Florida Decisions Without Published Opinions Aff.
e trial judge understood the significance of the experts' testimony but concluded that evidence of the risk that defendant-father would again engage in domestic violence was essentially synonymous with evidence of his propensity or disposition to commit domestic violence. The judge concluded that the evidence was therefore prohibited by the language of
N.J.R.E. 404(b) when based on prior crimes or bad acts.
The abuse or neglect statutes, however, expressly require that the court assess risk to the children. N.J.S.A. 9:6-8.21c(4), -8.31b. By the language of those statutes, the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child. Consequently, the risk, or predisposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case despite the general evidentiary prohibition contained in N.J.R.E. 404(b).
We also note that in abuse or neglect cases, a judge rather than a jury hears the evidence and makes findings of fact. One of the primary reasons for the prohibition of character evidence to show disposition, namely, misuse of that evidence by lay jurors, is not present in such a non-jury case. A judge, trained and experienced in using evidence only for its proper purposes, and charged with protecting the rights and interests of all parties, is much less likely to be prejudiced against a defendant by reaching a conclusion that the defendant is simply a person of bad character. See State v. Kern, 325 N.J.Super. 435, 444, 739 A.2d 969 (App.Div. 1999) ("judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision-making process").
Our conclusion does not mean that N.J.R.E. 404(b) should never be applied in abuse or neglect cases to determine admissibility of other crimes or bad acts evidence. See H.B., supra, 375 N.J.Super. at 181, 866 A.2d 1053. We only hold that where expert testimony in an abuse or neglect case provided support for a finding that defendant's prior acts of domestic violence show his disposition to commit such violence, the court should have admitted that evidence in assessing risk of harm to the children.
We also do not suggest that any such past domestic violence, no matter how remote or dissimilar to the current allegations, must be admitted in an abuse or neglect case. The trial judge may determine under N.J.R.E. 403 that particular evidence should be excluded because its probative value is substantially outweighed by undue prejudice, confusion of the issues, delay, waste of time, or needless presentation of cumulative evidence. In this case, the experts were consistent in their testimony that defendant-father's history of domestic violence against his ex-wife was not too remote to be highly probative of assessing risk at this time. We agree with those opinions.
In State v. Eatman, 340 N.J.Super. 295, 297-301, 774 A.2d 571 (App.Div.), certif. denied, 170 N.J. 85, 784 A.2d 718 (2001), we held that prior acts of abuse and violence against women other than the current victim, dating back up to thirty-two years, were relevant in psychiatric assessment of the defendant's "barely suppressed rage against women as evidenced by a long-standing pattern of domestic violence." As supported by the expert testimony in this case, evidence of violence against the ex-wife and other children was highly probative and not too remote in time.
Additionally, not every allegation of domestic violence in the ex-wife's testimony must be accepted as proven and true. There is no dispute, however, that a documented history of past domestic violence was proven, including the entry of a final restraining order and the criminal conviction.
We conclude that evidence of domestic violence committed against the ex-wife and the children of defendant-father's prior marriage was admissible to prove abuse or neglect in this case.
III.
The Law Guardian and DYFS argue that the trial court reached erroneous conclusions also because it failed to assess accurately the probative value of the letter of December 2008 and the recording made by the neighbor as evidence of domestic violence occurring in the home. They contend that the trial judge was inconsistent in crediting the testimony of defendant-mother about the absence of domestic violence after it had found her not to be credible following the initial hearing on emergency removal. They also contend that the trial judge did not make credibility findings concerning the unrefuted testimony of the three experts they presented. We disagree with these arguments. The trial judge assessed the evidence and made credibility findings that are supported by the record.
We have a strictly limited standard of review from the fact-findings of the Family Part judge. See Cesare, supra, 154 N.J. at 412-13, 713 A.2d 390. "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433, 798 A.2d 673 (App.Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 , 484, 323 A.2d 495 (1974)).
The trial court "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." N.J. Div. of Youth Family Servs. v. E.P., 196 N.J. 88, 104, 952 A.2d 436 (2008); N.J. Div. of Youth Family Servs. v. MM., m N.J. 261, 293, 914 A.2d 1265 (2007); N.J. Div. of Youth Family Servs. v. I.Y.A., 400 N.J.Super. 77, 89, 946 A.2d 62 (App.Div. 2008). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [] court's credibility determination . . . based upon . . . [the] opportunity to see and hear the witnesses." N.J. Div. of Youth Family Servs. v. N.S., 412 N.J.Super. 593, 616, 992 A.2d 20 (App.Div. 2010) (quoting State of N.J. Div. of Youth Family Servs. v. R.L., 388 N.J.Super. 81, 88, 906 A.2d 463 (App.Div,2006), certif denied, 190 N.J. 257, 919 A.2d 850 (2007)).
