DCPP VS. B.D. IN THE MATTER OF M.D. AND A.D.(FN-07-0544-14, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-1223-15T4
N.J. Super. Ct. App. Div.Sep 29, 2017Check Treatment 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NOT FOR PUBLICATION WITHOUT THE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-1223-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
B.D.,
Defendant-Appellant.
________________________________
IN THE MATTER OF M.D. and A.D.,
Minors.
________________________________
Submitted March 15, 2017 – Decided September 29, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FN-07-0544-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura M. Kalik, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Mary
L. Harpster, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor M.D. (Catherine
Davila, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor A.D. (Cory H.
Cassar, Designated Counsel, on the brief).
GOODEN BROWN, J.A.D.
Defendant B.D.1 appeals from the November 7, 2014 Family Part
order2 finding that he abused or neglected his then twelve-year-
old daughter, M.D., within the meaning of N.J.S.A. 9:6-8.21(c).
Defendant argues that the evidence presented at the fact-finding
hearing was insufficient to support the trial court's finding of
abuse or neglect under Title 9. The Division of Child Protection
and Permanency (Division) and M.D.'s Law Guardian join in opposing
the appeal. Although there was no finding of abuse or neglect
with respect to M.D.'s then nine-year-old sister, A.D., who is not
a party to this appeal, A.D.'s Law Guardian filed a brief taking
no position.3 Having considered the parties' arguments in light
of the record and applicable legal principles, we affirm.
1
Pursuant to Rule 1:38-3, we use initials for the parties to
protect their identities.
2
This order became appealable as of right after the trial court
entered a final order terminating the litigation on September 30,
2015.
3
Although there was no finding of abuse or neglect regarding A.D.,
A.D. was included in the fact-finding order and was under the care
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We derive the following facts from the record developed at
the fact-finding hearing, during which Newark Police Officer
Derrick Clemons and Division Caseworker Martha Harris testified
for the Division. Salima Gordon, a Community Engagement Specialist
at the children's school, and A.D. testified for defendant. The
Division's Screening and Investigation Reports, the police report,
M.D.'s medical records, and photographs of M.D.'s injuries were
admitted into evidence.
At approximately 9:00 a.m. on April 24, 2014, Officer Clemons
responded to Sherman Street in Newark after a bystander reported
finding M.D. crying, bleeding and limping. M.D. reported to
Clemons that defendant struck her several times during a physical
altercation, after he accused her of stealing $25 from him.
According to M.D., after the altercation, defendant went back to
work and M.D. was walking to school when she encountered the
bystander on the street.
Clemons observed injuries to M.D.'s head and hands,
specifically swelling, cuts and bruises. Clemons contacted
Emergency Medical Services personnel, who transported M.D. to Beth
Israel Hospital for treatment of her injuries. In addition, a
child abuse referral was made to the Division. While M.D. was
and supervision of the Division when the fact-finding hearing was
conducted.
3 A-1223-15T4
being treated, Clemons was notified that defendant was at police
headquarters attempting to file a complaint against M.D. Clemons
returned to headquarters and placed defendant under arrest for
aggravated assault and child endangerment based on M.D.'s
statement. At the time, defendant was unaware that M.D. had been
transported to the hospital.
Upon receiving the child abuse referral, Harris interviewed
M.D. at Beth Israel Hospital where M.D. repeated the account she
gave Clemons. M.D. specified that defendant punched her with a
closed fist. M.D. also told Harris that during a prior incident,
defendant "beat her up" when she arrived home late from
cheerleading practice, but indicated she did not have any marks
or bruises from that incident. During the interview, Harris
observed abrasions on M.D.'s left elbow, left hand, left index
finger, and left thumb, which she later photographed. The
attending medical personnel noted that the abrasions were
consistent with M.D.'s statement of being assaulted. It was
further noted that the degree of pain was "moderate[,]" and the
degree of bleeding was "minimal." A follow-up with her primary
care physician was recommended.
Harris then traveled to Peshine Avenue School in order to
interview A.D. about the incident. A.D. denied seeing defendant
hit M.D. and denied seeing M.D. get hurt. A.D. confirmed that
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defendant and M.D. argued over the missing money that M.D. had,
in fact, stolen from defendant but "pleaded with [A.D.] not to
tell." A.D. stated that because M.D. was angry at defendant, M.D.
punched a hole in the living room wall. In addition, when they
headed out to the car to go to school, M.D. took a rock and threw
it at defendant, and then proceeded to bang on the car window with
the rock.
A.D. told Harris that defendant left M.D. and drove her to
school, only after M.D. refused to get her book bag so that he
could take her to school. When questioned about the prior incident
involving M.D. arriving home late from cheerleading practice,4 A.D.
admitted that defendant and M.D. argued, but denied any corporal
punishment. Instead, M.D.'s punishment "was no TV, no phone and
[M.D.] had to stay home all day." A.D. told Harris that M.D. was
"very disrespectful" to their father and "tries to break the
rules."
4
Gordon testified for defendant and reported that M.D. signs up
for various after school programs but never attends, requiring
staff to wait for M.D. to return to pick up A.D. Although Gordon
did not know M.D.'s whereabouts when she absented herself from the
after school programs, she confirmed that M.D. was not on the
school premises.
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Harris returned to Beth Israel Hospital and accompanied M.D.
home in order to effectuate a DODD removal5 of both M.D. and A.D.,
who was then home from school. While they were at the home, M.D.
changed her account of how she was injured. She told Harris that
her injuries were actually sustained during an altercation with
defendant that occurred outside. According to M.D., while they
were outside, defendant tried to get her into his car. However,
based on prior beatings, she was afraid and tried to run away from
him, at which point defendant pushed her and she fell to the
ground. While she was on the ground, defendant tried to get her
house keys from her book bag and a scuffle ensued.
A.D. became extremely angry and upset when she heard M.D.'s
account of how she was injured and learned that they would be
removed as a result. When Harris explained the removal process
to them, A.D. argued with M.D. in Harris' presence and blamed M.D.
for their removal and their father's arrest. A.D. indicated that
"it was [M.D.'s] fault" because "[s]he was being disrespectful"
and "threw a rock at her father, and that's why they got into the
argument." M.D. explained that she threw the rock because she was
5
A "Dodd" removal refers to the 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, as amended.
6 A-1223-15T4
angry at defendant for "dragg[ing] her back inside" and "[telling]
her to walk to school" because "nobody cared about her."
Harris interviewed defendant on April 246 and again on May 1,
2014. Defendant admitted that he and M.D. argued over the missing
money, but denied punching or pushing her. He stated that she ran
away from him while he was trying to talk to her and she tripped
and fell. He admitted attempting to take her house keys out of
her book bag while she was on the ground because she had threatened
to have her friends take everything in the house, a threat M.D.
admitted making. After the scuffle on the ground, defendant tried
to get M.D. into his car to take her to school, but she refused.
As a result, he left her and took A.D. to school, and later went
to the police station to report the stolen money. He acknowledged
he did not return to the house to check on M.D. He explained that
M.D. had been "acting out[]" and was "disrespectful."
Because there was no prior history involving the family,
following the investigation, the Division determined that the
allegations of abuse or neglect were established. While M.D.'s
credibility was questioned based on the inconsistencies in her
6
The main purpose of the April 24, 2014 interview was to ascertain
the identity of any family members or friends who would be willing
to care for the children. However, M.D.'s mother was reportedly
in the Ivory Coast, and the individuals identified by defendant
were not viable placement options.
7 A-1223-15T4
accounts, it was determined that defendant was "an active
participant" in the altercations that resulted in M.D.'s injuries.
A.D. testified in-camera at the fact-finding hearing pursuant
to Rule 5:12-4(b). Although she acknowledged that there were two
separate incidents, one inside the house and one outside, she
again denied that defendant "hit[,]" "punched[,]" pushed or
injured M.D. in any way, and claimed that on both occasions,
"[M.D.] fell by herself. So she hurt her own self." A.D. admitted
being upset about their removal and blaming M.D. She also
explained that defendant normally disciplined M.D. by "talk[ing]
to her" but "she [doesn't] want to listen."
Following the hearing, the court determined that the Division
"met its burden" and proved "by a preponderance of the evidence"
that M.D. was abused and neglected. The court found the testimony
of the police officer and the caseworker credible, and that the
injuries they observed and described were consistent with and
"match[ed] up with what [M.D.] said." On the other hand, the
court discredited A.D.'s testimony, noting
we have [A.D.'s] testimony who said she fell
twice, once in the house, once outside. . . .
I didn't find it really credible. And,
obviously, she's living with the father. She
was somewhat upset that [M.D.'s] behavior led
to her removal and this incident. And,
clearly, I think she blamed [M.D.] But,
regardless, I think . . . at her age[,] . . .
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her testimony could very well have been
manipulative.
Or, alternatively, she originally said
she didn't see anything to the caseworker. I
don't know if she saw anything or not. But
now she did see something and she fell twice.
I mean the story just didn't match up. It
doesn't make any sense what [A.D.] said.
Further, the court explained "we have no testimony by the
defendant denying these allegations or explaining what happened
or why he would take off and leave his daughter crying and
bleeding." The court concluded that "there were injuries sustained
by [M.D.] due to the actions of [defendant], [who] was apparently
upset over some $25 that [M.D.] may have taken." According to the
court, "whether she took the money or not is really irrelevant for
purposes of this hearing. The question is, how the defendant
. . . dealt with that issue[.]" The court determined that the
precipitating event was "really not . . . a justification for
hitting the child or injuring the child[.]" The court entered a
memorializing order, and this appeal followed.
