Opinion
DOCKET NO. A-0234-11-T2
06-18-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. V .A., Defendant-Appellant, and A.A., Defendant-Respondent. IN THE MATTER OF Defendant-Respondent. IN THE MATTER OF Vi.A. and Va.A., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent A.A. (Susan Curtin Gouldin, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor children (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-45-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent A.A. (Susan Curtin Gouldin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor children (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
In this appeal, defendant V.A. appeals the trial court's determination that he abused or neglected his two minor children because of his commission of acts of domestic violence on A.A., his wife and the children's mother, coupled with a continuing course of controlling behavior, which the trial judge viewed as generating imminent danger of impairment for the children, N.J.S.A. 9:6-8.21(c)(4). We are required by our standard of review to defer to the trial judge's findings of fact and, therefore, affirm.
This action has as its genesis a domestic squabble that occurred on the evening of January 31, 2011. Removal of the children did not occur at that time; the Division of Youth and Family Services did not commence this suit until March 18, 2011, following defendant's continued inappropriate controlling behavior, particularly his use of the children as "pawns" in continuing disputes with his wife.
At the fact finding hearing, the trial judge heard the testimony of a Division investigator, a Division caseworker, a police dispatcher, a police officer, defendant, defendant's wife, a friend of defendant's wife, and another adult who lived in the home. Although there was no dispute that defendant and his wife engaged in an argument that turned physical on January 31, 2011, the evidence revealed a dispute as to whether defendant or his wife was the instigator of and the main actor in that domestic violence incident. The trial judge resolved this dispute by finding that defendant's wife was credible and that defendant's testimony was "incredible," that "[t]he things that he said didn't ring true," and that defendant "will say what he feels is necessary to get out from underneath the yoke of whatever is being put upon him." As a result of those credibility findings, the judge's determination as to what occurred between these parties is entitled to our deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The judge found that, during a verbal argument, defendant struck his wife in the head with a water jug. Defendant's wife declared she was leaving and began to pack; according to the judge, this caused events to "escalate." Defendant then told his wife that she could leave but not with the children, and he threatened to push his wife's car into a snowbank so she would be unable to depart. Defendant and his wife, leaving the two young children inside the home, rushed outside where the argument continued. As promised, defendant attempted to push his wife's car into a snowbank, while the wife pushed in the opposite direction. Defendant then got under the hood to disable the vehicle and pushed his wife into a snowbank when she tried to stop him. During this episode, defendant also locked his wife out of the house. The police arrived, leading to the discovery of weapons and marijuana in the home and the commencement of criminal charges, which were eventually dismissed. The judge found credible a police officer's testimony that defendant's wife had visible injuries when he arrived during the domestic violence incident on January 31, 2011.
At the time, the oldest child was twenty months old and the youngest was six months old.
The judge also referred to the testimony of a friend of defendant's wife, who described an earlier incident when defendant shot a weapon from the porch of the home. This finding does not appear to have played a role in the judge's ultimate conclusions.
The judge also made findings about events that occurred in March 2011. The judge found that defendant was manipulative regarding the children and his wife's access to them. As the judge explained:
Defendant's wife appears to have been the family breadwinner; defendant's role was to watch the children and maintain the home.
[Defendant] clearly was trying to manipulate [his wife], control her, keep her from the two children by dividing and conquering. He would take one kid with him, knowing that [his wife] would not leave unless she had both of them. He would take a car seat away, so knowing that, again, she would not drive in the car without the kids being properly secured. So, therefore, [because] she didn't have two car seats, she couldn't go anywhere.In addition, the judge found that the children were often present or in the arms of one of the spouses when much of their arguing, fighting and physical assaults occurred. Based on the domestic violence that he found occurred and the impact it had and would continue to have on the children, coupled with defendant's manipulative conduct, the judge concluded that defendant had abused or neglected the children.
He was being altruistic in offering her certain times where she could see the kids, but always under his terms. [Defendant was] [r]emov[ing] the kids from really her ability to have access during the entire period of time. These are all indications of domestic violence.
