New Jersey Division of Youth & Family Services v. A.R.G.New Jersey Division of Youth & Family Services v. A.R.G.
- Reporters:
- ,
- Before:
- Fall J.A.D., Kestin, Eichen
A.R.G. is the father of C.R.G., a male child born on January 2, 1987; R.L.G., a male child born on October 5, 1992; and A.J.G., a male child born on May 16, 1994.
A.R.G. appeals from an order entered on July 17, 2002, denying his motion for reconsideration of an order that had been entered on June 26, 2002, finding that A.R.G‘s behavior toward the children constituted aggravated circumstances of abuse, neglect and cruelty that excused DYFS from the statutory requirement to exert reasonable efforts to reunify A.R.G. with his children. A.R.G. also appeals from a “permanency order,” also entered on July 17, 2002, approving the permanency plan of DYFS to terminate A.R.G.‘s parental rights, with adoption of the children by the maternal grandparents, and requiring DYFS to file a guardianship action against A.R.G. by September 18, 2002.
The following factual and procedural history gave rise to this appeal. On May 28, 2002, DYFS received a referral from Ms. Carola, the school nurse at the Hudson Elementary School, 18th Street, Union City, the school attended by R.L.G. and A.J.G., advising that she had observed numerous bruises on the arms, back, buttocks and legs of R.L.G. that had been attributed by the child to a beating by A.R.G. The school had received an anonymous call stating that R.J.G. had been physically abused. It was later determined that C.G.F., A.R.G.‘s sister, had reported the abuse to the school after C.R.G. had informed her that A.R.G. had been beating R.L.G.
DYFS caseworker Dionis Burgos rеsponded to the school, met with Nurse Carola, and spoke with the child. R.L.G. advised Burgos that he had been beaten by his father because he had received a negative progress report from school. Burgos observed large black and blue marks on R.L.G.‘s right arm and outer forearm; fading red bruises, in addition to eight fading, red belt marks around the area of R.L.G.‘s inner right arm; fading black and blue bruises on the child‘s left arm along with four red, circular belt marks; seven red belt-loop bruises on R.L.G.‘s back in the area of the child‘s left shoulder; and three black and blue belt-loop bruises on the side of his right calf.
Upon further inquiry by Burgos, R.L.G. described a beating that had been inflicted upon him by A.R.G. on May 27, 2002. R.L.G. further informed Burgos that his father often struck him. Burgos also interviewed A.J.G., who verified the information given by R.L.G. N.G., the children‘s paternal grandmother, appeared at the school to retrieve the children, and was also interviewed by Burgos. N.G. initially informed Burgos that she did not see her son A.R.G. strike R.L.G., but stated that A.R.G. was “always screaming at everyone[,]” and that she feels A.R.G. “went to the extreme.” Burgos made arrangements for R.L.G. to be physically examined at the Jersey City Medical Center.
After examining R.L.G. at the hospital, Dr. Radwan “reported that the child had old bruises and that based on that information he was determining that the child had at least 5 to 6 beatings on his body.” No bruises were detected on A.J.G.‘s body. Dr. Pellecia also examined R.L.G., and reported that R.L.G. “had 4 to 5 past beatings on his body[,]” and that “[h]e had old, new and healing scars.” Dr. Pellecia also stated in his report that the bruises to “[t]he buttock area did not have time to heal and that a new beating was probably done on top of the healing wounds[,]” and “that the buttock area, which was the more seriously injured, would probably leave scars that appeared like birthmarks.”
In a second interview of N.G. by Burgos, conducted later that day, N.G. admitted she had been present when the beating to R.L.G. had occurred, but stated that “[A.R.G.] is an aggressive person and she is powerless to stop him.” Photographs taken of the bruised areas of R.L.G. graphically depict the results of the severe beating inflicted upon the child by A.R.G. A.R.G. was interviewed by representatives of the Hudson County Prosecutor‘s Office, and admitted to beating R.L.G. with a belt.
After substantiating the abuse, the Division effected an emergency removal of the children from A.R.G.‘s care on May 28, 2002, pursuant to
On May 29, 2002, DYFS filed a verified child abuse and neglect complaint in the Family Part against A.R.G., pursuant to
[w]hile in the care and custody of their father, the children were abused and/or neglected in that their father has failed to exercise a minimum degree of care in providing the children with proper supervision or guardianship or by unreasonably inflicting or allowing to be inflicted harm or substantial risk thereof, including infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court resulting in such children‘s physical, mental or emotional condition becoming impaired or in imminent danger of becoming impaired.
The complaint also alleged that there was an extensive history of protective service agency involvement in several other states, and that DYFS had requested records from those states. DYFS sought an order granting it custody of the three children “and/or such relief as is provided by law, specifically
As a result of the application by DYFS, the trial court entered two orders on May 29, 2002. One order approved and authorized the emergency removal that had been effected by DYFS; placed continued custody of the children with DYFS; prohibited
Meanwhile, criminal charges were filed against A.R.G. and he was incarcerated; bail was set at $50,000. A Law Division order entered on May 29, 2002 in the criminal matter prohibited A.R.G. from having any contact with the children. A.R.G. was released on bail on June 7, 2002.
Pursuant to the provisions of the Interstate Compact on the Placement of Children (ICPC),
By letter to all counsel dated June 24, 2002, counsel for DYFS advised, as follows:
Enclosed please find a copy of the evidence packet for the fact finding hearing on Wednesday, June 26, 2002 at 1:30 pm. We anticipate moving these documents in evidence at the upcoming trial pursuant to R. 5:12-4(d). At the hearing a request for a finding pursuant to
N.J.S.A. 30:4C-11.3(a) will be made.Please advise whether you will stipulate to the admissibility of these records. It is understood that in so stipulating you reserve the right to proffer evidence rebutting the contents of the documents.
If you object to a document, please advise me as to the nature of your objection. I anticipate calling one witness from the Division.2
At the June 26, 2002 hearing, DYFS moved for a finding that it was not required to exert reasonable efforts to reunify the children with A.R.G., pursuant to
In any case in which the Division of Youth and Family Services accepts a child in care or custody, including placement, the division shall not be required to provide reasonable efforts to reunify the child with a parent if a court of competent jurisdiction has determined that:
a. The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment;
b. The parent has been convicted of murder, aggravated manslaughter or
manslaughter of a child; aiding or abetting, attempting, conspiring or soliciting to commit murder, aggravated manslaughter or manslaughter of a child; committing or attempting to commit an assault that resulted, or could have resulted, in significant bodily injury to a child; or committing a similarly serious criminal act which resulted, or could have resulted, in the death of or significant bodily injury to a child; or c. The rights of the parent to another of the parent‘s children have been involuntarily terminated.
When determining whether reasonable efforts are required to reunify the child with the parent, the health and safety of the child and the child‘s need for permanency shall be of paramount concern to the court.
This section shall not be construed to prohibit the division from providing reasonable efforts to reunify the family, if the division determines that family reunification is in the child‘s best interests.
A permanency plan for the child may be established at the same hearing at which the court determines that reasonable efforts are not required to reunify the child with the parent, if the hearing meets all of the requirements of a permanency hearing pursuant to [
N.J.S.A. 30:4C-61.2 ].
[
The only witness presented at the fact-finding hearing was Dionis Burgos, the DYFS caseworker. Burgos testified to the results of the investigation by DYFS and produced the various records contained in the DYFS file, including the photographs taken of R.J.G.‘s injuries. Over the objection of counsel for A.R.G., the DYFS file was admitted into evidence. After considering the testimony, evidence, and arguments of counsel, the judge stated, in pertinent part:
The Division has proffered 20 photographs of [R.L.G.], and I think the most descriptive photograph would be P-7, the photograph that shows [R.L.G.‘s] left arm with bruises on the left forearm....
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I‘m satisfied that the photographs do not overly exaggerate the extent, nature of the injury. Perhaps bruises are more colorful, demonstrative, but certainly the markings indicate a serious savage beating by [A.R.G.] upon the child.
I‘m clearly convinced based upon the testimony of Ms. Burgos, the documentation of the medical records, the photographs that the Division has established that [A.R.G.] has abused [R.L.G.] pursuant to [
N.J.S.A.] 9:6-8.21 .Additionally, there is argument that the other two children were not abused. [
N.J.S.A.] 9:6-8.46 provides for evidence to be considered, proof of abuse and neglect of one child shall be admissible evidence on the issue of abuse and neglect of another child.I‘m satisfied that based on the abuse inflicted upon [R.L.G.] that the other children likewise would be considered victims of abuse and at risk in the care of [A.R.G.]
The Division also requests a determination pursuant to [
This is not just punishment for a child‘s bad progress report in school. This is a serious beating inflicted upon a young child by an adult through the use of a belt.
The Division would be excused from providing reasonable efforts. The children are to continue in the care and custody of the Division. Visitation will continue to be suspended for [A.R.G.]
[A.R.G.] is to comply with the Division‘s referral for parenting, anger management, along with any referrals made as a result of the psychological evaluation.
[Counsel for A.R.G.] can have her own psychological evaluation. The children can be ... placed with the maternal grandparents in Florida at any time on notice to [the Law Guardian].
The court entered two orders on June 26, 2002, memorializing its findings. In the fact-finding order, the court found that removal and placement of the children was necessary due to imminent danger to their life, safety or health. The order also recited that DYFS had established by clear and convincing evidence that R.L.G. had been abused by A.R.G., and that due to the severity of abuse the other children were at risk for abuse. The order further provided that “reasonable efforts need not be provided.” In the second order, entered on return of the order to show cause, the court continued the “no contact” provision until further order of the court; directed that the interstate referral be conducted on the maternal grandparents in Florida; restrained A.R.G. from the home of the maternal grandparents; required A.R.G. to submit to a psychological evaluation, anger management counseling and parenting skills training; and scheduled a permanency hearing for July 17, 2002.5 That order also stated that the “Division is excused from reasonable efforts.”
On or about July 15, 2002, A.R.G. filed a motion seeking a rehearing or reconsideration of the determination by the court that had excused DYFS from providing reasonable efforts to reunify him with the children. The motion also sought an order directing DYFS to provide services to A.R.G., and an adjournment of the permanency hearing. The motion was argued in the Family Part on July 17, 2002. After analyzing the statute, the judge found that the conduct of A.R.G. had constituted aggravated circumstances of abuse and cruelty, and denied the motion stating, in pertinent part:
In this case the evidence presented by the Division, P-1 through P-5, testimony of Ms. Burgos, really shows that [A.R.G.] beat the child, [R.L.G.] with a belt on or about May 27th, 2002. The Division offered statements of the child and in fact the children, [A.J.G. and C.R.G.] that this was not an isolated
The medical documentation, P-4 at page three, reflects that the child had lesions in different stages of healing.... Dr. Pellecia ... reported to the Division worker ... that [R.L.G.] had four to five past beatings. Dr. Pellecia opined that he, [R.L.G.], has old, new and healing scars. Photos, P-5, also speak volumes of the savagery of the assault on [R.L.G.] by [A.R.G.]
