New Jersey Division of Child Protection and Permanency v. M.C. in the Matter of M.C., M.C., Jr. and A.C.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2398-12T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, May 5, 2014
v. APPELLATE DIVISION
M.C.,
Defendant-Appellant.
_____________________________________
IN THE MATTER OF M.C., M.C., Jr. and
A.C.,
Minors.
_____________________________________
Argued April 2, 2014 – Decided May 5, 2014
Before Judges Grall, Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FN-05-71-12.
Christine Olexa Saginor, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Ms.
Saginor, on the brief).
Cynthia Phillips, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Ms. Phillips, on the
brief).
Janet L. Fayter, Designated Counsel, argued
the cause for minors (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Ms.
Fayter, on the brief).
The opinion of the court was delivered by
GRALL, P.J.A.D.
M.C. appeals a judgment entered following a fact-finding
hearing in an abuse or neglect action that was commenced by the
Division1 pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A.
30:4C-12. The judge determined that M.C.'s fourteen-year-old
son Matt,2 six-year-old son Jack, and four-year-old daughter Jill
"were abused and neglected children" as defined in N.J.S.A. 9:6-
8.21(c)(4)(b). The Division urges us to affirm, but M.C.
contends, and the children's law guardian agrees, that the
competent evidence in the record is inadequate to establish
abuse or neglect. We agree.
Our decision is informed by New Jersey Department of
Children and Families v. A.L., 213 N.J. 1 (2013), a case decided
after this judgment was entered. Because there was no evidence
1
The Division is now known as the Division of Child
Protection and Permanency.
2
Matt is a fictitious name as are the names used for the
other children. M.C. is not Matt's biological father, but at a
preliminary hearing on February 22, 2012, M.C. testified that he
adopted Matt in 2005. Matt reached the age of fourteen the
month after he reported that M.C. was abusing him.
2 A-2398-12T2
of actual harm, the Division was obligated to present competent
evidence adequate to establish that M.C.'s children were
presently in imminent danger of being impaired physically,
mentally or emotionally. Id. at 23, 30; see N.J.S.A. 9:6-
8.21(c)(4)(b), -8.46(a)(4), (b)(1)-(2).
I
On January 27, 2012, a member of the staff at Matt's school
reported Matt's allegation of abuse to the Division.
Reportedly, Matt was told that the school would be calling his
mother about an argument Matt had with another student in the
gym that escalated into a face-to-face encounter and chest-
butting. As reported by the Division's screener who took the
call, Matt cried hysterically, "got on his hands and knees," and
"begged" school staff not to tell his mother. Matt said he was
afraid to go home, explaining that he "gets hit at home" and
that M.C. is the one who hits him — sometimes punching,
sometimes smacking and sometimes using a belt. He said he was
last "beaten up after the Christmas break."
The Division caseworker assigned to investigate the
referral, Ms. Badger, went to the family home that evening and
spoke separately with Matt, Jack, Jill and both of the
children's parents. Matt was the first child Ms. Badger
3 A-2398-12T2
interviewed. He told her he was taking two medications for
bipolar disorder, "ADHD" and anger management.
Matt also advised Ms. Badger that he had not told his
mother about his problem at school and did not think the school
had told her about it. He said "if he gets into trouble, he is
terrified of his dad because he is into physical discipline."
Matt said he feels safe when M.C. is not angry but is "very,
very scared" when M.C. is angry, which he is "a lot."
Matt said he had bruises in the past, but not presently,
explaining that M.C. last hit him about two weeks "before
Christmas" because he had gone to wrestling practice instead of
homework club after school. When M.C. spoke to Ms. Badger, he
acknowledged that he might have "just pushed" Matt and "tapped
him [on] his head."
Matt advised Ms. Badger he had not told anyone about the
abuse before because he was afraid, and he told her that M.C.
slaps him in the face and punches him in the ribs and chest. He
claimed that one punch was so hard that it made him cough up
blood. The Division never obtained Matt's medical records, and
apart from Matt's statements there was no evidence tending to
show Matt coughed up blood, had bruises, broken bones or bled.
Jack and Jill told Ms. Badger that Matt gets hit all over
4 A-2398-12T2
his body. Jill said that Matt "'gets beated' when he is bad"
and that her mom and dad hit her on her butt.
