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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4988-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

K.O.,

Defendant-Respondent.

_______________________________

IN THE MATTER OF Z.O., a minor.

_______________________________

February 7, 2013

 

Argued January 30, 2013 - Decided

 

Before Judges Nugent and Haas.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-270-12.

 

Liana Dinallo, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Dinallo, on the brief).

 

Jennifer Holsey, Assistant Deputy Public Defender, argued the cause for minor Z.O. (Joseph E. Krakora, Public Defender, LawGuardian, attorney; David Valentin, Assistant Deputy Public Defender, of counsel; Ms. Holsey, on the brief).

 

Respondent K.O. has not filed a brief.

 

PER CURIAM

Plaintiff Division of Youth and Family Services1 (Division) appeals from the Family Part's April 3, 2012 order, following a fact-finding hearing, determining defendant K.O. (Karen) did not abuse or neglect her nine-year old child Z.O. (Zeke).2 The Division argues the trial judge erred in finding that it had not met its burden of proving that Karen inflicted excessive corporal punishment on the child when she hit him with a belt after he was suspended from school. The Law Guardian supports the judge's finding that, under the "very peculiar set of circumstances" of this case, abuse and neglect had not been established. Based on our review of the record and applicable law, and mindful of the deference owed to the trial judge's factual and credibility findings, we affirm.

I.

Karen is a single parent. She and Zeke lived with her boyfriend on the second floor of a two-family home. Karen's sister and her family lived on the first floor. Zeke's biological father lives in North Carolina and has minimal involvement with the child.

Unfortunately, Zeke has a long history of behavioral problems. Since the time he entered nursery school at the age of three, Zeke has displayed "high levels of agitation and aggression, throwing tantrums, biting, [and] being aggressive towards other children." Although Karen enrolled the child in therapy, his behavioral problems progressed to "hitting, kicking, throwing things [at] children, as well as teachers" in kindergarten and, "[a]t home, he's dishonest, very sneaky, does not follow instructions well, can be very disrespectful, but no violence[.]"

Between first and third grade, Karen continued to receive reports of Zeke's "aggressive, uncontrollable behavior, defiant disrespectful, violent behavior towards children and staff." Karen enrolled Zeke in several programs, but no improvement occurred in his behavior.

Between November 2008 and March 25, 2010, school authorities contacted the Division to report that Zeke had alleged he had been struck by Karen and other family members. The Division failed to substantiate any of these allegations.

Specifically, Zeke told a school psychologist in November 2008 that Karen spanks him with an open hand, a cable wire or a chair when she gets upset with him. However, the child later told the Division investigator that his mother normally disciplined him with time outs and by taking away privileges. Although he reported Karen spanked him with her hand, Zeke told the investigator that he had not been struck with any object. He could not explain why he had provided the psychologist with a different account. The Division found this allegation was unfounded.

In February 2009, the school principal contacted the Division to report that Zeke had not been in school. Upon investigation, the Division verified the family had moved out of the school district and that Zeke was properly enrolled in a different school.

In March 2010, the Division received two referrals from Zeke's school. On March 1, Zeke was given an in-school suspension. That evening, Karen gave him a spanking and he had two scratches and a red mark on his arm the following day when he went to school. When questioned, Zeke told the school his father had spanked him with a wire. He later alleged his mother had spanked him with a wire and that she also struck him with an umbrella, curtain rod, hanger, pan, chair and belts. The Division determined the allegation was unfounded. Karen told the Division she would refrain from using corporal punishment.

On March 25, 2010, Zeke's teacher contacted the Division to report that Zeke had claimed he had been beaten up by his sixteen-year old uncle and two of his older cousins. The Division again found this allegation was unfounded.

Zeke's behavioral problems continued as he entered the fourth grade. He had an Individualized Education Program (IEP) and participated in special education classes. He was diagnosed as suffering from Oppositional Defiant Disorder, which "is accompanied by issues of acting out, of aggressive behavior, [and] loss of impulse control[.]" He received daily therapy sessions and was prescribed medication. Zeke also attended an inpatient and an outpatient program at Newark Beth Israel Medical Center and he continued to attend the Challenge program at the University of Medicine and Dentistry of New Jersey (UMDNJ). Karen also participated in classes at the UMDNJ program to assist her in coping with the child's behavioral problems.

On October 17, 2011, Zeke was suspended from school for two days for fighting. On October 19, he returned to school. That afternoon, Karen testified she received a call at work from her sister reporting that, early that morning, Karen's brother-in-law and nephew had been robbed at gunpoint in a home invasion of the first floor of their house.

When Zeke came home from school, he told Karen he had again been suspended from school for fighting. Although she normally disciplined Zeke with "[p]ositive reinforcement, reward systems, taking away privileges, timeouts," on this occasion she felt "angry" and "frustrated[.]" Karen took a belt and struck Zeke with it five times. