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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0074-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

R.S.,

Respondent-Appellant.

______________________________________________________________

November 21, 2012

Submitted September 10, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Division of Youth and Family Services, Department of Children and Families, Docket No. AHU 09-1698.

R.S., appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Virginia Class-Matthews, Deputy Attorney General, on the brief).

PER CURIAM

Appellant R.S. appeals from a final agency decision by the

Director of the New Jersey Division of Youth and Family Services1 (Division) finding that, on January 28, 2008, appellant committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) in failing to exercise a minimum degree of care by unreasonably inflicting excessive corporal punishment upon her grandson, Y.D. On appeal, we consider whether the grandmother's spanking of Y.D. with a belt, leaving a laceration on his forehead and bruise on his leg, constitutes "excessive corporal punishment" pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.

The facts adduced from the record reveal that Y.D. resided with R.S. and his father.2 On January 29, 2008, the Division received a referral from the nurse from A.P. Morris Early Childhood Center reporting that five year-old Y.D. came to school with visible bruises and marks on his face, and that Y.D. told her that the previous day his paternal grandmother R.S. hit him in the face and legs with a belt. Barbara Ward, a Division caseworker, was assigned to investigate the claim and responded to the school.

Ward first interviewed Y.D. who stated that the night before R.S. hit him with the belt on his thigh and face, that R.S. hits him with the belt whenever he gets in trouble at school, and that R.S. has hit him with her hands before and "hits him hard." Ward examined Y.D.'s injuries and noticed a three-inch scar on his leg, bruises and swelling around his nose, and a one-inch cut on his forehead.

Ward spoke to R.S. when she came to the school to pick up Y.D. After initially denying any knowledge of the injuries, R.S. eventually admitted that she hit Y.D. with a belt because of his bad behavior at school. R.S. explained that while she was hitting Y.D. on his legs with the belt, he was accidentally struck in the face when he jumped away while she was swinging.

Ward also interviewed Y.D.'s teacher, Ms. Drefko, who described an incident involving Y.D. on January 22, 2008 when Y.D. threw a chair at other children in the classroom and pushed another classmate. As the principal called Y.D.'s home to report the incident, Y.D. tried to pull the telephone cord out of the wall and when R.S. arrived to pick him up, Y.D. hid under a desk and cowered behind his teacher. Although he had recently enrolled at this school on January 14, 2008, Y.D. had been suspended three times prior to the incident on January 22nd because of violent and aggressive behavior.

After the interviews, the Division initiated an emergency Dodd removal3 of the child and placed him in foster care pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30. Several days later, Y.D. was returned to the custody of his mother.

Y.D. was examined at Trinitas Hospital on the night of January 29, 2008. The medical report noted an "abrasion at [the] bridge [of the] nose and lower portion of forehead . . . with [three] areas of superficial scratches [at] the same area."4 The report also noted "a small approx [one inch]" linear bruise to the inner left thigh."

At the conclusion of the investigation, the Division substantiated the allegation of physical abuse. R.S. appealed the decision. The matter was assigned to Administrative Law Judge James A. Geraghty (ALJ) as a contested case and a hearing was conducted. SeeN.J.S.A. 52:14F-6.

Ward, the Division's only witness, testified that Y.D. told her that his grandmother, R.S., hits him with a belt whenever he is bad at school, and that he is afraid to go home if he is bad in school for fear of getting hit. The child reported being hit in the face with the buckle of the belt. Ward described the injuries she observed on the child's forehead, nose, and leg. The Division introduced into evidence the screening summary, the investigation summary and photographs of Y.D.'s injuries. The investigation summary included a description of the injuries as "red marks and scratches on [Y.D.'s] forehead and his nose was scratched across his eyebrows. His nose appeared slightly swollen. He has a two-inch mark on the inside of his right forearm5 . . . and a three-inch bruise . . . on his left leg above his knee." Ward testified that R.S. admitted to striking Y.D. with a six-inch-long plastic belt.

R.S. also testified at this hearing and admitted to spanking Y.D. with the six-inch-long plastic belt. She explained that after attempting various forms of non-contact discipline on many occasions, she spanked Y.D. because she believed nothing else had changed his behavior. Y.D. sustained injuries to his face because he "jumped away" as she was swinging. R.S. maintained that the slight injury to the face was accidental and insignificant.

She explained that the scars and swelling observed near his nose and right eye was due to eye surgery Y.D. received the prior year to repair the tear duct, and repeated infections near the tubes.6 The Division acknowledged being aware of the eye surgery.

