DCPP VS. J.S., A.C., A.P., AND J.C., IN THE MATTER OF D.S., N.P., G.C. AND M.B. (FN-02-0228-15, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-2180-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant,
and
A.C., A.P. and J.C.,
Defendants.
IN THE MATTER OF D.S.,
N.P., G.C., and M.B.,
Minors.
Submitted April 28, 2020 – Decided June 8, 2020
Before Judges Accurso, Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0228-15.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Cecilia M.E. Lindenfelser, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; William Rodriguez, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Todd S. Wilson, Designated
Counsel, on the brief).
PER CURIAM
In this Title Nine action, defendant J.S. appeals a fact-finding order, now
final, that she abused or neglected three of her children: D.S. (Donald), born
April 2007; N.P. (Neal), born May 2008; and G.C. (Gary), born October 2014,
by violating a safety protection plan that prohibited contact between the children
and Gary's father, (James).1 Because we conclude there was sufficient credible
evidence in the record supporting the family judge's decision, we affirm.
1
We use pseudonyms for ease of reference. While the protective services action
was pending, defendant gave birth to her fourth child, M.B., who is the
biological daughter of James. Accordingly, no finding of abuse or neglect was
made as to M.B., but she was included in the ensuing guardianship action. The
A-2180-18T2
2
Judge Jane Gallina-Mecca conducted the two-day fact-finding hearing, at
which the Division of Child Protection and Permanency presented the testimony
of Neal's teacher, two caseworkers, two law enforcement officers, an expert in
pediatrics and child abuse, and an expert in psychology. The Division also
moved into evidence more than 500 documents, including its investigative
reports, and the medical and psychological evaluations of Neal and Donald.
Additionally, the video-recorded statement of Neal's interview with the Bergen
County Prosecutor's Office (BCPO) was played at the hearing and admitted in
evidence. Neither defendant nor James presented any evidence.
The judge's opinion, spanning fifty transcript pages, details the facts
underpinning her conclusion that defendant and James abused or neglected the
children. We incorporate her factual findings by reference, highlighting those
that pertain to defendant.
School officials made the referral to the Division that led to the safety
protection plan when Neal entered his kindergarten classroom on January 29,
2015, and his teacher noticed "a red mark" on the child's head. In response to
his teacher's inquiry, Neal said he "hit his head on the bunk bed but that his back
judge found James abused or neglected Donald, Neal and Gary; James is not a
party to this appeal. A.C. is Donald's father and A.P. is Neal's father; they are
not parties to this appeal.
A-2180-18T2
3
was what was really hurting him." The teacher brought Neal to the school
nurse's office, where she observed "bruises and marks down his spine." Neal
said his stepfather, James, caused the injuries.
Neal provided additional details to the responding law enforcement
officers, disclosing James "had pulled him by his shirt, dragged him out of the
closet," which caused Neal to "bump[] his head on the bed." Donald said he did
not see the incident but heard defendant yell at Neal "to get ready." Donald also
volunteered that defendant hits the boys, employing "pow pow" when they don't
listen. Defendant initially told the BCPO detective "she believed the injuries
were caused by rough play between the two boys." She later acknowledged
James "pulled [Neal] out of the closet" but she did not believe James purposely
harmed Neal.
Later that day, James was arrested and charged with second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2). As a condition of
bail, the judge prohibited James from any contact with Neal. When the Division
notified defendant of James's arrest and explained the parameters of the no -
contact order, defendant became visibly upset, claiming Neal "was lying" and
James "did not cause the injury." The caseworker reprimanded defendant for
making those statements in the children's presence. The following day,
A-2180-18T2
4
defendant contacted the BCPO to request a second interview, advising Neal had
"lied" and "recanted" his allegations against James. When reinterviewed by the
BCPO detective, however, Neal's account remained the same.
Over the next few months, Neal and Donald were evaluated by the
Division's experts. According to the psychologist who performed Neal's
psychosocial evaluation, when asked whether defendant loved him, Neal
replied: "No. She hates me. She says that. She doesn't love me. She loves my
brothers." Neal stated his mother blamed him that James was "taken away" and
"told [him] to lie about what happened or [he] will get taken away."
The expert noted "serious concerns" for Neal's safety "because his mother
is calling him 'a liar' despite physical indicators of physical abuse as well as
[Neal]'s disclosures of being dragged across the floor, hit by a belt, smacked,
and hurt by [James]." Further, "[t]here are concerns regarding his feelings of
rejection by his mother who he says hates him. [Neal] presented apprehensive,
soft spoken and anxious. He is an emotionally vulnerable child who has been
physically abused and psychologically maltreated."
Donald told the pediatric child abuse physician that Neal "lied about [his]
dad and the closet." Donald admitted, however that James hit him with a belt,
A-2180-18T2
5
including one time in the face, and reported he was angry with defendant "for
not protecting him from being hit."
James was released from jail pending trial but the no-contact order
remained in effect as to Neal. Defendant and James then signed a safety
protection plan, prohibiting James from unsupervised contact with Donald and
Gary. Two days later, on March 4, 2015, the Division received an anonymous
referral that defendant "screams, curses, and smacks all of the children," and had
hit Donald and Neal with a belt on their "bare bottoms." As part of that
investigation, the Division conducted separate, unannounced interviews with
Neal and Donald at their school.
Donald denied any physical abuse, but when asked whether James had
visited the family's home, Donald said James "was at the house last night for
dinner and this morning [James] was in his mother's room because [James] has
court today." According to the Division worker's investigative report, Donald
"stated he knows that [James] is in the house because he could hear his car
outside. [Donald] indicated that [James] has a Mustang and his engine is loud."
When directly asked whether James entered the home, Donald said, "yes, he
could hear him talking downstairs on Sunday[]s when he comes over for dinner."
A-2180-18T2
6
Donald told the worker "they have to stay upstairs when [James] comes over."
Donald said James had been to the home on seven occasions.
Neal similarly denied recent physical abuse by defendant and
corroborated Donald's account of the previous evening, stating James "was over
the house for dinner last night." Neal said "he could hear [James] downstairs
while he was upstairs but he did not see him. [Neal] explained that his mother
told him he could not go downstairs. [The child] reported that he has seen
[James] sleeping in his mother's room on several occasions . . . ." Neal then told
the worker he "did not want to speak more about [James] because he felt he
would get [James] in trouble."
Later that day, the Division removed Donald, Neal and Gary from the
family's home. When asked whether James had been at the home the previous
evening, defendant said James came by "to drop off money for [Gary] but then
he left." Defendant denied James had stepped foot inside the home. On the
return date of the order to show cause, the judge granted the Division's request
for care and supervision of the children. The judge permitted defendant weekly,
supervised visitation with all three children, but limited James's weekly
supervised visitation to Gary.
A-2180-18T2
7
Three weeks later, on April 2, 2015, defendant received a call from James
during a visit with the children. James purportedly asked defendant whether he
could drop off "something." The worker supervising visitation denied the
request, informing defendant she could meet James outside, but he could not
join the visit in light of the no-contact order with Donald and Neal. James
nonetheless "came up to the visitor room" without "anything in his hand." A
few weeks later, the visitation supervisor noted defendant "was very distant from
[Neal]," requiring encouragement to engage with him.
In her comprehensive decision, Judge Gallina-Mecca carefully reviewed
the testimony and evidence presented at the hearing. She found the testimony
of all witnesses credible and the hearsay statements of Neal and Donald
sufficiently corroborated by other evidence in the record. Accordingly, the
judge concluded, "[b]ased upon the totality of the circumstances," the Division
proved "by a preponderance of the competent, credible evidence" that defendant
abused or neglected the children by placing them "at a substantial risk of injury
. . . ."
Defendant now appeals. She argues the record is insufficient to establish
abuse and neglect by a preponderance of the evidence. Defendant contends the
children's claims that she violated the no-contact orders lack corroboration and
A-2180-18T2
8
their accounts cannot serve to corroborate each other. She further contends the
trial judge erred in finding she emotionally harmed the children or placed them
at substantial risk of harm. We disagree.
Our limited standard of review of a family court's fact-finding
determination is well settled. N.J. Div. of Youth & Family Servs. v. R.D., 207
N.J. 88, 112 (2011). On appeal from orders issued in Title Nine actions, we
accord considerable deference to the trial court's credibility determinations and
findings of fact when 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(citation omitted). Given a family court's special expertise in matters concerning
children, we do not readily second-guess its factual findings. N.J. Div. of Youth
& Family Servs. v. R.G., 217 N.J. 527, 553 (2014).
Applying that limited and well-settled scope of review, we affirm the trial
court's finding of abuse and neglect, substantially for the sound reasons
expressed by Judge Gallina-Mecca. We add the following comments.
Pertinent to this appeal, an "abused or neglected child" under Title Nine
means a child under the age of eighteen
A-2180-18T2
9
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 . . . 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 . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
It is not necessary to wait until a child is actually harmed or neglected
before a court can act in the welfare of that minor. N.J. Div. of Child Prot. &
Permanency v. E.D.-O., 223 N.J. 166, 178 (2015). "In the absence of actual
harm, a finding of abuse and neglect can be based on proof of imminent danger
and substantial risk of harm." N.J. Div. of Youth & Family Servs. v. A.L., 213
N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). "Any allegation of child
neglect in which the conduct of the parent or caretaker does not cause actual
harm is fact-sensitive and must be resolved on a case-by-case basis." E.D.-O.,
223 N.J. at 192.
Our Supreme Court has explained a minimum degree of care is "conduct
that is grossly or wantonly negligent, but not necessarily intentional." G.S. v.
Dep't of Human Servs., 157 N.J. 161, 178 (1999). A parent "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
A-2180-18T2
10
of serious injury to that child." N.J. Div. of Child Prot. & Permanency v. A.B.,
231 N.J. 354, 369 (2017) (quoting G.S., 157 N.J. at 181). "The focus in abuse
and neglect matters . . . is on promptly protecting a child who has suffered harm
or faces imminent danger." A.L., 213 N.J. at 18 (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. V.T., 423 N.J. Super. 320,
328-29 (App. Div. 2011). "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." N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190,
201 (App. Div. 1981) (internal quotation marks omitted). Notably, the Title
Nine proof standard is less stringent than the standard in guardianship cases for
the termination of parental rights, which must instead be proven by clear and
convincing evidence. See R.G., 217 N.J. at 554; N.J.S.A. 30:4C-15.1(a).
Under N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child
relating to any allegations of abuse or neglect shall be admissible in evidence;
provided, however, that no such statement, if uncorroborated, shall be sufficient
to make a fact finding of abuse or neglect." Accordingly, "a child's hearsay
A-2180-18T2
11
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).
Corroboration of a child's hearsay statement pursuant to N.J.S.A. 9:6 -
8.46(a)(4) requires "[s]ome direct or circumstantial evidence beyond the child's
statement itself . . . ." N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J.
Super. 513, 522 (App. Div. 2017). We have observed the "most effective types
of corroborative evidence may be eyewitness testimony, a confession, an
admission or medical or scientific evidence." Id. at 521 (internal quotation
marks omitted). "However, corroborative evidence need not relate directly to
the accused[,]" but "need only provide support for the out-of-court statements."
N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166-67 (App.
Div. 2003) (internal quotation marks omitted).
The proofs adduced before Judge Gallina-Mecca sufficiently met those
well-established standards. As the judge found, the Division proved, by a
preponderance of the credible evidence, that defendant created a substantial risk
harm to her children by violating the no-contact orders imposed by the Criminal
Division and the Family Part. Contrary to defendant's argument, the judge did
not impermissibly determine the children's statements were corroborated only
A-2180-18T2
12
by each other's. Rather, the judge correctly recognized Neal and Donald made
separate and detailed statements to the unannounced Division worker, and those
statements were independently corroborated by defendant's conduct and her
admissions, and the children's psychosocial evaluations.
Regarding defendant's reaction to her children's disclosures, the judge
recognized:
[Defendant's] immediate response was not that the
children were mistaken, but she complained that the
children were spoken to without her permission.
Notably, [defendant] admitted that [James] came to the
house on the previous evening, although she maintained
that it was for the purpose of dropping off money. She
later also admitted to the Division that she needed help
shoveling snow, and that was why [James] was in the
house in violation of the court orders.
The judge also found defendant's conduct during visitation "[e]qually
compelling corroborative evidence" that she violated the court orders . As one
notable example, the judge cited the April 2 visit, finding defendant
"orchestrated an encounter with the children under the guise that [James] needed
to bring something to [her]." The judge also cited Neal's psychosocial
evaluation, finding it supported his "psychological maltreatment" by defendant.
Concluding the evidence was "uncontroverted," the judge found defendant
"ha[d] little regard for the orders that restrict[ed James]'s contact with the
A-2180-18T2
13
children[,]" thereby placing them "at a substantial risk of harm by inviting
impermissible contact with [James]." That risk was underscored by James's
"particularly egregious acts of physical abuse," defendant's inability to protect
her children from harm, and the resulting "hostile, abusive home environment."
As the judge observed, defendant ignored Neal at visits, chose James "over her
children," and failed to protect her sons from James's physical abuse. We
therefore find no merit in defendant's argument that the Division failed to prove
defendant emotionally harmed her sons or placed them at substantial risk of
harm by violating the no-contact orders.
In sum, we are satisfied there was competent, credible evidence in the
record to support the judge's finding that defendant abused or neglected her
children. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226
(2010). The totality of the circumstances cited by the judge support her
conclusion that the children were abused or neglected within the meaning of
N.J.S.A. 9:6-8.21(c)(4)(b).
Affirmed.
A-2180-18T2
14