Opinion
DOCKET NO. A-1392-13T4
04-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.S.L., Defendant-Appellant. IN THE MATTER OF E.L. and S.L., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Victor E. Ramos, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Earl White, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.L. and S.L. (Catherine Davila, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-326-12. Joseph E. Krakora, Public Defender, attorney for appellant (Victor E. Ramos, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Earl White, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.L. and S.L. (Catherine Davila, Designated Counsel, on the brief). PER CURIAM
A.S.L. appeals from a finding that she abused and neglected her children. A.S.L. argues the trial judge's finding was not based on substantial credible evidence. After consideration of the record, we affirm.
A.S.L. is the biological mother of two children, E.L. and S.L. On December 1, 2011, A.S.L. and her live-in boyfriend, O.W., got into an argument. A.S.L. threw a pot filled with grease at O.W., which missed both him and the children, who were standing nearby. The argument continued as A.S.L. and O.W. moved into another room, where A.S.L. stabbed O.W. in the chest with the sharp end of a nail grooming tool. O.W. died as a result of the wound. The children were not physically present in the room when the stabbing occurred, but did enter after the stabbing incident.
A.S.L. called her mother to assist. A.S.L. attempted CPR on O.W. and cleaned O.W.'s wound. The mother contacted A.S.L.'s nieces, who lived in an apartment below, who called for an ambulance.
There is nothing within the record that indicates how the police were notified. We presume they were notified in the ordinary course after the call for medical assistance.
When police arrived they observed grease splattered on the walls near the kitchen and blood on A.S.L.'s shirt. They discovered heroin in the home. A.S.L. informed police that O.W. had been stabbed at another location by someone else and arrived home afterwards. Eventually A.S.L. admitted that she stabbed O.W. The Division executed a Dodd removal of the children on December 2, 2011, after receiving a referral about the children being present at the scene of a homicide.
A.S.L. later told the Division of Child Protection and Permanency (Division) investigators she had pled guilty to CDS charges in 2001 and O.W. sold drugs, but denied knowing drugs were inside her home on the date in question.
As a part of a pattern of subterfuge, A.S.L. told the children prior to the arrival of the police to say that O.W. fell out of a window.
On December 6, 2011, the Division filed for protection, care and supervision of the children. At the order to show cause hearing, the court ordered the children into the custody, care and supervision of the Division and directed the return of the children to A.S.L. upon the Division's approval of a family or friend co-caretaker. The children were returned to A.S.L.'s care on December 21, 2011.
A fact-finding hearing was held on June 4, 2012. The court found A.S.L. created an environment injurious to the safety and welfare of her children.
[T]he court is satisfied by a preponderance of the evidence that on the day in question, in the presence of her children, after having a day-long fight with her boyfriend, she arrives in the location where he is. That at some point there is a dispute that develops and she is so offended by it, that in the presence of her children, she picks up a pot with grease in it, and throws it at him, and . . . it misses him, and . . . that in and of itself could have caused harm to the children. But also for [A.S.L.'s children] to experience this, also would bring about harm.
But as if that wasn't enough, and her children are taken and moved into the next room, she goes in to continue to have a fight with a person that she says now, although the court isn't satisfied that this is just an issue of him in the past having abused her, but certainly it sounds like an issue of a tempestuous relationship that seems to flow over into violent acts between these two individuals.
[A.S.L.] says rather than securing her children at this point, let's even assume if he had slapped her, rather than secure her children and be gone, and after she throws the pan she enters into the [bed]room to continue on the discussion.
On August 20, 2012, the Division filed an amended complaint seeking custody, care and supervision of A.S.L.'s children as a result of A.S.L.'s indictment on reckless manslaughter. The Division then removed the children in anticipation of A.S.L.'s arrest. On September 10, 2012, the court transferred legal and physical custody to the Division.
A.S.L. was sentenced on February 5, 2013, to a term of seven years, 85% without parole, for reckless manslaughter.
--------
On appeal, A.S.L. argues the Division did not produce substantial credible evidence to support a finding of neglect since there was no evidence that her children were harmed or at imminent risk of being harmed. A.S.L. also argues the court misapplied the law governing abuse or neglect actions under N.J.S.A. 9:6-8(c)(4)(b) in the context of incidents involving domestic violence. We disagree.
Our review of the Family Part's factual findings in an abuse and neglect case is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). 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, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made[,]" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted).
"In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). "The fact-finding hearing is a critical element of the abuse and neglect process." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (citing N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002)). "The judge, as the fact-finder, is there to 'determine whether the child is an abused or neglected child as defined [by statute].'" J.Y., supra, 352 N.J. Super. at 264 (citing N.J.S.A. 9:6-8.44).
N.J.S.A. 9:6-8.21(c)(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 his 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[;] . . . or by any other acts of a
similarly serious nature requiring the aid of the court[.]
