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(NOTE: This decision was approved by the court for publication.)
This case can also be found at 372 N.J. Super. 13, 855 A.2d 8.
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
NEW JERSEY DIVISION OF YOUTH
IN THE MATTER OF
Before Judges Stern, Lefelt and Payne.
On appeal from Superior Court of New
Michael R. Ascher argued the cause for
Geraldine O. Livengood, Deputy Attorney
Yvonne A. DeCicco, Assistant Deputy Public
The opinion of the court was delivered by
S.S., the wife of F.S. and the mother of a twenty-one month old
infant boy, appeals from a determination on October 8, 2002 by the family
court following a fact-finding hearing, memorialized in an order dated October 31, 2002,
that she abused or neglected her infant son by failing to appreciate the
continuing risk of harm posed by the actions of her husband, see N.J.S.A.
9:6-8.21c(4)(b), thereby requiring the assistance of the court. At issue is whether, under
the facts of this case, a battered wife can be found to have
abused her infant son because the son was present and at times in
her arms, unharmed, when his mother was physically attacked by his father and
because, after the attack, the wife initially sought to remain in the violent
I agree here with the C.P.R. Board where it finds that neither the parents nor the maternal grandparents appear to understand the emotional harm that domestic violence has and will have on a child, in this case the son.
Our concern with the court's rationale lies in the fact that emotional harm to the child as the result of witnessing domestic abuse was assumed by the DYFS case worker, the C.P.R. Board and by the fact-finding judge. See footnote 3 Yet, there is absolutely no evidence in the record to support that assumption or the further assumption that by initially refusing proffered advice to obtain a restraining order and seeking a reduction in her husband's bail, appellant necessarily emotionally endangered her child. No witness stated as a matter of fact that evidence of emotional injury to the child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty. All evidence indicates that the child remained a happy, healthy, emotionally secure twenty-one-month-old baby. Further, no psychological evidence was introduced to support, even as a general matter, a causal relationship between witnessing domestic violence and emotional distress in the young, and no expert sought to balance any harm found to exist as the result of domestic violence with evidence of emotional harm arising as the result of the removal so as to permit an assessment of whether removal served the best interests of the child.See footnote 4 We find these evidential gaps to have been fatal to the underpinnings of the court's conclusion that appellant abused her child. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
In reaching this conclusion, we do not suggest that DYFS lacked reasonable cause to believe that appellant's child might be abused or neglected (N.J.A.C. 10:129A-2.1(a)) or even that it lacked a basis for its preliminary finding that abuse was substantiated. Nor do we question the substance of its response thereafter. We do suggest that a showing of empathy by the case worker for appellant and the utilization by her of techniques that would have diffused the confrontation between the two and would have clearly articulated DYFS' aims would have more readily and painlessly achieved the goal that the case worker sought to attain of protecting the child by breaking the cycle of abuse directed toward his mother. See e.g. N.J.S.A. 9:6-8.35b (DYFS may, "with the safety of the child of paramount concern . . . [a]ttempt to adjust suitable cases before a complaint is filed over which the court apparently would have jurisdiction."). Nonetheless, we cannot say in a situation in which a potential for abuse was present that DYFS erred by exercising caution on the child's behalf. Its duties in this respect are paramount. N.J.S.A. 30:4C-1.
Moreover, we recognize that for DYFS to offer the services that it does to battered spouses, including services designed to break the cycle of abuse, it must first assert jurisdiction over the spouse and establish grounds for doing so. However, we view the fact-finding process that, pursuant to statute, must be undertaken by the family court as a significant and necessary check on the actions of DYFS in this respect. We concur with the family court judge that, in general, the focus of such fact-finding must remain upon the situation that existed at the time that DYFS acted. However, we find that such focus must rest individually on the violent and on the battered parent, and must be informed by the testimony and other evidence regarding the situation that is adduced at the fact-finding hearing. Further, the focus must center upon the question of whether the parent under consideration caused injury to the child and, if not, whether that parent is likely to do so in the future. We see no reason, when judging the likelihood of future harm, that the court focus solely on events at the time of the removal if causes for concern have been significantly alleviated.
We recognize that non-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated. G.S. v. Department of Human Serv's, Div. of Youth and Family Serv's, 157 N.J. 161, 175-82 (1999)(holding that conduct causing unintended injuries can form the basis for a finding of child abuse, and that absence of a minimum degree of care can be found when the guardian is aware of dangers to a child inherent in a situation, yet acts in reckless disregard for those dangers). We also recognize that the court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999). However, as a part of its burden of proof, the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46b) the probability of present or future harm.
This is not a case in which conclusions drawn from facts contained in DYFS staff reports constitute prima facie evidence subject to rebuttal. See R. 5:12-4(d). And the burden has not otherwise shifted to appellant to rebut a prima facie case of abuse. New Jersey Div. of Youth and Family Serv's v. S.S., 275 N.J. Super. 173, 178 (App. Div. 1994); In re D.T., 229 N.J. Super. 509, 515-18 (App. Div. 1988). This is so because DYFS never met its initial burden of demonstrating harm to this particular child, as contrasted to harm to appellant, arising from the domestic violence that had occurred.
If we could take judicial notice of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses, we would be less concerned by the court's conclusion here that appellant was an abuser. However, we cannot. The Legislature, in enacting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, found a "positive correlation between spousal abuse and child abuse; and 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. However, a legislative declaration serves as an aid in the construction and implementation of a statute. Brennan v. Orban, 145 N.J. 282 (1996) (utilizing N.J.S.A. 2C:25-18 to support a finding of ancillary jurisdiction in the family court over marital torts); State v. Saavedra, 276 N.J. Super. 289 (App. Div. 1994) (utilizing findings in weapons confiscation context). It does not and can not constitutionally be held to substitute for the fact-finding of the family court. See Norman J. Singer, 1A Sutherland Statutory Construction § 20:3 at 125 (6th ed. 2002). Moreover, the legislative declaration, providing guidance to the interpretation of an act that protects battered spouses, cannot necessarily be read as affording support to the concept that the victim of domestic violence is the cause of harm in the present context.
At present, significant litigation challenges the notion that witnessing domestic violence causes permanent emotional harm in the young. See, In re Nicholson, 181 F. Supp.2d 182 (E.D.N.Y.), op. supp. sub nom. Nicholson v. Williams, 203 F. Supp.2d 153 (E.D.N.Y. 2002) (finding, in class action asserting claims under 42 U.S.C.A. §1983 by battered women whose bystander children had been removed from their custody, that violations of the women's and their children's procedural and substantive due process rights and violation of the children's fourth amendment rights had taken place), on appeal sub nom. Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir. 2003) (certifying to the New York Court of Appeals questions of state law essential to consideration of the constitutional issues recognized by the District Court), certified questions accepted, 807 N.E.2d 283 (N.Y. Ct. App. 2003).
In District Court Judge Jack Weinstein's decision underlying his finding of constitutional violations, Judge Weinstein summarized evidence of a wide divergence among experts as to the effects of domestic violence on children (203 F. Supp. 2d at 197-98), and concluded that "the children can be -- but are not necessarily -- negatively affected by witnessing domestic violence." Id. at 197. See also, e.g., Evan Stark, The Battered Mother in the Child Protective Service Caseload: Developing an Appropriate Response, 23 Women's Rts. L. Rep., 107, 116 (Spring 2002); Melissa A. Trepiccione, At the Crossroads of Law and Social Science: Is Charging a Battered Mother with Failure to Protect Her Child an Acceptable Solution When Her Child Witnesses Domestic Violence, 69 Fordham L. Rev. 1487, 1501-05 (March 2001); Maureen K. Collins, Nicholson v. Williams: Who is Failing to Protect Whom? Collaborating the Agendas of Child Welfare Agencies and Domestic Violence Services to Better Protect and Support Battered Mothers and Their Children, 38 New Eng. L. Rev. 725, 745-47 (Spring 2004).
We thus cannot assume (as did DYFS and the family court judge) that the present case was one in which witnessing domestic abuse had a present or potential negative effect on the child sufficient to warrant a finding of abuse against appellant -- the battered victim. The assumption is particularly troubling in light of its substantial potential effect upon appellant's reputation and to her employment prospects. Most significantly, the finding, initially reported by DYFS to its Central Registry of "substantiated" abusers pursuant to N.J.S.A. 9:6-8.11, will remain.
Permissible disclosure of names contained in the Central Registry, although by no means unlimited, is certainly extensive. See N.J.S.A. 9:6-8.10a (listing persons and entities entitled to disclosure and circumstances in which disclosure can occur). Inclusion in the Registry also limits, for instance, employment as a day care worker and in other education-related jobs, service as a foster parent, and the ability to adopt. See In the Matter of Allegations of Sexual Abuse at East Park High School, 314 N.J. Super. 149, 163 (App. Div. 1998) ("The Central Registry revelations not only injure [appellant's] good name but are inextricably intertwined with her capacity to obtain employment in a vast array of education-related jobs."). See also New Jersey Division of Youth and Family Serv's v. M.R., 314 N.J. Super. 390, 399-402 (App. Div. 1998) (detailing effects of inclusion in Registry).
Justice Long, while a member of this court, found that a teacher had an interest sufficient to warrant protection under the due process clause in obtaining a fair adjudication of whether her name should be included in the Registry. East Park, supra, 314 N.J. Super. at 159-66. This was so, in part, because of the significant loss of job opportunity occasioned by inclusion in the Registry, including the inability to serve as a child care worker. As she stated there when determining whether due process had been denied:
[I]t is without question that the government has a significant interest in keeping child abusers out of the ranks of child care workers. In re Allegations of Physical Abuse at Blackacre Academy, 304 N.J. Super. 168, 185 (App. div. 1997). However, it has or should have an equal interest in not stigmatizing the innocent and foreclosing them from employment opportunities.
[East Park, supra, 314 N.J. Super. at 165.]
Footnote: 1 The police report describes the incident as follows:
She came home and he began yelling at her that she was not home when he came home and that she ignored him when he was calling for her. She left and came back a few minutes later when he hit her in the back of the head, grabbed her by the neck and tried to strangle her. As he was doing this [S.S.] was holding [their son] in her arms. [S.S.] was able to call the police and we arrived on the scene.
The threat to appellant was reported as "I'm going to fucking kill you."
The Division of Youth and Family Services case worker who spoke to appellant
on August 14 reported in her case notes that appellant had stated that
she had the child in her arms during the repeated attempted strangulations. However,
in testimony at the fact-finding hearing, the case worker stated merely that the
child had been in appellant's arms on at least one occasion when she
Footnote: 2 That appellant was required, by law, to be advised of her husband's release from custody on August 12 ( N.J.S.A. 2C:25-26.1) suggests that information regarding the call was quite stale.
Footnote: 3 We note that the child's former law guardian had not visited the child at the time of the fact-finding hearing, and thus lacked any basis for a view premised on observation as to the child's emotional condition.
Footnote: 4 In this particular case, appellant testified that she had been unable to bond effectively with her son while under constant supervision, and that the child had suffered as the result of a lack of playmates, familiar surroundings, and accustomed activities and social interactions.
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