NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5681-10T3

A-0838-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.A. and E.A.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF L.A. and R.A.,

Minors.

_________________________________

December 27, 2012

 

Submitted December 11, 2012 - Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-197-10.

 

Joseph E. Krakora, Public Defender, attorney for appellants (Beryl Foster-Andres, Designated Counsel, for K.A. in A-5681-10, on the brief; Anthony J. Vecchio, Designated Counsel, for E.A. in A-0838-11, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors L.A. and R.A. (Alexis Pollock and Keri Popkin, Assistant Deputies Public Defender, on the brief).

 

PER CURIAM

In this Title Nine case, N.J.S.A. 9:6-1 to -8.73, defendants E.A. and K.A. appeal from a June 14, 2011 fact-finding order determining that they abused and neglected two children, L.A. and R.A.1 The appeals were previously consolidated for the purposes of filing transcripts and respondents' briefs. We have also consolidated the appeals for purposes of this opinion. For the reasons that follow, we affirm the June 14, 2011 order as to both defendants.

I

E.A. was the children's adoptive parent, and K.A. is E.A.'s biological adult daughter.2 Both women were accused of abusing and neglecting L.A., who was then eleven years old, and R.A., who was then nine years old. The case began on June 14, 2010, when L.A. told a teacher's aide assigned to his special education class that he could not do sit-ups because he had "scratches" on his back. He lifted up his shirt to show the aide, and she observed several "severe marks on his back." The aide testified that she was "alarmed" and asked the classroom teacher to look at the child's back. The teacher sent L.A. to the school nurse, who called the principal.

The principal, Dr. Michael Raymond, testified that when he arrived at the nurse's office, he also looked at L.A.'s back and observed several "open marks" more than three inches long. The marks, which he described as painful and unusual, were:

kind of open, so red, like an open wound. It was reddish with some blue, blue on the edges. . . . I thought it must have been painful. . . . It was . . . in a weird spot . . . I have not seen any injuries . . . with kids on the playground . . . where an injury occurred there.

 

Because of his observations, Dr. Raymond called the Division of Youth and Family Services3 (Division) and the local police.

When Officer Seda arrived, Dr. Raymond asked L.A. to explain what had happened to him. The child responded that his mother had given him "a whooping" with "one of the wands or a stick from a . . . window blind." L.A. said that the beating was punishment for "wrestling or fighting or playing around" with his brother. Dr. Raymond added that L.A. stated that his sister was "one of the ones responsible for hitting him too." Dr. Raymond noted that the child appeared to be physically "uncomfortable" and unable to lean his back on the chair in which he was sitting. On cross-examination, Dr. Raymond admitted that he did not make a written report of his observations and was testifying solely from his memory of the events.

The school nurse, Lisa Washington, testified to her observations on June 14, 2010. L.A. told her that his "mom" had "hit him with . . . cords" as punishment after he and his brother were fighting and accidentally "broke a door in the house." When the child lifted his shirt, Washington observed "marks" in the form of "reddish-purple" lines on his back, and one or two similar marks on his arm. L.A. told her the beating occurred on "Saturday."

Based on her extensive experience in treating children, Washington did not believe "it was an injury he would have been able to sustain on his own because of the location." She "had no reason to doubt" that the child was telling her the truth about what happened. Washington made a contemporaneous report of the incident. According to her report, L.A. told her he also had a bruise on his right thigh. However, Washington testified that she did not believe it was appropriate for her to ask the child to undress in her office.

Officer Ralph Seda, of the Jackson Township Police Department, testified that he was present in Dr. Raymond's office when the principal asked L.A. to describe what had happened to him. According to Officer Seda, L.A. stated that he and his brother had broken a door in their house and, as punishment, his sister [K.A.] had beaten him with "a curtain stick" of the type used to "open and close blinds." L.A. stated that his mother was in the shower when the incident occurred.

L.A. lifted his shirt and showed Officer Seda "a laceration approximately six inches long by a quarter inch" on his back. The injury appeared reddish and only partially healed, and the child appeared to be in pain just from the effort of lifting his shirt. Believing that the wound was not accidentally caused, Officer Seda drove L.A. to the police department.

The State next presented testimony from Dr. Steven Kairys, who had twenty-five years of experience in evaluating children for abuse and neglect. Dr. Kairys examined L.A. and his brother R.A. on June 17, 2010. Based on his examination of L.A., Dr. Kairys concluded that the child

was physically assaulted. . . . [o]n many parts of his body, all on the right side. His arms, his legs, his flank, back area. Many parts of his body were involved with bruises and abrasions.

 

In addition to "major bruising," the doctor found open wounds for which the child had never received "any medical care." He concluded that the injuries were "recent." He opined that the failure to obtain medical treatment for the child was "medical neglect," because it is important to have a child with such wounds examined to be sure there are not "any deeper injuries." He explained that

the injuries were multiple and . . . over multiple parts of his body deep enough to cause injury to the skin itself, not just bruising. Again, by [L.A.'s] history, this was not the first time he had been assaulted; therefore, I had a concern about safety.

 

During his examination of L.A., Dr. Kairys asked him about the forms of discipline used in his home. L.A. told him that the discipline included beatings with "some kind of an artificial flower with a wire on it, a belt or a curtain rod." L.A. told the doctor that in the most current incident, he and his brother were roughhousing and broke a door. Their mother told their older sister to beat them with a curtain rod. L.A. also told the doctor that both his mother and his older sister had beaten him in the past. L.A. told the doctor that his mother directed him and his brother not to tell anyone about the beatings "or they would get hit again."

Based on his experience, Dr. Kairys found it likely that L.A. was being truthful during the examination, because L.A. admitted "that he was doing things that were damaging to the house. He was not an angel." L.A. had "good eye contact," did not appear to be exaggerating, and told the same story consistently several times. The child also expressed worry about going back to "that family."

During the physical examination, Dr. Kairys found "evidence of some older injuries along the left arm that had been there probably for a while. They were already healed, thus leaving some type of pigmented linear areas." Based on his entire examination, Dr. Kairys opined that the injuries he observed were the result of child abuse. They were not injuries that could have been caused by fighting with his brother or by accident. His office staff took pictures of the injuries, which he described in great detail at the hearing.

Dr. Kairys also examined R.A., finding "multiple areas of linear bruising" on his "right upper leg in front and back and side." The doctor opined that those injuries were "not accidental." He found additional wound marks on R.A.'s arm and flank. R.A.'s wounds looked recent, looked similar to those on L.A.'s body, and appeared to have been made with the same type of instrument.

Detective Campbell Brown spoke to the children separately on June 14, 2010. Interviewed at his school, R.A. told Detective Brown that he and his brother were roughhousing in the laundry room of their house and accidentally broke a door. He said that when he told their older sister K.A. about it, she beat L.A. with a "plastic stick" used to adjust mini-blinds. When the detective asked R.A. about any discipline he had received in the past, the child replied that on occasion, his sisters had beaten him with a belt and his mother had hit him with "the stick."

Detective Brown then interviewed L.A. at the police station, and viewed and photographed his injuries. Detective Brown saw "several linear marks on his back," "one at the very top of his rib cage that extended onto his arm, . . . was open and appeared to have been bleeding in the past." That wound "looked infected" and was "probably about ten inches long. Detective Brown also saw "linear marks along his right upper arm." L.A. gave the detective a similar account of events as R.A., including the breaking of the door followed by the beating with a "mini blind stick."

Detective Brown then conducted audiotaped interviews with E.A. and K.A., both of whom denied seeing any injuries on L.A. Those audiotapes were played for the court at the fact-finding hearing. The police interview with L.A. and a re-interview with R.A. at the police station were also audiotaped, and the tapes were played for the trial court.

Detective Brown testified that when he interviewed R.A. for the second time, after R.A. had gone home from school and then come to the police station, the child appeared to have been "coached." He spontaneously began telling the detective that L.A. "wasn't beaten," "he made it up," and R.A. "hit [L.A.] with a stick outside in the woods." R.A. also told the detective "that he thought that he was going to get in trouble and that he was going to go see the judge." According to Detective Brown, there was "absolutely no reason why [R.A.] would tell me that he's going to go see the judge," because "that was never brought up" in the prior interview. Detective Brown observed several scars on R.A.'s arm and asked about them; R.A. responded that he got hit with "the flower" but stated that he did not get beaten "that often." Detective Brown also observed several scars on R.A.'s legs.4

After the interviews, the police searched defendants' home, pursuant to a warrant; they found miniblinds throughout the house, as well as an artificial flower with a long, hard stem that appeared "consistent with the marks on [L.A.'s] back." Based on the investigation, defendants were charged with endangering the welfare of a child.5

Division case worker Steven Furrule interviewed both children later on June 14, 2011, after the police interviews and the search of the home. The children told Furrule that their sister and mother disciplined them by beating them with a flower and a miniblind stick. Furrule examined the wounds on L.A., one of which was still oozing. He also observed "welts" on R.A.'s legs and arms. R.A. told Furrule that his "mom . . . hit him with a stick."

Furrule showed the children the photographs the police took during the search of the home. The children were able to identify photos of the flowers and the miniblind sticks that they were "hit with."

According to Detective Melissa Matthews, the Prosecutor's Office interviewed the children on videotape on June 30, 2011. Both videos were played during the fact-finding hearing. Matthews was also present on June 14, 2010 for the interviews of defendants. During her interview, K.A., who was in her early twenties at the time, admitted that she lived at her mother's house, although she also stated that she lived with her boyfriend. In their interviews with Matthews, both defendants denied inflicting any physical punishment on either of the children.

In her defense, K.A. presented testimony from her sister A.A. According to A.A., as of June 2010, A.A. lived in E.A.'s house, together with her younger sister Al.A., her foster sister K.F., and her two brothers R.A. and L.A. However, later in her testimony A.A. admitted that she sometimes lived with her boyfriend.

A.A. testified that during the weekend just prior to June 14, 2010, while looking out a window facing the back yard of the house, she saw L.A. lying in the grass in a fetal position and saw R.A. hitting him with a stick. A.A. testified that she told K.A. what was happening, and K.A. opened the back door and yelled at R.A. to stop.

According to A.A., K.A. told E.A. about the fight and E.A. directed the boys to go sort their laundry. After the boys went into the laundry room, A.A. heard a loud noise but did not investigate the source. She heard K.A. go into the laundry room, reprimand the boys, and send them "out of the laundry room." A.A. testified that she did not see K.A. hit the boys. She also testified that no one at the home ever hit the boys with a miniblind rod, and she never saw K.A. hit the boys with an artificial flower.

On cross-examination, A.A. admitted that she had never previously offered this exculpatory information to the police or to the Division. She also contended that K.A. "didn't live there so she wasn't really there" to oversee the boys' activities. She denied that the boys were ever required to do jumping jacks as punishment, information that contradicted E.A.'s earlier statement to the police. A.A. admitted that when their mother was tired, she sometimes would "rely" on K.A. to "mind the boys." She testified that she had previously seen L.A. wearing shorts and no shirt and never noticed any marks on his body.

In a twenty-nine page written opinion issued on June 14, 2011, the trial judge concluded that the Division met its burden to prove that "E.A. and K.A. abused and neglected L.A. and R.A." He also found that K.A. qualified as a caretaker or person having custody or control over the children, for purposes of Title Nine, N.J.S.A. 9:6-8.21. He considered evidence that K.A. resided in the home, and that she was "listed as a contact person for the minors, and was in fact contacted by the school when the injuries were discovered." He further noted evidence that E.A. had at times "left the children in the care of K.A." and "that K.A. has acted as a disciplinarian to L.A. and R.A."

For reasons he explained in detail, the judge found ample legally competent corroboration of the children's allegations of abuse, including "multiple clear photos of marks" on the children's bodies, together with firsthand observations by Dr. Kairys, "law enforcement professionals, and school professionals." He further found that the children's versions of the events were reliable, because they were consistent over time in reporting the important details and they admitted that they engaged in wrongdoing, for which they were punished. The judge found it likely that R.A. was coerced to recant portions of his statement to the police, because R.A. said he did not want to "go to the judge" -- not something a child would know about unless defendants told him about possible legal proceedings.

The judge found that the Division established a prima facie case of child abuse, and defendants failed to offer a credible explanation for the children's injuries. For reasons he explained at length, the judge did not find A.A. to be a believable witness. And he considered that E.A. and K.A. made damaging admissions in their statements to the police.

II

Our review of the trial judge's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413 (1998); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 616 (App. Div. 2010). Unless the court's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b), defines an abused or neglected child as:

a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent . . . 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;

 

[N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J.A.C.

10:129-1.3(1)(iv)(2), (v) (elaborating on

definition of "abused or neglected child").]

 

In a Title Nine action, to prove that a child is abused or neglected, "it is well established that [the Division] must prove [its charge] by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (citing N.J.S.A. 9:6-8.44). Evidence may include "'any writing, record or photograph . . . made as a memorandum or record . . . relating to a child in an abuse or neglect proceeding,'" so long as it meets the admissibility requirements set forth in N.J.S.A. 9:6-8.46(a)(3). Ibid. (quoting N.J.S.A. 9.6-8.46 (a)(3)). The Division is allowed to submit into evidence reports by its personnel and professional consultants, pursuant to N.J.R.E. 803(c)(6) and 801(d). Ibid. In entering an order finding abuse and neglect, the trial court "must articulate, with particularity, the facts upon which a determination of abuse or neglect is made" and clearly identify all documentary exhibits relied upon in reaching its decision. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

In adjudicating a charge of child abuse, the trial court may consider "previous statements made by the child relating to any allegations of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). However, a statement by the minor victim alone is insufficient to justify a finding of abuse and neglect. N.J.S.A. 9:6-8.46(a)(4); P.W.R., supra, 205 N.J. at 33. The child's accusation must be corroborated by independent evidence. N.J.S.A. 9:6-8.46(a)(4); P.W.R., supra, 205 N.J. at 33. "Proof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omission of the parent . . . shall be prima facie evidence that a child . . . is an abused or neglected child." N.J.S.A. 9:6-8.46(a)(2).

On this appeal, E.A. raises the following points for our consideration:

I. THE TRIAL COURT ERRED IN FINDING THAT THE MOTHER ABUSED AND NEGLECTED [L.A.] AND [R.A.].

 

II. THE TRIAL COURT ERRED IN NOT INTERVIEWING THE CHILDREN IN CAMERA IN A CASE THAT WAS BASED WHOLLY ON THE HEARSAY PRIOR STATEMENTS OF THE CHILDREN.

 

In her appeal, K.A. raises these points of argument:

I. K.A. SHOULD NOT BE CONSIDERED A GUARDIAN FOR THE PURPOSES OF THE ABUSE AND NEGLECT STATUTE BECAUSE SHE WAS A TWENTY-FOUR YEAR OLD SISTER WHO DID NOT ASSUME CARE AND CONTROL OF THE CHILDREN AND E.A., THE BOYS' MOTHER, WAS PRESENT AT THE TIME LOOKING AFTER THEM.

 

II. THE DIVISION HAS FAILED TO PROVE THAT K.A. ABUSED AND NEGLECTED L.A. BECAUSE THE EVIDENCE PRESENTED CONSISTED ONLY OF L.A.'S UNRELIABLE OUT OF COURT STATEMENTS.

 

III. EVEN IF THIS COURT ACCEPTS L.A. AND R.A.'S STATEMENTS AS CREDIBLE, THE ABUSE AND NEGLECT FINDING MUST BE REVERSED BECAUSE WHEN TAKING INTO ACCOUNT ALL OF THE CIRCUMSTANCES INCLUDING THE MINOR NATURE OF THE INJURIES, THE ALLEGATIONS DO NOT RISE TO THE LEVEL OF EXCESSIVE CORPORAL PUNISHMENT.

