DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.S.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1107-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

S.S.,

        Defendant-Appellant,

and

O.R. and D.T., SR.,

        Defendants.


IN THE MATTER OF Z.R. and D.T., JR.,

        Minors.


              Submitted January 17, 2018 – Decided January 30, 2018

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FN-02-0145-16.

              Joseph E. Krakora, Public Defender, attorney
              for    appellant    (Celeste    Dudley-Smith,
              Designated Counsel, on the brief).
          Gurbir S. Grewal, Attorney General, attorney
          for respondent (Jason W. Rockwell, Assistant
          Attorney General, of counsel; Mehnaz Rahim,
          Deputy Attorney General, on the brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minors (Noel C. Devlin,
          Assistant Deputy Public Defender, of counsel
          and on the brief).

PER CURIAM

      Defendant S.S. appeals the Family Part's order of May 23,

2016 concluding, after a fact-finding hearing, that she abused and

neglected her eight-year old daughter, Z.R., and her five-year old

son, D.T., Jr., in violation of 
N.J.S.A. 9:6-8.21(c).       We affirm,

substantially for the reasons set forth          in Judge William R.

DeLorenzo, Jr.'s written opinion that accompanied the order.

      Judge DeLorenzo's twenty-page opinion sets forth the facts

in detail, and we incorporate by reference the judge's factual

findings here.     The judge conducted the fact-finding hearing on

April 4, 2016, at which plaintiff Division of Child Protection and

Permanency (Division) presented the testimony of caseworker Lori

Laverty, supervisor Debbie Gomez, and Elmwood Park Police Officer

Francesca Rodriguez.     Additionally, expert psychologist Anthony

V. D'Urso, Psy.D., testified on behalf of the Division regarding

the   children's   psychological   evaluations    at   Audrey   Hepburn

Children's House (AHCH), where Dr. D'Urso served as supervising



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psychologist.       Neither defendant nor the children's Law Guardian

presented any witnesses at the hearing.

     In    his    comprehensive      opinion,        Judge    DeLorenzo   carefully

reviewed the testimony and evidence presented at the hearing.                        He

found the testimony of Laverty, Gomez, and Rodriguez credible,

based on their manner of testifying and their lack of personal

interest in the outcome of the proceedings.                         The judge also

accepted the findings and recommendations of Dr. D'Urso, who

concluded that both children had suffered physical abuse, neglect,

and emotional abuse by defendant.                   As a result, Z.R. displayed

symptoms of post-traumatic stress disorder and needed intensive

therapy.      Dr.    D'Urso    diagnosed       D.T.,    Jr.    as   suffering   from

adjustment       disorder     with   anxiety,         nocturnal     enuresis,    and

recommended he also receive therapy.

     Judge    DeLorenzo       concluded       the   Division    established     by   a

preponderance of the evidence that defendant both abused and

neglected the children under 
N.J.S.A. 9:6-8.21(c).                        The judge

elaborated:

                 The [c]ourt finds that [defendant] failed
            to exercise a minimum degree of care and
            placed her children at a substantial risk of
            harm when she left her [eight-year] old in
            charge of her [five-year] old, home alone,
            overnight, for an extended period of time.
            There is also ample evidence corroborated by
            the consistent reporting of physical abuse by
            the children to Rodriguez, Laverty[,] and

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AHCH.    In addition, physical abuse was
clinically supported by Dr. D'Urso for the
[c]hildren.

     Is not disputed that [defendant] left her
[eight-year] old daughter and [five-year] old
son home alone, on a regular basis, overnight,
Mondays through Fridays, when she left work
and returned as late as 2:00 a.m. to 3:00 a.m.,
and even as late as 6:00 a.m. to 7:00 a.m.,
during the holidays while she worked at the
post office.    [Defendant] confirmed in her
contact with the Division, that since the last
two weeks of summer and until December 11,
2015, the day that the children were removed
from her custody, this was their living
arrangement.     [Defendant] stated to the
Division worker that she was aware that [Z.R.]
was afraid of being home alon[e] overnight and
had thrown up on at least one occasion due to
fear, she ignored [Z.R.'s] concerns and
continued   to   leave   her   children   alone
overnight. [Defendant] mentioned that [Z.R.]
was "developmentally" capable of being home
alone and taking care of [D.T., Jr.].

     [Defendant] conceded that she had made a
"bad choice" and that the [c]hildren, in fact,
were not safe home alone without adult
supervision. They did not know what to do in
case of an emergency.     [Z.R.] did not even
know to call 9-1-1. [Z.R.] did, however, know
how to call her mother and father, who lived
in Jamaica.    [Defendant] further reported,
however, that she had told [Z.R.] to stop
calling her on occasion because she was
"calling her too much at work." In the absence
of adult supervision, [eight-year] old [Z.R.]
was solely responsible for making breakfast,
dinner, packing lunch and snacks, and walking
D.T., Jr. to school. There were days when the
[c]hildren did not even see their mother.
[Defendant], therefore, failed to exercise a
minimum degree of care by leaving [Z.R.] in
charge of [D.T., Jr.], when taking [Z.R.'s]

                      4                           A-1107-16T3
          young age, her reaction to being left home
          alone, and lack of knowledge of what to do in
          case of an emergency into account. Clearly,
          [Z.R.]   herself  was   in   need  of   adult
          supervision.

               In regards to physical abuse, the
          [c]hildren consistently and independently
          reported that since they moved to the United
          States in June 2015, their mother "beat" them
          sometimes with her hand and sometimes with
          objects such as a hairbrush and/or a belt,
          making them cry.     The [c]hildren reported
          being afraid of their mother and expressed
          fear that she would hit them again if they
          were to return home. Through their respective
          psychological evaluations[,] physical abuse
          and neglect was clinically supported.      The
          [c]hildren were also consistent in reporting
          that [defendant] would punish them by putting
          them inside the closet.         It was also
          determined through the evaluation[s] that the
          [c]hildren suffered actual harm as [Z.R.] was
          diagnosed   with   [p]ost-traumatic   [s]tress
          [d]isorder and [D.T., Jr.] with [a]djustment
          [d]isorder with anxiety due to their traumatic
          experience at home.

                 . . . .

               Here, [defendant] did not hit the
          [c]hildren with only her hands but also
          objects including a broom stick. No marks or
          bruises were observed on the [c]hildren.
          Nevertheless, [Z.R.] told the Division that
          she was not in school for one week to hide
          bruises or marks. In addition, overwatering
          flowers would not call [for Z.R.] being hit
          with a broom stick.

     Defendant   now   appeals.   She   argues   that   the   record    is

insufficient to establish abuse and neglect by a preponderance of

the evidence. She contends she genuinely believed Z.R. was capable

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of caring for herself and D.T., Jr. while she worked, and that no

harm befell the children by leaving them alone.                          She further

contends     the     children's        claims     of        physical    abuse       lack

corroboration, and the trial court erred in finding that she

physically       abused    the   children    after     the    Division       previously

determined physical abuse was not established.

       Our standard of review of the Family Part's fact-finding

determination is limited.           On appeal from orders issued in Title

9 and Title 30 cases, we accord considerable deference to the

trial court's credibility determinations and findings of fact, so

long as those findings are supported by adequate, substantial, and

credible evidence.          N.J. Div. of Youth & Family Servs. v. M.M.,


189 N.J. 261, 278-79 (2007).            We maintain that deference "unless

the trial court's findings 'went so wide of the mark that a mistake

must have been made.'"           Id. at 279 (quoting Snyder Realty Inc. v.

BMW of N. Am. Inc., 
233 N.J. Super. 65, 69 (App. Div. 1989)).

Moreover, we do not readily second-guess the factual findings of

the Family Part in general, given that court's special expertise

in matters concerning children.              Cf. Cesare v. Cesare, 
154 N.J.
 394,   411-12     (1998)     (noting    that    "matrimonial         courts     possess

special expertise in the field of domestic relations").

       Applying that limited and well-settled scope of review, we

affirm     the     trial    court's     finding        of    abuse     and     neglect,

                                         6                                      A-1107-16T3
substantially for the sound reasons expressed in Judge DeLorenzo's

May 23, 2016 written opinion.   We add only a few comments.

