NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.P and J.B

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                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1065-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

F.P.,

          Defendant,

and

J.B.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF V.B., JU.B.,
and JUL.B.,

     Minors.
_____________________________

                   Submitted March 12, 2020 – Decided April 23, 2020

                   Before Judges Alvarez and DeAlmeida.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Middlesex County,
            Docket No. FN-12-0230-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Ingrid A. Enriquez, Designated Counsel, on
            the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Salima E. Burke, Deputy Attorney
            General, on the brief).

            Respondent minors have not filed a brief.

PER CURIAM

      Defendant J.B.1 appeals from the April 2, 2018 order of the Family Part

finding he abused and neglected three of his children. We affirm.

                                        I.

      The following facts are derived from the record. J.B. and defendant F.P.

are the parents of three minor children, V.B., Ju.B., and Jul.B.

      On April 11, 2017, J.B. was driving with F.P. and Jul.B. as passengers.

After dropping off the child, J.B. pulled a knife on F.P. and stabbed her

repeatedly. As he stabbed F.P., J.B. said "[d]ie . . . . [y]ou deserve it." Having



1
  We identify the parties by initials to protect confidential information in the
record. R. 1:38-3(d)(12).
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wrested the knife from J.B. and finding the car door locked, F.P. jumped out of

the window of the moving car. J.B. drove away. Emergency personnel who

found F.P. on the side of the road airlifted her to a trauma center, where she was

treated for stab wounds to her shoulder and abdomen, and fractures of the neck,

ankle, and ribs.

      After stabbing F.P., J.B. called F.P.'s adult daughter, S.P., and told her he

killed F.P. and planned to kill himself. He asked her to look after her younger

siblings. V.B., then sixteen, was with S.P. when her father called. She heard

his conversation with S.P. over the speakerphone.

      Police subsequently arrested J.B. An officer reported the incident to

plaintiff Division of Child Protection and Permanency (DCPP).

      An investigation by DCPP revealed a history of abuse in the family.

DCPP's predecessor agency substantiated allegations of abuse or neglect by J.B.

in 2004, 2005, 2007, and 2011, and placed the children in resource care

temporarily in 2009 and 2011.

      With respect to the stabbing, V.B. told an investigator she was not

surprised by J.B.'s attack on her mother because he was jealous and suspected

her mother of talking to another man. According to V.B., her father placed

recording devices throughout the home to record F.P.'s conversations. V.B.


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reported that J.B. had often threatened F.P., including threatening to shoot her

in her vagina. She had often heard her parents arguing but had not seen them

physically fight.

      Ju.B. also told investigators J.B. often threatened F.P., and the stabbing

did not come as a surprise to her. She confirmed J.B. had placed recording

devices in the home. She witnessed F.P. push and slap J.B. to get him to leave

the home. She worried J.B. would harm her mother. Ju.B. learned J.B. stabbed

her mother through news reports she viewed on her cellphone and television, as

well as from V.B.

      Jul.B. told an investigator J.B. and F.P. constantly argued, although he did

not understand what they were saying because they argued in Spanish, which he

did not understand. He stated he would hide in his bedroom when his parents

argued and had not seen physical violence between them.

      During the investigation, J.B. claimed after he confronted F.P. with a

recording of her conversation with another man, she pulled a large kitchen knife

on him. According to J.B., F.P. was injured during a tussle for control of the

knife. He claimed after he gained control of the knife, F.P. jumped out of the

moving car. He did not recall calling S.P. or saying that he had killed F.P.




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      DCPP thereafter filed a complaint for custody, care, and supervision of

the children, which the court granted. The children were placed with relatives.

      The trial court held a three-day factfinding hearing on allegations of J.B.'s

abuse and neglect of the three children. In addition to hearing testimony from

fact witnesses, including two of the children, the court heard testimony from an

expert in domestic violence, child abuse, and psychology called by DCPP. J.B.

did not call an expert witness.

