NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2766-08T42766-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.S.,

Defendant-Appellant.

IN THE MATTER OF A.G.,

a minor.

________________________________________________________________

 

Submitted October 26, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FN-12-162-08.

Yvonne Smith Segars, Public Defendant, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defendant, Law Guardian, attorney for minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, J.S., appeals from the November 19, 2008 order of the Family Part in which the judge found that J.S. abused A.G, his stepson, then age fourteen, in violation of N.J.S.A. 9:6-8.21.

On appeal, J.S. argues that the trial court erred because its ruling was not supported by substantial and credible evidence and because the alleged abuse was merely corporal punishment that did not rise to the level of abuse and neglect, as defined in N.J.S.A. 9:6-8.21. J.S. further argues that the removal of A.G. by the Division of Youth and Family Services ("DYFS" or "the Division") did not comport with the statute. We reject these claims and affirm.

I.

On November 15, 2007, A.G. was getting ready for school when his stepfather, J.S., began to argue with him over the belt he was wearing. After A.G. responded, J.S. "jumped up, got in [his] face, took [him] by [his] shirt and threw [him] up against the wall . . . ." When his grandmother, M.G., tried to intercede, J.S. threw her to the ground. J.S. then slapped A.G. in the face, causing his glasses to be thrown from his face. A.G.'s mother, M.G.S., apparently did nothing to halt this incident. After the incident, A.G. described his injuries as pain at the back of his head and sides of his face, and two scratches on his face.

The incident of November 15, 2007 was apparently not the first time J.S. had physically abused A.G. A.G. described an occasion when J.S. punched him in the stomach and another occasion when J.S. slapped him in the face.

The November 15, 2007 incident was reported to the North Brunswick Police Department that morning. Officer Vallese and Patrolman Frangello responded to the domestic violence call of a father hitting a child. Upstairs, Officer Vallese observed M.G. on the floor, apparently suffering from a heart attack and/or anxiety attack with M.G.S. attending to her. He also observed J.S. and A.G. Officer Vallese interviewed M.G.S. and Patrolman Frangello spoke to J.S. Vallese examined A.G., looking at his face and upper body and checking for bumps and bruises. He observed nothing "out of the ordinary." He did not look under A.G.'s shirt and did not interview A.G. After this examination and confirmation that the information obtained from M.G.S. and J.S. matched, the officers determined there were no physical signs of injury and "'no assault took place.'"

Afterward, A.G.'s aunt, R.G., and his grandmother drove him to school. After his grandmother contacted DYFS about the incident, caseworker Jamilla Robinson was assigned to investigate and drove to A.G.'s school to interview him. M.G., R.G., and family friends, P.W. and N.F., also came to A.G.'s school to recount the incident.

Robinson and another DYFS worker, Sharliz Roberts, interviewed A.G. alone. During this interview, A.G. told Robinson that J.S. "choked him and threw him to the wall." Robinson observed two "abrasions" or "small scratches" on A.G.'s cheek and redness around his neck. A.G. told Robinson that this was not the first time J.S. had abused him, and also informed her that his mother had abused him, including hitting him once with an extension cord. A.G. reported that he was afraid of J.S.; he was not afraid of M.G.S. but felt that she could not protect him from J.S.

After consulting with her supervisors, Robinson determined because of "the marks that [A.G.] did have and the fact that [he] indicated that he was fearful and felt like his mother couldn't protect him" that A.G. was "not safe." DYFS instituted an emergency removal pursuant to N.J.S.A. 9:6-8.29 and left written notice at M.G.S. and J.S.'s home. DYFS took A.G. to a medical facility for a pre-placement physical. The doctor noted that A.G. complained of no pain, but the doctor observed an abrasion on his cheek.

On November 19, 2007, DYFS filed a verified complaint and order to show cause against M.G.S. and J.S., alleging that A.G. had been abused and/or neglected in violation of N.J.S.A. 9:6-8.21. The judge found that "the removal of the [child] was required due to imminent danger to the [child's] life, safety or health . . . ." The order further provided that A.G. would immediately be made a ward of the court and placed in the custody, care and supervision of DYFS.

The fact-finding hearing before Judge Cantor began on February 27, 2008 with A.G. as the first witness. He testified to the November 15, 2007 incident of abuse, explaining that J.S. had grabbed him by the shirt, and thrown him against the wall, after which J.S. "slapped" him in the face. A.G. did not make any mention of choking, as had been reported earlier. A.G. also testified to prior instances of abuse at the hands of J.S., including being punched in the stomach and slapped in the face. He also testified that Officer Vallese did not examine him when he responded to the scene. A.G. stated he would not feel safe living with J.S. Although he had told the DYFS caseworker that his mother had beaten him with an extension cord, A.G. admitted this was not truthful because M.G.S. had not actually used the cord.

Officer Vallese also testified. He stated that he examined A.G. and had found no marks on him, but conceded he had not interviewed the child. When shown photographs allegedly taken after the incident, which depicted scratches on A.G.'s face, Office Vallese testified that the photos were not an accurate depiction of what he saw on the day of the incident.

DYFS also presented Robinson as a witness. She described her interview with A.G. and her own recollection of his injuries. At one point in her testimony, she stated that she "saw scratches, that's it." Later in her testimony, she stated that A.G. also had "redness around his neck where he indicated that he was choked by his stepfather." Like Officer Vallese, Robinson was also asked about the photographs of A.G.'s injuries. When asked if they were an accurate representation of what she saw that day, Robinson replied, "they're not as clear as what I saw, but they are as, I guess, as good as pictures could be."

In her findings, Judge Cantor rejected Officer Vallese's testimony as she deemed it to be "less than credible." She credited the testimony of A.G. and Robinson, both of whom alleged abuse and injury, and she accepted the doctor's report that documented the abrasion on A.G.'s cheek. Therefore, under the required preponderance of the evidence standard, the court found that J.S. had abused A.G. This ruling was memorialized in an April 30, 2008 order, which stated that the court, by a preponderance of the evidence, found that J.S. "abused or neglected [A.G.] in that [J.S.] used excessive force in disciplining [A.G.] by grabbing him by the neck and face, lifting him up, and throwing him against a wall. The child's glasses were knocked off his face causing scratches."

After a number of compliance review hearings, a final hearing was conducted on October 14, 2008, pursuant to which custody, care, and supervision of A.G. were ordered to remain with DYFS, while physical custody of A.G. would continue with his mother. On November 19, 2008, a permanency hearing was held and the judge ordered DYFS's Title 9 complaint dismissed because "the [child] [has] been returned home, [and] conditions hav[e] been remediated."

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED IN CONCLUDING THAT EVIDENCE SUPPORTED THE FINDING THAT J.S. ABUSED OR NEGLECTED THE CHILD WITHIN THE MEANING OF N.J.S.A. 9:8.21(C)(1) AND (4), AS THE DIVISION HAS ALLEGED

II. THE TRIAL COURT DID NOT PROPERLY APPLY THE LAW. NOT ALL CORPORAL PUNISHMENT RISES TO THE LEVEL OF ABUSE OR NEGLECT DEFINED IN N.J.S.A. 9:6-8.21(C)(1) AND (4)

III. DYFS' INITIAL REMOVAL OF A.G. WITHOUT COURT ORDER DID NOT COMPORT WITH THE STATUTE

II.

In Point I, J.S. argues that the trial judge's finding of abuse and neglect is against the weight of the evidence because such finding was not supported by the testimony of A.G., the DYFS caseworker, or the medical report of A.G.'s injuries. In particular, he contends that: Robinson's testimony should be rejected because her testimony that she had observed "redness around [A.G.'s] neck" was not contained in her earlier written report that only mentioned scratches, and she abandoned the "redness" claim on cross-examination; the doctor's report of abrasions on either side of A.G.'s face should be disregarded because A.G. testified, according to J.S., "that only his head hit the wall"; and A.G.'s testimony was not worthy of belief, in light of the child's desire to remain in New Jersey with his aunt rather than move to Pennsylvania with his mother and J.S., and his inconsistent account of his injuries.

The scope of this court's review of the findings of fact made by a trial judge in family cases is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). This court awards deference to a trial court's findings of fact because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Such deference is afforded unless it is determined that the trial judge "went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Therefore, when the trial court's findings of fact are "supported by adequate, substantial and credible evidence," these findings are "binding on appeal." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

In this case, the trial judge's findings, that J.S. threw A.G. against a wall, got "into his face," and caused injuries, were supported by the evidence and are entitled to our deference. At the fact-finding hearing, Judge Cantor heard from A.G., Officer Vallese, and Robinson. She determined Vallese to not be credible, but accepted the testimony of A.G. and Robinson, both of whom testified to A.G. being thrown to the wall by J.S. and becoming injured. Judge Cantor also accepted Robinson's testimony of redness on the neck, even though the medical report did not indicate its presence.

We will not interfere with these findings, as they are based on evidence before Judge Cantor, which she credited. See G.L., supra, 191 N.J. at 605. Although the testimony describing the November 15, 2007 incident contains some conflicts -- there is dispute over whether A.G.'s neck was red and whether J.S. grabbed A.G. by the shirt or the neck -- the facts, as determined by Judge Cantor, were supported by the testimony she heard. Although J.S. attacked the credibility of Robinson and A.G., the judge found them credible, and her findings respecting their credibility are binding on appeal as they were supported by adequate and credible evidence. Ibid.

Consequently, we conclude that the judge's finding that J.S. abused A.G. was not against the weight of the evidence. The burden of proof in a Title Nine abuse and neglect case is a preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). Under a preponderance standard, her finding of abuse and neglect is proper in light of A.G.'s and Robinson's testimony. We therefore reject the claim J.S. raises in Point I.

III.

In Point II, defendant contends that the trial court erred in finding abuse and neglect because J.S. merely engaged in corporal punishment, which he asserts is permissible. Abuse and neglect is defined by N.J.S.A. 9:6-8.21(c), which provides, in relevant part:

"Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined . . .

. . . .

(4) . . . [causes such] child['s] . . . physical, mental, or emotional condition . . . [to become] 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 . . . (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 . . . .

[(emphasis added).]

Title Nine's protection of children from acts of abuse and neglect, however, "'does not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment. The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case.'" State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002) (approving a jury charge containing the quoted language), certif. denied, 177 N.J. 222 (2003).

We must therefore decide what behavior is sufficiently "excessive" to constitute abuse and neglect, as opposed to mere corporal punishment. In Division of Youth and Family Services v. G.M., an intoxicated, alcoholic mother grabbed her daughter by her daughter's shirt "causing her to choke and vomit." 398 N.J. Super. 21, 26 (App. Div. 2008), aff'd in part and modified in part on other grounds, 198 N.J. 382 (2009). The child's physical injuries were scratches and a "slight bruise." Id. at 26-27. The trial court in that case found abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b) and this court agreed. Id. at 35-36.

In the matter before us, Judge Cantor correctly acknowledged that there are varying degrees of physical contact between parent and child, some of which do not constitute abuse and neglect. She stated, "I understand that sometimes we chastise our children and they may walk away with a smack of the hand that leaves a mark. That's different than what's described in this case where . . . the child was physically lifted [off] the ground, pushed into the wall, and injured." She concluded that J.S.'s actions rose to the level of the "excessive corporal punishment" that is prohibited by N.J.S.A. 9:6-8.21(c)(4)(b). The record demonstrates that J.S. threw A.G. to the wall and caused injury. These facts are analogous to G.M., where we affirmed the finding of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b), when a mother grabbed her daughter's shirt and the final injuries were no more than scratches and a slight bruise. Id. at 26-27. Here, J.S. grabbed either A.G.'s shirt or neck, and caused scratches and possible redness on his neck. In keeping with G.M. and N.J.S.A. 9:6-8.21(c)(4)(b), J.S.'s actions exceed the permissible corporal punishment allowed to a parent, and constitute an instance of "excessive corporal punishment" serious enough to constitute abuse and neglect. Our determination that the record supports Judge Cantor's conclusion that J.S.'s conduct constituted abuse and neglect, and not an instance of permissible corporal punishment, is bolstered by the provisions of N.J.A.C. 10:129-2.2(a). This regulation provides that "the types of injuries . . . that may be abuse or neglect include . . . cuts, bruises, [and] abrasions . . . ." N.J.A.C. 10:129-2.2(a). We thus affirm Judge Cantor's conclusion that J.S. abused A.G. within the meaning of N.J.S.A. 9:6-8.21, and that his conduct exceeded the proper bounds of corporal punishment that a parent, or stepfather, is permitted to apply.

IV.

In Point III, J.S. argues that DYFS's November 15, 2007 removal of A.G. without a court order violated the applicable statute because A.G. was not in imminent danger. DYFS argues that N.J.S.A. 9:6-8.29(a) authorizes it to remove a child without a court order.

N.J.S.A. 9:6-8.29(a) provides that DYFS

may remove a child from the place where he is residing . . . without an order . . . if the child is in such condition that his continuance in said place or residence or in the care and custody of the parent or guardian presents an imminent danger to the child's life, safety or health, and there is insufficient time to apply for a court order . . . .

Imminent danger can be satisfied by evidence of abuse and neglect. See In re J.P. and D.P., 198 N.J. Super. 166, 173 (App. Div. 1985) (holding that an adoptive mother's statement that she had hit the child was sufficient indication of imminent danger to warrant removal).

Here, Jamilla Robinson, the DYFS caseworker, had before her sufficient information to warrant the conclusion that A.G.'s health and safety were in imminent danger. A.G., and other family members present for the incident, informed her that J.S. had abused A.G. Furthermore, A.G. related prior incidents of abuse, which included being punched in the stomach and slapped in the face, as well as a general feeling of being unsafe in his home. Based on this information, DYFS could reasonably believe that A.G.'s health and safety were in danger. Consequently, removal of A.G. was allowable under statute without a court order and DYFS's actions were proper. We thus reject the argument J.S. raises in Point III.

 
Affirmed.

The judge also found that A.G.'s mother, M.G.S., had engaged in acts of abuse and neglect. She is not a party to this appeal.

Although J.S.'s notice of appeal specifies that the appeal is taken from the order of November 19, 2008, we presume that such reference was an error because it was the April 30, 2008 order that found J.S. had abused A.G., in violation of N.J.S.A. 9:6-8.21.

Although our opinion in G.M. does not specify precisely which subsection of Title Nine's definition of abuse and neglect was implicated in that case, it does quote from the trial court's finding, stating "'[G.M.] has failed to exercise a minimum degree of care and/or supervision and, in fact, placed the children at risk of harm by virtue of the incident that was reported.'" G.M., supra, 398 N.J. Super. at 28. As this language includes the language of N.J.S.A. 9:6-8.21(c)(4)(b), it can be assumed that the panel relied on this provision of Title Nine in finding abuse and neglect.

In the G.M. appeal, the defendant contended that the trial court erred in finding abuse and neglect because DYFS had not presented a prima facie case. G.M., supra, 398 N.J. Super. at 34. This court did not engage in a lengthy discussion of this argument and, instead, upheld the finding of abuse and neglect, "noting [its] disagreement with G.M.'s second point, the claim that the first trial judge mistakenly concluded that D.Y.F.S. had demonstrated a prima facie case of abuse or neglect" and stating it was "not persuaded by the argument[] . . . ." Id. at 35.

(continued)

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2

A-2766-08T4

RECORD IMPOUNDED

November 5, 2009