     
N.J.S.A. 9:6-8.21(c) defines various circumstances that can

comprise the abuse or neglect of a child.   Among other things, the

statute specifically covers:

          [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 . . . in providing the child with
          proper   supervision   or   guardianship,   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[.]

          [N.J.S.A. 9:6-8.21(c)(4)(b).]

     Our Supreme Court has noted that the purpose of Title 9 is

"to protect children 'who have had serious injury inflicted upon

them' and make sure they are 'immediately safeguarded from further

injury and possible death.'"    N.J. Div. of Youth & Family Servs.

v. A.L., 
213 N.J. 1, 18 (2013) (quoting 
N.J.S.A. 9:6-8.8(a)). "The

law's paramount concern is the safety of the children, and not the

culpability of parental conduct."     Ibid. (quoting N.J. Div. of

Youth & Family Servs. v. R.D., 
207 N.J. 88 (2011); G.S. v. N.J.

Div. of Youth & Family Servs., 
157 N.J. 161, 177 (1999)).         "The

focus in abuse and neglect matters . . . is on promptly protecting

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a child who has suffered harm or faces imminent danger."                            Ibid.

(citing 
N.J.S.A. 9:6-8.21(c)(4)).

     A court's finding of abuse or neglect must be based on a

preponderance of the evidence when the proof is considered in its

totality.     
N.J.S.A. 9:6-8.46(b)(1); N.J. Div. of Youth & Family

Servs. v. C.M., 
181 N.J. Super. 190, 201 (App. Div. 1981) ("In

child   abuse      and    neglect    cases      the    elements      of     proof    are

synergistically related.            Each proven act of neglect has some

effect on the [child].         One act may be substantial or the sum of

many acts may be substantial.").                 Notably, the Title 9 proof

standard is less stringent than in guardianship cases for the

termination of parental rights, which must instead be proven by

clear and convincing evidence.             See 
N.J.S.A. 30:4C-15.1(a).

     The proofs adduced before Judge DeLorenzo amply met these

evidentiary     standards.          As    the    judge      found,    the     Division

established, by a preponderance of the credible evidence, that

defendant     physically     abused       the    children      through       excessive

corporal punishment, and that she neglected them by leaving them

home alone for long periods of time including overnight on numerous

occasions.

     The evidence of neglect is readily apparent from the record.

Defendant    did    not    dispute       leaving      her   young    children       home

unattended for substantial periods, including overnight.                      Z.R. was

                                           8                                   A-1107-16T3
clearly fearful, as demonstrated by her phone calls to her father

in Jamaica, her numerous calls to defendant at work, and the fact

she became physically ill and did not otherwise know what to do

in the case of emergency.

      The      children's    claims         of    abuse      and   neglect    are     amply

corroborated by their psychological evaluations at AHCH.                                 Dr.

D'Urso      found:    "[Z.R.]         is    symptomatic       of   [p]ost[-]traumatic

[s]tress [[d]isorder.            She has experienced repeated physical abuse

by her mother, neglect[,] and adverse childhood experiences."                            Dr.

D'Urso opined that Z.R. had a "broken attachment" with defendant

and   suffered       harm   as    a    result     of   her    mother's   physical        and

emotional abuse and neglect.                Dr. D'Urso similarly concluded that

D.T.,    Jr.    was   experiencing          nightmares       and   anxiety     caused      by

defendant's abuse and neglect, and, like Z.R., required therapy

as a result.

      Contrary to defendant's contention, the trial court was not

bound by the Division's initial finding that physical abuse was

not established because no marks or bruises were observed on the

children.       Importantly, the Division's conclusion in that regard

came before the children were evaluated at AHCH and Dr. D'Urso had

determined their allegations of physical abuse were clinically

supported.        Moreover,           the   Division's       complaint       for    custody

provided defendant with ample notice of the Division's allegations

                                              9                                     A-1107-16T3
that   she   had   subjected   the   children   to   excessive   corporal

punishment, and defendant does not argue otherwise on appeal.

       Affirmed.




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