The Division‘s evidence also shows that another child, [C.R.G.], told the worker “[R.L.G.] does not get hit all the time, only when he gets bad grades.” He claimed that three years ago his father ... stopped hitting him, [C.R.G.]. He would be hit for everything. And that he stood up to his father and the beatings stopped....
[C.R.G.] also stated that his father told him to keep quiet because if anything was revealed he, [A.R.G.], would go to jail....
[C.R.G.] also has described domestic violence between [A.R.G.] and his mother. P 1, a contact sheet from [June 10, 2002], describes [C.R.G.] observing [A.R.G.] hitting the mother of the children.
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Two of the three children testified to physical abuse of them by [A.R.G.] [A.J.G.] and [C.R.G.] have also witnessed the physical abuse of [R.L.G.] by [A.R.G.]. [C.R.G.] described domestic violence between [A.R.G.] and their mother.
Now our Legislature has recognized the impact on children being exposed to violence in the home. Children, even when they are not themselves physically assaulted suffer deep and lasting emotional effect from exposures to domestic violence. [
N.J.S.A.] 2C:25-18 . This is not an allegation of domestic violence. The only reason why it‘s not domestic violence is that the children cannot be victims of domestic violence. But obviously this would be violence in the house, which impacts upon the children who are exposed to the violence, even though not hit themselves.The evidence presented by the Division through the statements of the children—and statements of the children are admissible pursuant to [
N.J.S.A.] 9:6-8.46 —describes a systematic and a substantial period ... of physically and emotionally abusing the children. His methods of discipline go beyond the bounds of discipline and in fact reach the level of a cruel and depraved mind.While these cases are fact sensitive I‘m satisfied that the ... abuse rises to the level of aggravated abuse and cruelty....
* * * *
I‘m satisfied that I considered all the evidence on June 26th as to the nature of the assault, the continuous assaults upon [R.L.G.]. And in that determination I am still satisfied clearly and convincingly that [A.R.G.] has intimidated and physically assaulted the child. That
would satisfy me it was an aggravated circumstance of abuse and cruelty.
The judge then conducted the scheduled permanency hearing. The Division‘s permanency goal, endorsed by the children‘s law guardian, was termination of A.R.G.‘s parental rights and adoption by the maternal grandparents, with whom the children had been residing in Florida. In approving the plan offered by DYFS, the judge stated, in pertinent part:
The permanency plan of the Division is appropriate. The plan is termination. The Division is excused from providing reasonable efforts. However, they still have to establish each of the four prongs of the best interest test for termination.
Visitation will continue suspended. The no contact order is in place. [Counsel for A.R.G.] can discuss that matter with the prosecutor or make application... on notice to the prosecutor to lift the no contact order.
The children should be referred to a therapist. The therapist should send reports to [the law guardian] and/or the Division as to the children‘s interest or desire in seeing [or] having contact with their father.
* * * *
All right. But the Division still could explore other options to termination as to [C.R.G.] maybe even—well, all three actually. [R.L.G.] is about to turn 10. [C.R.G.] is about to turn 15. There may be other optiоns that the Division could explore, such as maybe long term foster care, but it doesn‘t look like you‘re going to have enough time for that.
* * * *
The Division should explore any options, discuss the possibility of adoption with the children. [C.R.G.] and [R.L.G.] do have the right to have some input as to that decision.
The judge entered three separate orders on July 17, 2002. One order denied A.R.G.‘s motion for reconsideration. A second order continued custody of the children with DYFS, as placed with the maternal grandparents in Florida; directed that A.R.G.‘s visitation or contact with the children remained suspended; required a psychological evaluation of A.R.G., as scheduled by DYFS; permitted A.R.G. to obtain his own psychological evaluation; and directed DYFS to explore any options to its permanency plan of adoption by the maternal grandparents. The third order, designated as a “permanency order,” approved the Division‘s permanency plan of termination of A.R.G.‘s parental rights, with adoption by the maternal grandparents; stated that the Division need not provide reasonable efforts because the children had been subjected to aggravated circumstances of abuse, neglect and cruelty; and directed the Division to file a guardianship complaint by September 18, 2002.
On August 29, 2002, A.R.G. filed a notice of appeal from entry of the July 17, 2002 order. On September 18, 2002, DYFS filed a guardianship complaint against A.R.G. in the Family Part under docket number FG-09-217-03, seeking termination of A.R.G.‘s parental rights.6 The court then entered an order terminating the child abuse and neglect action as being superseded by the guardianship action. On January 10, 2003, we entered an
On appeal, A.R.G. presented the following argument for our consideration:
THE TRIAL COURT ERRED IN RULING THAT PLAINTIFF WAS EXCUSED FROM PROVIDING REASONABLE EFFORTS TO REUNIFY DEFENDANT WITH HIS CHILDREN BECAUSE DEFENDANT DID NOT SUBJECT HIS CHILDREN TO AGGRAVATED CIRCUMSTANCES OF ABUSE, NEGLECT, CRUELTY OR ABANDONMENT.
