RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0349-13T3
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1 APPROVED FOR PUBLICATION Plaintiff-Respondent, December 24, 2014 v. APPELLATE DIVISION N.M.,
Defendant-Appellant,
and
J.K.,
Defendant. ______________________________________________
IN THE MATTER OF J.K., Jr. and J.K., minors. ______________________________________________
Submitted December 1, 2014 – Decided December 24, 2014
Before Judges Sabatino, Guadagno, and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-103-13.
1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.K., Jr. and J.K. (Margo E.K. Hirsch, Designated Counsel, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D.
Defendant N.M. (Nina)2 appeals from the trial court's
finding that she abused or neglected her two children by
bringing them to a public park to meet her former boyfriend,
J.B. (Jeffrey), who followed her home and raped her in the
children's presence. Because the Division of Child Protection
and Permanency (Division) failed to establish that the children
suffered harm as a result of defendant's actions, and because
her conduct was neither reckless nor grossly negligent, we
reverse.
I.
In light of the arguments raised on appeal, we recite the
facts with particularity. Nina is the mother of J.K., Jr.
2 We employ pseudonyms to protect the privacy of the minors and for ease of reference.
2 A-0349-13T3 (James) and J.K. (Jonah). At the time of the incident which
gave rise to this litigation, James was two years old and Jonah
was one. J.K., Sr. (Joseph) is the father of both children. He
was a named defendant in this litigation, but the Division did
not seek a finding of abuse or neglect against him, and he is
not a party to this appeal.
The Division first became involved with this family in June
2010, when it received a referral from the Bayonne Police
Department that Nina reported that Joseph choked her, threw her
to the ground, and shook James, who was then one month old.
James was later diagnosed with a skull fracture, a subdural
hematoma on the left side of his brain, and retinal hemorrhaging
in both eyes. Both parents were found to have abused or
neglected James. Joseph admitted to choking Nina and injuring
James when he threw the child into a car seat. Nina was found
to have placed James at risk by permitting Joseph to care for
him when she knew or should have known that the Joseph was prone
to violence. Nina appealed and we affirmed. N.J. Div. of Youth
& Family Servs. v. N.M., No. A-5808-11 (App. Div. May 10, 2013).
In 2012, Nina was living in an apartment with her mother,
her brother F.K. (Fred), and the two children. Joseph remained
incarcerated as a result of his conviction for injuring James.
Nina met Jeffrey in March 2012, and they began a casual dating
3 A-0349-13T3 relationship, seeing each other on approximately three occasions
until May 2012, when Nina attempted to end the relationship.
On May 24, 2012, a Bayonne police officer responded to a
report of domestic violence at Nina's home. When the officer
arrived, he spoke with Fred who explained that he and Nina had
an argument over a cell phone. The officer entered the
apartment and found Nina sitting on the floor of her bedroom
with her face covered in blood. Nina explained that after
arguing with Fred, she retreated to her bedroom to avoid further
conflict, but Fred forced the door open, which struck her in the
face, causing a laceration. Fred was arrested and Nina was
taken to the hospital for treatment.
On June 24, 2012, Nina called the police again after
arguing with Fred. Bayonne Police Officer Michael Zajac
responded, but Fred left before he arrived. Nina, who was not
injured, did not wish to file a complaint. Nina explained that
she feared that her brother might hit her, and she called the
police to prevent the matter from escalating. While in the
apartment, Zajac noticed that the children were dirty and the
apartment was in disarray. He reported the condition to the
Division.
Pedro Cirino, a member of the Division's Special Protective
Response Unit (SPRU), went to Nina's apartment that evening at
4 A-0349-13T3 around 8:15 p.m. After speaking with Nina, Cirino asked to see
the children. He observed that they were asleep in separate
cribs and appeared "healthy and clean." In his report, Cirino
noted that "the children's room was found to be somewhat clean
and no health or safety factors were identified." Other parts
of the apartment had "housekeeping issues" that needed to be
addressed, including clothing strewn throughout the home, a
sticky floor in the kitchen that had not been mopped in some
time, a child's booster seat which was covered in old food, and
dirty dishes in the kitchen sink. When Cirino looked in the
refrigerator, he noticed "plenty of food," but that the
refrigerator looked as though it had not been cleaned in some
time.
Cirino told Nina that she would be given some time to clean
the apartment and he would return within one hour to check the
progress. Nina apologized for the condition of the home and
agreed to begin cleaning immediately. Before leaving, Cirino
spoke with Fred who told him the apartment was not usually in
this condition. Fred explained that "things were a mess"
because he and his mother were moving out within a few days.
