DIVISION OF YOUTH AND FAMILY SERVICES v. R.S and M.S IN THE MATTER OF S.S a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2424-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.S.,

Defendant-Appellant,

and

M.S.,

Defendant.

_______________________________

IN THE MATTER OF S.S., a minor.

________________________________________________________________

April 10, 2012

Submitted November 29, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-75-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Landsman, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.S. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.S. appeals from an order that reflected the court's determination that he abused his thirteen-year-old daughter, S.S., by administering excessive corporal punishment. We affirm.

The facts are largely undisputed.

On October 28, 2009, S.S. disclosed to her guidance counselor that, on the previous evening, she had a fight with her parents, M.S.1 and R.S. She expressed fear of her parents and stated she could not go home. S.S. reported that her mother had struck her with a hair brush on her back and shoulder blade and pounded her head with an open hand, and her father, R.S., used a belt to beat her on her legs. S.S. had red bruises on her back and welts on both her legs.

When interviewed by an investigator from the Division of Youth and Family Services (DYFS), S.S. said that she had been subjected to physical abuse from both her parents since she was five years old. Her mother had hit her with brooms, a wooden spoon and brushes; her father hit her with a belt on several occasions; and both of them had left marks or bruises on prior occasions.

S.S., a special education student, has been diagnosed with ADHD and Tourette's syndrome and has a long history of oppositional behavior at home and at school. On the evening of the fight, her mother had erroneously accused her of taking her cell phone. When that accusation was proven false, S.S. made a remark her parents found disrespectful.

R.S. took off his belt and struck S.S. on her legs and then pulled her to a couch where M.S. began hitting her with an open hand. S.S. attempted to run to a bathroom while M.S. struck her in the back with a wooden brush. S.S. closed the door of the bathroom. M.S. yelled at her to remove gauges she had in her ears. S.S. opened the door. The argument regarding the gauges continued, with M.S. holding a knife six inches from S.S.'s face and threatening to cut the gauges out of her ears. R.S. approached the bathroom and threatened her as well, stating that if she did not remove the gauges, "he was going to rip them out[.]"2 The fight ended when S.S. removed the gauges and went to her bedroom.

Both M.S. and R.S. were called to S.S.'s school when the referral was made to DYFS. M.S. was angry and confrontational. When asked how S.S. got the marks on her, R.S. stated he had hit her with a belt and would do it again. After consulting with her supervisor, the DYFS investigator attempted to discuss a safety protection plan, in which services would be provided to the family to avoid a removal, with both parents. R.S. became very upset and stated, "you can f****n' have her" and walked out of the school. Because M.S. had stated she wanted to beat S.S., the investigator advised M.S. that such a plan would be necessary. She also "stormed out of the school[,]" although she later returned. At first, she was calm, but then she started screaming at S.S., telling her it was all her fault, she had done this and was an orphan. The investigator was unable to discuss the protection plan further because M.S. left the school again.

As noted, R.S. does not deny striking his daughter or the other pertinent facts. He argues that the trial court erred in finding abuse because the corporal punishment was not "excessive."

In reviewing a decision of a family court, we recognize the "'family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Corporal punishment constitutes "abuse" under N.J.S.A. 9:6-8.21(c)(4)(b) if it is excessive. The statute provides that a child is "abused or neglected" when her

physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of [her] 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[.]

[Ibid. (emphasis added).]

Notably, the definition of "abuse" is not limited to excessive corporal punishment that (1) is personally inflicted by the parent and (2) has resulted in an impairment of the child's physical, mental or emotional condition. Proof of the prohibited harm exists when the parent allows excessive corporal punishment by another and when such punishment presents an "imminent danger" of impairment.

Each case of alleged abuse "requires careful, individual scrutiny" and is "generally fact sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Moreover, our consideration is not limited to the nature of the injury inflicted, but requires us to view the conduct within the context of all the relevant circumstances. See N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416-417 (App. Div. 2010) (finding unreasonable rationale proffered for corporal punishment, pattern of corporal punishment, lack of remorse and lack of receptiveness to counseling recommendations relevant to determination of abuse), certif. denied, 207 N.J. 188 (2011).

R.S. cites N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011), as support for the argument that there was no abuse here. In K.A., a mother without any spousal support struck her psychologically disruptive child four or five times on the shoulder with a closed fist after the child disobeyed K.A.'s instruction to remain in her room for a timeout. Although, like here, the injuries did not cause permanent harm or require medical intervention, the significant factors supporting the conclusion that there was no abuse included K.A.'s remorse, the fact that the incident was not part of a pattern of abuse and that K.A. completed counseling with DYFS.

A review of the facts here shows that, rather than support a finding of no abuse, K.A. is clearly distinguishable.

Specifically relevant to this appeal, R.S. stated that he had hit S.S. with a belt and would do it again. His defiance and lack of remorse was further evident when he walked out of the school rather than discuss a protection plan with the DYFS investigator and retorted, "you can f****n' have her." Although R.S. now argues that this was an isolated incident, this assertion is belied by his own stated willingness to hit S.S. with a belt again, as well as her statements that he had struck her with a belt on several occasions since she was five years old.

Moreover, R.S.'s conduct cannot be segregated from that of his wife. It was R.S. who escalated the incident from an argument by hitting S.S. with a belt. When his wife continued to strike her and threatened to mutilate S.S. if she did not remove the gauges, R.S. joined in the threats, stating he would "rip them out[.]" By acting in concert, each of the parents contributed to the punitive effect of the other's actions and the overall impact on S.S. Therefore, an assessment of whether the corporal punishment here was excessive properly includes consideration of M.S.'s actions and R.S.'s response. We are satisfied that R.S.'s actions, his statements of defiance and threats to hit S.S. again, his threat regarding the gauges and his demonstrated consent to the punishment meted out by M.S. all contributed to create a level of corporal punishment that was excessive.

We next turn to the harm posed to S.S. As we have noted, "abuse" does not require proof of an impairment of the child's physical, mental or emotional condition. Therefore, the fact that S.S., like the child in K.A, did not suffer such a level of physical harm, does not require a finding that no abuse occurred here. We do not discount the challenges R.S. and his wife face in parenting a child with serious behavioral issues. However, aside from these similarities, this case is plainly distinguishable from K.A.

While the mother in K.A. lacked spousal support, the parents here joined forces to exacerbate the punishment inflicted upon S.S. While K.A. was remorseful and completed counseling, R.S. was defiant and maintained his right to strike S.S. in the future. Although the incident in K.A. was not part of a pattern of abuse, the facts here showed that the conduct was not "aberrational." We are satisfied that, as in C.H., supra, the facts demonstrated that the excessive corporal punishment here caused S.S.'s physical, mental or emotional condition to be "in imminent danger of becoming impaired[.]" See N.J.S.A. 9:6-8.21(c)(4).

1 Although there was a finding of abuse against M.S. as well, she has not appealed from that determination.

2 S.S. told DYFS that R.S. was carrying pliers when he said this. R.S. denied having pliers.