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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1670-18T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.Q.,
Defendant-Appellant,
and
J.P.,
Defendant.
IN THE MATTER OF D.Q.-P. and S.P., Minors.
Submitted April 30, 2020 – Decided June 3, 2020
Before Judges Alvarez and DeAlmeida. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FN-19-0044-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn Veasey, Deputy Public Defender, of counsel; Janet A. Allegro, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sookie Bae, Assistant Attorney General, of counsel; Victoria Almeida Galinski, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant A.Q. (Mary)1 appeals from the finding that she abused or
neglected her children, in an action brought by plaintiff New Jersey Divi sion of
Child Protection and Permanency (Division) under N.J.S.A. 9:6-8.21 to -8.114,
and N.J.S.A. 30:4C-12. For the reasons stated by Judge Michael C. Gaus in his
March 26, 2018 factfinding order and written statement of reasons, we affirm.
We add the following.
1 We employ pseudonyms to preserve the confidentiality of the parties and their family. See N.J.S.A. 9:6-8.10a. A-1670-18T1 2 Mary and her partner J.P. (Tom) have two boys who were approximately
nine and seven years old when the matter was decided. The older child (Harry)
was sixteen months old when the Division first became involved with the family.
Over the years, the Division has placed Mary in domestic violence shelters, with
the children, where she has not remained. Mary has obtained final restraining
orders under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17
to -35, which she has subsequently dissolved. Mary agreed to maintain a
separate household from Tom, and not allow him to be with the children without
supervision. At various times he has nevertheless lived with her.
Harry and his younger brother George suffer from a host of behavioral
difficulties. For this reason, the Division attempted to enroll the children in an
early intervention program. Mary did not agree because Tom was "against it,"
and he had the "final word."
In May 2014, the Division assigned the family a caseworker, Hilary
Shprecher, who testified at the factfinding hearing. By 2015, Shprecher had
observed the children ignoring their mother, throwing food at each other, and
chasing and harassing the family pets. George has punched Shprecher in the
back, and when she chastised him for doing so, spit at her. In April 2016, the
A-1670-18T1 3 children attended a day camp where the counselor reported that George had
bitten him three times, and refused to listen to instructions or speak.
The Division referred the children to Dr. Elizabeth Stilwell, Psy. D., to
"assess the degree to which their exposure to domestic violence and other
traumas is impacting their development." Her report, entered into evidence
without objection during the factfinding hearing, enumerated the tests she
administered. She found the children to be "disruptive and aggressive," and
noted that George kicked a worker in the shin. Harry was "hyperactive and
aggressive[,] as evidenced by him running around the office, throwing toys,
shouting, and fighting with his brother . . . ." Harry played aggressively with
the toys in the office, climbed on the furniture, and his play themes were violent
in nature.
When George arrived for the testing, he immediately overturned a large
toy container and stomped on the contents. He was difficult to redirect, ran out
of the room several times, left through the office front door, crawled under
Stilwell's desk, and pointed a rubber band at her like a slingshot. When Mary
attempted to intervene, the boys simply ignored her.
Stilwell noted that Mary, along with Tom, had no insight into the reasons
the Division was involved with the family, and had difficulty putting her
A-1670-18T1 4 children's needs before her own. She opined that the children's "[s]creaming,
cursing, yelling, biting, hitting, and throwing objects [had] become [their] way
of communicating with their parent(s)." Although the behavior could be
attributed to various causes, including exposure to domestic violence, attention
deficit hyperactivity disorder (ADHD), sensory processing issues, autism
spectrum disorder, learning disabilities, and/or anxiety, Stilwell opined "that
their behavioral presentation is being intensified by the verbal and physical
violence that they have witnessed in their home."
On April 1, 2017, George was admitted to Goryeb Children's Hospital
because he was "violent, impulsive, [and] hyperactive" at daycare. He was
perceived as a threat to other children in the program, and had been expelled
from other facilities because of his aggressive behavior. A child psychiatrist
prescribed medication for him, and he was evaluated by a child neurologist.