Matt's mother admitted that she knew about M.C.'s use of
physical discipline and did not approve. She said she assumed
that when M.C. took Matt to another room to discipline him, he
was giving Matt a "spanking," which was something M.C. did no
more than twice a year. Generally, the children were punished
by taking electronic devices and other privileges away from them
for a time.
Matt told Ms. Badger about a different type of discipline
that M.C. meted out once during an event the parties dub "the
corner incident." Without indicating the precipitating event or
approximate date, Matt told Ms. Badger that M.C. "pinned him" in
a corner, made Jack and Jill come into the room, and directed
Matt to slap himself in the face and say "'I'm stupid'" and then
slap himself harder and say "'I'm a retard.'" He said his
brother Jack laughed while that was happening. When Ms. Badger
asked M.C. about the corner incident, M.C. said "he only told
[Matt] to call himself a liar because he lied" and did not say
anything about directing Matt to hit himself.
Ms. Badger asked Jack about the corner incident. According
to Ms. Badger's report, the six-year-old child "affirmed that
his dad made [Matt] smack himself and call himself stupid." He
5 A-2398-12T2
said that it happened one time and he could not "remember what
else his dad made [Matt] sa[y] about himself." Jack also told
Ms. Badger Jill was present. Ms. Badger did not describe the
questions she asked Jack in order to elicit his affirmance of
Matt's description of the "corner incident," but she did note
that Jack "appeared to laugh and smirk . . . when ask[ed] about
[Matt] being hurt."
There was significant and undisputed evidence that M.C. had
a problem with drinking. Matt told Ms. Badger that M.C. drinks
alcohol on weekends and hurts people when he does. He also said
that he and his mother and siblings left the house when M.C. was
drinking on weekends to stay with family or in a motel. Matt's
mother, and Matt's uncle who lived with the family, confirmed
that the mother and children spent some weekends away from home
because of M.C.'s drinking. Matt's mother also told Ms. Badger
that M.C. is "not a very nice person" when he drinks and that he
is a "binge" drinker, and Matt's uncle acknowledged that his
brother gets "talkative and aggressive" when drinking, which he
did at home when his family was away.
Matt did not know how much M.C. drank. He also said he had
never seen M.C. stumbling or slurring his words, but he had
heard his mom say that M.C. was slurring his words when talking
to M.C. on the phone. Matt reported that his parents fought a
6 A-2398-12T2
lot about M.C.'s drinking, but he said he had not seen any
violence between them.
In speaking with Ms. Badger, M.C. readily acknowledged that
he had a drinking problem and said that he was scheduled to
commence a program to address it. He advised Ms. Badger that he
enrolled in the program as a consequence of driving while under
the influence.
At the conclusion of M.C.'s first interview with Ms.
Badger, M.C. told her he was willing to have a substance abuse
evaluation and would like to have family counseling. He also
agreed to leave his home. In fact, he left that night when Ms.
Badger departed.
Three days later, Ms. Badger spoke with the staff member
from Matt's school who called the Division on January 27. She
said she had not called the child's home that night because Matt
said he would not go home and cried hysterically,3 which was
something he had not done when he was in trouble at school
before. Matt asked that no one call his home, because he was
afraid his dad would beat him. The woman told Ms. Badger that
she had never seen or heard about Matt having bruises and knew
3
If the woman told Ms. Badger about Matt getting on his hands
and knees, Ms. Badger did not include that information in her
summary of the interview.
7 A-2398-12T2
of no prior complaint he made about physical abuse. She noted
that Matt had, however, mentioned that his home was strict.
On February 22, 2012, the Division sought and a judge
entered an order placing the children in the care and
supervision of the Division. The Division did not seek
authorization to remove the children from their home. The order
memorialized the parents' consent to cooperate with services
offered by the Division, and it restrained M.C. from having
contact with the children except when supervised by a person,
other than his wife, approved by the Division.
The February 22 order included a provision authorizing the
lifting of that restraint with the consent of all counsel.
There is no dispute that, with the Division's approval, M.C.
resumed residence in his home with his family and without any
supervision before the end of April.
In the interim, starting no later than February 27, 2012,
M.C. and his family commenced counseling that the Division
arranged at Families Matter, LLC. The Division received regular
reports on the family's progress. The therapist reported that
M.C. was "verbalizing [his] accountability for inappropriate
parenting and discipline of his children," "maintaining
sobriety," "fully participat[ing] in each session," expressing
interest in improving his relationship with Matt and spending
8 A-2398-12T2
quality time with Matt during the supervised visits he had in
the home prior to his return in April. By March, the therapist
reported that communications between M.C. and Matt had improved
and there were "no safety concerns."
In fact, things improved to the extent that by letter dated
March 29, 2012, the therapist advised the second caseworker
assigned to M.C.'s family, Ms. McGonagle, that she felt that
reunification of the family, meaning having M.C. back in the
home, "is appropriate as long as the family continues to
participate in weekly family therapy." During a follow-up phone
call on April 2, the therapist told Ms. McGonagle that Matt was
not "fearful" of M.C.; she noted that Matt was communicating
comfortably with, sitting next to and making good eye contact
with M.C.
As the therapist suggested, however, M.C. and his family
continued counseling and "made significant progress" in their
ability to communicate and function as a family. By May 10,
2012, the therapist recommended bi-weekly, rather than weekly
visits for the purpose of "observ[ing] family stability." On
June 5, the therapist recommended discharging the family because
the family had successfully increased communication and improved
bonding; the parents had learned new parenting techniques to
which the children were responding well; and the family had
9 A-2398-12T2
discussed M.C.'s alcohol abuse, which M.C. was addressing in a
separate program for that purpose. Consequently, on July 3, the
family was "successfully discharged."
Despite the successful intervention, the Division proceeded
to a fact-finding hearing that commenced on July 27. Testimony
was taken that day and on August 13 and 31. Ms. Badger and Ms.
McGonagle testified, and the judge fully credited their
testimonies. Additionally, in conformity with Rule 5:12-4(b),
the judge interviewed Matt in chambers after giving the parties
an opportunity to submit questions for the judge to ask Matt,
which the Division, but not the law guardian or M.C., did.
Before questioning Matt, the judge probed the teenager's
understanding of his obligation to tell the truth. The judge
also supplemented the Division's questions by following up and
posing additional questions raised by Matt's responses. Jack
and Jill, however, did not meet with the judge.
During his interview with the judge, Matt denied the truth
of the allegations he made on January 27. It was not his first
retraction. On January 31, Matt's mother reported that Matt
told her he had blown things out of proportion and made some
things up. In addition, the therapist from Families Matter
reported that Matt said he lied to the school about the events
and did not understand the seriousness of that at the time.
10 A-2398-12T2
The judge did not credit Matt's in camera denials of his
initial allegations or his explanation for misreporting M.C.'s
conduct. Matt explained that his goal on January 27 was to
evoke the sympathy of the school officials so that they would
refrain from taking disciplinary action against him; he thought
it would lead to his removal from that school, where he was on
the football team, and return to the special-needs school he
previously attended. Indeed, by the time of the fact-finding
hearing, Matt had been returned to the special-needs school.
The judge found Ms. Badger's testimony recounting what Matt
told her on January 27 to be more credible than Matt's denial.
The judge stressed, however, that he was "not making any finding
that [Matt] was influenced or coerced to revise his statements."
The judge further found that Matt's prior statements, and those
of Jack and Jill, were sufficiently corroborated by M.C.'s
admissions and the out-of-court statements made by Matt's mother
and uncle to support a finding of abuse and neglect.
On that evidence, the judge concluded that the Division met
its burden of establishing, by a preponderance of the evidence,
that M.C.'s children were abused and neglected within the
meaning of N.J.S.A. 9:6-8.21(c)(4)(b). The judge made the
following findings of fact supporting his conclusion: 1) both
parents used physical discipline that did not amount to
11 A-2398-12T2
"excessive corporal punishment"; 2) there was no evidence of
injury; 3) M.C. used "corporal punishment" on Matt and "pinned
[Matt] in the corner" and made him "hit/slap himself and call
himself 'a liar,'" "'a retard,'" and "'stupid' while his
siblings watched"; 4) M.C. "was drinking alcohol to excess"; 5)
the mother's removal of herself and the children from the home
demonstrated that she "reasonably believed that it was not safe
to leave the children home with [M.C.] on those weekends she
knew [M.C.] was drinking alcohol to excess"; and 6) Matt "was
terrified" of M.C. "when [the school officials] told [Matt] that
they were going to report the school incident to his mother" on
January 27.