In his decision, the ALJ noted R.S. failed to produce any corroborating evidence in her post-hearing brief to show that the marks on the child's face were due to corrective surgery. The ALJ found, instead, that

R.S. intentionally struck . . . Y.D. with a belt to discipline him [for] misconduct in school. Although she claims that she did not deliberately hit him on the face, the photographic evidence and his own statements to the DYFS worker belie her contention. Respondent must have known that injury to Y.D. was likely to result from a beating with a belt. The beating itself was intentional and knowledge of its dangerous character and consequence is imputed to the respondent. Further, R.S.'s argument that Y.D.'s facial bruises were the result of swelling and surgery does not square with the other testimony presented and lacks corroboration.

The respondent recklessly created a risk of serious harm to the child by beating him with a belt and leaving marks on his body.

I conclude that the petitioner has met the standard of proving by a preponderance of the credible evidence that respondent deliberately struck her grandson with a belt causing him injury. The assault was intentional and respondent either knew or should have known the consequences.

It is therefore ordered that the finding of abuse or neglect against the respondent be sustained and the respondent's name be placed on the DYFS registry.

The Division Director affirmed the ALJ's finding of abuse. This appeal followed.

R.S. contends that the Division failed to introduce sufficient evidence to support a finding of abuse as defined by N.J.S.A. 9:6-8.21 and failed to apply the excessive corporal punishment standard established in N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010). Our review of the records supports the finding that appellant's admitted conduct constitutes abuse.

We begin by noting that pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The agency is the "primary factfinder" and has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super.491, 507 (App. Div. 1983) see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining relationship between ALJ's initial decision and the agency's final decision).

"Once the agency has issued its final decision, '[our] initial review of that decision is a limited one.'" In re Taylor, supra, 158 N.J. at 656 (quoting Clowes, supra, 109 N.J. at 587). We "defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587), and uphold the decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007).

The Division is the state agency responsible for the "care, custody, guardianship, maintenance and protection of children."N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must show by "a preponderance of the evidence" that the child has been abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). An abused or neglected child, in relevant part, is

a child less than 18 years of age 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 . . . 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 . . . .

[N.J.S.A. 9:6-8.21(c) (emphasis added).]

N.J.A.C. 10:129-2.2(a) provides the classes of injuries that amount to abuse or neglect under this statute. They include, in part:

1. Child death;
 
2. Head injuries;
 
3. Internal injuries;
 
4. Burns;
 
5. Poison or noxious substances;
 
6. Wounds;
 
7. Bone fractures;
 
8. Substantial risk of physical injury or environment injurious to health and welfare;
 
9. Cuts, bruises, abrasions, welts or oral injuries;
 
10. Human bites;
 
11. Sprains or dislocations;
 
12. Mental or emotional impairment; and
 
13. Risk of harm due to substance abuse by the parent/caregiver or the child.
 

[N.J.A.C. 10:129-2.2(a) (emphasis added).]

Our Supreme Court held that the phrase "'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Services, 157 N.J. 161, 178 (1999). The Court in G.S. held that "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and . . . recklessly creates a risk of serious injury to that child." Id. at 181.

Here, R.S. claims that the injury to the child's face was accidentally caused when the child's forehead came into contact with the plastic belt as he jumped away during the spanking. She further claimed that she did not intend to harm her grandchild. These claims are unavailing. "Under Title 9, whether the guardian or parent intended to harm the child is irrelevant." Id. at 176. Furthermore, R.S.'s choice to physically discipline Y.D. by spanking him with a belt connotes a degree of contemplation and deliberation. "If a parent commits . . . an intentional act that has unintended consequences, that action is considered 'other than accidental' within the meaning of Title 9," and is characterized as willful and wanton. Ibid.

Next, R.S. asserts that causing injuries to Y.D.'s face was not foreseeable because it was the first time she had ever spanked him. In her rebuttal brief, R.S recounted the child's prior misbehavior in school. In particular, she stated that "[i]n [A.P. Morris] school the security guards and social workers had to chase him around the school as he jumped through doors, attempts to jump out windows and jumping down [flights] of stairs to keep from being taken to the office for bad behavior." This is clear evidence that she was aware that Y.D. would try to evade punishment. As such, his jumping out of the way of the belt was foreseeable. It is an inescapable conclusion that R.S. clearly failed to foresee or reasonably appreciate the consequences of her actions. Although R.S. testified that she was aiming for his butt and legs, swinging a belt in such a fashion as to hit the child in the face, particularly in light of her knowledge of the child's prior tear duct surgery was reckless. The undisputed facts lead us to conclude R.S.'s conduct towards Y.D. was willful and wanton.

R.S. further justifies the spanking as an appropriate punishment to correct the child's behavior and not corporal punishment. While corporal punishment is not unlawful, excessive corporal punishment is not permissible. We recognize that Title 9 does not specifically define the term "excessive corporal punishment." K.A., supra, 413 N.J. Super. at 510. The Supreme Court has noted that, "by qualifying the prohibition with the term, 'excessive,' the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment." N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011).

We had occasion to define when "excessive" corporal punishment occurs in K.A. wherein the mother struck her eight-year-old child five times on the shoulder with a closed fist, leaving no outward signs of injury. K.A., supra, 413 N.J. Super. at 506. That conduct was found to be an isolated, aberrational event, yet we held that "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment." Id. at 511.

A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary may be sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.

[Ibid.]

In N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2010), our Supreme Court noted that "abuse and neglect cases are generally fact sensitive . . . [and] what may be 'excessive' corporal punishment for a younger child [may not] constitute unreasonable infliction of harm, or excessive corporal punishment in another setting involving an older child." In that case, the Court determined that "[a] slap of the face of a teenager as a form of discipline with no resulting bruising or marks does not constitute 'excessive corporal punishment' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)." Id. at 36.

But in N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472 (App. Div. 2010), we affirmed the agency's finding of abuse based on a consideration a number of factors, including the age of the child, form of punishment inflicted, resulting injury and prior disciplinary actions. There, the parent struck the five-year-old child with a paddle leaving red demarcations and scratches on the child's face, elbow and back. Ibid. The Division determined that the reason for the discipline, i.e. the child telling a neighbor that they had no electricity at home, did not justify the punishment and went "beyond any semblance of reason." Id. at 478. The Division also considered a history of questionable administration of corporal punishment to the child. Id. at 479.

Here, we distinguish K.A. and P.W.R. on the facts. The children in those cases were considerably older than Y.D., were hit with the parents' hand, and did not suffer any visible signs of injury. Our case is more akin to the child in C.H., who was also five years old, and who was beaten with an object that left scratches, bruises and lacerations on the child's body in vulnerable places, namely the face. Like the child in C.H., Y.D. did not suffer any serious, permanent injuries but he was scarred nonetheless. As we have noted on numerous occasions, a court "'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

R.S.'s claim that this beating was an isolated event is contested in the record. Ward testified, and the investigation summary contains reference to the child's statement that his grandmother beats him when he misbehaves in school. Furthermore, the child's actions at school, i.e. pulling the phone cord from the wall and cowering behind chairs when his school conduct is being reported home, demonstrates that Y.D. likely feared discipline at home.

Even if this court accepts the view that this spanking was a single, isolated incident, that would not necessarily shield it from being considered abusive conduct. Here, the evidence showed that, as a result of this incident, Y.D. suffered bruises, scratches and lacerations to his leg and face. We conclude that these injuries clearly demonstrate excessive corporal punishment.

R.S. further places this child at risk by minimizing the nature and extent of Y.D.'s injuries as accidental and insignificant, and refusing to seek medical attention. R.S. testified that "[i]t was a minor bruise to the forehead that needed no attending to . . . [t]here was no need for medication. There was no need for doctors." However, upon examination at the hospital the day after the beating, the instruction contained in the medical report recommended following up with the child's pediatrician if pain persists and Ibuprofen use, e.g. Motrin, Advil, Rufen, Nuprin. (Emphasis added). Unlike in K.A., this child had visible injuries which are indicia of abuse. N.J.A.C. 10:129- 2.2(a)(9)(12).

Lastly, we reject appellant's argument that the swelling on the nose due to the prior surgery disproves the sufficiency of the Division's proofs. The fact that the record before the judge does not clearly establish the cause of Y.D.'s swollen nose is of no moment, because the other harms inflicted are more than sufficient to support the ALJ's finding of abuse.

In conclusion, the record contains ample proof that R.S. inflicted corporal punishment upon this five-year-old child in an "excessive" manner.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Y.D.'s father resided at times with R.S., his mother. Father shares joint legal custody with Y.D.'s mother and was awarded residential custody of the child in January 2008, two weeks before the present incident.

3 A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.

4 The medical report was provided to the Division counsel in discovery but not introduced into evidence. We granted R.S.'s request to supplement the appellate record to include this document.

5 The investigation summary states that Y.D. explained that the mark on his arm was caused by a burn with an iron at his grandmother's home. Although that incident was confirmed by his mother, it was not considered as a part of this referral.

6 Y.D. received a dacryocystorhinostomy to fix his tear duct condition. This procedure involves "making an incision on the side of the nose and removing some bone to make a correction to the nose and inserting a tube into the tear duct in order to facilitate the flow of tears from the eye to the nose."