The Committee bill is expected to increase the number of adoptions in the United States. Three major provisions of the bill were designed to produce this increase in adoptions. First, under current law, States must engage in “reasonable efforts” to help families that have abused or neglected their children. Some observers have argued that uncertainty about the reasonable efforts standard sometimes delays State action in making children available for adoption. In response to this problem, the bill requires States to define “aggravated circumstances” in State law, such as child torture or sexual abuse, that would permit the State to bypass the Federal reasonable efforts criterion and move more expeditiously to terminate parental rights and make a child available for adoption. In addition, States would not be required to reunite families in cases where a parent has murdered another child or lost their parental rights to a sibling. Second, the bill provides States with a $4,000 ($6,000 for special needs children) incentive payment for each adoption above the number of adoptions during the previous year. Third, in the case of children under age 10 who have been in foster care for at least 18 of the past 24 months, the bill requires States to move toward terminating parental rights under most circumstances. Taken together, these provisions and associated provisions of the Committee bill can be expected to produce a substantial increase in adoptions in the years ahead.
[H.R. Rep. 105-77, at 7 (1997), reprinted in 1997 U.S.C.C.A.N. 1, 2739-40.]
Prior to the enactment of ASFA, New Jersey required DYFS to meet the more demanding standard of exerting “diligent efforts” in attempting family reunification. ASFA replaced that requirement with the “reasonable efforts” standard,
After many years of growth, especially in the late 1980s and early 1990s, the nation‘s foster care caseload is now almost 500,000. Recent studies have shown that in some States, the аverage child removed from the home because of family problems spends almost three years in foster care. Many of these children will never return home; many more will return home one or more times before it becomes evident that their families will not be able to take care of them permanently. And yet, testimony before the Committee, as well as scientific studies, have shown that adoption is an effective way to assure that children grow up in loving families and that they become happy and productive citizens as adults. There seems to be almost universal agreement that adoption is preferable to foster care and that the nation‘s children would be well served by a policy that increases adoption rates. Over the past several years, however, witnesses before the Committee have testified that there are a variety of barriers to adoption, some of them Federal. One barrier is the “reasonable efforts” criterion in the Federal statute. This criterion requires States to make reasonable efforts to prevent removing a child from its home and to facilitate returning children to their homes if removal has been necessary. The intent of this policy is to provide services to families so that they can continue to fulfill their child rearing function.
However, there seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents. As a result, too many children are subjected to long spells of foster care or are returnеd to families that reabuse them.
The bipartisan group that wrote this legislation recognized the importance and essential fairness of the reasonable efforts criterion. What is needed is not a wholesale reversal of reasonable efforts or of the view that government has a responsibility to help troubled families solve the problems that lead to child abuse or neglect. The Federal government now spends well over $4.5 billion dollars helping these families and their children and the money is well spent. Rather than abandoning the Federal policy of helping troubled families, what is needed is a measured response to allow States to adjust their statutes and practices so that in some circumstances States will be able to move more efficiently toward terminating parental rights and placing children for adoption.
Thus, the Committee bill would require States to define “aggravated circumstances,” such as child torture, chronic abuse, or sexual abuse, in which States are allowed to bypass the Federal reasonable efforts criteria and instead would be required to make efforts to place the child for adoption. In addition, States would be required to bypass reasonable efforts to provide services to families if the parent has murdered a child, committed manslaughter in the death of a child, or has another child for whom parental rights were involuntarily terminated.
[H.R. Rep. No. 105-77, at 7-8 (1997), reprinted in 1997 U.S.C.C.A.N. 1, 2740 (emphasis added).]
Thus, ASFA permitted child protection agencies to bypass the requirement that reasonable efforts of reunification be exerted when the court finds that there are aggrаvated circumstances, such as abandonment, torture, chronic abuse, and sexual abuse; that there is a homicide of a
Prior to the enactment of ASFA, “both state and federal law appeared to give primary consideration to the rights of parents, as opposed to the welfare of their children.” State ex rel. Children, Youth & Families Dep‘t v. Amy B., 133 N.M. 136, 61 P.3d 845, 847 (Ct.App.2002). In eliminating the requirement of reasonable efforts under certain circumstances, and in requiring the States to follow suit in order to be eligible for federal benefits, ASFA was responding to perceived excesses in the application of the reasonable efforts requirement. In re Custody and Guardianship of Marino S., 181 Misc.2d 264, 693 N.Y.S.2d 822, 825 (Fam.Ct.1999). The obvious intent of Congress was not to require remedial measures in situations where a court has determined that the parent has subjected the child to aggravated circumstances of abuse. J.S. v. State of Alaska, 50 P.3d 388, 392 (Alaska 2002).
Additionally, ASFA conditions receipt of federal funding upon a State‘s adoption of a system in which, inter alia, the status of each child in placement is reviewed periodically but no less frequently than once every six months,
ASFA clarifies that in determining whether to make reasonable efforts to reunify placed children with their parents, the children‘s health and safety shall be the paramount concern.
Although a finding under
The Supreme Court has, however, recognized the “strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay.” In re Guardianship of DMH, 161 N.J. 365, 385, 736 A.2d 1261 (1999) (citing to In re Guardianship of K.H.O., 161 N.J. 337, 356, 736 A.2d 1246 (1999)). In referencing ASFA, the Court stated, in pertinent part:
On the federal level, the recent trend has been to limit the reasonable efforts social service agencies must undertake to reunite families. Thus, the Adoption and Safe Families Act of 1997 provides that the child‘s health and safety are the paramount concerns in attempts to reunify families.... Although reasonable efforts are still required by the Act, there are also numerous exceptions to an agency‘s duty to provide reasonable reunification efforts, such as when the parent has physically endangered the child.... These changes were spurred by congressional concern that the efforts of social service agencies to reunite families often returned children to dangerous homes.... Some commentators have criticized this approach, arguing that services such as targeted reunification programs, drug rehabilitation, and long term services programs, have been useful in producing lower levels of maltreatment and higher rates of reunification.
[DMH, supra, 161 N.J. at 388-89, 736 A.2d 1261 (citations omitted).]
See also In re Guardianship of B.L.A., 332 N.J.Super. 392, 406, 753 A.2d 770 (Ch.Div. 2000) (noting that ASFA, as implemented by
The ASFA-implementing legislation in New Jersey makes clear that the public policy of our State is
[t]hat the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare, but the health and safety of the child shall be the State‘s paramount concern when making a decision on whether or not it is in the child‘s best interest to preserve the family unit [.]
[
The laws of most states, as required by ASFA, contain the “aggravated circumstances” language. Because Congress left it to the States to define what “aggravated circumstances” means, a wide variety of approaches have been found among the States. Although ASFA provides that aggravated circumstances may be defined to include, but not be limited to, “abandonment, torture, chronic abuse, and sexual abuse,” our Legislature has chosen to use the term “aggravated circumstances” as a modifier of “abuse, neglect, cruelty or abandonment.”
In the absence of more descriptive statutory language, we must construe the provisions of
Similar statutes from other states that contain explanatory language and case law on the same subject may serve as guides in construing a statute. Roman Check Cashing, Inc. v. Department of Banking, 169 N.J. 105, 113, 777 A.2d 1 (2001). This is particularly so here, where AFSA has required the States, as a condition of continued receipt of federal funding, to define those aggravated circumstances that will excuse the child protection agency from its statutory obligation to exert reasonable efforts to reunify placed children with their parents.
Several States have simply adopted the listing of сonduct contained in
Many States have defined “aggravating circumstances” by the gravity or severity of the abuse or neglect, and the threat posed to the safety of the child. In North Carolina, for example, reasonable efforts for reunification after placement shall not be required, inter alia, where the court has determined that the parent has subjected the child to aggravated circumstances,
Aggravated circumstances are defined in Tennessee as “abandonment of an infant, aggravated assault, aggravated kidnapping, aggravated child abuse and neglect, aggravated sexual exploitation of a minor, especially aggravated sexual exploitation of a minor, aggravated rape, rape, rape of a child, incest, or severe child abuse [.]”
(A) The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause great bodily harm or death and the knowing use of force on a child that is likely to cause great bodily harm or deаth;
(B) Specific brutality, abuse or neglect towards a child which in the opinion of
qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child‘s ability to function adequately in the child‘s environment, and the knowing failure to protect a child from such conduct; (C) The commission of any act towards the child [that constitutes aggravated rape, aggravated sexual battery, rape of a child, incest, or aggravated sexual exploitation] or the knowing failure to protect the child from the commission of any such act towards the child; or
(D) Knowingly allowing a child to be present within a structure where the act of creating methamphetamine ... is occurring.
[
In Kentucky, aggravated circumstances are defined, inter alia, as the parent causing the child serious physical injury [.]
In South Dakota, reasonable efforts for reunification are not required, inter alia, where the court has determined by clear and convincing evidence that the parent has “subjected the child to torture, sexual abuse, abandonment for at least six months, chronic physical, mental, or emotional injury, or chronic neglect if the neglect was a serious threat to the safety of the child or another child[.]”
In Nevada, reasonable efforts are not required if the court finds, inter alia, that a parent has caused the abuse or neglect of the child, or of another child of the parent or primary caretaker, which resulted in substantial bodily harm to the abused or neglected child, or caused the abuse or neglect of the child, a sibling of the child or another child in the household, and the abuse or neglect was so extreme or repetitious as to indicate that any plan to return the child to his home would result in an unacceptable risk to the health or welfare of the child [.]”
In Alaska, the court may determine that reasonable efforts are not required if it has found, by a preponderance of the evidence, that, inter alia, the parent has subjected the child to circumstances that pose a substantial risk to the child‘s health or safety, which circumstances may include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm.
In Oregon, aggravated circumstances are defined as, inter alia, a parent, by abuse or neglect, causing serious physical injury to any child, or subjecting any child to rape, sodomy or sexual abuse.
First, the ordinary meaning of the verb “aggravate” is “to make worse,
Next, it is significant that ORS 419B.340(5)(a) refers to aggravated “circumstances,” rather than to the aggravated actions and conditions of a parent.... That usage indicates that the legislature was concerned, not only with the parents’ actions and conditions, but also with the results of those actions and conditions, including effects, direct and indirect, on a child.