In making those findings, the judge noted that it did not
appear that M.C.'s wife "had to leave the home since the
Division's involvement with the family beginning on January 27,
2012." He determined, however, that this improved circumstance
was irrelevant to his fact finding, presumably concluding that
only those circumstances extant on January 27, 2012 were
relevant.
The foregoing findings and the judge's reasons and legal
conclusions are set forth in a memorandum of decision dated
September 14, 2012. They are discussed in the next section of
12 A-2398-12T2
this opinion along with the controlling legal principles and our
reasons for reversal.
II
As defined in N.J.S.A. 9:6-8.21(c)(4)(b), an "abused or
neglected" child includes
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 [of
harm], including the infliction of excessive
corporal punishment; or by any other acts of
a similarly serious nature requiring the aid
of the court . . . .
[Ibid. (emphasis added).]
After the judge decided this case, the Supreme Court
interpreted the foregoing provision and explained, "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."
A.L., supra, 213 N.J. at 23. And the Court held, "Because the
evidence presented did not establish actual harm or imminent
danger to [the child], the finding of abuse and neglect against
[the parent] under Title 9 cannot be sustained." Id. at 30.4 In
4
In other passages of the opinion, the proof needed in the
absence of harm is described as proof of imminent danger "or"
(continued)
13 A-2398-12T2
reaching that conclusion, the Court focused on the language of
N.J.S.A. 9:6-8.21 defining abuse and neglect and the role this
statute plays in the "comprehensive legislative scheme relating
to child welfare." Id. at 8.
The language and structure of the provision and the
Legislature's stated purpose support a reading of the provision
at issue here to require a finding of "imminent danger of"
impairment to a child's condition whenever there is no proof of
actual harm. N.J.S.A. 9:6-8.21(c)(4) defines what is needed to
show that a child is "abused or neglected" with an introductory
clause describing the child's condition and the reasons for it —
"a child whose physical, mental, or emotional condition has been
impaired or is in imminent danger of becoming impaired" as the
result of a parent's or a guardian's "failure . . . to exercise
a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4) (emphasis
added). That introductory clause is followed by two clauses,
(a) and (b), that serve to identify the parental failures that
(continued)
substantial risk of harm. See, e.g., id. at 8, 23. In light of
the Court's holding, we assign no significance to the use of
different conjunctions in the discussion. Because the Court
found that neither standard was met, id. at 27-28, the question
of need for proof of both was not raised. If the Court had
determined that a finding of a substantial risk without extant
imminent danger of a child's condition becoming impaired would
suffice, it most likely would have stated that the evidence was
inadequate to establish actual harm, imminent danger to the
child, or a substantial risk of harm. Cf. id. at 30.
14 A-2398-12T2
can be considered in assessing whether the child's condition has
been impaired or is in imminent danger of becoming impaired.
Ibid. Subparagraph (a), not implicated in this case,
identifies failures in supplying a child's basic needs; (b)
identifies failures related to parental supervision and
discipline — those that have either caused harm or created a
substantial risk of harm.
Setting aside cases where actual impairment of the child's
condition is proven, the structure and language indicates that a
parent's creation of a substantial risk of harm in the past may
support a finding of abuse or neglect. But that is so only
where the essential criteria set forth in the introductory
clause are met. That is, there must be evidence establishing
that lax supervision or improper discipline amounted to a
failure to "exercise a minimum degree of care" in either
endeavor, and there must be evidence the child's condition,
while not yet impaired, "is in imminent danger of becoming
impaired." N.J.S.A. 9:6-8.21(c)(4).
The question is the effect of the parental conduct. For
example, use of an illegal substance, without more, will not
establish abuse or neglect. See A.L., supra, 213 N.J. at 24
(discussing with approval N.J. Div. of Youth & Family Servs. v.
