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)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 22, 2019
• Docket: A-3408-17T1
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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).

A-3408-17T1 2 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. A-3408-17T1 3 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

A-3408-17T1 4 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

A-3408-17T1 5 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

A-3408-17T1 6 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.

A-3408-17T1 7 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

A-3408-17T1 8 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].

A-3408-17T1 9 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

A-3408-17T1 10 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

A-3408-17T1 11 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.

A-3408-17T1 12 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,

A-3408-17T1 13 corroborated the children's out-of-court statements. That determination

comports with N.J.S.A. 9:6-8.46(a)(4).

Affirmed.

A-3408-17T1 14