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It is not necessary or possible in this case to determine the entire universe of “aggravated circumstances” within the meaning of ORS 419b.340(5)(a), because we conclude that such circumstances are present here. In particular, ... [the record] discloses that D has suffered severe mental injury as a result of his exposure to significant domestic violence, the parents’ drug use, and a highly unstable home life. The record also demonstrates that [the] child has suffered serious psychological and social damage including, among other disorders, posttraumatic stress disorder, oppositional defiant disorder, and parent-child relational disorder and that those disorders were caused, in substantial part, by the parents’ conduct, including [the child] witnessing domestic violence.... Consistently with our understanding of ORS 419B.340(5)(a) ..., we conclude that the circumstances here, in their totality, are “aggravated.” It follows that, based on the existence of those circumstances, the juvenile court was authorized to find that DHS was not required to make reasonable efforts to make it possible for [the] child to safely return home.
The ASFA provisions in the Iowa statute provide, in relevant part, that “[i]f the court determines by clear and convincing evidence that aggravated circumstances exist, with written findings of fact based upon the evidence in the record, the court may waive the requirement for making reasonable efforts.”
In Maine, aggravating circumstances are defined as including, but not limited to, a
In Missouri, the Division of Family Services may be excused by the court from exercising reasonable efforts to provide reunification services where “[t]he parent has subjected the child to a severe act or recurrent acts of physical, emotional or sexual abuse toward the child, including an act of incest[.]”
In Pennsylvania, aggravated circumstances are defined, in pertinent part, as where “[t]he child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent[,]” and “aggravated physical neglect” is further defined as “[a]ny omission in the care of a child which results in a life-threatening condition or seriously impairs the child‘s functioning.”
In New York, the Department of Social Services is authorized to file a motion, upon notice, requesting a finding that it is excused from providing reasonable efforts to effect reunification where the parent has subjected the child to aggravated circumstances.
Connecticut requires the Commissioner of Children and Families to petition the court for a determination on whether reasonable efforts to reunify the parent and the child are appropriate.
The applicable California statute lists fifteen circumstances where reunification services need not be provided to a parent, if established by clear and convincing evidence.
The enactment of ASFA represented a substantial shift in the intent and purpose of the child protection system in this country. Prior to AFSA, the Adoption Assistance and Child Welfare Act of 1980 (AACWA), P.L. 96-272, as codified in scattered sections throughout Title 42, restructured federal programs for children removed from their families due to abuse or neglect. Through matching-fund incentives, AACWA required the States to lessen the emphasis on foster care and out-of-home placement by requiring services designed to prevent placement and to make it possible for children to return to their homes. See Kurtis A. Kemper, Construction And Application By State Courts of the Federal Adoption And Safe Families
Significantly, the enactment of AFSA represented a departure from the emphasis in AACWA on the preservation of families by establishing a child protection system that subordinates parental rights to the paramount concern for the health and safety of the child when making a decision on whether or not it is in the child‘s best interests to preserve the family unit. See
Still, to bypass the requirement for reasonable efforts of reunification, “aggravating circumstances” must be found to exist. The difficult issue is identifying aggravated circumstances. Resolution of that issue must be viewed through the lens of the legislative intent that the safety of the child is the paramount concern.
However, our review of the legislation and case law in the various States provides guidance in establishing criteria to dеtermine the existence of aggravated circumstances. Although there are a wide variety of approaches among the States, there are common threads, or themes, that are underpinned by the intent and purposes of AFSA, as implemented by our Legislature. We conclude that the term “aggravated circumstances” embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child, and would place the child in a position of an unreasonable risk to be reabused.
Moreover, any circumstances that increase the severity of the abuse or neglect, or add to its injurious consequences, equates to “aggravated circumstances.” Whether couched as “severe child abuse or neglect,” “serious child abuse or neglect,” or “severe physical injury” of a singular, chronic, recurrent, or repetitive nature, where the circumstances created by the parent‘s conduct create an unacceptably high risk to the health, safety and welfare of the child, they are “aggravated” to the extent that the child welfare agency, here DYFS, may bypass reasonable efforts of reunification. Moreover, where the parental conduct is particularly
We note that the existence of aggravated circumstances does not suggest that services are not to be provided at all. Here, for example, the June 26, 2002 order required A.R.G. to submit to a psychological evaluation, counseling, anger management, and parenting skills classes. However, the aggravated circumstances bypass provision of ASFA, as embodied in
In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court‘s credibility determinations and its “feel of the case” based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12, 713 A.2d 390 (1998); Pascale v. Pascale, 113 N.J. 20, 33, 549 A.2d 782 (1988). We are not to disturb the judge‘s findings unless they are “so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). Additionally, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.” Cesare, supra, 154 N.J. at 413, 713 A.2d 390.
After analyzing the record in the light of the written and oral arguments advanced by the parties, and considering applicable law, we conclude there was adequate, substantial, credible evidence in the record to support thе conclusion of the trial judge that aggravated circumstances of abuse and cruelty had been clearly and convincingly proved, permitting the court to authorize DYFS to bypass the statutory obligation of exerting reasonable efforts of reunification.
The judge‘s characterization of R.L.G. having been subjected to “a serious savage beating” at the hands of A.R.G. is fully supported by the testimony, photographs, and other evidence in the record. A.R.G.‘s argument that the beating he inflicted was an isolated incident is belied by the record. The statements of the children, paternal grandmother, and paternal aunt, as confirmed by the expert evaluations, demonstrate A.R.G. repeatedly subjected R.L.G. to beatings and abuse, and that he had previously subjected C.R.G. to beatings. The inability of his mother, N.G., to control A.R.G.‘s violent outbursts and his sister C.G.F.‘s statements concerning A.R.G.‘s abusive behavior certainly show that the savage beating inflicted upon R.L.G. was far from an isolated occurrence.