Harry's neurodevelopmental evaluation was completed September 19,
2017, by Dr. Tosan Livingstone at Goryeb Children's Hospital. Livingstone
diagnosed Harry with an adjustment disorder with mixed emotional features and
conduct, as well as a mild speech articulation disorder. Although at the time he
did not fit the criteria for ADHD, the doctor noted that Harry should be
monitored for the condition. Livingstone diagnosed George with ADHD, an
A-1670-18T1 5 adjustment disorder with mixed emotional features and conduct, an expressive
language disorder, and a speech articulation disorder.
On December 5, 2017, before the factfinding hearing was scheduled to
begin, Mary's attorney renewed a request for adjournment so her expert could
determine whether the children's behaviors stemmed from reasons other than
exposure to domestic violence. Counsel explained to the judge that the children
visited Goryeb Children's Hospital on September 19, 2017, at which time
George had been diagnosed with ADHD, and Harry diagnosed with an
adjustment disorder. Counsel further argued that Mary needed the expert's
testimony to demonstrate the deficiencies in Stilwell's evaluation, because she
concluded the children were affected by domestic violence and was "not privy
to this diagnosis of ADHD." The Division opposed the request for adjournment;
it was not asserting that domestic violence alone caused the behavioral issues,
but rather, that the domestic violence and the unstable home environment had
caused the children actual harm, and exposed them to substantial risk of harm.
The judge rejected the adjournment request, observing that the factfinding was
originally scheduled for September 5, 2017, and the complaint was filed on
November 14, 2016, some thirteen months before. He did so without prejudice,
subject to renewal after Stilwell testified.
A-1670-18T1 6 The judge gave great weight to Stilwell's testimony. She testified the
children's behavior reflected their exposure to significant domestic violence, and
that the domestic violence was a separate cause of their difficulties. She gave
an example: "three[-]year[-]olds don't say things like I'm going to cut your
throat if they just have ADHD." Stilwell also opined that while children with
ADHD can display disruptive and violent behaviors, those behaviors were rarely
at the level displayed by Harry and George. She said "within a reasonable
degree of psychological certainty that the children['s] . . . behavioral
presentations were being exasperated by the domestic violence they had been
exposed to from a young age."
Stilwell also testified that the neurological literature she reviewed
indicated children exposed to chronic levels of stress, violence, or unpredictable
environments have increased levels of cortisol in their brains which causes
disruptions to normal personality growth. Specifically, in George and Harry's
case, "[t]here is a lack of consistency[,] . . . [h]ome safety and predictability that
disrupts their normal developmental trajectory," which manifests in increased
aggression, violence, oppositional behavior, and hyperactivity.
Stilwell relied upon the Adverse Childhood Experiences (ACEs) study,
which is one of the discipline's "larger studies," and included information
A-1670-18T1 7 regarding the "impact of a variety of developmental traumas, stresses,
incidences, and what that does to a child's development." Children might have
learning difficulties due to the cortisol levels changing the structure of the
children's prefrontal cortex, responsible for an individual's ability to plan and
organize. This could also lead to difficulty paying attention in school, staying
seated, completing their work, and sleeping. They would tend to be more hostile
and aggressive, which would make forming friendships and later adult
relationships difficult. Stilwell noted that Mary reported that Harry had issues
with sleeping, night terrors, sleepwalking, and bedwetting.
When asked if the children's behavior could be explained by an ADHD
diagnosis or adjustment disorder diagnosis, Stilwell opined that the domestic
violence had been "so longstanding and pervasive[,] it's a chicken or the egg
[thing]." When children are born into a "chaotic environment" and exposed to
the domestic violence from a very young age, it is "very difficult to sort of tease
out what is . . . what."
The judge found the significant level of domestic violence in the parents'
relationship was undisputed. It was substantial, pervasive, and much of it took
place in front of the children. Harry mimicked how his parents acted to the
A-1670-18T1 8 Division caseworker, what they would say, and he described their violent
conduct to Stilwell.
Despite numerous offers, Mary engaged in none of the services the
Division offered. When the Division attempted to provide the children with
early childhood education intervention services, the parents rejected the offer.