Fred agreed to assist Nina in cleaning the apartment.
Cirino returned to the apartment around 10:00 p.m. and
detailed the improved conditions in a report:
5 A-0349-13T3 The floors were no longer sticky and the living room was much more organized. The family emptied out and cleaned both refrigerators and all the dark mold had been cleaned and removed with bleach and disinfectant.
Division caseworker Laura Bulakowski, who had been working
with the family since 2011,3 visited Nina's apartment on the
following day. Bulakowski observed that "the home was a lot
[cleaner] than the previous day when the . . . referral was
originally received." Bulakowski noted Nina's compliance,
stating, "[t]he Division gave [Nina] an opportunity to address
the housing concerns, and [Nina] was very compliant with the
Division."
During Bulakowski's visit, Nina disclosed that she had
dated Jeffrey. Bulakowski requested Jeffrey's address so she
could conduct a background check, but Jeffrey refused to supply
the information, and Nina did not know where he lived. As a
result, Bulakowski testified that she advised Nina "that at this
time the Division would not like him to be around the children,
because we don't know his history, his background history. If
he's violent, how his behaviors could be, and it raised a
concern to us."
3 After the 2010 matter was dismissed from litigation, the Division kept its case open to monitor Nina's "compliance." Bulakowski testified that during this time she had no concerns with Nina's compliance.
6 A-0349-13T3 Nina agreed, but later that day she took the children with
her to a park in Bayonne to meet Jeffrey. Nina told police that
after Jeffrey refused to cooperate with Bulakowski's attempt to
perform a background check on him, she went to the park
intending to end their relationship.
After speaking with Jeffrey in the park, Nina returned to
her apartment, pushing her two children in a baby carriage.
Jeffrey walked with or behind her4 to her apartment, which was a
few blocks away. When she reached her building, Nina unlocked
the front door and pushed the carriage containing the two
children into the hallway.5 Jeffrey followed Nina inside and,
after closing the door, pushed her up against the wall and began
to rub her vagina over her clothes. Nina attempted to escape up
the stairs to her apartment, but Jeffrey grabbed her and pulled
her back down the stairs. He then pushed her up against the
wall again and tried to kiss her. Nina tried to push him off
and hit him repeatedly in the chest and shoulders to no avail.
Jeffrey then ripped off Nina's shorts and underwear and, while
4 In her initial report to the police, Nina stated that Jeffrey "walked [her] and the children home." Bulakowski testified that during a subsequent interview, Nina told police that "while she was walking home [Jeffrey] was following her." 5 Nina's residence is located in a two-story building with a vacant storefront on the first floor and two apartments on the second.
7 A-0349-13T3 pinning her to the wall in a standing position, he penetrated
her vagina with his finger. Jeffrey then had vaginal
intercourse with Nina and ejaculated inside her. Before Jeffrey
left, he asked Nina, "Was it good?" The children remained in
the baby carriage throughout the incident.
Nina did not report the rape immediately, as she was in
shock and in fear of Jeffrey. But on June 30, 2012, Nina
reported the incident to the police. The Division was notified
and Bulakowski responded to the prosecutor's office where she
observed, but did not participate in, an interview with Nina, in
which she recounted the details of the rape.
At the conclusion of the interview, the Division conducted
a Dodd removal6 of both children. Bulakowski testified that the
decision to remove the children was prompted by the Division's
ongoing concerns of the willingness to care for the children, and the uncleanliness. We had that referral the week prior, that the children were dirty at the time. Also the ongoing domestic violence allegations in the home, because that was the second one within the month that we received information . . . that raised a concern to the Division.
6 A "Dodd removal" is an "emergency removal of a child from the home without a court order, pursuant to the Dodd Act," N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
8 A-0349-13T3 The Division sought a finding of abuse or neglect against
Nina. A fact-finding hearing began on January 30, 2013 and
concluded on August 7, 2013. The Division offered two theories
supporting their claim. First, it alleged that Nina's "home
environment was unsuitable to two young children . . . [and
placed them] at an imminent risk of harm."7 In explaining the
second allegation, the deputy attorney general first felt
compelled to disclaim any intention by the Division "to re[-
]victimize a victim." Nevertheless, she claimed that Nina
abused or neglected her children because "her compromised
judgment, placed her children at a substantial risk of physical
harm, given the statement that [Nina] made, which was that she
was raped in front of her children, while her children were next
to her screaming and crying."
The Division admitted without objection three Bayonne
Police Department incident reports and four Division reports.
The Division then called Zajac, who briefly recounted his
response on June 24, 2012 and his observations of the condition
7 The trial court found that the Division did not substantiate this charge, and we question why the Division pursued it in the first instance. The record is clear that Nina took immediate remedial action after being informed of the problem by Cirino. Within one hour, she had addressed most of the concerns raised by him. When Bulakowski visited the following day, she expressed satisfaction at the condition of the apartment and complimented Nina's compliance with the Division.
9 A-0349-13T3 of her apartment. Bulakowski then testified as to her follow-up
visit to Nina's apartment on June 25, 2012; her advice to Nina
that the Division would not like Jeffrey to be around the
children; her observation of Nina's interview with the police on
July 2, 2012; and the removal of the children later that day.
Finally, Cirino testified as to the events surrounding his
response to Nina's apartment on June 24, 2012. Neither the
defendant nor the law guardian presented any witnesses or
evidence.
At the conclusion of the hearing, the trial court found
that the "environmental issues" in Nina's apartment did not rise
to the level of "serious risk of substantial harm" by the
requisite preponderance of the evidence standard.
As to the second allegation, the judge discussed the
incidents of May 24, 2012 and June 24, 2012. As to the May 24
incident, the judge found that "there was violence in that home
where the children were present" and that Nina had "apparently
underplayed" the incident. Although the judge noted that the
incident "might not have been abuse and neglect," she
nevertheless concluded that it was "the first indication we have
of a history of domestic violence."
The judge then noted that despite advice from the
caseworker that she not expose the children to Jeffrey, she
10 A-0349-13T3 takes these two little infants in the stroller to a place to meet a man she's afraid of, who may have a gun, after being found by a [c]ourt to have committed abuse and neglect by exposing one of the children to a dangerous person in the past. As a result of her horrible judgment, he follows her home, rapes her in the lobby in front of the children, causing the children to see it, screaming the whole time, see[ing] their mother screaming while she's being raped.
And then she doesn't call the police. So, they're at risk of continued harm. Takes five to seven days to call the police.
The judge then referenced Nina's prior substantiation of
abuse or neglect from 2010, for leaving James with his father
who seriously injured the child:
Even if [Nina] did not believe that [Jeffrey] would hurt the children, she knew her judgment had been wrong in the past for that same exact issue. She knew [Jeffrey] had refused to cooperate in giving any information to the Division. That same day she's told, "Don't have the children near him." And she calls [Jeffrey] and takes the children right there.
Based on her behavior, her lack of appropriate judgment, and her history of her exercising poor judgment and exposing these children to violence, this [c]ourt finds, by a preponderance of the evidence, that . . . [Nina] did exhibit reckless disregard for the safety of the children, was wantonly negligent in exposing them to serious risk of harm, and as in the case of D.M.H.[8] there was no need for the Division, and there's no need for the [c]ourt to wait until the
8 In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
11 A-0349-13T3 children are actually harmed to protect them.
On appeal, Nina argues that there was not substantial
credible evidence in the record to support the trial court's
conclusion that she abused or neglected her children. She
challenges the Division's proof that she should have known that
Jeffrey presented a risk of harm and also notes that there was
no proof that the children suffered harm from witnessing the
incident.
II.
N.J.S.A. 9:6-8.21(c) defines an abused or neglected child
as a person less than eighteen years of age
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 . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship [or] by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
"If there is no evidence of actual harm, . . . the statute
requires a showing of 'imminent danger' or a 'substantial risk'
of harm before a parent or guardian can be found to have abused
or neglected a child." N.J. Dep't of Children & Families v.
A.L., 213 N.J. 1, 8 (2013).
12 A-0349-13T3 We note at the outset that the Division offered no proof
and makes no claim now that the children suffered any emotional
harm as a result of witnessing their mother's rape by Jeffrey.
Indeed, such harm "cannot be presumed in the absence of evidence
of its existence or potential." N.J. Div. of Youth & Family
Servs. v. S.S., 372 N.J. Super. 13, 28 (App. Div. 2004) certif.
denied, 182 N.J. 426 (2005). Rather, the Division's theory is
that Nina knew or should have known that Jeffrey posed a risk of
harm to her children, and by bringing them with her to the park
to meet him, she placed them at a substantial risk of harm.