V.T., 423 N.J. Super. 320, 331-32 (App. Div. 2011), a case in
15 A-2398-12T2
which this court reversed a finding of abuse and neglect based
on drug screens done at the time of the father's supervised
visitation that showed his drug use, on the ground that the
Division presented no evidence establishing he posed a risk to
the child during those visits). Similarly, evidence of less
than admirable parental conduct is inadequate to establish abuse
or neglect in the absence of evidence establishing that the
child's "'physical, mental, or emotional condition has been
impaired or is in imminent danger of becoming impaired because'"
of a parent. N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 39 (2011).
Where a finding of abuse or neglect rests only on imminent
danger of impairment of the child's physical, mental or
emotional condition, the question is whether the child "is in
imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4)
(emphasis added). This statutory language plainly requires an
evaluation of the present danger. Thus, prior parental conduct
posing a risk of harm in the past that did not materialize is
pertinent to imminent danger only to the extent that it is
probative of current danger. See N.J. Div. of Youth & Family
Servs. v. I.H.C., 415 N.J. Super. 551, 575-77 (App. Div. 2010).
A determination of abuse or neglect requires consideration
of the totality of the circumstances and their synergistic
16 A-2398-12T2
relationship. P.W.R., supra, 205 N.J. at 39. Thus, in
determining whether a child "is in imminent danger," risk
demonstrated by past conduct should be assessed in light of
actions since taken to address prior dangerous parenting — for
example, parental action that has eliminated a previously
existing danger of impairment before the risk materialized.
In our view, the Legislature's decision to require proof
that a child "is in imminent danger" requires an assessment of
the evidence available at the time, which may be different when
the complaint is filed than it is at the time of the fact-
finding hearing. P.W.R. provides some support for that
conclusion beyond its direction to consider the totality of the
circumstances. The Court, discussing its prior decision in New
Jersey Division of Youth & Family Services v. K.M., 136 N.J.
546, 550 (1994), a case involving parental failure to provide
for their children's basic needs, noted: "Importantly, despite
DYFS assistance, and intensive parenting-skills programs
provided to help the parents, neglect was found when the home
conditions did not improve." P.W.R., supra, 205 N.J. at 34.
Just as parental inaction in addressing past conditions posing a
danger to a child is a circumstance pertinent to a finding of
abuse or neglect based on the child being in "imminent danger,"
parental action eliminating a danger is also pertinent. To the
17 A-2398-12T2
extent the judge concluded that improvement of M.C.'s conduct
and conditions in the home was irrelevant to that issue in this
fact-finding hearing, the judge erred. See N.J. Div. of Youth &
Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div.
2010) (considering improvement of conditions and attitudes
contributing to an isolated incident of abuse and the Division's
determination that its services were no longer required), appeal
dismissed as improvidently granted, 208 N.J. 355 (2011).
The foregoing understanding of the need to focus on present
circumstances in considering whether the child is in imminent
danger of being impaired is consistent with the "purpose
animating Title Nine[, which] 'is to provide for the protection
of children under 18 years of age who have had serious injury
inflicted upon them.'" P.W.R., supra, 205 N.J. at 31 (quoting
N.J.S.A. 9:6-8.8). The concern is "not the culpability of
parental conduct," G.S. v. Dep't of Human Servs., 157 N.J. 161,
177 (1999), or whether the parental conduct is worthy of
emulation or award, P.W.R., supra, 205 N.J. at 39.
A finding that a child "is in imminent danger of becoming
impaired" where, by all accounts, the dangerous condition has
been remediated to the point that the family has been safely
reunified and can remain safely together without additional
supervision or therapeutic services, is difficult to square with
18 A-2398-12T2
the language of N.J.S.A. 9:6-8.21(c)(4). As previously noted,
it applies if the child "is in imminent danger of becoming
impaired . . . ." Ibid. (emphasis added). Without evidence
permitting a finding of likely repetition of past conduct
creating a substantial risk of harm, a finding based on past
conduct cannot be sustained. The statute permits a focus on
past conduct alone only when the child's condition "has been
impaired."
With those standards in sight, we consider the judge's
reasons for concluding that the Division met its burden of
proving actionable abuse or neglect. Where the evidence is
inadequate to "satisfy the standard articulated in N.J.S.A. 9:6-
8.21(c)(4)," reversal is required. P.W.R., supra, 205 N.J. at
21, 39-40; see also A.L., supra, 213 N.J. at 29-30.
The judge provided the following statement of his reasons
for concluding that the Division met its burden.
