DCPP VS. S.M. AND C.W., IN THE MATTER OF CO.W. AND CA.W. (FN-02-0271-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-3408-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.M.,
Defendant-Appellant,
and
C.W.,
Defendant.
_________________________________
IN THE MATTER OF Co.W. and Ca.W.,
Minors.
_________________________________
Submitted February 7, 2019 – Decided August 22, 2019
Before Judges Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0271-17.
Ellen Jo Gold, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, attorney for
minors (Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Charles M. Ouslander,
Designated Counsel, on the brief).
PER CURIAM
Defendant S.M. (Sara)1 appeals from the February 22, 2018 order of the
Family Part finding that she abused and neglected two of her children. We
affirm.
I.
The key evidence adduced during the fact finding hearing is as follows:
Sara is the mother of Ca.W. (Carley) and Co.W. (Connor). On the dates in
1
We use initials and fictitious names to protect the family's privacy. R. 1:38-
3(d)(12).
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question, Carley was fifteen and Connor was seventeen. Sara also has an adult
son, Cam. W. (Cameron), who was eighteen on the relevant dates.2
On March 24, 2017, Sara went to Florida for a two-week vacation with
her boyfriend, A.N. (Arthur). The night before she left, Sara told Cameron he
would be in charge of the minor children. The parties disputed whether Sara
notified her children that she was going on vacation. At approximately 6:00
a.m. on the day she left, she sent a text message to her children stating, "I am on
my way to Florida. All phones are on while I am gone. Make sure you tell one
another where you are. Take care of your sister." Sara testified she informed
her children of the trip well in advance of her departure and the text was a last
minute goodbye because she was departing so early in the morning. The court
concluded that whether Sara provided advance notice of her trip to her children
was immaterial because
there was an abysmal lack of communication from
[Sara] to her children regarding the trip. Nowhere does
she indicate that she provided her itinerary, airline
information, where she was staying, or the exact
departure and arrival times of her trip. She didn't even
contact the child[ren] to tell them when she would be
home.
2
Defendant C.W. is the father of Sara's children. The couple is divorced. C.W.
is not alleged to have abused or neglected the children. Prior to the events in
question, he was deported to Jamaica after release from incarceration in Georgia.
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The following night, Carley had a party at the family home without Sara's
permission. More than one hundred people attended the event, which was
publicized on Snapchat and featured a deejay. Attendees consumed alcohol and
controlled substances. Cameron was at the movies when the party took place.
Connor was in his room playing video games.
Eventually, police were called by neighbors. Responding officers arrested
two people and dispersed the crowd. Connor called his mother when police
arrived. Sara asked her friend M.B. (Mary) to go to the house. After speaking
with an officer, Connor, and Mary, Sara was assured the party was over and
decided to remain in Florida while, leaving the children at home. Although Sara
testified that Mary agreed to periodically check in on the children, the court
found "it highly unlikely that she ever stepped foot into the . . . home while
[Sara] was away" but "may have driven past the home from time to time." The
court rejected as entirely lacking in credibility Mary's testimony that she
examined the house and the children's bedrooms on the night of the party and
that everything appeared to be in order.
Sara and Arthur returned unannounced on the afternoon of April 5, 2017.
They found two young women, one of whom Sara previously had advised Carley
not to befriend because of her bad influence, and one of whom Sara did not
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know, sprawled on the couch in pajamas. Sara called the police, who transported
the two women to the police station. Sara and Arthur also went to the police
station, where they met Carley, who had been taken to the station by a school
resource officer. When asked, Carley said she let the two women stay overnight
at the house because they had nowhere else to go. Sara did not press charges
against the young women. Carley returned to school.
Once back home, Sara found the house to be in a state of disarray, with
trash, cooked and uncooked food, dishes, cups, liquor bottles, and other debris
strewn about. Sara packed all of Connor's clothes, videos, video equipment, and
electronics into garbage bags, which she placed in the attic. The court found
this was an act of punishment for Connor's involvement in the party. When
Connor returned, he was angry. Arthur suggested Sara call the police. Instead,
Sara directed Connor to clean his room.
A short time later, Carley arrived home. She and Sara began an argument
in the kitchen. Sara splashed water in Carley's face and while in "a fit of rage,"
engaged in a physical confrontation with her daughter. Sara, a registered nurse,
"pulled [Carley] into the hall near her bedroom so she could grab her nursing
shears that were in the cabinet." Noting Sara's admission that she "was
completely out of control," the court found Sara pulled Carley and cut her hair
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in an intentional "act of humiliation and intimidation." As the court explained,
"[k]nowing how important [Carley's] hair is to her, [Sara] decided to mutilate
the . . . feature that she loves the most." The court observed that following this
incident Carley reported she would feel unsafe to return to her mother.
The court also found that during this encounter, Sara was "threatening and
menacing" toward Carley, saying "I'm gonna kill you" and that she would slit
the child's throat. The court found that Carley was in fear of physical harm
during this incident and sustained physical injuries as a result of her mother's
actions.
On April 6, 2017, the New Jersey Division of Child Protection and
Permanency (Division) received a referral from the children's school expressing
concern for their well-being. An investigation by the Division substantiated
allegations of Sara's emotional abuse of both children, as well as her physical
abuse of Carley. The investigation did not substantiate allegations of Sara's
physical abuse of Connor or neglect of either child.
The Division implemented a safety protection plan requiring all contact
between Sara and the children be supervised by Mary. Sara's adult daughter
Cr.W. (Cheryl) later assumed that role. In addition, the Division filed a
complaint in the Family Part, pursuant to N.J.S.A. 9:6-8.21(c), seeking care and
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supervision of Carley and Connor. The Division alleged one act of physical
abuse against Carley and ongoing emotional abuse of both children .
On June 13, 2017, the court granted the Division care and supervision of
Carley and Connor with physical custody to remain with Sara. The court ordered
Sara, Arthur, Carley, and Connor to undergo psychological evaluations, and
Sara to receive anger management training and parenting classes.
The court held a four-day fact finding hearing on the allegations of abuse
and neglect. The Division presented the testimony of its investigator and Dr.
Anthony D'Urso, an expert in psychology at The Audrey Hepburn Children's
House (AHCH), to which the family was referred for evaluation. Sara testified
on her own behalf, and called Arthur (who was Sara's husband by the time of
the hearing) and Mary as witnesses.
On February 22, 2018, the court issued an oral opinion, concluding the
Division established by a preponderance of the evidence that Carley and Connor
"suffered actual emotional abuse caused by their mother's explosive behavior,
chronic conflict in the home, and limited insight into her shortcomings." In
addition, the court concluded that the emotional abuse of Carley was caused by
Sara's "yelling, intimidation and terroristic threats and humiliating by cutting of
[Carley's] hair" after Sara's return from Florida.
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The court found credible the testimony of Dr. D'Urso that there is clinical
support for the conclusion that Carley was emotionally and psychologically
abused by Sara. The court accepted the expert's diagnoses of Carley having
post-traumatic stress disorder and Connor having an adjustment disorder with
mixed anxiety and depressed mood. The court noted that Sara's insistence that
the haircutting incident was an isolated event "speaks volumes as to her lack of
insight and lends further support to the findings of [AHCH] that [Sara] is
emotionally unavailable to [her] children and that her children have been
subjected to long term abuse."
In addition to the haircutting incident, the expert relied on the following
to reach his diagnoses: (1) the children have poor relationships with Sara with
little, if any, emotional attachment to their mother; (2) Sara has limited or no
knowledge or ability to use any means of controlling her children other than
corporal punishment; (3) Carley experiences intrusive memories, fearfulness,
and emotional reactivity; (4) Connor suffers from food insecurity because Sara
does not ensure that her children eat breakfast or dinner and often has limited
food supplies in the home; (5) Connor witnessed Sara's attack on Carley but was
too fearful to intervene because he feared Arthur would attack him; and (6) both
Carley and Connor display behavior consistent with emotional trauma, including
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Connor obsessively setting an alarm on his phone to sound in the middle of the
night to cope with stress.
The court found the Division did not prove by a preponderance of the
evidence that Sara physically abused Carley. The court concluded that the
physical contact between Sara and Carley after Sara's return from Florida was
an isolated event in what were extreme and trying circumstances for Sara. In
addition, the court found Sara's conduct did not amount to excessive corporal
punishment. Because no further intervention was deemed necessary, the court
closed the matter.
This appeal followed. Sara raises the following arguments for our
consideration:
POINT I
THE FACT FINDING DETERMINATION AS TO
EMOTIONAL ABUSE SHOULD BE REVERSED AS
THE UNCORROBORATED STATEMENTS OF THE
MINORS WERE THE BASIS FOR THE COURT'S
DECISION.