We note that the judge incorrectly utilized the clear and convincing standard of proof in making this finding. See N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 223-24 (App. Div. 2011). Notwithstanding this error, of which defendant has not complained in this appeal, we are satisfied that no remand is necessary. If the judge was convinced the proofs met this standard, the proofs certainly met the less onerous preponderance standard.
In appealing, defendant argues that the judge misapprehended the jurisprudence that has developed in abuse and neglect matters when based on a claim that a child was harmed as a result of witnessing domestic violence between parents. Defendant alludes to evidence in the record that might suggest the children did not witness some or all of the domestic violence that the judge found to have occurred, citing N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010), where we said that "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." See also N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Defendant is mistaken in his understanding of the applicable legal principles or in believing that the judge's findings are largely based on the January 31, 2011 incident. Indeed, defendant is mistaken in assuming that either I.H.C. or S.S. creates a brightline rule.
Tolstoy wrote in Anna Karenina that "all happy families are alike; each unhappy family is unhappy in its own way." In considering whether the physical, mental or emotional condition of the children was harmed or in imminent danger of being harmed within the meaning of the statutory definitions, the trial judge implicitly recognized that the similarities or dissimilarities between what occurred here and what occurred in I.H.C. or S.S. does not necessarily shed great light on the disposition of the issues. Implicitly recognizing that all litigants in this arena are different than all others, the judge made no particular attempt to determine whether the events here were precisely like I.H.C. or S.S. Instead, the judge properly focused on whether the peculiar circumstances of this unhappy family were of a sufficient nature to conclude the children were abused or neglected.
That is, the trial judge looked beneath the facts, finding relevant not only the particular events of January 31, 2011, but the later March 2011 circumstances as well. From those findings, the judge recognized how the surface facts concerning the domestic violence between these parents were informed by other, more disturbing conduct. The judge understood that there was more presented than merely a physical altercation between the parents at a single point in time and that the harm to the children exceeded the mere observation of domestic violence. In short, the judge pursued a deeper understanding of the problems with this family and properly saw his role as exceeding a mere determination of whether what occurred was similar or unlike what occurred in I.H.C. or S.S. This particular type of finding is entitled to special deference and was undoubtedly what the Court had in mind when reviewing judicial findings in family matters. See Cesare, supra, 154 N.J. at 413 (holding that family courts possess "special jurisdiction and expertise in family matters" and recognizing, in quoting Brennan v. Orban, 145 N.J. 282, 304 (1996), that the Legislature "'has reposed grave responsibilities on Family Part judges to ensure the safety and well-being of women and children in our society'"). The judge not only developed a "feel of the case" based upon his having the opportunity to hear and observe the witnesses but also revealed his particular expertise in dealing with abuse and neglect matters that further compels our deference.
In addition, although much of the judge's decision is couched in domestic violence terms -- inviting counsels' inevitable comparison to our decisions in I.H.C. and S.S. -- the judge actually focused not just on defendant's violence toward his wife but also his overbearing and controlling behavior and defendant's interference with his wife's relationship with the children, all of which caused harm to the children and could continue to do so in the future. Defendant's attempt to compare these circumstances to other cases in which we considered the impact on children of witnessing domestic violence between parents is particularly unavailing and takes a too simplistic approach to the meaning of N.J.S.A. 9:6-8.21.
Indeed, although the record is not clear as to what extent the children may have heard or witnessed what occurred on January 31, 2011, the overall course of conduct engaged in by defendant both at that time and in March 2011, supported a finding that the children's "physical, mental or emotional condition" had been "impaired or [was] in imminent danger of becoming impaired as the result" of defendant's conduct, which did not meet the minimum degree of parental care. N.J.S.A. 9:6-8.21(c)(4).
The other adult who lived in the home testified that the oldest child was crying during the fight between his parents and attempted to walk toward the door to go outside when the other adult intervened and took him back to his room. The judge did not find whether this occurred, stating only that "whether that was happening or not," the court did not have to wait until a child is actually harmed before making a finding of abuse or neglect.
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Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION