responded that their father hit their mother, as well as their siblings, all of the time. They also reported that Saadiq hit them with his hands on their face. Ibrahim stated that his face once became red and swollen. They could not recall the last time it happened. Ibrahim also explained that he once had to intervene to stop his father from choking Aida, their older sister. He disapproved of his father's physical abuse and said that he hated him. Abdullah added that his father "needs to go to jail." The Division workers tried to interview Omar that night but he was "distant" and "disconnected." He shied away from the Division workers, spoke with a flat affect, and stared blankly.

Division workers interviewed Aida and Omar at their school on Monday, March 5, 2012. Aida indicated that her parents "fight all the time" and that she and her brothers were "used to" their father's abuse of them and their mother. Both she and Omar said the only way to help them was to get their father out of the house and out of their lives. Aida and Omar ended the interview by turning their backs to the worker and refusing to speak any longer.

On April 23, 2012, the Division filed a verified complaint seeking an order for an investigation into the March 2, 2012 domestic violence incident. The court granted the Division's requested relief, and ordered defendant and his wife to cooperate with the investigation and psychological evaluations. The family, however, failed to appear for the scheduled appointments, or to otherwise cooperate with the Division. Consequently, the Division filed a verified complaint for care and supervision of the children, which was granted on October 11, 2012.

The Division referred the family for psychological evaluations at the Center for Evaluation and Counseling (CEC) in Parsippany. The CEC report dated August 30, 2012, indicated that Saadiq and Aneesah

have provided their children with a chaotic and stressful family environment marked by [their] alleged erratic behaviors, domestic violence, problematic physical conditions of the home, the use of profane language, pressure on the children to divide their loyalties, multiple allegations, cross-allegations regarding inappropriate behavior on the part of both parents, as well as child neglect.

And, although Saadiq presented as even-tempered, the CEC report noted that he was an unreliable historian "capable of manipulating others, of provoking [his wife] to over-reacting, and [] prone to stirring relationship turmoil."

During his session, Saadiq denied purposefully hitting his wife on March 2, 2012, explaining that he accidentally scratched her "while gesticulating during a verbal argument." He did, however, admit to having hit one of his daughters in the past and to one domestic violence incident in the beginning of their marriage. He further admitted that "the family atmosphere has had a negative emotional impact on his children," but he took no responsibility for his role in it.

The CEC report explained that Omar and Aida "approached the interview process with hostility and guardedness." It opined that their hostile reaction to the interview process was influenced by their mother, who refused to participate. In relevant part, it stated that Omar's assessments "indicated that he has been having more emotional and social difficulties than he was willing to discuss during the interview." Moreover, he "tends to be socially isolated and is at risk for [d]epression." Likewise, Aida's tests revealed that "she has been in more distress than she was willing to discuss during the interview. She reported difficulties with emotional isolation as well as anorexic and bulimic tendencies."

Similarly, Abdullah "presented as frightened and guarded, and appeared to be concealing underlying dysphoria regarding his family environment and possible out-of-home placement." Ibrahim also "presented as a guarded, defensive, and hostile pre-adolescent who was motivated to present his family in a positive light." He cried during the interview. The CEC report recommended individual psychotherapy for the children and home-based family counseling.

On March 12, 2013, Judge Joseph A. Portelli conducted a fact-finding hearing at which two Division workers testified, including the intake worker who investigated the referral and interviewed Saadiq, Aneesah, and the children. The Division also introduced into evidence the March 2, 2012 screening summary, the March 4, 2012 contact sheet, the August 20, 2012 CEC report, and the investigation summary. The permanency worker testified regarding the Division's concern about the effect on the children of witnessing domestic violence. She reported that Saadiq completed his psychological evaluation, but Aneesah did not. Neither the Law Guardian nor counsel for either defendant called any witnesses, and neither defendant testified.

During his summation, Saadiq's counsel argued that the Division failed to prove abuse or neglect because it failed to establish that the children were harmed by witnessing domestic violence in the home. Counsel cited New Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), for the proposition that the Division needed to produce an expert to testify that the children suffered specific harm. The judge rejected counsel's contention, finding that expert psychological testimony was not necessary in this case.