In determining a case of abuse or neglect, the court should 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). "One act may be substantial or the sum of many acts may be substantial." Id. at 330 (internal quotation marks and citation omitted). "The judge's determination has a profound impact on the lives of families embroiled in this type of a crisis." J.Y., supra, 352 N.J. Super. at 264-65. Therefore, "[t]he judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." Id. at 265 (citing N.J.S.A. 9:6-8.50). Furthermore, "[t]hese factual findings must be supported by evidence admitted during the hearing, which shall be held on the record[,]" and "[a]ll documentary exhibits considered by the court must be clearly identified for appellate review." Id. at 265 (citing R. 1:2-3).
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, 200 N.J. 505 (2009), cert. denied, 561 U.S. 1028, 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.
An essential element in the definition of abuse or neglect, as defined by N.J.S.A. 9:6.8-21(c)(4)(b), is "the probability of present or future harm" to the child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005); Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 482 (App. Div. 2010). Harm cannot be presumed in the absence of evidence of its existence or potential. S.S., supra, 372 N.J. Super. at 28.
The burden to prove a probability of past or future harm to a specific child is met by proof that the child suffered physical, mental or emotional impairment or the risk thereof as a result of the parent's actions. See Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976). Without "proof of the 'probability of present or future harm' . . . an essential element in the definition of abuse or neglect[]" is missing. N.J.S.A. 9:6.8-21(c)(4)(b). Although expert testimony is not required to show harm, there still needs to be "an adequate presentation of actual harm or imminent danger" to the child. N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 28-29 (2013).
A.S.L. cites S.S., supra, 372 N.J. Super. at 13, as support that the Division's proofs were insufficient to sustain a finding of abuse and neglect. In S.S., a parent, subjected to domestic violence by her spouse, was found by the trial court to have abused her twenty-one-month-old baby, who was in her arms while her husband repeatedly attacked her for one hour. Id. at 19-21. We reversed the trial court's finding of abuse and neglect. Id. at 13. We found as significant that the caseworker reported no sign of physical or emotional harm to the child, and that the trial court did not find any present harm or potential of harm to the child. Id. at 19-21. In addition, no witness testified that the child appeared emotionally injured. Ibid. We held that witnessing abuse, without more, is insufficient to show that it "ha[s] a present or potential negative effect on [a] child sufficient to warrant a finding of abuse." Id. at 26. We noted we could not "take judicial notice of the fact that domestic violence necessarily begets emotional distress or some other psychic injury in child witnesses." Id. at 25. But see N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010) (distinguishing S.S. and finding sufficient evidence of present or potential harm to the child where expert testimony was presented about both parents' mental conditions, and evidence that the child suffered from aggressive behavior and developmental delays due to his parents' psychological defects).
Here, we conclude that the "evidential gaps" that proved "fatal to the underpinnings" of the court's finding in S.S. are not existent. S.S., supra, 372 N.J. Super. at 23. The court based its determination on testimony from a responding police officer and a Division case manager, who recommended the children undergo therapy based on a "reported history of neglect as well as difficult life experiences, including witnessing domestic violence [and] the death of [O.W.]." The court also considered investigative reports and evaluations which specifically addressed concern for the children's emotional well-being, including that the children expressed sorrow at the loss of O.W, who they viewed as their father, and missed seeing him. In a Comprehensive Health Evaluation For Children (CHEC) report S.L. lamented, "I want my daddy." A separate CHEC report noted that E.L. asked about O.W. and noted concern for her "emotional well-being when she finds out the truth about O.W.'s death . . . [since she] currently believes that O.W. fell out the window." The CHECH reports, Division investigative write-up and Family Preservation Services (FPS) summary submitted to the court referenced the children's emotional state emanated from the trauma they experienced from the event. The children were in the adjoining room when A.S.L. stabbed O.W. to death, they witnessed O.W.'s resultant dire physical condition and the emergency paramedics' attempts to revive him.
Further risk of imminent harm was demonstrated by A.S.L.'s lengthy criminal history as well as the history of domestic violence between A.S.L. and O.W. and her active participation in the violence; unlike the "battered victim" in S.S. In addition to her conviction for manslaughter, A.S.L. was arrested as an adult or charged on seventeen different occasions for theft, possession of a weapon, shoplifting and possession of CDS. Division investigators testified the children were exposed to a history of domestic violence and reacted to their exposure by asking their mother to "stop fighting." The CHEC report noted "[A.S.L.] has a history of violence, including a previous incident in which [A.S.L.] reportedly 'stabbed' her now seventeen-year old daughter." Additionally, S.L. witnessed at least one other prior incident of domestic violence when O.W. and A.S.L. assaulted each other. The FPS report noted A.S.L. "has anger issues" and the Division is "concerned that [A.S.L.] is unable to appropriately manage her anger."
Predicated upon the established record, even in the absence of an exploratory psychological analysis noting harm to the children, we conclude the court properly found abuse and neglect. We are satisfied the finding was based upon substantial credible evidence of the type and quality that demonstrated there was harm, or the potential of harm, to the children caused by their witnessing acts of domestic violence. A.L., supra, 213 N.J. 28-9.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION