                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1670-18T1

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

A.Q.,

          Defendant-Appellant,

and

J.P.,

          Defendant.


IN THE MATTER OF
D.Q.-P. and S.P., Minors.


                   Submitted April 30, 2020 – Decided June 3, 2020

                   Before Judges Alvarez and DeAlmeida.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Sussex County,
            Docket No. FN-19-0044-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn Veasey, Deputy Public Defender, of
            counsel; Janet A. Allegro, Designated Counsel, on the
            briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Sookie Bae, Assistant Attorney General, of
            counsel; Victoria Almeida Galinski, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Olivia Belfatto Crisp, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant A.Q. (Mary)1 appeals from the finding that she abused or

neglected her children, in an action brought by plaintiff New Jersey Divi sion of

Child Protection and Permanency (Division) under N.J.S.A. 9:6-8.21 to -8.114,

and N.J.S.A. 30:4C-12. For the reasons stated by Judge Michael C. Gaus in his

March 26, 2018 factfinding order and written statement of reasons, we affirm.

We add the following.




1
  We employ pseudonyms to preserve the confidentiality of the parties and their
family. See N.J.S.A. 9:6-8.10a.
                                                                         A-1670-18T1
                                       2
      Mary and her partner J.P. (Tom) have two boys who were approximately

nine and seven years old when the matter was decided. The older child (Harry)

was sixteen months old when the Division first became involved with the family.

Over the years, the Division has placed Mary in domestic violence shelters, with

the children, where she has not remained. Mary has obtained final restraining

orders under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17

to -35, which she has subsequently dissolved.       Mary agreed to maintain a

separate household from Tom, and not allow him to be with the children without

supervision. At various times he has nevertheless lived with her.

      Harry and his younger brother George suffer from a host of behavioral

difficulties. For this reason, the Division attempted to enroll the children in an

early intervention program. Mary did not agree because Tom was "against it,"

and he had the "final word."

      In May 2014, the Division assigned the family a caseworker, Hilary

Shprecher, who testified at the factfinding hearing. By 2015, Shprecher had

observed the children ignoring their mother, throwing food at each other, and

chasing and harassing the family pets. George has punched Shprecher in the

back, and when she chastised him for doing so, spit at her. In April 2016, the




                                                                          A-1670-18T1
                                        3
children attended a day camp where the counselor reported that George had

bitten him three times, and refused to listen to instructions or speak.

      The Division referred the children to Dr. Elizabeth Stilwell, Psy. D., to

"assess the degree to which their exposure to domestic violence and other

traumas is impacting their development." Her report, entered into evidence

without objection during the factfinding hearing, enumerated the tests she

administered. She found the children to be "disruptive and aggressive," and

noted that George kicked a worker in the shin. Harry was "hyperactive and

aggressive[,] as evidenced by him running around the office, throwing toys,

shouting, and fighting with his brother . . . ." Harry played aggressively with

the toys in the office, climbed on the furniture, and his play themes were violent

in nature.

      When George arrived for the testing, he immediately overturned a large

toy container and stomped on the contents. He was difficult to redirect, ran out

of the room several times, left through the office front door, crawled under

Stilwell's desk, and pointed a rubber band at her like a slingshot. When Mary

attempted to intervene, the boys simply ignored her.

      Stilwell noted that Mary, along with Tom, had no insight into the reasons

the Division was involved with the family, and had difficulty putting her


                                                                          A-1670-18T1
                                        4
children's needs before her own. She opined that the children's "[s]creaming,

cursing, yelling, biting, hitting, and throwing objects [had] become [their] way

of communicating with their parent(s)."      Although the behavior could be

attributed to various causes, including exposure to domestic violence, attention

deficit hyperactivity disorder (ADHD), sensory processing issues, autism

spectrum disorder, learning disabilities, and/or anxiety, Stilwell opined "that

their behavioral presentation is being intensified by the verbal and physical

violence that they have witnessed in their home."

      On April 1, 2017, George was admitted to Goryeb Children's Hospital

because he was "violent, impulsive, [and] hyperactive" at daycare. He was

perceived as a threat to other children in the program, and had been expelled

from other facilities because of his aggressive behavior. A child psychiatrist

prescribed medication for him, and he was evaluated by a child neurologist.

      Harry's neurodevelopmental evaluation was completed September 19,

2017, by Dr. Tosan Livingstone at Goryeb Children's Hospital. Livingstone

diagnosed Harry with an adjustment disorder with mixed emotional features and

conduct, as well as a mild speech articulation disorder. Although at the time he

did not fit the criteria for ADHD, the doctor noted that Harry should be

monitored for the condition. Livingstone diagnosed George with ADHD, an


                                                                        A-1670-18T1
                                       5
adjustment disorder with mixed emotional features and conduct, an expressive

language disorder, and a speech articulation disorder.

      On December 5, 2017, before the factfinding hearing was scheduled to

begin, Mary's attorney renewed a request for adjournment so her expert could

determine whether the children's behaviors stemmed from reasons other than

exposure to domestic violence. Counsel explained to the judge that the children

visited Goryeb Children's Hospital on September 19, 2017, at which time

George had been diagnosed with ADHD, and Harry diagnosed with an

adjustment disorder. Counsel further argued that Mary needed the expert's

testimony to demonstrate the deficiencies in Stilwell's evaluation, because she

concluded the children were affected by domestic violence and was "not privy

to this diagnosis of ADHD." The Division opposed the request for adjournment;

it was not asserting that domestic violence alone caused the behavioral issues,

but rather, that the domestic violence and the unstable home environment had

caused the children actual harm, and exposed them to substantial risk of harm.

The judge rejected the adjournment request, observing that the factfinding was

originally scheduled for September 5, 2017, and the complaint was filed on

November 14, 2016, some thirteen months before. He did so without prejudice,

subject to renewal after Stilwell testified.


                                                                       A-1670-18T1
                                         6
      The judge gave great weight to Stilwell's testimony. She testified the

children's behavior reflected their exposure to significant domestic violence, and

that the domestic violence was a separate cause of their difficulties. She gave

an example: "three[-]year[-]olds don't say things like I'm going to cut your

throat if they just have ADHD." Stilwell also opined that while children with

ADHD can display disruptive and violent behaviors, those behaviors were rarely

at the level displayed by Harry and George. She said "within a reasonable

degree of psychological certainty that the children['s] . . . behavioral

presentations were being exasperated by the domestic violence they had been

exposed to from a young age."

      Stilwell also testified that the neurological literature she reviewed

indicated children exposed to chronic levels of stress, violence, or unpredictable

environments have increased levels of cortisol in their brains which causes

disruptions to normal personality growth. Specifically, in George and Harry's

case, "[t]here is a lack of consistency[,] . . . [h]ome safety and predictability that

disrupts their normal developmental trajectory," which manifests in increased

aggression, violence, oppositional behavior, and hyperactivity.

      Stilwell relied upon the Adverse Childhood Experiences (ACEs) study,

which is one of the discipline's "larger studies," and included information


                                                                              A-1670-18T1
                                          7
regarding the "impact of a variety of developmental traumas, stresses,

incidences, and what that does to a child's development." Children might have

learning difficulties due to the cortisol levels changing the structure of the

children's prefrontal cortex, responsible for an individual's ability to plan and

organize. This could also lead to difficulty paying attention in school, staying

seated, completing their work, and sleeping. They would tend to be more hostile

and aggressive, which would make forming friendships and later adult

relationships difficult. Stilwell noted that Mary reported that Harry had issues

with sleeping, night terrors, sleepwalking, and bedwetting.

      When asked if the children's behavior could be explained by an ADHD

diagnosis or adjustment disorder diagnosis, Stilwell opined that the domestic

violence had been "so longstanding and pervasive[,] it's a chicken or the egg

[thing]." When children are born into a "chaotic environment" and exposed to

the domestic violence from a very young age, it is "very difficult to sort of tease

out what is . . . what."

      The judge found the significant level of domestic violence in the parents'

relationship was undisputed. It was substantial, pervasive, and much of it took

place in front of the children. Harry mimicked how his parents acted to the




                                                                           A-1670-18T1
                                        8
Division caseworker, what they would say, and he described their violent

conduct to Stilwell.

      Despite numerous offers, Mary engaged in none of the services the

Division offered. When the Division attempted to provide the children with

early childhood education intervention services, the parents rejected the offer.

Although Tom was the main aggressor, both parents assaulted each other, and

engaged in significant arguments, in front of the children. Harry described his

parents' arguments and mimicked their words to Stilwell, and claimed that Tom

hit him.

      As a result, the judge found the Division met its burden by a

preponderance of the evidence establishing Mary had abused and neglected the

children because of domestic violence in the home. The court further found the

domestic violence was pervasive and the children harmed.          The children's

extreme behavior could not be explained merely by a diagnosis such as ADHD.

      The court concluded that despite not intending to hurt the children, the

parents' repeated acts of domestic violence were intentional. Mary and Tom

were informed of the potential risks to their children should it continue, and did

nothing to abate it.




                                                                          A-1670-18T1
                                        9
      The judge reasoned there could not be any doubt that the parents' actions

were "at a minimum in reckless disregard of the dangers to be suffered by the

children arising for the levels of domestic violence and hostility that ex isted

between the parties." The absence of a minimum degree of care and the reckless

disregard for the severe consequences constituted abuse and neglect.

      On appeal, Mary raises the following points of error:

            POINT I
            THE TRIAL COURT ERRED IN FINDING THAT
            [MARY] COMMITTED AN ACT OF ABUSE OR
            NEGLECT AGAINST [HARRY] AND [GEORGE].
            SINCE THE STATE'S EXPERT, DR. STILWELL,
            DID NOT PROVIDE CREDIBLE EVIDENCE TO
            SUPPORT THE TRIAL COURT'S FINDING THAT
            EXPOSURE    TO    DOMESTIC    VIOLENCE
            RESULTED IN ACTUAL AND IMMINENT HARM
            TO THE CHILDREN.

            POINT II
            THE COURT COMMITTED PLAIN ERROR BY
            ALLOWING INTO EVIDENCE DR. STILWELL'S
            UNRELIABLE MEDICAL OPINION REGARDING
            THE IMPACT OF DOMESTIC VIOLENCE ON THE
            CHILDREN WHICH WAS OUTSIDE HER
            QUALIFICATIONS.

            POINT III
            THE COURT ERRED IN DENYING [MARY'S]
            REQUEST TO HAVE A PSYCHIATRIC EXPERT
            EVALUATE [GEORGE] AND TESTIFY TO
            CONTRADICT THE STATE'S CASE THAT THE
            EXPOSURE   TO   DOMESTIC    VIOLENCE


                                                                        A-1670-18T1
                                      10
            CONSTITUTED HARM AND IMMINENT HARM
            TO THE CHILDREN.

            POINT IV
            THE TRIAL COURT'S CONCLUSION THAT
            [MARY'S] PARTICIPATION IN ACTS OF
            DOMESTIC VIOLENCE IN THE PRESENCE OF
            THE CHILDREN WAS BOTH INTENTIONAL AND
            GROSSLY NEGLIGENT IS WITHOUT ADEQUATE,
            SUBSTANTIAL AND CREDIBLE EVIDENCE
            FROM THE RECORD, AND THEREFORE
            WARRANTS REVERSAL.

                                        I.

      N.J.S.A. 9:6-8.21(c)(4) defines an abused and 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
            parent or guardian, as herein defined, to exercise a
            minimum degree of care (a) in supplying the child with
            adequate food, clothing, shelter, education, medical or
            surgical care though financially able to do so or though
            offered financial or other reasonable means to do so, or
            (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. . . .

      A parent "fails to exercise a minimum degree of care when he or she is

aware of the dangers inherent in a situation and fails adequately to supervise the

child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't


                                                                          A-1670-18T1
                                       11
of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999).

"'[M]inimum degree of care' refers to conduct that is grossly or wantonly

negligent, but not necessarily intentional," and "implies that a person has acted

with reckless disregard for the safety of others." Id. at 178, 179. "Conduct is

considered willful or wanton if done with the knowledge that injury is likely to,

or probably will, result." Id. at 178. Additionally, "[w]hen a cautionary act by

the guardian would prevent a child from having his or her physical, mental or

emotional condition impaired, that guardian has failed to exercise a minimum

degree of care as a matter of law." Id. at 182.

      Moreover, "[w]hether a parent or guardian has failed to exercise a

minimum degree of care is to be analyzed in light of the dangers and risks

associated with the situation." Id. at 181-82. "In the absence of actual harm, a

finding of abuse and neglect can be based on proof of imminent danger and

substantial risk of harm[,]" and the "proper focus is on [this] risk." N.J. Dept.

of Children & Families, Div. of Youth & Family Servs v. A.L., 213 N.J. 1, 23

(2013). If the evidence "does not demonstrate actual or imminent harm, expert

testimony may be helpful," and "[c]ompetent expert testimony, stipulations, or

other evidence could shed light on the facts introduced." Id. at 28.




                                                                         A-1670-18T1
                                      12
      Importantly, the trial court's findings must be based "on the totality of the

circumstances, since '[i]n child abuse and neglect cases the elements of proof

are synergistically related. Each proven act of neglect has some effect o n the

[child].   One act may be "substantial" or the sum of many acts may be

"substantial."'" N.J. Div. Youth & Family Servs. v. V.T., 423 N.J. Super. 320,

329-30 (App. Div. 2011) (alteration in original) (quoting N.J. Div. of Youth &

Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).

      When reviewing a family court decision, we generally defer to the trial

court's factual findings, as it has "special jurisdiction and expertise in family

matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Only the trial court "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. W.F., 434 N.J. Super. 288, 294 (App.

Div. 2014) (quoting N.J. Div. Youth & Family Servs. v. G.M., 198 N.J. 382, 396

(2009)).

      Consequently, our review of findings of fact is limited to whether the

findings are "supported by adequate, substantial [and] credible evidence."

Cesare, 154 N.J. at 411-12; see also N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012) ("We will not overturn a family court's factfindings

unless they are so 'wide of the mark' that [the appellate court's] intervention is


                                                                           A-1670-18T1
                                       13
necessary to correct an injustice."). We "expand [our] highly deferential scope

of review when the alleged error does not involve credibility of witnesses but

turns on the trial court's application of the law to the underlying facts." N.J.

Div. of Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 397 (App.

Div. 2015).

                                       II.

      In support of her argument that Stilwell's conclusions were unfounded,

Mary relies upon New Jersey Division of Child Protection & Permanency v.

N.B., 452 N.J. Super. 513 (App. Div. 2017), and New Jersey Division of Youth

& Family Services v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004). She

cites the cases for the proposition that exposure to domestic violence cannot be

the sole basis for a finding abuse and neglect. Both cases, however, are factually

distinguishable.

      In N.B., we reversed a finding of abuse or neglect based on insufficiently

corroborated statements of a child, as well as facts and complex diagnoses

within a non-testifying psychologist's hearsay report. 452 N.J. Super. at 516.

The child in N.B. observed arguments between his mother and her boyfriend and

heard her make suicidal statements. Id. at 516-19, 522. The child's behavior

did not, however, corroborate a finding of emotional harm because the child's


                                                                          A-1670-18T1
                                       14
mood was "normal and appropriate[.]" Id. at 522. He denied he had appetite,

sleep, or mood problems, or thoughts of self-harm. Ibid. The Division's only

witness was a supervisor lacking in first-hand knowledge of the precipitating

incident or the conduct, and who did not conduct the interviews. Id. at 526-27.

      In S.S., we reversed the trial court's finding of abuse or neglect when

domestic violence occurred as a mother held her infant child in her arms. 372

N.J. Super. at 15-16, 28. There was no evidence in the record whatsoever that

the child had been emotionally harmed by witnessing the incident. Id. at 22-23.

      In this case, Mary admitted the children witnessed domestic violence on

multiple occasions. The reports from the experts, camp counselors, and Division

staff constituted overwhelming proof that the children exhibited severe

behavioral problems. Both N.B. and S.S. involved limited or only one incident

as opposed to the "substantial and pervasive" incidents that have defined this

family's home life.

      Furthermore, contrary to Mary's contention, Stilwell's testimony, and her

report, were not inadmissible net opinions.       She personally observed the

children, and gleaned information about them from extensive records provided

for her review. Stilwell explained in detail the reasons for her conclusions both

in her report and her testimony. Stilwell relied upon the ACEs study to predict


                                                                         A-1670-18T1
                                      15
the impact of domestic violence on the children's future development, and the

research and literature to assist her in her conclusions regarding the impact the

domestic violence exposure might have on the children. Although she may not

have had the credentials to personally conduct the studies upon which she relied,

they are relied upon by experts in her field, and were ultimately unrefuted.

      N.J.R.E. 703 requires that an "expert opinion be grounded in 'facts or data

derived from (1) the expert's personal observations, or (2) evidence admitted at

the trial, or (3) data relied upon by the expert which is not necessarily admissible

in evidence but which is the type of data normally relied upon by experts.'"

Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. Cty. of Essex, 196

N.J. 569, 583 (2008)). Stilwell gave the necessary whys and wherefores of her

opinion. See id. at 54.

      Mary further argues that Stilwell was required to apportion a percentage

of causation for the children's behavior to both ADHD and specified behavioral

diagnoses in contrast to domestic violence. No case requires such a numerical

calculation. Stilwell acknowledged that ADHD could cause children to act

disruptively, but not to threaten to cut someone's throat or kill them. Stilwell's

point was not that exposure to domestic violence explained each and every

behavioral issue, but that each and every behavioral problem the children might


                                                                            A-1670-18T1
                                        16
have attributable to their diagnoses was exacerbated by their exposure to

domestic violence, and that some of these difficulties existed independently of

the diagnoses.

      On appeal for the first time, Mary also argues that Stilwell's opinion

regarding cortisol and its effect on the brain were beyond her expertise. We

therefore employ not a harmless error, but a plain error standard to review the

claim, which means we will reverse only if the error in the admission of the

testimony was of such a nature as to have been clearly capable of producing an

unjust result. R. 2:10-2.

      Stilwell's testimony about cortisol and its effect on children's brains was

not a medical opinion that needed to be offered exclusively by a neurobiologist.

Although her testimony referenced brain development, that reference was not

improper. Stilwell offered an opinion about the possible physical effects of the

chronic stress and exposure to domestic violence might have on the brain based

on literature in her field.

                                      III.

      Mary contends that the judge's opinion discounted the effect that the

domestic violence had upon her ability to exercise control and good judgment.

But she failed to exercise a minimum degree of care "although 'aware of the


                                                                         A-1670-18T1
                                      17
dangers inherent in a situation[,]' namely their abusive relationship . . . [she]

'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."

N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 586 (App.

Div. 2010) (first and third alterations in original) (quoting G.S., 157 N.J. at 181).

      Mary fought with Tom, knowing that her children were witnesses. She

continued to place the children in jeopardy, despite being informed of the harm

that resulted from her confrontations with Tom, and while disingenuously

promising to limit and monitor Tom's contacts with the children. The Division

offered Mary a host of alternatives, yet she continued to reject services and

opportunities to protect the children from ongoing conflicts.

      Mary maintained a relationship with Tom, and violated court orders by

continuing to see and at times live with him with the children. Mary had options

extended to her by the Division, but failed to exercise those options to the clear

detriment of the children. That she may have been a victim of domestic violence

does not relieve her of the responsibility over the years to protect Harry and

George's "physical, mental, or emotional condition." N.J.S.A. 9:6-8.21(c)(4).




                                                                               A-1670-18T1
                                         18
                                          IV.

      In deciding whether to grant a request for adjournment, a court weighs a

number of well-established factors. See State v. Hayes, 205 N.J. 522, 538

(2011). A court is expected to engage in a "balancing process informed by

intensely fact-sensitive inquiry."    Ibid.     Applications for continuances or

adjournments are reviewed for abuse of discretion. State ex rel. Comm'r of

Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013). In

determining whether a request or adjournment should be granted, courts are

urged to look at the following factors:

            the length of the requested delay; whether other
            continuances have been requested and granted; the
            balanced convenience or inconvenience to the litigants,
            witnesses, counsel, and the court; whether the requested
            delay is for legitimate reasons, or whether it is dilatory,
            purposeful, or contrived; whether the defendant
            contributed to the circumstance which gives rise to the
            request for a continuance; . . . whether denying the
            continuance will result in identifiable prejudice to
            defendant's case, and if so, whether this prejudice is of
            a material or substantial nature; the complexity of the
            case; and other relevant factors . . . .

            [Hayes, 205 N.J. at 538 (quoting State v. Ferguson, 198
            N.J. Super. 395, 402 (App. Div. 1985).]

Certainly, the denial of an adjournment will not lead to a reversal unless the

defendant has suffered a manifest wrong or injury.


                                                                          A-1670-18T1
                                       19
      No abuse of discretion occurred here, nor is a retrial warranted, in light of

the above factors. The litigation was ongoing, and Mary knew in advance of

Stilwell's proposed testimony because she was served the report months earlier.

The judge accepted Stilwell's opinion about the source of the children's

behavioral difficulties but did not discount the presence of biological factors.

Rather, the judge took Stilwell at her word that the underlying conditions could

only be exacerbated by exposure to relentless domestic violence in the home.

To have delayed the matter to allow for a belated expert report regarding the

children's diagnoses would not have been helpful. The judge did not ignore

them. Thus, he did not abuse his discretion by refusing to postpone the matter.

      Affirmed.




                                                                           A-1670-18T1
                                       20