      The expert testified regarding his psychological evaluations of each child

and F.P. He opined V.B. suffered trauma stemming from the stabbing of her

mother, which "piled upon years and years of prior traumas of a similar nature."

In the expert's opinion, V.B.'s trauma rose to the level of emotional abuse. The

expert added that, if nothing were done, V.B. could develop a conduct disorder

causing her to have dysfunctional relationships as a result of the trauma she

experienced.

      The expert opined Ju.B. suffered trauma associated with both past and

recent domestic violence in the family, resulting in emotional abuse. He further

opined Jul.B. suffered trauma from exposure to domestic abuse that could have

significance later in life, particularly from having been in the car shortly before

J.B. stabbed his mother.


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      On April 2, 2018, the trial court issued findings of fact and conclusions of

law in an oral decision. The court concluded J.B. failed to exercise a minimum

degree of care by exposing each of the children to ongoing domestic violence.

As the court explained, J.B.,

            although aware of the dangers inherent in the situation,
            namely, the abusive relationship he continued with
            [F.P.], . . . through his own actions . . . caused harm and
            created a risk of harm to the children by his . . .
            continued actions with his wife. Those actions caused
            the children to suffer trauma . . . .

The court also found J.B.

            clearly acted with a reckless disregard for the safety of
            his children in conducting this in front of his children
            for such a period of time, culminating . . . in this
            incident of the stabbing and then making that statement
            which [V.B.] heard.

      Finally, the court adopted the expert's testimony that each child

            was suffering from a harm from trauma that was caused
            by this exposure to domestic violence and that each of
            them needed individual therapy to deal with the issues
            that they have dealt with because of this ongoing
            domestic violence that they have seen in the home.

The court concluded that even in the absence of the children witnessing physical

violence, the record contained credible evidence of a causal relationship

between their exposure to their parents' violent relationship and their current

emotional conditions. Thus, the court found by a preponderance of the evidence

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J.B. abused and neglected his children within the meaning of  N.J.S.A. 9:6-

8.21(c)(4)(b).

      On April 2, 2018, the court entered a written order memorializing its

conclusion.2

      This appeal followed.    J.B. makes the following argument for our

consideration:

               THE TRIAL COURT’S LEGAL CONCLUSION
               THAT J.B. ABUSED OR NEGLECTED HIS
               CHILDREN   WAS   NOT   SUPPORTED   BY
               ADEQUATE,    SUBSTANTIAL,    CREDIBLE
               EVIDENCE AND MUST BE REVERSED.

               A.  THE COURT'S RELIANCE ON [THE
               EXPERT'S] PSYCHOLOGICAL REPORT WAS
               ERRONEOUS     WHERE      THE    FACTS
               CONTRADICTED HIS FINDINGS THAT THE
               CHILDREN WERE ABUSED OR NEGLECTED.

               B.    THERE IS INSUFFICIENT EVIDENCE THAT
               THE ALLEGED DOMESTIC VIOLENCE BETWEEN
               J.B. AND F.P. CAUSED HARM TO THE CHILDREN.

                                     II.

      We defer to Family Part judges' fact-finding because of their "special

jurisdiction and expertise in family matters," Cesare v. Cesare,  154 N.J. 394,



2
    The trial court subsequently terminated the litigation, with the parents
retaining legal custody and F.P. retaining physical custody of the child ren.
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413 (1998), their "opportunity to make first-hand credibility judgments about

the witnesses who appear on the stand[,] [and their] feel of the case that can

never be realized by a review of the cold record." N.J. Div. of Youth & Family

Servs. v. M.C. III,  201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth &

Family Servs. v. E.P.,  196 N.J. 88, 101 (2006)). Fact-finding that is supported

by "substantial credible evidence in the record" is upheld. N.J. Div. of Youth &

Family Servs. v. L.L.,  201 N.J. 210, 226 (2010). However, we will not hesitate

to set aside a ruling that is "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)

(quoting C.B. Snyder Realty, Inc. v. BMW of No. Amer., Inc.,  233 N.J. Super.
 65, 69 (App. Div. 1989)).