In concluding that Nina should have known not to bring the
children to the park, the court found it significant that
Bulakowski advised her to keep Jeffrey away from them. It bears
noting that the caseworker's warning was based entirely on
Jeffrey's refusal to provide his address so that she could
conduct a background check. The Division had no information to
suggest that Jeffrey posed a danger to Nina or the children, and
we reject the conclusion that a person who declines to provide
the Division with personal information should be assumed to be
dangerous.
In G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999),
the Court held that a gross or wanton negligence standard should
be employed in determining whether the parent or guardian had
13 A-0349-13T3 failed to exercise a "minimum degree of care" and therefore had
committed an act of child abuse or neglect. The Court noted
that conduct is willful or wanton if it is "done with the
knowledge that injury is likely to, or probably will, result."
Ibid.
In her brief relationship with Jeffrey, there was no
history of violence, no indication that he had a criminal
record, and simply no way for Nina to foresee that a daytime
meeting in a public park would result in a brutal and horrific
rape. Nina told Bulakowski that Jeffrey may have carried a gun
in his job as a security guard, although there is nothing in the
record to indicate that she ever saw a gun or even knew with
certainty that he possessed one. That is insufficient to
support the court's finding that Nina should have known that
Jeffrey "may have a gun," when she met him in the park.
In finding that Nina exposed her children to a substantial
risk of harm, the trial judge placed significance on two
domestic disputes, referring to them as "two prior serious
referrals."
The first event the trial judge noted occurred after Nina
retreated to her room following an argument with her brother.
Nina gave two versions of what occurred next. She told the
responding police officers that Fred followed her into her room,
14 A-0349-13T3 and she was injured when he forced the door open as she tried to
close it. She was injured when Fred forced the door open. She
later told Bulakowski that "her brother accidentally opened the
door [and] hit her in the face which caused her face to bleed."
Nina did not testify but the court appeared to have accepted the
first version and found that Nina "apparently underplayed" the
incident to the Division.
We need not give deference to the trial court in crediting
one version of this event over the other, since the court did
not have the benefit of Nina's testimony. Any credibility
findings that the court implicitly made concerning her account
were based on the same written record that is now before us on
appeal. Where our review of the record "leaves us with the
definite conviction that the judge went so wide of the mark that
a mistake must have been made," we may "appraise the record as
if we were deciding the matter at inception and make our own
findings and conclusions." Pioneer Nat'l Title Ins. Co. v.
Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff’d, 78 N.J. 320
(1987). Even assuming that Fred injured Nina when he pushed the
door in, it is undisputed that Nina retreated to her room to get
away from her brother. Moreover, there is no proof that the
children were exposed to the incident, that they suffered harm
15 A-0349-13T3 as a result, or that Nina was anything other than a victim who
acted reasonably in retreating from the confrontation.
The second event9 noted by the trial judge involved Joseph,
the father of the children. The court found Nina's prior
substantiation, for failing to protect James from harm by his
father, was evidence of "her history of her exercising poor
judgment and exposing these children to violence." The court
concluded that the 2010 incident should have somehow placed Nina
on notice that she should not bring the children with her to
meet Jeffrey because "she knew her judgment had been wrong in
the past for that exact issue."
N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse
or neglect of one child shall be admissible evidence on the
issue of the abuse or neglect of any other child of . . . the
parent or guardian." We have held that violence by a defendant
against another parent and other children can be admissible to
prove that a risk of harm to the children was present as long as
the harm is not presumed but established by competent evidence.
See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 557 (App. Div. 2010). Expert testimony in I.H.C.
provided support for a finding that the children were harmed by
9 The trial judge acknowledged that she may have reversed these events chronologically.
16 A-0349-13T3 the defendant's prior acts of domestic violence, and that these
acts showed the defendant's disposition to commit such violence.
Id. at 576. However, both the statute and I.H.C. address prior
violence by the same perpetrator, which is not the case here.
Accordingly, we find the holding in I.H.C. inapplicable to the
facts in this case and reject the trial court's conclusion that
Nina's actions in 2010 should have placed her on notice that
taking the children with her to meet Jeffrey would place them in
danger.
The Division's proof was insufficient to establish that
Nina failed to exercise a minimum degree of care or that she was
in any way aware of the dangers that would follow from taking
her children to the park to meet Jeffrey. As Nina's conduct may
have been, in hindsight, unwise, it was neither wanton nor
grossly negligent, and cannot support a finding that she abused
or neglected her children.
Reversed.
17 A-0349-13T3