POINT II
THERE WAS INSUFFICIENT CREDIBLE
EVIDENCE IN THE RECORD TO SUPPORT THE
COURT'S CONCLUSION THAT DEFENDANT
EMOTIONALLY ABUSED [CARLEY] AND
[CONNOR].
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II.
In our review of an order finding abuse or neglect, we determine whether
the trial court's decision was based on evidence supported by the record before
the court. See N.J. Dep't of Children & Families, Div. of Youth & Family Servs.
v. A.L., 213 N.J. 1, 22 (2013) ("The Division bears the burden of proof at a fact-
finding hearing and must prove present or future harm to a child by a
preponderance of the evidence."). We will not disturb a trial court's factual
findings "unless they are so wholly unsupportable as to result in a denial of
justice." In re Guardianship of J.N.H., 172 N.J 440, 472 (2002) (quotations
omitted).
Even when a party "allege[s] error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom," deference must be
accorded unless the court "went so wide of the mark that a mistake must have
been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007) (quotations omitted). This is because, "by virtue of its specific
jurisdiction, the Family Part possess[es] special expertise in the field of
domestic relations." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
553 (2014) (alteration in original) (quotations omitted). "Nevertheless, the trial
judge's findings are not entitled to that same degree of deference if they are
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based upon a misunderstanding of the applicable legal principles." N.J. Div. of
Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).
Title Nine, N.J.S.A. 9:1-1 to 25-11, sets forth the controlling standards for
adjudicating cases of abuse and neglect. N.J. Dep't of Children & Families, Div.
of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). Title Nine's main
precept is to protect children from circumstances and actions that threaten their
welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157
N.J. 161, 176 (1999). In pertinent part, the statute defines "abused or neglected
child," as one:
whose parent or guardian . . . (1) inflicts or allows to be
inflicted upon such child . . . protracted impairment of
physical or emotional health . . . (4) or 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 . . .
(b) in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court . . . .
[N.J.S.A. 9:6-8.21(c)(1) and (4)(b).]
A "minimum degree of care" does not refer to merely negligent conduct,
but rather "to conduct that is grossly or wantonly negligent, but not necessarily
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intentional." T.B., 207 N.J. 305 (quoting G.S., 157 N.J. at 178). "Conduct is
considered willful or wanton if done with the knowledge that injury is likely to,
or probably will, result." G.S., 157 N.J. at 178. The essence of gross or wanton
negligence is that it "implies that a person has acted with reckless disregard for
the safety of others." Id. at 179.
Our review of the record in light of the applicable precedents leads us to
affirm the court's decision for the reasons stated in its February 28, 2018 oral
opinion. We add these comments. There is sufficient, credible evidence in the
record supporting the court's determination, reached after it weighed the
credibility of the witnesses, that Sara's failure to exercise a minimum degree of
care resulted in Carley and Connor suffering actual emotional abuse. Sara
admitted she was "completely out of control" when she dragged her daughter
down a hallway, grabbed nursing shears, and cut her hair in an act of deliberate
humiliation. Connor witnessed the event, but was fearful of intervening because
he was afraid of physical attack by his mother's boyfriend. These acts were
clearly emotionally traumatic to the children. The court found a contrary version
events presented in the testimony of Sara and Arthur to lack credibility. We see
nothing in the record warranting reversal of the court's fact findings.
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In addition, the expert testimony of the psychological harm inflicted on
the children by the haircutting event and other, ongoing acts by Sara was well
supported and uncontradicted. The court weighed the credibility of the expert,
detailed the basis on which he reached his diagnoses of the children, and found
his opinions to be sound. That finding is entitled to our deference.
We do not agree with Sara's argument that the court's findings of fact were
based on uncorroborated out-of-court statements by Carley and Connor.
"[P]revious statements made by a 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 finding of abuse or
neglect." N.J.S.A. 9:6-8.46(a)(4). "The most effective types of corroborative
evidence may be eyewitness testimony, a confession, an admission or medical
or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.
Super. 155, 166 (App. Div. 2003). Here, the court considered the testimony of
Sara, Arthur, the Division investigator, and Dr. D'Urso, as well as the children's
out-of-court statements. The court determined that the credible evidence
provided by the Division's witnesses, as well as Sara's admission of her "out of
control" behavior toward Carley on the night she returned from Florida,
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corroborated the children's out-of-court statements. That determination
comports with N.J.S.A. 9:6-8.46(a)(4).
Affirmed.
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