The court looks to the past conduct of
[M.C.] in determining risk of harm to the
children. Additionally, the court may also
examine the parents' behavior to determine
whether it creates an imminent risk of harm.
This court has done so. As noted above, the
court found that [Matt] was terrified of his
father. The basis of [Matt's] fear became
readily apparent following Ms. Badger's
interviews in the home.
This court finds that when a parent
subjects a child to the combination of
corporal punishment (which is not
19 A-2398-12T2
excessive), self-injurious punishment while
calling himself degrading names while his
siblings watch and laugh, and is also
required to leave their home every weekend
due to excessive drinking of alcohol, said
parent creates a substantial risk of harm to
the physical, mental or emotional condition
of a minor child. Moreover, the court finds
that a parent that engages in such conduct
failed to exercise a minimum degree of care
in that the conduct is grossly negligent,
and the children are in a substantial risk
of harm.
The fact that the children were not
physically injured at the time of the
interviews is of no moment for this court's
consideration. The disciplinary measures
employed by [M.C.] were severe in the sense
that [Matt] was terrified of his dad and he
got down on his hands and knees to beg that
his parents not be told of the incident at
school. It was clear to this court that
[Matt] was mentally or physically strained
to the point that his health or physical or
moral well-being may be injured.
Moreover, [Matt's mother's] act of
removing herself and the children from the
home when [M.C.] drank excessive amounts of
alcohol reinforces to this court that [Matt]
and his siblings are abused and neglected
children. [Matt's mother] found it in the
children's best interest to take refuge out
of the home to protect the health, safety
and welfare of the minor children from
[M.C.]. [Matt's mother's] action of leaving
the home as often as she described with the
children speaks volumes that the children's
physical, mental or emotional condition was
in imminent danger of becoming impaired as a
result of [M.C.'s] failure in exercising a
minimum degree of care and that the children
were in a substantial risk of harm. Indeed,
it was not a secret to the children why they
left the home on weekends.
20 A-2398-12T2
In applying the law to the facts, the judge did not find
that Matt's or his sibling's condition had been impaired. He
found a risk of harm and imminent danger of impairment, but the
judge looked only to "past conduct" in determining risk of harm
to the children. Setting aside the thin support in the record
for the conclusions that "the children's physical, mental or
emotional condition was in imminent danger of becoming impaired"
and that they "were in a substantial risk of harm,"5 when their
mother removed them on the weekends, the law requires a
determination of extant imminent danger. It is not enough to
say that the children were in imminent danger of becoming
impaired in the past.
The record does not support a finding that the past conduct
the judge found to have created a substantial risk of harm was
likely to be repeated. The "corner incident" was a one-time
5
The children's law guardian and M.C. persuasively argue that
M.C.'s drinking away from home and the weekend removals of the
children when he drank at home demonstrate paternal efforts to
shield the children from any risk of harm or impairment
presented by exposure to such conduct.
It is worth noting that Matt's vague account of M.C.'s
drinking and M.C.'s admissions provide the only competent
evidence about M.C.'s drinking prior to the Division's
intervention. The statements made by Matt's mother and uncle
were not admissible for the truth of the matters they asserted
as Ms. Badger reported. Neither testified and neither spoke to
Ms. Badger with M.C.'s authorization or as his agent, and their
statements were admitted against M.C., not them. N.J.R.E.
803(a), 803(b).
21 A-2398-12T2
occurrence, and the judge found that the corporal punishment was
not excessive. As the judge noted, since the Division
intervened, M.C.'s drinking had not caused the mother to remove
the children. Despite Matt's professed fear of M.C. that Matt
explained was connected with his being in trouble at school, the
teenager came home from school on the day he got in trouble.
Moreover, the family's therapist at Families Matter reported
that things quickly changed.6 M.C. had recognized and modified
his inappropriate parenting and disciplining techniques,
maintained sobriety, and improved his relationship with Matt.
Importantly, the therapist reported that Matt was not "fearful"
of M.C. and was communicating comfortably with, sitting next to
and making good eye contact with M.C.
In short, this case was one of the Division's success
stories. On the record of the fact-finding hearing, there is no
evidence supporting a finding that any one of M.C.'s children
"is in imminent danger of becoming impaired" as a consequence of
M.C.'s prior drinking or inappropriate discipline.