The judge further found that the Division had proven by a preponderance of the evidence "that [Saadiq] engaged in domestic violence on March 2 and that he did so on numerous occasions before that and after that date." As for the impact of Saadiq'sconduct on the children, the judge stated

I find that based upon the [CEC report] there was an effect on these children. It's clear there was an effect on these children. I think it got to the point where they became immune to [] this type of activity on their own. [I]t's probably a combination of things; number one, they were frightened of it themselves; number two, they kept their mouth[s] shut with the Division because they were afraid if they said something it could actually end up hurting them or cause more violence at home; or, three, they . . . ended up thinking that this is just a way of life, that's just the way it is. Well, that's not the way it is and I find that to be abusive and neglectful to children and I find that [Saadiq] engaged in activities and specifically domestic violence that . . . amounted to abuse and neglect of his children. I think that their attitude and their demeanor clearly indicates to the [c]ourt that they were affected by it.

I also find that they even did say sometimes that or they did indicate to one of the workers that they did want the Division to help them, they did want their father out of the house, they didn't want him to be around to do these types of things, that he hit both his wife and them, the fact [his eldest daughter] was quoted as saying how can [] you respect someone who hits their wife and their children. So clearly the Division [] has proven their case against [Saadiq].

On that same date, the judge entered an order finding that Saadiq abused or neglected his children. The court ultimately terminated litigation on September 17, 2013.

II.

On appeal, Saadiq contends that the trial court erred in finding that he committed an act of child abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b).

When reviewing decisions made in an abuse or neglect case, this court accords deference to the trial judge's findings of fact and credibility determinations "unless the trial court's findings 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) (internal quotation marks and citation omitted). This significant deference is accorded to the trial court's fact-finding and credibility determinations "because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citations omitted).

Title 9 outlines the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A. 9:6-8.21 to -8.73; N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). The purpose of Title 9 is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when the child's

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 . . . 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, . . . 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)(b).]

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).

Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)).

On appeal, Saadiq contends, as he did at the fact-finding hearing, that no specific harm to the children was shown from their witnessing acts of domestic violence against their mother. While "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs," New Jersey Division of Youth & Family Services v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (citing S.S., supra, 372 N.J. Super. at 22-26), in this case the Division has met its burden because it presented credible evidence of actual harm that befell the children as a result.

In contrast to the facts in this case, in S.S., we found that the trial judge erred by "assuming" emotional harm to the child "as the result of witnessing domestic abuse" without any evidence of emotional injury. S.S., supra, 372 N.J. Super. at 22-26. We emphasized that "no psychological evidence was introduced to support, even as a general matter, a causal relationship between witnessing domestic violence and emotional distress in the young," an "evidential gap" which we found "fatal to the underpinnings of the trial court's conclusion that appellant abused her child." Id. at 22-23. We concluded that Family Part judges cannot "take judicial notice of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses." Id. at 25.

Here, there were evaluations and reports substantiating harm to the children. A fair reading of the CEC report, relied upon by the judge, supports his finding that Saadiq's pattern of domestic violence, including the March 2, 2012 incident, impaired his children's emotional well-being. Additionally, the children's statements to the Division workers and the psychologists, as contained in the Division and CEC reports, demonstrate that their emotional well-being "has been impaired or is in imminent danger of becoming impaired as the result of" experiencing or witnessing Saadiq's aggressive tendencies and violence in the home. N.J.S.A. 9:6-8.21(c)(4)(b).

Saadiq also argues that the judge's findings rested solely on uncorroborated hearsay. We find no such evidential gap in the findings. N.J.S.A. 9:6-8.46(a)(4) provides that "a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). However, "corroborative evidence need not be direct so long as it provides some support for the out-of-court statements." N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div. 2014). The Division workers' observations of the children's open hostility towards the Division, their antipathy towards their father, and their general distress stemming from their home situation corroborated the hearsay in this case. Moreover, the CEC report references Saadiq's admission that the family environment had harmed his children's emotional well-being.

Although a "court need not wait to act until a child is actually irreparably impaired," S.S., supra, 372 N.J. Super. at 24 (citation and internal quotation marks omitted), the record contains ample credible evidence of the children's emotional impairment stemming from their father's abuse.

Affirmed.

1 We use fictitious names throughout in order to protect the privacy of the individuals involved.