ARIEL SCHOCHET VS. SHARONA SCHOCHET A-3601-13T2

 ARIEL SCHOCHET VS. SHARONA SCHOCHET 

A-3601-13T2 The court granted plaintiff's application to seek emergent relief from an order that denied his request for the appointment of experts at public expense to testify at an ability to pay hearing conducted pursuant to Rule 1:10-3. Relying upon Pasqua v. Council, 186 N.J. 127 (2006), he argues that such appointment is constitutionally required because he faces possible incarceration if the trial court finds he willfully failed to pay his support obligations. Mindful that the appointment of counsel at public expense is required only when an obligor is indigent, we note that the occasion in which an indigent obligor's financial circumstances are so complex as to require expert testimony will be extraordinary. We conclude that plaintiff has failed to show the appointment of experts at public expense is constitutionally required in this case.  04/23/14

court discusses grand parent visitation

 R.K. AND A.K. VS. D.L., JR.
          A-2338-12T1

Plaintiffs, the maternal grandparents of a twelve- year-old girl, filed a verified complaint in the Family Part seeking visitation rights pursuant to our State's grandparent visitation statute, N.J.S.A. 9:2-7.1. After joinder of issue, but before any discovery, defendant/father moved to dismiss the complaint under Rule 4:6-2(e). Because the court relied on the parties' supplemental certifications, the motion judge decided the matter as a summary judgment motion under Rule 4:46-2(c).
We reverse. The facts alleged by plaintiffs established a prima facie case for relief under N.J.S.A. 9:2-7.1. The court also erred in granting defendant's motion to dismiss under Rule 4:46-2(c) because there were material issues of fact in dispute. The complexity and magnitude of the allegations also obligated the court to afford plaintiffs the opportunity to conduct discovery in order to gather sufficient evidence to overcome defendant's presumptively valid objection to grandparent visitation as the child's father.
Although under Rule 5:4-4 and AOC Directive 08-11 grandparent visitation complaints are considered summary actions, the burden of proof imposed on plaintiffs in grandparent visitation cases under Moriarty v. Bradt, 177 N.J. 84, 117 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004) makes these matters ill- suited for traditional summary action designation. We thus hold that a complaint seeking grandparent visitation as the principal form of relief should not be automatically treated by the Family Part as a summary action. After joinder of issue, the vicinage Family Part Division Manager shall designate the matter as a contested case and refer the case for individualized case management by a Family Part judge selected by the vicinage Presiding Judge of Family. The judge shall review the pleadings and determine whether active case management is needed. 1/13/14 

leaving 19 month old in car was abuse

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY VS. E.D.-O. A-3825-12T4 

The court held that a mother failed to exercise the minimum degree of care required by N.J.S.A. 9:6- 8.21(c)(4)(b) by leaving her nineteen-month-old child unattended in a motor vehicle, with its engine running but the doors locked, while the mother entered a nearby store.  1/14/14 

 Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Director, Division of Child Protection and Permanency, Department of Children and Families, Agency No. AHU 09-0740.

Daniel N. Epstein argued the cause for appellant (Epstein Arlen, LLC, attorneys; Mr. Epstein, of counsel and on the brief; Carol Matula, on the brief).

Ann Avram Huber, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Huber, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we consider whether a nineteen-month-old child was abused or neglected when left unattended in a motor vehicle while her mother entered a nearby store. In affirming, we conclude the mother failed to exercise the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4)(b).

Appellant E.D.-O. (Eleanor, a fictitious name) acknowledges that late in the morning of May 6, 2009, she: parked her car approximately 150 feet from the front door of a Dollar Tree store in South Plainfield; left her sleeping nineteen-month-old child belted into her car seat in the vehicle; and kept the engine running and the doors locked with windows opened approximately one inch while she entered the store. Five to ten minutes later, Eleanor exited the store to find, by her car, police officers called by a mall security guard, who had observed the unattended child. Eleanor was arrested, charged with child endangerment and released on her own recognizance.¹

The Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division), immediately investigated and a Division representative spoke with Eleanor the same afternoon. Eleanor was tearful and remorseful; she was described by her husband as a "good and caring mother." All their children,² as the Division then learned, were appropriately dressed, current on their immunizations, and covered by health insurance. Two of the older three children³ said their mother, who was not employed outside the home, had never left them alone. The home was well cared for and free of safety hazards. Consequently, the Division's concern was essentially limited to the incident in question, which was substantiated, thereby requiring Eleanor's inclusion in the child abuse registry pursuant toN.J.A.C. 9:6-8.11. A family safety plan was implemented.

Two weeks later, the Division filed a Title Nine action, seeking care and custody of all four children. On September 3, 2009, the Division agreed the family was in no further need of intervention, and the action was consensually dismissed.

Eleanor filed an unsuccessful administrative appeal and now appeals the Director's final agency decision, arguing she was entitled to an evidentiary hearing and claiming the Director's determination was legally insufficient.

We find no error in the Director's rejection of Eleanor's request for an evidentiary hearing. Although controversies based on N.J.S.A. 9:6-8.21(c)(4)(b) have generally been referred to as "quite fact sensitive," N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 253 (App. Div. 2012), the material facts we described at the outset were not disputed, and the Director properly applied the procedure outlined in N.J.A.C. 1:1-12.5(b), which tracks Rule 4:46-2(c)'s method for summarily resolving factually undisputed civil actions. See E.S. v. Div. of Med. Assistance Health Servs., 412 N.J. Super. 340, 350 (App. Div. 2010).

This appeal presents only a legal question: whether the material facts support a finding of abuse or neglect. That question is governed by N.J.S.A. 9:6-8.21(c)(4), which states that an "abused or neglected child" means 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 his 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[.]

The Legislature provided no further clarity as to the reach of the phrase "minimum degree of care," but our Supreme Court ascertained it means "grossly or wantonly negligent, but not necessarily intentional" conduct. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In that sense, a parent fails to exercise a minimum degree of care when "aware of the dangers inherent in a situation," the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The parent is held to what "an ordinary reasonable person would understand" in considering whether a situation "poses dangerous risks" and whether the parent acted "without regard for the potentially serious consequences." Id. at 179.

More recently, the Court reaffirmed that its "'cautionary act' language . . . is informed by" G.S.'s "grossly negligent or reckless standard," but further explained that "every failure to perform a cautionary act is not abuse or neglect"; that is, "[w]hen the failure to perform a cautionary act is merely negligent, it does not trigger" the statute. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011); see also S.N.W., supra, 428 N.J. Super. at 254. The focus on the parent's level of culpability in assessing whether a minimum degree of care has been exercised

is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.

[T.B., supra, 207 N.J. at 307.]

This standard is best appreciated by specific examples contained in our case law, as the T.B. Court instructed in expressly referring to two of our prior decisions – N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011) andN.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009). The facts in T.B. further illustrate the statute's meaning.

In A.R., we found a parent to have been grossly negligent when he placed a ten-month-old child on a twin bed without rails next to a radiator and then closed the door behind him, concluding that "'an ordinary reasonable person' would understand the perilous situation in which the child was placed." 419 N.J. Super. at 545-46. A different outcome was warranted in J.L., where the mother of three- and five-year-old sons permitted them to "return home alone" while she remained in a nearby outdoor play area, because she had trained the boys to leave ajar the door, which was equipped with a child-proof cover, if they entered the home without her; on the occasion in question, the door accidently closed behind the boys, thereby locking them in and prompting one of the boys to call 9-1-1. 410 N.J. Super. at 161-62. Although the mother was "arguably inattentive or even negligent," we held the facts did not meet the statutory standard. Id. at 168. And, in T.B., the Court found the statutory standard was not violated when a mother, who resided with her four-year-old child in a separate apartment but in the same structure as her parents, assumed her parents were home and mistakenly left the sleeping child home alone. 207 N.J. at 296-97. The Court held that "[the mother's] failure to perform the cautionary act of calling upstairs to assure [the grand]mother's presence was clearly negligent[,] [but] [u]nder all of the circumstances known to her^[4] . . ., it did not rise to the level of gross negligence or recklessness." Id. at 310.⁵

These cases illustrate what T.B. referred to as a "continuum between actions that are grossly negligent and those that are merely negligent." Id. at 309. In applying that framework, we consider the analogous yet somewhat different circumstance of leaving a child alone in a motor vehicle – analogous because the circumstance involves a young child being left alone but different because the child was not only left alone in public but in a motor vehicle, a circumstance that compounded the risks.

Such events are apparently not as uncommon as might be hoped; the parties have cited no less than six fairly recent unreported decisions of this court dealing with young children left unattended in motor vehicles. Although there may be instances in which such an act may be fairly labeled "merely negligent," we need not describe at any length the parade of horribles that could have attended Eleanor's neglect in concluding, as did the Director, that the act of leaving a child alone in a motor vehicle with its engine running, to enter premises 150 feet away, is a reckless act enveloped by the standard contained in N.J.S.A. 9:6-8.21(c)(4)(b).⁶ As we have observed, the standard we must apply is whether "an ordinary reasonable person," G.S., supra, 157 N.J. at 179, would recognize the peril. We have no hesitation in answering that question in the affirmative. A parent invites substantial peril when leaving a child of such tender years alone in a motor vehicle that is out of the parent's sight, no matter how briefly. Eleanor recognized the danger when she felt it necessary to lock the vehicle's doors and lower both front windows by an inch.⁷ In fact, she repeated in her appellate brief what she stated to the Division caseworker at the time: "she now knew that what she did was wrong."