Although Tom was the main aggressor, both parents assaulted each other, and
engaged in significant arguments, in front of the children. Harry described his
parents' arguments and mimicked their words to Stilwell, and claimed that Tom
hit him.
As a result, the judge found the Division met its burden by a
preponderance of the evidence establishing Mary had abused and neglected the
children because of domestic violence in the home. The court further found the
domestic violence was pervasive and the children harmed. The children's
extreme behavior could not be explained merely by a diagnosis such as ADHD.
The court concluded that despite not intending to hurt the children, the
parents' repeated acts of domestic violence were intentional. Mary and Tom
were informed of the potential risks to their children should it continue, and did
nothing to abate it.
A-1670-18T1 9 The judge reasoned there could not be any doubt that the parents' actions
were "at a minimum in reckless disregard of the dangers to be suffered by the
children arising for the levels of domestic violence and hostility that ex isted
between the parties." The absence of a minimum degree of care and the reckless
disregard for the severe consequences constituted abuse and neglect.
On appeal, Mary raises the following points of error:
POINT I THE TRIAL COURT ERRED IN FINDING THAT [MARY] COMMITTED AN ACT OF ABUSE OR NEGLECT AGAINST [HARRY] AND [GEORGE]. SINCE THE STATE'S EXPERT, DR. STILWELL, DID NOT PROVIDE CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT EXPOSURE TO DOMESTIC VIOLENCE RESULTED IN ACTUAL AND IMMINENT HARM TO THE CHILDREN.
POINT II THE COURT COMMITTED PLAIN ERROR BY ALLOWING INTO EVIDENCE DR. STILWELL'S UNRELIABLE MEDICAL OPINION REGARDING THE IMPACT OF DOMESTIC VIOLENCE ON THE CHILDREN WHICH WAS OUTSIDE HER QUALIFICATIONS.
POINT III THE COURT ERRED IN DENYING [MARY'S] REQUEST TO HAVE A PSYCHIATRIC EXPERT EVALUATE [GEORGE] AND TESTIFY TO CONTRADICT THE STATE'S CASE THAT THE EXPOSURE TO DOMESTIC VIOLENCE
A-1670-18T1 10 CONSTITUTED HARM AND IMMINENT HARM TO THE CHILDREN.
POINT IV THE TRIAL COURT'S CONCLUSION THAT [MARY'S] PARTICIPATION IN ACTS OF DOMESTIC VIOLENCE IN THE PRESENCE OF THE CHILDREN WAS BOTH INTENTIONAL AND GROSSLY NEGLIGENT IS WITHOUT ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE FROM THE RECORD, AND THEREFORE WARRANTS REVERSAL.
I.
N.J.S.A. 9:6-8.21(c)(4) defines an abused and 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, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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. . . .
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 of serious injury to that child." G.S. v. Dep't
A-1670-18T1 11 of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999).
"'[M]inimum degree of care' refers to conduct that is grossly or wantonly
negligent, but not necessarily intentional," and "implies that a person has acted
with reckless disregard for the safety of others." Id. at 178, 179. "Conduct is
considered willful or wanton if done with the knowledge that injury is likely to,
or probably will, result." Id. at 178. Additionally, "[w]hen a cautionary act by
the guardian would prevent a child from having his or her physical, mental or
emotional condition impaired, that guardian has failed to exercise a minimum
degree of care as a matter of law." Id. at 182.
Moreover, "[w]hether a parent or guardian has failed to exercise a
minimum degree of care is to be analyzed in light of the dangers and risks
associated with the situation." Id. at 181-82. "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[,]" and the "proper focus is on [this] risk." N.J. Dept.
of Children & Families, Div. of Youth & Family Servs v. A.L., 213 N.J. 1, 23
(2013). If the evidence "does not demonstrate actual or imminent harm, expert
testimony may be helpful," and "[c]ompetent expert testimony, stipulations, or
other evidence could shed light on the facts introduced." Id. at 28.
