DCPP VS. E v. G. AND A.J.-D., IN THE MATTER OF J v. AND Y v. (FN-07-0363-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0433-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
E.V.-G.,
Defendant-Appellant,
and
A.J.-D.,
Defendant.
______________________________
IN THE MATTER OF J.V. and Y.V.,
Minors.
______________________________
Submitted June 5, 2019 - Decided July 10, 2019
Before Judges Accurso and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0363-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jennifer P. Le, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Michelle Frances Mikelberg,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (James Joseph Gross, Designated
Counsel, on the brief).
PER CURIAM
Defendant E.V.-G. shot the mother of his children and her friend while
his seven-year-old son Joey1 stood at his side. The children's mother, shot in
the face, was seriously injured and her friend died. Joey's five-year-old sister
Yvette, while not witnessing the shooting, was nearby and fully exposed to its
immediate aftermath. Defendant appeals from an August 16, 2018 order
finding he abused and neglected Joey and Yvette, arguing the trial judge relied
on the inadmissible complex diagnoses rendered by non-testifying experts in
finding the children suffered emotional harm; that the Division of Child
1
This is not his real name. We use fictitious names for the children to protect
their privacy.
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Protection and Permanency failed to adduce "sufficient competent, material,
and relevant evidence to establish imminent danger and substantial risk of
harm as to Joey"; and the court's finding as to Yvette was based on a
presumption of harm rather than any expert medical evidence of emotional
harm produced by the Division. The Law Guardian joins the Division in
urging affirmance. Because we find defendant's arguments utterly without
merit, we affirm.
The outline of defendant's attack on the children's mother and her friend
was provided by the certified police reports of the incident and the Division's
investigative summary, both admitted in evidence. Both reports contained
statements made by Joey, as did a psychosocial evaluation of the boy
performed by the Regional Diagnostic and Treatment Center, which was
admitted for the limited purpose of providing Joey's statements to the
evaluator.
The shooting took place mid-day in front of the apartment defendant
shared with his mother. Defendant and the children's mother were separated
and going through a divorce. She lived in another apartment in the same
complex and the children went back and forth. When the children's mother
came to pick Joey up for a birthday party, defendant walked the boy outside
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and got into a heated argument with her and her friend. Joey reported his
father pulled his "auntie" to the ground by her hair and shot her in the face . As
the boy clung to his father's legs and begged him not to kill his mother,
defendant shot her in the face and she fell to the ground. The boy ran to his
mother crying, holding her and pleading with her not to die. Defendant was
arrested at the scene, and police recovered a nine millimeter handgun used in
the attack. One of the officers found Joey nearby crying hysterically. When
the officer put his arm around the boy and asked him what was wrong, Joey
replied, "my dad just killed my mom."
A Division worker retrieved Joey and Yvette from the prosecutor's office
several hours later to arrange for a medical exam and placement with a
maternal relative. Joey and Yvette told the worker their father had shot their
mother. When the worker asked Yvette, then in kindergarten, how she knew
that, Joey interjected that he had told her. The children wanted to go to the
hospital to see their mother, but were told she was too ill and they could visit
soon. The children's mother was admitted in critical but stable condition,
requiring surgery to repair the gunshot injuries to her face and jaw. The
children were returned to her custody several weeks later following her release
from the hospital.
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Both children underwent psychosocial evaluations a week or so after the
shooting. Joey reported to the clinician performing his evaluation that he was
crying when his father shot his mother, saying, "[d]ad, no, no," and grabbing
onto his legs to make him stop. He told the clinician he did not want to talk
about the shooting because he did not "want to cry." He reported feeling
"angry, bad and sad" when the shooting happened and that he thinks about it
"all the time." He told the clinician he wished "my auntie didn't die and that
my dad did not shoot my mommy." Five-year-old Yvette knew what had
happened, telling the clinician that her mother was at "the doctor's" because
her father shot her, and that she felt sad knowing her aunt was dead, killed by
her father.
The assigned Division caseworker testified at the hearing. Defendant's
counsel did not cross-examine her. Defendant did not testify or call any
witnesses on his own behalf. The trial judge found Joey's statements about his
father's attack on his mother and her friend corroborated by the caseworker's
observations of the mother's injuries and the officer's observations of the
victims at the scene. She found defendant's actions put Joey in imminent
danger and "at an immediate risk of harm." Reviewing the events, the judge
found defendant shot the two women, killing one, and severely injuring the
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other and could have as easily accidentally shot his son in this "very highly
charged incident."
The judge further found "an abundance of evidence" that defendant
caused Joey "real trauma when he shot the [boy's] mother and the mother's
friend in front of him," reflected in the statements the boy made to the
Division's clinician. Acknowledging Yvette did not experience the trauma
first hand as her brother did, the judge found the kindergartener was made
immediately aware of all that took place, resulting in a finding of defendant's
abuse and neglect of both children.
We reject defendant's arguments that the record lacked sufficient
competent evidence to establish imminent danger and substantial risk of harm
as to Joey. Defendant shot two people at close range following a heated
argument, killing one of them, while his seven-year-old son clung to his legs
begging him not to kill his mother. There is no question but that the trial
court's finding that defendant's conduct exposed his son to a substantial risk
and imminent danger by acting in reckless disregard of his safety is supported
by adequate, substantial and credible evidence in the record. N.J. Div. of
Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002).
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As to defendant's remaining arguments, the court did not refer to the
"complex diagnoses" rendered by non-testifying experts in finding the children
suffered emotional harm by their father's shooting their mother and killing her
friend, and we reject defendant's argument that the judge's finding as to Yvette
rested only on a presumption of harm. The Family Part "need not wait to act
until a child is actually irreparably impaired" by parental conduct. N.J. Dep't
of Children & Families, Div. of Youth & Family Servs. v. A.L., 23 N.J. 1, 23
(2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
Defendant's children were evaluated less than two weeks after their father shot
their mother, before she was even out of the hospital. Based on the statements
they made in those evaluations, it requires no stretch of the imagination to
conclude, as the trial judge did, that both children were enduring emotional
harm, which could certainly be long lasting. See N.J. Div. of Child Protection
& Permanency v. A.D., 455 N.J. Super. 144, 164 (App. Div. 2018).
Affirmed.
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