In drawing this conclusion, we do not mean to suggest there are no circumstances in which a child might be left unattended in a motor vehicle without running afoul of N.J.S.A. 9:6-8.21(c)(4)(b). For example, Eleanor greatly relies on an unreported decision involving a mother, whose husband was out of town and unavailable, leaving a sick and sleeping two-year-old in a locked and warm vehicle for approximately ten minutes to enter a store to purchase medicine for the child. In that case, we found the circumstances militated against finding the mother grossly negligent. Even were we to assume such conduct would fall short of the statutory requirements – a question we need not decide – the child here was not sick, Eleanor was only purchasing items for a party, and other adults were available to watch the child at home while Eleanor ran her errand. There being an absence of any extenuating circumstances, we conclude the Director reasonably found Eleanor's conduct was grossly negligent.⁸

Affirmed.

1 The record does not disclose the results of the criminal charges.

2 The child in question was the youngest of four, the others were born in 1999, 2002 and 2004.

3 One child was too bashful to speak to the Division representative. The nineteen-month-old child was described as "non-verbal."

4 The record in T.B. reveals the mother's assumption that her mother and stepfather were home was not merely the product of supposition but based on the work schedules and routine patterns of all three adults. The details are fully explored in the Supreme Court's opinion and need not be repeated here. 207 N.J. at 296-98.

5 The child in A.R. was severely burned, 419 N.J. Super. at 541, whereas the children in J.L. and T.B. were unharmed by their parents' neglect, although the potential for harm in the latter case was great because the four-year-old child woke and, not finding his mother home, crossed the street to a neighbor's home, T.B., supra, 207 N.J. at 297. The actual consequences did not in those cases, however, govern the result because the statute does not require that a court "wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999);see also N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011). Indeed, the abuse/neglect finding often arises because of a legitimate and reasonable inference – stemming from the act or omission in question – that "the child is subject to future danger." T.B., supra, 207N.J. at 307 (emphasis added). We need look no further than the statute itself to conclude that abuse or neglect has occurred when a child's "physical, mental, or emotional condition . . . is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).

6 Many states have criminalized the same conduct, although without any uniformity in approach. See Cal. Veh. Code § 15620(a)(2) (making punishable by fine the leaving of an unattended child under six years of age in a motor vehicle "[w]hen the vehicle's engine is running or the vehicle's keys are in the ignition, or both"); Fla. Stat. § 316.6135(1) (making it a misdemeanor to leave an unattended child under six years of age in a motor vehicle "in excess of 15 minutes" or "[f]or any period of time if the motor of the vehicle is running"); Haw. Rev. Stat. § 291C-121.5 (makes unlawful the leaving of an unattended child under nine years of age in a motor vehicle "for five minutes or longer"); 720 Ill. Comp. Stat. § 5/12C-5 (defining child endangerment as including knowingly leaving an unattended child six years of age or younger "in a motor vehicle for more than 10 minutes"); La. Rev. Stat. Ann. § 32:295.3 (making punishable by fine or imprisonment not to exceed six months leaving an unattended child under six years of age in a motor vehicle when the operator "is more than ten feet from the vehicle and unable to continuously observe the child"); Md. Code Ann., Fam. Law § 5-801 (making it a misdemeanor to leave an unattended child in a motor vehicle if the "motor vehicle is out of the sight of the person charged"); Mich. Comp. Laws § 750.135(a) (making it a misdemeanor if a child under six years of age is unharmed when left "unattended in a vehicle for a period of time that poses an unreasonable risk of harm or injury," and a felony if serious physical harm or death is caused); Nev. Rev. Stat. § 202.575 (making it a misdemeanor to leave an unattended child seven years old or younger in a motor vehicle if "[t]he conditions present a significant risk to the health and safety of the child" or "[t]he engine of the motor vehicle is running or the keys to the vehicle are in the ignition"); Okla. Stat. tit. 47, § 11-1119 (making it a misdemeanor to leave a child six years old or younger "unattended in a motor vehicle if the conditions, including, but not limited to, extreme weather, inadequate ventilation, or hazardous or malfunctioning components within the vehicle present a risk to the health or safety of the unattended child"); 75 Pa. Con. Stat. § 3701.1 (making it a "summary offense" to leave a child under six years of age unattended when the motor vehicle "is out of the person's sight and under circumstances which endanger the health, safety or welfare of the child"); Tenn. Code Ann. § 55-10-803 (making it a misdemeanor to leave a child seven years old or younger "in a motor vehicle located on public property or while on . . . premises . . . generally frequented by the public at large without being supervised . . . if (1) The conditions present a risk to the child's health or safety; (2) The engine of the motor vehicle is running; or (3) The keys to the motor vehicle are located anywhere inside the passenger compartment of the vehicle"); Utah Code Ann. § 76-10-2202 (making it a misdemeanor for a person to "intentionally, recklessly, knowingly, or with criminal negligence" leave a child under nine years of age unattended in a motor vehicle if the vehicle is on public property or private property open to the public and "the conditions present a risk to the child of: (i) hyperthermia; (ii) hypothermia; or (iii) dehydration"); Wash. Rev. Code § 46.61.685 (making it a misdemeanor to leave a child under the age of sixteen unattended in a motor vehicle "with its motor running"). Two states impose criminal sanctions on day care or child care providers who leave children unattended in motor vehicles.See Ala. Code § 13A-11-290; Wis. Stat. § 948.53.

7 The dangers include but are not limited to the possibilities of car theft or kidnapping. And the risk is by no means alleviated when the vehicle's engine is turned off; on a hot day, the temperature inside a motor vehicle can quickly spike to dangerously high levels, just as it may rapidly and precipitously dip on a cold night. Not long ago a sister state's legislature made the following findings regarding unattended children in motor vehicles:

[L]eaving a child unattended in a car can too often have tragic consequences, either because the child suffers from exposure to excessive heat, is injured when the car is stolen, or releases the emergency brake, inadvertently starts the car, or puts the car in gear. On average, thirty-six children per year across the country die in hot vehicles. About forty per cent of those deaths occur when caregivers forget that children are in the car. About twenty per cent of children who die are intentionally left in vehicles by caregivers who do not know any better.

[W]ith an outside temperature of approx-imately eighty-five degrees, the inside air temperature in a car will reach one hundred-thirty degrees or more. Under those conditions, a small child, whose body temperature increases three to five times faster than an adult's, can succumb to the heat in as short a time as fifteen minutes. External temperatures as low as sixty-six degrees can be fatal. As a result, the five-minute trip to the bank that ends up taking a half-hour can be deadly.

[2008 Haw. Sess. Laws, c. 170, § 1.]

8 Eleanor strenuously argues the type of neighborhood – she claims the Middlesex Mall in South Plainfield, where this incident occurred, is "upscale" – is highly relevant in ascertaining the degree of her negligence. In assuming only for present purposes the accuracy of Eleanor's description of the Middlesex Mall, we disagree with the point she urges. Although it may be fair to conclude that leaving a child unattended in a high crime area would constitute a risky undertaking, the risk is not substantially reduced when the conduct occurs in less crime-ridden locales. Even the most upscale of neighborhoods and shopping centers are troubled by crime. Moreover, as we have endeavored to explain, the risk to the child is not limited to exposure to criminality; the health risks of leaving a young child in an unattended motor vehicle no doubt produce more deaths or greater injuries than those caused by criminals.

DV reversed where defendant not allowed to prepare

S.C.,

            Plaintiff-Respondent,

v.

A.M.,

            Defendant-Appellant.

                                          SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO.  A-1870-12T4

January 23, 2014

 

Submitted November 18, 2013 – Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, Docket No. FV-02-1172-13.

Vito Sciancalepore, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.  He contends that the trial court violated his due process rights by rushing into a final hearing without giving him time to seek legal advice, and also that plaintiff failed to establish predicate acts of domestic violence or a need for a restraining order.  Plaintiff has not filed opposition to the appeal.

Having reviewed the entire record and found it to contain ambiguous indications of defendant's preparedness and willingness to proceed to a final hearing on the first business day after the complaint was filed, we conclude that defendant is entitled to a new trial.

Defendant was fifty-one years old at the time of the domestic violence complaint.  He and plaintiff had lived together for seven years and had no prior history of domestic violence filings or other judicial proceedings.  Defendant was served with plaintiff's complaint and a temporary restraining order on a Saturday night, December 8, 2012.  The complaint alleged that on that same date defendant had been:

[V]erbally abusive to the plaintiff in recent months and constantly arguing.  During the course of a verbal argument, the plaintiff has repeatedly asked the defendant to leave the home.  Today at approximately [6:20 p.m.], the defendant stated that "he has nothing to lose and will break her neck and burn the house down before he leaves."

The complaint charged a terroristic threat and harassment as the predicate acts of domestic violence.  Regarding the history of prior domestic violence, the complaint stated: "There have been no reports of previous domestic violence made with the Ridgefield Park Police Department.  However, the plaintiff reports this verbal confrontation has become quite regular in recent months."

The parties appeared before the Family Part that Monday morning, December 10, 2012.  Neither was represented by an attorney.  The court placed the parties under oath.  Both stated they had no other witnesses to present.  Because both parties spoke limited English and no translators were used, the transcript of the hearing contains many "indiscernible" designations and other language oddities that make the testimonial record somewhat obscure.  We provide a lengthy summary here to reveal both the extent and the limitations of the evidence. 

The judge first inquired whether plaintiff wished to proceed with a final hearing that day, and she answered yes.  The judge then asked defendant if he had ever previously had a restraining order against him, and he answered no.  The judge asked defendant if he had heard the judge's introductory explanation that had apparently been given to all persons on the court's calendar that morning.[1]  Defendant answered yes, but he also said he did not have a chance to get his hearing aid when he was removed from the home and that he would ask the judge to repeat if he did not hear something. 

The judge summarized the allegations of plaintiff's complaint, and inquired briefly of the parties about their relationship for the purpose of determining the court's jurisdiction to hear the case as a domestic violence matter.  Next, the judge provided a brief explanation of how the trial would proceed.  The judge then engaged in the following colloquy with defendant:

COURT:  After I hear all that, if I believe you committed harassment or terroristic threats or both; then I have to make a finding [i]f domestic violence occurred.  And then, I will decide whether I think she needs the restraining order to be safe from further domestic violence. 

DEFENDANT:  Okay.

COURT:  If yes, I give her the restraining order.  If no, I dismiss the case.  If I enter a restraining order against you, then today you'll be fingerprinted and photographed and [your] name will be added to a registry of people who have committed domestic violence.  It's kept by the office of the Attorney General.  It comes up in background checks.  If you're not a legal citizen of the United States, it can affect your immigration status.  I can award a penalty of 50 to 500 dollars.  If she suffered financial damages, I can order you to pay damages.

So, understanding all of that, are you ready to go forward, today, representing yourself?

DEFENDANT:  Let's say — let's try — what — what happen, but I really don't know what's going on.  Why should deduct (sic) to be honest —

COURT:  Okay.  But you read the complaint; right?  You know what the complaint says?

DEFENDANT:  Yes.  Yes.  I read the complaint.  I — I know that —

COURT:  Let's hear from her.

DEFENDANT:  What about — let's see what happen —

COURT:  Okay.

DEFENDANT: — and we take it from that point.

The judge then began questioning the parties, plaintiff first and then defendant, about the circumstances that led to the filing of the complaint.  The judge also offered them opportunities to question the other.  As best as we can understand the transcript, the following summarizes the testimony.

Plaintiff and defendant lived together in their home in Ridgefield Park, along with plaintiff's ten-year-old son.  Defendant worked in construction jobs.  He had essentially built the Ridgefield Park home for the parties, although plaintiff appears to have been the title owner of the home.  The parties also owned another home in Florida that was occupied by a tenant.  Earlier in their relationship, defendant was like a father to plaintiff's son, but in recent months, according to plaintiff, he no longer treated her and her son well.   

It is not clear what caused the relationship to deteriorate, but financial difficulties and defendant's drinking were among the causes.  Mortgage payments were not made on the Ridgefield Park home, and it was in foreclosure.  According to plaintiff, defendant was drinking beer every night, although she also testified that, to her surprise, he would not seem drunk (in the sense of loss of his faculties), and he could still leave for work at seven o'clock every morning. 

For some weeks or months before plaintiff filed her complaint, the parties had agreed to sleep in different rooms.  She was avoiding him because he was verbally abusive when he drank, expressing disdain for her Hispanic origin and making other derogatory comments, including calling her a "hooker" (it appears from the record on one occasion).  She was especially upset by his verbal abuse because it also occurred in the presence of her son. 

Two weeks before filing the domestic violence complaint, plaintiff told defendant "this is not working anymore . . . I don't love you anymore.  So, I want you to move out of the house."  Defendant said he would not move until he received "papers from the court."  On December 8, 2012, as well as two days earlier on December 6, defendant said to plaintiff that "before he get out of the house he gonna break my neck and he gonna burn the house down." 

Plaintiff testified that she was afraid of him because she did not know what might be "in his head" when he drank.  She slept in a separate room with her son and locked the door at night, also placing a chair against the door and a knife under her bed.  Upon questioning by defendant, plaintiff readily acknowledged that defendant had never used physical force against her, except that he had pushed her once.  There was no further testimony about the time or cause of the pushing incident. 

Defendant testified that he did not drink every night, declaring that he would not be able to do dangerous work on a roof and in other construction tasks if he was "a drunk."  Regarding plaintiff's fear, he seemed to testify that plaintiff had habitually locked their bedroom door.  He was not aware of a chair or a knife since they had begun sleeping in separate rooms because he had never attempted to enter her bedroom.  Defendant did not deny that he had pushed plaintiff once, but he testified he was not a violent person.  He seemed to admit that he might have said offensive things but without meaning any harm to plaintiff.  He lamented that the domestic violence complaint would interfere with his plan to become a citizen of this country, and consequently, his "life would be over."    

According to defendant, he saw plaintiff infrequently, apparently because they would both leave for work early in the morning, and they never "had the chance" to talk with each other.  He seemed to blame their financial problems for the destruction of the relationship.  Their alienation escalated after she returned from a trip to Spain.  He was upset because of a very high cell phone bill that resulted from the trip, but she would not talk to him about the bill. 

Upon her return, she told him that women in America had rights, and she insisted that he move out within two weeks.  He testified that he was willing to move out of the house, but he had no relatives or friends in this country that could aid him.  He told plaintiff he had looked for an apartment but could not find one in the aftermath of Hurricane Sandy, in particular, near Staten Island where most of his construction work was located.  He said to plaintiff that he would move into their house in Florida but had to wait until February when the tenant was expected to vacate.  He asked her to give him until then to move out.  According to defendant, she responded that she would allow him to stay in the Ridgefield Park home until March and then move into the Florida home if he paid her $15,000. 

The testimony is unclear, but it appears that the parties had earlier maintained a substantial savings account, which was in defendant's name alone.  He withdrew money about a year earlier and then lost it in stock investments, he said.  In her testimony, plaintiff acknowledged that the money "was his," but she also believed they were both entitled to share it.  She denied she had demanded $15,000 from him in exchange for allowing him to stay in the Ridgefield Park home.  She insisted she was afraid of him and just wanted him to stay away from her because of his verbal abuse. 

Defendant denied he had threatened to break plaintiff's neck or to burn the house.  But near the end of the hearing, defendant said "maybe I said that."  The trial judge subsequently credited the testimony of plaintiff and found that defendant had in fact made the threat on both December 6 and 8. 

In her testimony, plaintiff also said "when he's mad, he just say whatever is coming from his mouth.  And then, like five minutes later, he's okay, nothing happens.  Everything's okay."  Defendant seemed to acknowledge that description of his verbal abuse.  He testified: "I have that kind of character.  Like — like she said.  I'm saying words, after five minutes, for me everything is okay.  I just said so."  Although not clear because of the language barrier, we suspect defendant's testimony means that he said abusive or threatening words, but he did not mean them.

Both parties expressed a desire not to hurt each other as a result of the domestic violence allegations and the court proceedings.  Plaintiff specifically said, "I don't wanna hurt him."  She just wanted him to pack up his belongings and "disappear," and she wanted to "live in peace."  Throughout the hearing, defendant expressed no verbal hostility to plaintiff and perhaps even seemed to sympathize with her distress, but he was frustrated by the turn in their relationship and wanted to defend himself against being labeled a drunk or a violent person.  At the end of the hearing, he stated: "We don't want to hurt each others [sic].  And we don't want to live together.  Just give me a chance to find apartment to live.  If that is possible.  If it's impossible, so, if I have to live in the street, I will live in the street."  

In a brief oral decision, the judge found that defendant's threats on both December 6 and 8 were terroristic threats in violation of N.J.S.A. 2C:12-3(b).  The judge also found that defendant committed the predicate act of harassment over a course of time by making derogatory statements about plaintiff.  The judge granted a final restraining order to plaintiff.

After defendant retained an attorney and filed a notice of appeal, the judge issued a supplemental statement of reasons supporting her decision of December 10.  See R. 2:5-1(b).  The express purpose of the supplemental decision was to elaborate on the judge's conclusion that a final restraining order was necessary, in accordance with our discussion of the pertinent analysis in Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).  The judge also added that the statutory basis for a finding of terroristic threats was both subsections (a) and (b) of N.J.S.A. 2C:12-3.  The judge noted that, despite peaceful "interludes" in the relationship, defendant abused alcohol and "became aggressive and threatening and frightening."  The judge found "there was a genuine and substantial risk that he might carry out his threats and break plaintiff's neck or burn down the home."  The judge found it "inconceivable" that defendant would be permitted back home after these findings. 

Defendant argues on appeal that his due process rights were violated because the case proceeded to a final hearing before he was given an opportunity to consult with counsel and prepare a full defense; that his rights were further violated when the court found that he made terroristic threats on December 6, 2012, a date that was not specifically alleged in the complaint; and that the evidence was insufficient to find he had committed predicate acts of domestic violence that warranted a final restraining order.

In a domestic violence case, the standard of review on appeal is very deferential to the trial judge's findings of fact and the conclusions of law based on those findings.  In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the expertise of Family Part judges to assess evidence of domestic violence and the need for a restraining order.  Regarding the function of the appellate court, the Supreme Court held:

[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]  

Here, we recognize that the Family Part judge evaluated the testimony presented and concluded it proved defendant had committed acts of domestic violence and plaintiff was entitled to a final restraining order.  See Silver, supra, 387 N.J. Super. at 128.  We reject defendant's contention that the judge's findings and conclusions were erroneous.  We are troubled, however, with the dispatch with which the case proceeded to a final hearing in the face of indications that defendant did not fully understand the proceedings or his potential defenses, especially in a close case. 

Citing H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003), defendant argues that his due process rights were violated when the court proceeded to hold a final hearing on Monday morning December 10, 2012, less than one business day after he had been served with the domestic violence complaint.  He argues that he did not knowingly waive his right to be represented by counsel. 

A complaint for a domestic violence restraining order, however, is a civil rather than a criminal matter, and without the kind of consequences of magnitude that would entitle a defendant to a constitutional right to counsel.  D.N. v. K.M., 429 N.J. Super. 592, 600-06 (App. Div. 2013).  The court was not required to place on the record a formal waiver of counsel from defendant, as in a criminal case.  See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581-82 (1975); State v. Crisafi, 128 N.J. 499, 509-12 (1992).  Nevertheless, "[d]ue process . . . does allow litigants a meaningful opportunity to defend against a complaint in domestic violence matters, which would include the opportunity to seek legal representation, if requested."  D.N., supra, 429 N.J. Super. at 606 (citing Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006)).

            Here, defendant did not request an opportunity to retain or consult an attorney before proceeding with the hearing.  However, defendant said in his colloquy with the judge: "I really don't know what's going on."  He indicated he was willing to hear what plaintiff had to say in pursuing her complaint and then would "take it from that point."  As often happens where a case proceeds with unrepresented parties, the possibility of adjourning the case did not resurface after the evidentiary hearing began.  Had nothing else developed that called into question defendant's due process rights, we would likely find no plain error in the court proceeding and concluding a final hearing in the absence of a request for adjournment.

            But the proceedings took a turn that implicates additional due process rights of a domestic violence defendant.  Plaintiff expanded the allegations of the complaint to include the same serious threat about injuring her and burning the house being made on December 6 as well as on December 8.  The court subsequently relied on the expanded version of the most serious conduct alleged against defendant and concluded that the threats were in fact made and constituted predicate acts of domestic violence in the form of terroristic threats. 

A domestic violence defendant has a due process right to be apprised before the time of the hearing of the allegations against him.  See J.D. v. M.D.F., 207 N.J. 458, 478-80 (2011).  "At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'"  H.E.S., supra, 175 N.J. at 321 (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)).  "More particularly . . . due process forbids the trial court 'to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'"  J.D., supra, 207 N.J. at 478 (quoting H.E.S., supra, 175 N.J. at 322).  The variation in this case merely expanded the time and scope of a predicate offense that was already alleged in the complaint.  Still, the alleged repetition of the threat to injure plaintiff and burn down the house added significant weight to its probative value in the totality of the circumstances of this case. 

In her supplemental decision, the judge interpreted plaintiff's testimony as indicating that defendant was "very violent" when he drank.  The fact that the threat was made more than once seemed to influence the judge's conclusion that it was more than just words in the heat of passion and constituted a terroristic threat within the meaning of N.J.S.A. 2C:12-3(a) and (b).  The court's finding that plaintiff reasonably feared the threat was, logically, based on the totality of plaintiff's allegations rather than the occurrence of a single incident. 

Defendant had a right to notice that he would be defending against an allegation that he had made such a serious threat on multiple occasions.  See J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998); L.D. v. W.D., Jr., 327 N.J. Super. 1, 4 (App. Div. 1999).  Yet upon reading the complaint, defendant was only apprised of a single threat and, very generally, of prior verbal arguments as constituting the history of domestic violence that had been alleged.    

We do not mean to suggest that, in every case, the addition of a prior similar incident will prejudice the defendant or require an adjournment of the hearing.  In the specific circumstances of this case, however, the issue of whether defendant meant his words to be taken as a real threat was crucial to a finding of domestic violence warranting a final restraining order.

"In the domestic violence context, an act of terroristic threats requires that (1) the abuser threatened the victim; (2) the abuser intended to threaten the victim; and (3) 'a reasonable person would have believed the threat.'"  Id. at 121-22 (quoting Cesare, supra, 154 N.J. at 402).  Given the history of the parties' relationship, there was a potential defense that defendant did not mean to make a real threat and his words were not reasonably believable.  The charge of making terroristic threats was potentially defensible on the basis of whether the threats were made "under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out."  State v. Dispoto, 189 N.J. 108, 121 (2007) (quoting N.J.S.A. 2C:12-3(b)).    

Although plaintiff testified that she was frightened and slept with her room locked and barricaded, her nighttime fright apparently preceded defendant's threats, and possibly even the time they began sleeping in separate rooms.  In addition, her fear was based on a vague apprehension that "something in his head and then [he] try to do something to me."  There was no history of physical violence by defendant against plaintiff or anyone else.  There was no history of threats of physical violence before December 6, 2012, only derogatory remarks that, alone, were unlikely to warrant entry of a final restraining order.  See, e.g., E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011); C.M.F. v. R.G.F., 418 N.J. Super. 396, 399, 403-04 (App. Div. 2011); State v. L.C., 283 N.J. Super. 441, 445, 450-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); Peranio v. Peranio, 280 N.J. Super. 47, 50, 55-56 (App. Div. 1995); Murray v. Murray, 267 N.J. Super. 406, 408-10 (App. Div. 1993). 

The history of abuse in the relationship can be the most important aspect of the court's findings and conclusions in a close case.  See H.E.S., supra, 175 N.J. at 327-28; Cesare, supra, 154 N.J. at 402, 405; Peranio, supra, 280 N.J. Super. at 54.  In Cesare, supra, 154 N.J. at 405, the Court noted that "a particular history can greatly affect the context of a domestic violence dispute."  Accord State v. Hoffman, 149 N.J. 564, 585 (1997); Silver, supra, 387 N.J. Super. at 128.

Here, the testimony at trial was not clear regarding plaintiff's allegations of past domestic violence.  In her testimony, plaintiff alleged prior verbal abuse by defendant for several months, but she also seemed to say that his offensive conduct did not persist for a long time, stating that he was "okay" five minutes later.  She acknowledged there was no physical violence except one pushing incident that was not further explained. 

We are ever mindful of our limited function as a reviewing court under the standard established in Cesare, supra, 154 N.J. at 412.  The trial judge heard the testimony firsthand and observed the parties.  She relied on those observations in reaching her conclusions and decision.  As the Supreme Court said, the trial judge is in a better position than we are to determine whether the evidence fulfills the elements necessary to prove predicate acts of domestic violence and the need for a restraining order.  Id. at 413, 416.  Therefore, we reject defendant's argument that the evidence was insufficient as a matter of law to demonstrate domestic violence and the need for a restraining order.

However, with time and opportunity to consult with counsel if so inclined, and to prepare to answer all the allegations that the trial court relied upon in its decision, defendant might have been able to persuade the judge that his threats were merely empty words and his other abusive statements were more in the nature of "ordinary domestic contretemps" following a dispute about possession of the couple's home, as in Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).  In defending against the charge of making terroristic threats, defendant may have presented a more persuasive defense that his conduct did not threaten "immediate danger to the person or property," id. at 248 (citing N.J.S.A. 2C:25-29(a)(2)), and thus did not warrant entry of a final restraining order, especially because he was willing to remove himself from the home.

            A final domestic violence restraining order has serious consequences for the defendant against whom it is entered.  See J.D., supra, 207 N.J. at 474; N.J.S.A. 2C:25-29(b), -30, -31,

-34.  Here, we heed the Supreme Court's recent remarks that: "When permitting plaintiff to expand upon the alleged prior incidents and thereby allowing an amendment to the complaint, the court also should have recognized the due process implication of defendant's suggestion that he was unprepared to defend himself."  J.D., supra, 207 N.J. at 480. 

Our lack of confidence in the outcome of the hearing derives from the alacrity with which the proceedings occurred in a relatively close case, together with a language barrier and defendant's questionable understanding of his due process rights.  A new trial will allow defendant to prepare and present his defenses fully to the court, and it should not cause any prejudice to plaintiff, who has received the protection of a restraining order since the time her complaint was filed.  See ibid. (continuation of temporary restraining order pending adjournment to permit defendant to prepare his defenses).

            We reverse and remand for a new trial.  The temporary restraining order issued on December 8, 2012, shall remain in effect pending a new trial or other disposition in the Family Part.  We do not retain jurisdiction.   

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[1] We have not been provided a transcript of the court's introductory remarks.