The child A.J.G.‘s statements to the investigator from the Prosecutor‘s Office concerning his observations of the May 27, 2002 beating of R.J.G., relating that A.R.G. kept hitting R.L.G. over and over and told R.L.G. that he would beat R.L.G. until he bled, and that “the next time I‘ll break your arms[,]” reflects depraved behavior. The record also demonstrated that A.R.G.‘s pattern of violent and abusive behavior permeated his marriage with M.A.L. and led to their separation. Moreover, the children had witnessed A.R.G.‘s
It was fully within the province of the trial judge to reject as unpersuasive the evidence adduced by A.R.G. that the children‘s swimming coach and school principal always observed a wholesome relationship between A.R.G. and the children. We note that those observations were made in a public setting. We take notice that violent and abusive behavior in an interpersonal family setting is more likely to occur in private, behind closed doors, rather than in public view.
We also find unpersuasive A.R.G.‘s argument that there were no aggravated circumstances because R.L.G. had suffered no broken bones or prolonged medical treatment. The nature and severity of the beating that R.L.G. had been subjected to on May 27, 2002, at the hands of A.R.G., as graphically depicted by the photographs in evidence; the prior beatings suffered by both C.R.G. and R.L.G.; the medical evidence of the repeated beatings suffered by R.L.G.; the indictment and repudiation of A.R.G.‘s abusive behavior by his own mother and sister; and the evidence of prior abusive and violent behavior by A.R.G., are all sufficient indicia and proof of aggravated circumstances of chronic abuse and cruelty, without the necessity of broken bones or prolonged medical care. The totality of the evidence paints a vivid picture of the children and others in A.R.G.‘s family household being subjected to a violent and intimidating atmosphere.
We also conclude that the judge properly applied the provisions contained in
The record established that A.R.G.‘s resort to violence was chronic, habitual and repetitive, and endangered the health, safety and welfare of the children. These “aggravated circumstances,” within the context of the intent of ASFA that the safety of children be the court‘s paramount concern, established by clear and convincing evidence that the exertion of reasonable efforts for reunification should be bypassed.
We emphasize that a finding of aggravated circumstances permitting the bypass of the reasonable efforts requirement does not equate to a deprivation of parental rights. See In re Baby Boy H., 63 Cal.App. 4th 470, 477-78, 73 Cal. Rptr.2d 793 (1998). As the trial judge correctly stated, in order to terminate A.R.G.‘s parental rights, DYFS must still establish each of the four prongs contained in
We have reviewed with great respect the thoughtful dissent of our esteemed colleague. We recognize that this is a difficult case, and we cannot quarrel in technical terms with the procedural due process concerns expressed in the dissent. However, “[d]ue process of law is not a fixed star in the constitutional firmament. It radiates variably in application, `call[ing]
Here, as a practical matter, the record adequately demonstrates that the evidence and circumstances forming the basis for the Division‘s application for permission to bypass the requirement to provide reunification services were well known to A.R.G. and all counsel prior to the June 26, 2002 hearing. Moreover, A.R.G. made no proffer—either at the June 26th hearing or in his motion for reconsideration heard on July 17, 2002—as to what additional proofs or evidence he would have submitted to challenge the claim that “aggravated circumstances of abuse, neglect, cruelty or abandonment” existed as a result of his conduct. Indeed, everything that could have been submitted was fully before the court; there were no surprises.
Instead, A.R.G. merely relied upon his penitence and sought another opportunity to parent these children. All such pleas to the contrary notwithstanding, the photographs of the brutal beating administered by A.R.G. to R.L.G. fully speak for themselves. When those photographs are considered within the context of the other undisputed evidence presented to the trial judge, the power of the proofs clearly and convincingly supports the finding of aggravated circumstances under any standard or interpretation of that term. As so aptly stated, “`One picture is worth more than ten thousand words.’ Chinese proverb.” Traver v. Packaging Group, Inc., 242 N.J.Super. 574, 578, 577 A.2d 876 (Law Div.1990).8
We also view the placement of the children with their maternal grandparents rather than in foster care as irrelevant on the issue of the presence of aggravating circumstances. Whether the termination of A.R.G.‘s parental rights will or should be terminated is not an issue before us in this appеal. Likewise, the issue of whether kinship legal guardianship proceedings are an appropriate alternative to termination of his parental rights is a matter to be advanced to the Family Part by A.R.G. during the guardianship proceedings. The sole question here is whether the Family Part—in the child abuse and neglect action—properly concluded that aggravated circumstances existed. In our view, the uncontroverted clarity of the evidence supports the conclusion reached by the trial judge.
The orders entered in the Family Part on June 26, 2002 and July 17, 2002, are affirmed. The stay of the proceedings in FG-09-217-03 is dissolved and further proceedings in that action may occur.
EICHEN, J.A.D., dissenting.
I respectfully dissent from the opinion of my colleagues affirming the finding of the Family Part that “aggravated circumstances of abuse” were properly established pursuant to
However, I have serious reservations as to whether A.R.G.‘s due process rights were sufficiently protected by the procedures followed. The essential requirements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L. Ed.2d 556, 567-68 (1972). In this case, not only was A.R.G. deprived of adequate notice of the DYFS application, but there also was insufficient opportunity to allow his counsel to consider or present a defense. The procedures followed here culminated in relieving DYFS of its obligation to make reasonable efforts to reunite A.R.G. with his children, a result that is unsustainable in light of the serious consequences flowing from that discussion, which I will discuss in more detail later in this dissent.