A-1670-18T1 12 Importantly, the trial court's findings must be based "on the totality of the
circumstances, since '[i]n child abuse and neglect cases the elements of proof
are synergistically related. Each proven act of neglect has some effect o n the
[child]. One act may be "substantial" or the sum of many acts may be
"substantial."'" N.J. Div. Youth & Family Servs. v. V.T., 423 N.J. Super. 320,
329-30 (App. Div. 2011) (alteration in original) (quoting N.J. Div. of Youth &
Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).
When reviewing a family court decision, we generally defer to the trial
court's factual findings, as it has "special jurisdiction and expertise in family
matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Only the trial court "has
a 'feel of the case' that can never be realized by a review of the cold record."
N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 294 (App.
Div. 2014) (quoting N.J. Div. Youth & Family Servs. v. G.M., 198 N.J. 382, 396
(2009)).
Consequently, our review of findings of fact is limited to whether the
findings are "supported by adequate, substantial [and] credible evidence."
Cesare, 154 N.J. at 411-12; see also N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012) ("We will not overturn a family court's factfindings
unless they are so 'wide of the mark' that [the appellate court's] intervention is
A-1670-18T1 13 necessary to correct an injustice."). We "expand [our] highly deferential scope
of review when the alleged error does not involve credibility of witnesses but
turns on the trial court's application of the law to the underlying facts." N.J.
Div. of Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 397 (App.
Div. 2015).
II.
In support of her argument that Stilwell's conclusions were unfounded,
Mary relies upon New Jersey Division of Child Protection & Permanency v.
N.B., 452 N.J. Super. 513 (App. Div. 2017), and New Jersey Division of Youth
& Family Services v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004). She
cites the cases for the proposition that exposure to domestic violence cannot be
the sole basis for a finding abuse and neglect. Both cases, however, are factually
distinguishable.
In N.B., we reversed a finding of abuse or neglect based on insufficiently
corroborated statements of a child, as well as facts and complex diagnoses
within a non-testifying psychologist's hearsay report. 452 N.J. Super. at 516.
The child in N.B. observed arguments between his mother and her boyfriend and
heard her make suicidal statements. Id. at 516-19, 522. The child's behavior
did not, however, corroborate a finding of emotional harm because the child's
A-1670-18T1 14 mood was "normal and appropriate[.]" Id. at 522. He denied he had appetite,
sleep, or mood problems, or thoughts of self-harm. Ibid. The Division's only
witness was a supervisor lacking in first-hand knowledge of the precipitating
incident or the conduct, and who did not conduct the interviews. Id. at 526-27.
In S.S., we reversed the trial court's finding of abuse or neglect when
domestic violence occurred as a mother held her infant child in her arms. 372
N.J. Super. at 15-16, 28. There was no evidence in the record whatsoever that
the child had been emotionally harmed by witnessing the incident. Id. at 22-23.
In this case, Mary admitted the children witnessed domestic violence on
multiple occasions. The reports from the experts, camp counselors, and Division
staff constituted overwhelming proof that the children exhibited severe
behavioral problems. Both N.B. and S.S. involved limited or only one incident
as opposed to the "substantial and pervasive" incidents that have defined this
family's home life.
Furthermore, contrary to Mary's contention, Stilwell's testimony, and her
report, were not inadmissible net opinions. She personally observed the
children, and gleaned information about them from extensive records provided
for her review. Stilwell explained in detail the reasons for her conclusions both
in her report and her testimony. Stilwell relied upon the ACEs study to predict
A-1670-18T1 15 the impact of domestic violence on the children's future development, and the
research and literature to assist her in her conclusions regarding the impact the
domestic violence exposure might have on the children. Although she may not
have had the credentials to personally conduct the studies upon which she relied,
they are relied upon by experts in her field, and were ultimately unrefuted.
N.J.R.E. 703 requires that an "expert opinion be grounded in 'facts or data
derived from (1) the expert's personal observations, or (2) evidence admitted at
the trial, or (3) data relied upon by the expert which is not necessarily admissible
in evidence but which is the type of data normally relied upon by experts.'"
Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. Cty. of Essex, 196
N.J. 569, 583 (2008)). Stilwell gave the necessary whys and wherefores of her
opinion. See id. at 54.