 

IV. EVEN IF THIS COURT ACCEPTS L.A. AND R.A.'S STATEMENTS AS CREDIBLE, THE FINDING OF MEDICAL NEGLECT MUST BE REVERSED BECAUSE MEDICAL TREATMENT WAS NOT REQUIRED AND THERE WAS NO RISK OF SERIOUS OR LASTING HARM.

 

V. THERE IS NO RELIABLE EVIDENCE THAT K.A. ABUSED R.A.

 

Based on our review of the record, we find that defendants' appellate arguments are not supported by the evidence, are entirely without merit, and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in the trial judge's thorough opinion, which is supported by substantial credible evidence. R. 2:11-3(e)(1)(A). We add the following comments.

On this appeal, E.A. claims that the Division's case against her was based entirely on the children's uncorroborated hearsay statements. We disagree. There was overwhelming corroboration, including testimony from a doctor, a nurse, and several law enforcement officers, as well as color photographs of the children's injuries. See N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002) ("The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements."). We also agree with the trial judge that E.A. provided no sensible explanation for the children's injuries.

Moreover, no parent or caretaker exercising even the most minimal degree of care of these children could have failed to notice their injuries. As Dr. Kairys testified, L.A.'s open wounds required medical treatment that E.A. failed to obtain for the child.

She also argues that the judge should have interviewed the children in camera. However, she did not request in camera interviews at the trial. We find no plain error in the trial judge's failure to sua sponte interview the children. Unlike N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 169 (App. Div. 2003), on which E.A. relies, here there was ample physical evidence of abuse, and in camera interviews were not required.

In her appeal, K.A. argues that she was not a guardian, within the meaning of N.J.S.A. 9:6-8.21(1)(a), which defines that term in pertinent part as:

any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent, or any person, who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care.

She contends that she did not exercise authority over the children and did not assume responsibility for their "care, custody, or control." We are not persuaded. The record supports the trial judge's findings that K.A. lived in the house, was listed in school records as a contact person for the children, and was delegated authority by E.A to discipline the children. Further, her sister A.A. testified that K.A. exercised the role of supervising the children.

K.A. also argues that the evidence that she abused L.A. was insufficient, because the children did not testify and they told inconsistent stories. We cannot agree. The children's statements were consistent in the essential details, beginning with L.A.'s unprompted statement to the teacher's aide who first noticed his discomfort. K.A. contends that the police used improper methods in questioning the children and tried to pressure them into saying they were abused. We reject that argument for the reasons stated by the trial judge in his oral opinion issued on December 13, 2010.

We also agree with the trial judge that K.A. failed to offer a credible explanation for the children's injuries. Most significantly, Dr. Kairys's un-rebutted testimony established that L.A.'s injuries could not have resulted from roughhousing with his brother or from an alleged incident in which R.A. hit L.A. with a stick. Finally, a few weeks after the fact-finding decision was issued, K.A. pled guilty under oath to committing simple assault on L.A. by hitting him with a mini-blind stick.

K.A.'s next argument, that the State's allegations "do not rise to the level of excessive corporal punishment," requires little discussion. These children had marks all over their bodies. Beatings severe enough to leave scars and open wounds constitute excessive corporal punishment. K.A.'s further appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 A June 15, 2011 final order dismissed the Title Nine action, making this case ripe for appeal.

2 According to E.A.'s testimony, she adopted the children on May 28, 2010. On August 17, 2011, the trial court granted the Law Guardian's motion to vacate the adoption.

3 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

4 Detective Robert Hart testified that he also examined and photographed the children's injuries, as well as conducting a search of the home.

5 After the trial court decided the Title Nine case, defendants each pled guilty to simple assault, on July 25, 2011. Under oath, E.A. admitted beating both children with a belt, and K.A. admitted beating L.A. with a miniblind stick. We granted the Law Guardian's motion to supplement the record with the judgments of conviction and the transcripts of their plea allocutions.