Here, the Family Part judge made logical credibility findings supported by the evidentiary record. In his December 11, 2009 decision on abuse or neglect, the judge made the following findings regarding defendant-mother:
I got a problem with the way she testified. She was all over the place with respect to that letter First she said she didn't write it, then she said: I wrote it but I was trying to get [defendant-father] — I wanted to show him that I was upset . . . then she said: I wrote it so — to prove that [the neighbor] was stealing stuff out of our house, all mutually inconsistent.
But there were things she said that make it difficult for me to impose a false in one, false in all-type of approach to her testimony. She did say she was angry with her husband She did say on the record that she was angry with him for not showing up in court. So [for] me to find in effect that every time she opens her mouth she lies, and the Court must presume the opposite of what she was saying is a stretch. There were times she testified credibly and against her husband in this proceeding.
The judge then discussed the letter, which was "of great concern" to him, and found that defendant-mother "was in some kind of fear, and it is possible that the fear was mixed with some other [emotion]." He concluded:
I can't totally disregard [her] testimony in that regard, although it is inconsistent. She went back and forth. And I attribute that to some extent to sheer embarrassment over this whole situation. But it shows at one point in December of 2008 she was in fear.
Considering these credibility findings and the contents of the letter, the judge concluded that there was "not enough" in the letter, "especially with the recantation, to prove domestic violence."
The Law Guardian and DYFS argue that this appeal is the rare situation where we should disregard the judge's credibility finding because it "went so wide of the mark that a mistake must have been made." MM., supra, 189 N.J. at 279, 914 A.2d 1265. We do not view the judge's credibility findings as "wide of the mark."
There was no inconsistency in the judge's credibility determinations. After each hearing, the judge found defendant-mother's explanations for writing the letter were not credible. After listening to days of testimony and gathering additional evidence and insight about the circumstances of the relationship, including testimony from the expert witnesses about their interviews of the parents, the judge determined that certain aspects of defendant-mother's explanation of her motivation may be true. That determination was not only within the judge's proper fact-finding function but supported by the evidence presented at the hearing.
Furthermore, even if defendant-mother's explanations of reasons for writing the letter were completely fabricated, her false testimony did not amount to evidence that everything she wrote in the letter was the truth. The false recantation of a witness does not by itself prove the opposite proposition, that the prior statement is true.
The judge weighed the statements in the letter — that her husband had threatened and tried to kill her, that either he or his friends might do it in the future, that he might hurt the children, that he was always putting his hands on her, that he had already-stabbed her hand with a screwdriver, that he teaches their three-year-old son how to kill, and that she was in fear for her life — against defendant-mother's repeated testimony under oath that she was not the victim of domestic violence. He found that the letter showed defendant-mother was in fear at some point in December 2008 but it did not prove specific acts of domestic violence had actually occurred. We cannot conclude that the judge "went wide of the mark" in reaching those conclusions about the letter. As we will discuss, however, the letter had broader probative value than as proof of specific acts of violence.
The Law Guardian and DYFS also argue that the judge did not assess accurately the tape recording made by the neighbor. They claim, as did their experts, that the recording proves that defendant-mother was subjected to physical violence because she can be heard saying "leave me alone," "get off of me," "you're hurting me," and "let me out."
According to testimony and the trial court's findings, defendant-mother can be heard on the recording screaming, yelling, and cursing repeatedly for more than thirty minutes while defendant-father's voice is unintelligible but calm. Defendant-mother testified that the argument occurred in early 2007 while she was pregnant with the second child and her hormones were affecting her emotionally. She testified that her husband was attempting to calm her down and never struck her or prevented her from leaving the house.
Before his decision at the end of the fact-finding hearing, the trial judge listened to the recordings and evaluated first-hand their content. The judge determined that one of the recordings was almost entirely inaudible, with only sporadic intelligible words amounting to a small fraction of the entire recording. He could not make any determination from that episode about what was occurring. Regarding the second one, he made the following findings:
I have listened to the tape, listened to the part where [defendant-mother] says "Get off me," listened to everything else, listened to [the boy] screaming during the tape. . . . [I]t's an ugly listen, but — to take a step back, [defendant-mother] testified that the "get off me" was he was approaching her to try to hug her, but not necessarily violently. I will note that at that point in the tape there is no indication, nothing, no noise or anything, indication of any violent struggle. So there is simply no proof that anything violent was being done other than her comments.
And the tone of her voice at that stage, and I have listened to her — I have listened to her in court, was actually somewhat calmer than the F___ [you]'s that were repeated by her 70 times or more. So I have no basis on that.
And really, if you liaten[,] the expert reports, they — they base themselves to a large extent on that part of that tape which was 10 seconds out of a half hour. I can't find that that incident necessarily is proof of anything.
We see no error in the judge's conclusion that the recording did not prove an act of physical domestic violence by defendant-father. The judge did not err in disagreeing with the experts' opinions in that respect.
We disagree, however, with the last-quoted comment — that the recorded incident did not prove "anything." It appears that the judge was focused on determining whether acts of physical domestic violence as recognized by our domestic violence laws had been proven. We think the allegations of the complaint and the proofs presented were intended to show domestic violence in a broader sense than predicate acts of violence that would have satisfied the requirements of the Domestic Violence Act.
The purpose of the fact-finding hearing in an abuse or neglect proceeding is to determine whether a child is an abused or neglected child, N.J.S.A. 9:6-8.44, not to assign guilt to a defendant. Under the statutory framework, "the safety of the child shall be of paramount concern." N.J.S.A. 9:6-8.28a, -8.31 a, -8.32, -8.49. The evidence supported a finding of domestic violence in a more general sense as that phrase was used and is understood by psychologists working in the field of domestic violence and family dynamics and, in particular, the expert witnesses who testified in this case.
In MM., supra, 189 N.J. at 279, 914 A.2d 1265, the Supreme Court cited with approval our holding in In re Guardianship of J.T., 269 N.J.Super. 172, 634 A.2d 1361 (App.Div. 1993), establishing a broader scope of appellate review where the issue is not the facts that were found but rather evaluation of those facts under the applicable law. In J. T., we held there are two exceptions to the strictly limited scope of appellate review from a decision of a trial judge sitting without a jury.
First, where the judge goes so wide of the mark as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction."
Formosa v. Equitable Life Assurance Soc'y, 166 N.J.Super. 8, 20 [
398 A.2d 1301] (App.Div.),
certif. denied,
81 N.J. 53 [
404 A.2d 1153] (1979);
Maggio v. Pruzansky, 222 N.J.Super. 567, 577 [
537 A.2d 756] (App.Div. 1988). Second, "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," the traditional scope of review is expanded.
Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 [
558 A.2d 28] (App.Div.),
certif. denied, 117 N.J. 165,
564 A.2d 883 (1989).
[
J.T., supra, 269 N.J.Super. at 188-89,
634 A.2d 1361.]
In this case, we do not view the trial court's credibility determinations or assessment of individual pieces of evidence as "wide of the mark." The focus of our disagreement with the trial court is the implications to be drawn from the evidence.
In evaluating the evidence, the trial court said, "there must be some actual conduct by the defendants warranting intervention." Because it concluded DYFS had not proven that defendant-father committed acts of domestic violence, the court found DYFS had also failed to prove that the children had been abused or neglected. We think that the allegations brought by DYFS did not require proof of domestic violence within the meaning of the Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In the context of abuse or neglect of children, a pattern of parental conduct can place the children at risk of harm as contemplated in N.J.S.A. 9:6-8.21c(4) without proving a particular episode of physical or similar domestic violence as defined in the Domestic Violence Act, N.J.S.A. 2C:25-19.
N.J.S.A. 9:6-8.21c(4), in relevant part, defines an "abused or neglected child" as:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his or her
parent or guardian to exercise
a minimum degree of care: . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or
by any other acts of a similarly serious nature requiring the aid of the court.
[
N.J.S.A. 9:6-8.21c(4) (emphasis added).]
DYFS must prove that a child was abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46b; N.S., supra, 412 N.J.Super. at 615, 992 A.2d 20.
In G.S. v. Department of Human Services, 157 N.J. 161, 723 A.2d 612 (1999), the Court reviewed the meaning of the quoted statutory language. It held the statute did not require that the parent intended to harm the child. Id. at 176, 723 A.2d 612. It held that "the phrase `minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178, 723 A.2d 612.
Grossly or wantonly negligent conduct would not satisfy the elements necessary to prove domestic violence under the Domestic Violence Act. That law requires proof of a specific predicate act of domestic violence from among the fourteen offenses within the Code of Criminal Justice listed in the statute. N.J.S.A. 2C:25-19a; see Cesare, supra, 154 N.J. at 400-01, 713 A.2d 390. The listed predicate offenses require purposeful, knowing, or reckless conduct.
In this case, each of the three experts testified that the totality of the evidence they reviewed proved a relationship in which defendant-father engaged in coercive control of defendant-mother. They testified that the recorded arguments were an example of that coercive control. Even if defendant-mother was physically able to leave the home at the time of those arguments, she had demonstrated. her psychological entrapment through the prior instances of leaving and then coming back, her willingness to give up her children to defendant-father or DYFS to preserve her own safety, and her total denial of her husband's documented violent and abusive past. The experts testified uniformly that defendant-mother was in dire fear of her husband, as most vividly evidenced by the highly unusual letter she gave to her neighbor.
All three also testified that the documented history of violence against the ex-wife was very relevant to predicting future violence and thus assessing risks to the children. Whether the accounts of past violence were admissible substantively as proof of domestic violence against the current wife, those proofs were the kind of information relied upon by experts in the field of domestic violence to evaluate the risks involved. See N.J.R.E. 703.
The experts concluded that the parents' relationship and their untreated psychological conditions created a high degree of risk that the children would be harmed. Most important, the two licensed psychologists testified that the children, at the ages of two and three, were already manifesting the effects of the coercive and violent relationship of their parents. The boy was disturbingly combative and disdainful of adult authority. His behaviors of calling women "bitch" or threatening to kill his sister with a vacuum cleaner were not natural and could only be learned conduct. At his age, and not enrolled in a school or daycare until he was removed from the home, he must have learned those behaviors while in the care of his parents. The parents' denials were not credible.
Although the developmental delays of speech are not so readily attributed to the parents' conduct in the home, they are further evidence of potential effects on the children of the parents' conduct and psychological inability to understand and remedy the harm.
Citing our holding in S.S., supra, 372 N.J.Super. at 22-26, 855 A.2d 8, the trial court recognized correctly that the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs. Likewise, exposure of children to a coercive control relationship does not by itself prove abuse or neglect. In this case, however, unlike S.S., the court heard credible evidence that professionals in the field accept the general proposition that domestic violence in the home harms children and that harm had occurred in this family. We also note our Legislature's explicit finding and declaration in the Domestic Violence Act that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A 2C:25-18.
In addition, the experts considered the parents' psychological deficits as dangerous to the children. "[A] psychiatric disability can render a parent incapable of caring for his or her children." I.Y.A., supra, 400 N.J.Super. at 94, 946 A.2d 62. "That the parents may be morally blameless is not sufficient to tip the scales in their favor." N.J. Div. of Youth Family Servs. v. AG., 344 N.J.Super. 418, 436, 438, 782 A.2d 458 (App.Div. 2001),. certif. denied, 171 N.J. 44, 791 A.2d 222 (2002).
Dr. Nadelman, who spent six hours evaluating the parties through tests and interviews, found defendant-father to be a "depressed, dejected" and "despondent" person who acknowledged suicide attempts in the past and suicidal ideation in the present, and felt hopeless, worthless, useless, and ineffective. She concluded that he was at high risk of psychologically harming his children based on his level of depression, and of physically abusing his children based on his "unacknowledged and untreated rage" and "capacity to become aggressive" when he felt thwarted.
Dr. Nadelman found that defendant-mother was a "seriously disturbed woman," who demonstrated hysteria, paranoia, and disordered thinking. Her "current level of psychiatric disturbance would impair her ability to provide safe or adequate care for children on her own." Defendant-mother did "not have the willingness or the capacity" to care for the children safely. As a result, the children were at "high risk" if left in her care.
By her risk assessments, Rezeli also concluded that defendant-mother was "laboring with serious mental health issues that must be addressed before she can safely parent." She found that defendant-father had "serious" mental health issues, including his "self-view as a victim which dominates his emotions, thought process and actions and promotes negative and self-defeating behaviors."
Defendant-father denied his son's aggressive behavior, and both parents denied the children's developmental delays. They refused to permit therapy for the children's speech delays. Defendant-father also refused to engage in domestic violence counseling while the case was pending, stating that he was not violent. Their denials meant that the parents had in the past, and would in the future, refuse necessary treatment for their children, which Rezeli considered neglect, and would resist counseling and therapy for their own deficits.
We conclude that the trial court's focus on a "tie in . . . to particular facts or conduct," in the sense of domestic violence within the meaning of the Domestic Violence Act, N.J.S.A. 2C:25-19, improperly influenced its view of the implications to be drawn from the totality of the evidence in this case. The expert testimony, even if not accepted in all respects, was supported by the factual evidence, especially the manifestation of abuse or neglect in the children's behavior and development.
Here, as in G.S., supra, 157 N.J. at 181, 723 A.2d 612, defendant-parents failed "to exercise a minimum degree of care" in that, although "aware of the dangers inherent in a situation!;,]" namely, their abusive relationship and serious psychological disabilities, they "recklessly create[d] a risk of serious injury" to their children by failing to protect the children from harm and failing to acknowledge and treat their disabilities. Through the totality of the evidence, DYFS and the Law Guardian proved that the three children were abused or neglected within the meaning of N.J.S.A. 9:6-8.21c(4).
IV.
We reverse the Family Part's decision and remand for a dispositional hearing under N.J.S.A 9:6-8.45.