Our Supreme Court has set forth the standard that governs
Title 9 cases as follows:
[A]ppellate courts defer to the factual
findings of the trial court because it has the
opportunity to make first-hand credibility
judgments about the witnesses who appear on
the stand; it has a feel of the case that can
never be realized by a review of the cold
record . . . . [B]ecause of the family courts'
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special jurisdiction and expertise in family
matters, appellate courts should accord
deference to family court factfinding.
[N.J. Div. of Youth & Family Servs. v. M.C.
III, 201 N.J. 328, 342-43 (2010) (citations
omitted).]
Thus, "if there is substantial credible evidence in the record
to support the trial court's findings, we will not disturb those
findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.
210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark' [we] must intervene to ensure the fairness of the proceeding."Id. at 227
(quoting N.J. Div. of Youth & Family Servs. v. E.P.,196 N.J. 88
, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth & Family Servs. v. A.R.,419 N.J. Super. 538
, 542-43 (App. Div. 2011).
"To prevail in a Title 9 proceeding, the Division must show
by a preponderance of the competent and material evidence that the
defendant abused or neglected the affected child." N.J. Div. of
Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014); see N.J.S.A. 9:6-8.46(b). The trial court in turn determines whether the child is abused or neglected by "the totality of the circumstances." Dep't of Children & Families v. G.R.,435 N.J. Super. 392
, 401 (App. Div. 2014). An "abused or
10 A-1223-15T4
neglected child" means, in pertinent part, a child under the age
of eighteen years
whose physical, mental, or emotional condition
has been impaired or is in imminent danger of
becoming impaired as the result of the failure
of [the] parent or guardian . . . to exercise
a minimum degree of care . . . 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)(4)(b).]
Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court
has held that mere negligence does not trigger the statute. N.J.
Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs.,157 N.J. 161
, 172-73 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional."T.B., supra
, 207 N.J. at 305 (quotingG.S., supra
, 157 N.J. at 178). Thus, the failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct."T.B., supra
, 207 N.J. at 306.
Although the distinction between gross negligence and
ordinary negligence cannot be precisely defined, McLaughlin v.
Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross
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or wanton negligence is that it "implies that a person has acted
with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is "done with the knowledge that injury is likely to, or probably will, result[,]" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'"Id. at 178
(quotingMcLaughlin, supra
, 56 N.J. at 305). If the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of [his or] her conduct is irrelevant," and "[k]nowledge will be imputed to the actor."Ibid. Such knowledge is
imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences[.]"Id. at 179.
A determination of whether a parent's conduct "is to be
classified as merely negligent, grossly negligent, or reckless can
be a difficult one." T.B., supra, 207 N.J. at 309. The determination is fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R.,205 N.J. 17
, 33 (2011).
However, because the primary purpose is the protection of children,
our Supreme Court has explained that "a Title 9 inquiry must focus
on the circumstances leading up to the injury and on the harm to
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the child, and not on the [parent or] guardian's intent." G.S.,
supra, 157 N.J. at 176. Thus, "whether the [parent or] guardian intended to harm the child is irrelevant[,]" and when "a parent or guardian commits an intentional act that has unintended consequences, that action is considered other than accidental within the meaning of Title 9."Ibid. In M.C. III, supra, 201 N.J. at 335
, a two-hundred pound father chased his two teenage children, caught and grabbed them, and all three ended up on the floor. Both children were injured. One child had a soft tissue injury to his right hand, scratches on his neck, and abrasions and swelling over his ribs, while the other had rib tenderness and an abrasion behind her ear.Ibid. Our Supreme Court
held that, although the father "may not have intended to harm his children, his actions were deliberate" and constituted abuse because he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct."Id. at 345.
Similarly, defendant's conduct in this case constituted abuse
or neglect within the meaning of Title 9. Even focusing solely
on the scuffle on the ground to which defendant admitted, while
he may not have intended to harm M.D., his actions were deliberate
and constituted abuse because he disregarded the substantial
probability that injury would result from his conduct. We are
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therefore satisfied that the court's findings are supported by
substantial, competent, and credible evidence in the record.
Defendant also argues that the court "misapplied the law by
relying upon M.D.'s out-of-court statements to find that
[defendant] had committed abuse or neglect under Title 9." We
disagree. Pursuant to N.J.S.A. 9:6-8.46(a)(4), "previous
statements made by the 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 fact finding of abuse or neglect." Thus, a child's
uncorroborated hearsay statement, although admissible, "may not
be the sole basis for a finding of abuse or neglect." P.W.R.,
supra, 205 N.J. at 33; see also N.J. Div. of Youth & Family Servs. v. L.A.,357 N.J. Super. 155
, 167 (App. Div. 2003). In N.J. Div. of Child Prot. & Permanency v. J.A.,436 N.J. Super. 61
, 67 (App.
Div. 2014), we held that "corroborative evidence need not be direct
so long as it provides some support for the out-of-court
statements." Here, M.D.'s statements were sufficiently
corroborated by the police officer's and the caseworker's
observations and descriptions of M.D.'s injuries, the photographs
of M.D.'s injuries, and M.D.'s medical records.
Affirmed.
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