      After reviewing the record in light of J.B.'s arguments and the applicable

legal precedents, we find there is substantial credible evidence supporting the

trial court's conclusion J.B. abused and neglected the children. We add the

following comments.

      The "main focus" of Title Nine, of which  N.J.S.A. 9:6-8.21(c)(4)(b) is a

part, is "the protection of children." Div. of Child Prot. & Permanency v. E.D.-

O.,  223 N.J. 166, 178 (2015) (quoting G.S. v. Dep't of Human Servs., 157 N.J.




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161, 177 (1999)).    Under Title Nine, a child is "[a]bused or neglected" when

their

             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 . . . 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).]

Minimum degree of care "refers to conduct that is grossly or wantonly negligent,

but not necessarily intentional." G.S.,  157 N.J. at 178. More is required than

ordinary negligence, but less is needed than an intentional infliction of injury.

Ibid. "[A] guardian fails to exercise a minimum degree of care when he or she

is aware of the dangers inherent in a situation and fails adequately to supervise

the child or recklessly creates a risk of serious injury to that child." Id. at 181.

        Our Legislature has found that "children, even when they are not

themselves physically assaulted, suffer deep and lasting emotional effects from

exposure to domestic violence."  N.J.S.A. 2C:25-18. A child's observation of

domestic violence, with no indication of harm resulting from that domestic

violence, cannot support an abuse and neglect finding. N.J. Div. of Youth &

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Family Servs. v. S.S.,  372 N.J. Super. 13, 22-23, 28 (App. Div. 2004) ("we find

. . . that harm [from domestic violence] cannot be presumed in the absence of

evidence of its existence or potential"). However, abuse and neglect can be

established if there is credible evidence establishing "a causal relationship

between witnessing domestic violence and emotional distress in the [child]

. . . ." Id. at 22-23. For instance, we found abuse and neglect existed when the

children's exposure to domestic violence was linked by credible evidence to the

children's aggressive behaviors and speech delays. N.J. Div. of Youth & Family

Servs. v. I.H.C.,  415 N.J. Super. 551, 584-86 (App. Div. 2010). Ultimately, "the

fact-sensitive nature of abuse and neglect cases . . . turns on particularized

evidence." N.J. Div. of Youth & Family Servs. v. A.L.,  213 N.J. 1, 28 (2013).

      Essentially, J.B. argues his children were not harmed because they did not

directly witness any physical violence between their parents and were not

themselves physically assaulted. We disagree. The record includes expert

testimony linking J.B.'s domestic violence toward F.P. to his children's

psychological trauma, need for therapy, and potential long-term harm. They

were aware of J.B.'s violent acts towards F.P., including his violent assault on

her in the car. V.B. overheard J.B.'s admission to "killing" her mother shortly

after the stabbing. Ju.B. became aware of the attack from news reports naming


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her parents. Jul.B. frequently hid in his room to escape his parents' fights. The

stabbing was the culmination of a long pattern of domestic violence in the home.

The trial court judge, having had the opportunity to evaluate the expert's

testimony, found credible his opinion that the children's exposure to J.B.'s

violent acts caused them emotional harm.        J.B. offered no contrary expert

testimony.

      We disagree with J.B.'s argument the expert's opinion was rendered

incredible by the children's testimony. Although V.B. testified she was never

afraid J.B. would physically hurt her, the trial court's conclusion is based on the

emotional trauma V.B. suffered by exposure to J.B.'s violence against her

mother. As the expert explained, a child need not fear personal physical harm

to suffer potentially long-lasting emotional damage. The same is true for the

testimony of the other children, who denied having been physically assaulted by

J.B. and did not express fear of being assaulted. The trial court found credible

the expert's testimony that children exposed to a pattern of parental domestic

violence often minimize their experience in an effort to keep the family from

being separated.

      Affirmed.




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