Mary further argues that Stilwell was required to apportion a percentage
of causation for the children's behavior to both ADHD and specified behavioral
diagnoses in contrast to domestic violence. No case requires such a numerical
calculation. Stilwell acknowledged that ADHD could cause children to act
disruptively, but not to threaten to cut someone's throat or kill them. Stilwell's
point was not that exposure to domestic violence explained each and every
behavioral issue, but that each and every behavioral problem the children might
A-1670-18T1 16 have attributable to their diagnoses was exacerbated by their exposure to
domestic violence, and that some of these difficulties existed independently of
the diagnoses.
On appeal for the first time, Mary also argues that Stilwell's opinion
regarding cortisol and its effect on the brain were beyond her expertise. We
therefore employ not a harmless error, but a plain error standard to review the
claim, which means we will reverse only if the error in the admission of the
testimony was of such a nature as to have been clearly capable of producing an
unjust result. R. 2:10-2.
Stilwell's testimony about cortisol and its effect on children's brains was
not a medical opinion that needed to be offered exclusively by a neurobiologist.
Although her testimony referenced brain development, that reference was not
improper. Stilwell offered an opinion about the possible physical effects of the
chronic stress and exposure to domestic violence might have on the brain based
on literature in her field.
III.
Mary contends that the judge's opinion discounted the effect that the
domestic violence had upon her ability to exercise control and good judgment.
But she failed to exercise a minimum degree of care "although 'aware of the
A-1670-18T1 17 dangers inherent in a situation[,]' namely their abusive relationship . . . [she]
'recklessly create[d] a risk of serious injury' to their children by failing to protect
the children from harm and failing to acknowledge and treat their disabilities."
N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 586 (App.
Div. 2010) (first and third alterations in original) (quoting G.S., 157 N.J. at 181).
Mary fought with Tom, knowing that her children were witnesses. She
continued to place the children in jeopardy, despite being informed of the harm
that resulted from her confrontations with Tom, and while disingenuously
promising to limit and monitor Tom's contacts with the children. The Division
offered Mary a host of alternatives, yet she continued to reject services and
opportunities to protect the children from ongoing conflicts.
Mary maintained a relationship with Tom, and violated court orders by
continuing to see and at times live with him with the children. Mary had options
extended to her by the Division, but failed to exercise those options to the clear
detriment of the children. That she may have been a victim of domestic violence
does not relieve her of the responsibility over the years to protect Harry and
George's "physical, mental, or emotional condition." N.J.S.A. 9:6-8.21(c)(4).
A-1670-18T1 18 IV.
In deciding whether to grant a request for adjournment, a court weighs a
number of well-established factors. See State v. Hayes, 205 N.J. 522, 538
(2011). A court is expected to engage in a "balancing process informed by
intensely fact-sensitive inquiry." Ibid. Applications for continuances or
adjournments are reviewed for abuse of discretion. State ex rel. Comm'r of
Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013). In
determining whether a request or adjournment should be granted, courts are
urged to look at the following factors:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; . . . whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors . . . .
[Hayes, 205 N.J. at 538 (quoting State v. Ferguson, 198 N.J. Super. 395, 402 (App. Div. 1985).]
Certainly, the denial of an adjournment will not lead to a reversal unless the
defendant has suffered a manifest wrong or injury.
A-1670-18T1 19 No abuse of discretion occurred here, nor is a retrial warranted, in light of
the above factors. The litigation was ongoing, and Mary knew in advance of
Stilwell's proposed testimony because she was served the report months earlier.
The judge accepted Stilwell's opinion about the source of the children's
behavioral difficulties but did not discount the presence of biological factors.
Rather, the judge took Stilwell at her word that the underlying conditions could
only be exacerbated by exposure to relentless domestic violence in the home.
To have delayed the matter to allow for a belated expert report regarding the
children's diagnoses would not have been helpful. The judge did not ignore
them. Thus, he did not abuse his discretion by refusing to postpone the matter.
Affirmed.
A-1670-18T1 20