An order to show cause was filed by the Division on May 29, 2002, and an order was entered on that date approving the emergency removal of the children and scheduling the matter for a hearing on June 26, 2002. The order also, among other things, continued custody, care and supervision of the children with DYFS.
A second order was entered also on May 29, 2002. The second order is a form order with pre-printed language, containing a menu of options as to the purpose of the scheduled hearing, the selection of which was to be designated by the insertion of a checkmark, or other mark, in the appropriate space next to one of the following types of hearings: “Case Management Conference“; “Compliance Review“; “Fact Finding“; and “Permanency Hearing.” No checkmark appears in any of the spaces provided. And nowhere in the order is there any reference to the fact that a hearing would be held to determine whether “aggravated circumstances of abuse” exist excusing DYFS of its obligation to make reasonable efforts toward family reunification pursuant to
The only indication in the record on appeal that demonstrates notice to A.R.G. concerning the specific nature of the June 26, 2002 hearing is the June 24, 2002 letter from the Division‘s counsel to A.R.G.‘s counsel, issued only two days prior to the scheduled hearing date, transmitting an “evidence packet” to A.R.G.‘s counsel. That letter informed A.R.G., through counsel, for the first time, that the Division intended to request “a finding pursuant to
In my view, two days prior notice, and the nature and manner of furnishing that notice, were insufficient to apprise A.R.G. of the serious consequences that would result if the court acceded to the Division‘s request for a determination under
As for the lack of a meaningful opportunity to be heard, I highlight the following exchange between counsel for A.R.G. and the court at the June 26, 2002 hearing. This exchange creates serious doubt as to whether A.R.G.‘s counsel was afforded an adequate opportunity to address DYFS‘s “request” under
[COUNSEL FOR A.R.G.]: Your Honor, I‘m asking the court to find that reasonable efforts should have been made—
THE COURT: This is not a reasonable efforts case. It‘s a fact finding case to determine whether or not there was abuse—
[COUNSEL FOR A.R.G.]: Your Honor, I—
THE COURT:—as defined under—
[COUNSEL FOR A.R.G.]:—I understand.
THE COURT: It‘s got nothing to do with reasonable effort. So, don‘t—don‘t consume time talking about reasonable efforts.
[COUNSEL FOR A.R.G.]: Okay. So, Your Honor already ruled on that as far as reasonable efforts have been made?
THE COURT: It‘s not a question of reasonable efforts being offered at this time. The question is whether or not there was abuse committed by [A.R.G.] upon the child.
Although the judge may have been precluding argument on the issue of whether the Division should have provided reasonable efforts to prevent placement under
Both ASFA,
By contrast, if a court finds that a child has been subjected to “abuse or neglect” under
In this case, the judge conducted a permanency hearing immediately after the finding of “aggravated circumstances of abuse” and approved the Division‘s permanency plan, namely, termination of A.R.G.‘s parental rights to all three children and adoption by the maternal grandparents. Thus, this finding allowed DYFS to abbreviate the time for аpproving its permanency plan with the result that DYFS could file its guardianship immediately. That complaint was filed on September 18, 2002, just three months after the June 26, 2002 hearing, all because it was excused from making any efforts toward family reunification.
As a result of the judge‘s ruling, arguably, at least a portion of the third prong of the four-prong “best interests” test justifying termination of parental rights in the guardianship action may have been satisfied. See
Moreover, I have serious reservations as to whether the evidence presented at the factfinding hearing was even sufficient to support a finding of “aggravated circumstances of abuse.” The majority opinion reviews, in depth, legislation passed in various states implementing those provisions of ASFA pertaining to “aggravated circumstances of abuse” as permitting waiver of the reasonable efforts requirement of
In this case, there was no medical testimony concerning the full extent and nature of the injury to R.L.G. from A.R.G.‘s physical abuse of the child. Nor was there a psychological evaluation of R.L.G., or the other children, which might have afforded some insight into the emotional effects of the abuse on the children. Similarly, there
The sole evidence presented at the hearing came from the testimony of the DYFS caseworker, which relied substantially on the hearsay statements of others. Unlike the circumstances in In re Guardianship of B.L.A., 332 N.J.Super. 392, 753 A.2d 770 (Ch.Div.2000), this family had no prior history of intervention by the Division. Fundamental fairness required expert testimony and testimony of the adverse family witnesses before the court could properly conclude that DYFS had proved “aggravated circumstances of abuse” by clear and convincing evidence excusing it from making any efforts toward reunification.
Moreover, if the evidence underpinning the trial court‘s decision in this case can be viewed as supporting a conclusion of “aggravated circumstances of abuse,” consider how many other cases alleging child abuse under
Finally, I would be remiss if I did not question whether ASFA‘s approval of the waiver of the reasonable efforts requirement in cases of “aggravated circumstances of abuse” was intended to expedite termination proceedings to free abused children for adoption who are not languishing in foster care. See H.R. Rep. 105-77, at 7 (1997), reprinted in 1997 U.S.C.C.A.N. 1, 2739-40. Here, it seems the children have been safely placed with caring grandparents.
I also note that the rush to judgment in this case essentially precludes consideration
For all of these reasons, I would reverse and remand the matter to the Family Part for further proceedings consistent with this opinion.