6
The therapist's periodic reports to the Division are
admissible. The Division "is permitted to submit into evidence,
pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff
personnel or professional consultants. Pursuant to Court Rule,
'[c]onclusions drawn from the facts stated therein shall be
treated as prima facie evidence, subject to rebuttal.' R. 5:12-
4(d)." P.W.R., supra, 205 N.J. at 32.
22 A-2398-12T2
Considering the totality of the circumstances and their
synergistic relationship, the evidence was inadequate to prove
the present imminent danger that is essential to a finding of
abuse or neglect as defined in N.J.S.A. 9:6-8.21(c)(4)(b) when
there is no finding of actual harm or impairment. Accordingly,
this finding of abuse and neglect must be reversed and vacated.
Because the inadequacy of the evidence requires reversal,
it is not necessary to address M.C.'s objections to
insufficiency of the evidence corroborating the children's out-
of-court statements. Pursuant to 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."
The question whether overlapping out-of-court statements of
children can, without more, satisfy the statutory corroboration
requirement frequently arises and has not been addressed in a
published opinion. In our view, it is reasonable to assume that
the Legislature intends courts to apply this statutory
corroboration requirement in the same manner as courts consider
the adequacy of evidence corroborating a confession. See
N.J.S.A. 1:1-1 (directing that "words and phrases" appearing in
statutes "having a special or accepted meaning in the law, shall
23 A-2398-12T2
be construed in accordance with such . . . special and accepted
meaning").
In the context of confessions, the trial court must
determine "whether there is any legal evidence, apart from the
confession of facts and circumstances, from which the jury might
draw an inference that the confession is trustworthy." State v.
Lucas, 30 N.J. 37, 62 (1959); accord State v. Reddish, 181 N.J.
553, 618 (2004). Legal evidence is generally understood to
exclude hearsay that is inadmissible under the Rules of
Evidence. See Swain v. Neeld, 49 N.J. Super. 523, 528 (App.
Div.), rev'd on other grounds, 28 N.J. 60 (1958).
But the admissibility of extrajudicial statements of
children pursuant to N.J.S.A. 9:6-8.46(a)(4) does not depend on
admissibility under the evidence rules. For that reason, we do
not think that overlapping out-of-court statements of children
that are not otherwise admissible hearsay have any tendency to
show the trustworthiness of each other. Of course, if all of
the children who made the overlapping statements testified in
court or in camera, the analysis would be different. See
generally R. 5:12-4(b) (discussing in camera proceedings); N.J.
Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148 (App.
Div. 2005) (discussing the need for children's testimony in the
24 A-2398-12T2
circumstances of that case); N.J. Div. of Youth & Family Servs.
v. L.A., 357 N.J. Super. 155 (App. Div. 2003) (same).
For several reasons, this case is a poor vehicle for a
definitive resolution of that question. First, as discussed
above, this appeal can be decided without reaching the issue.
We have reversed on inadequacy of the evidence and considered
all of the evidence admitted in reaching that conclusion.
Second, M.C.'s admissions, which corroborated the
children's statements, were admissible against him as a party in
the abuse or neglect action, N.J.R.E. 803(b)(1). His
admissions, without more, provided adequate corroboration under
our prior decisions. "By its nature, corroborative evidence
'need only provide support for the out-of-court statements.'"
L.A., supra, 357 N.J. Super. at 166 (quoting N.J. Div. of Youth
& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div.
2002)). M.C. acknowledged his drinking problem, his wife's
removal of the children from their home when he drank, his use
of physical discipline — pushing Matt and tapping him on the
head — and his punishing Matt by having Matt call himself a
liar. We cannot conclude that the judge abused his discretion
in finding that Matt's statements were sufficiently corroborated
by those admissions.
25 A-2398-12T2
Third, because Matt testified in camera, any statements he
made when speaking with Ms. Badger that qualified as
inconsistent with his in camera testimony, if offered in
conformity with N.J.R.E. 613, were admissible pursuant to
N.J.R.E. 803(a)(1). See State in the Interest of R.V., 280 N.J.
Super. 118, 120-21 (App. Div. 1995).
Fourth, the issue was merely suggested, not argued with
supporting authority, in the briefs submitted on appeal.
Reversed.
26 A-2398-12T2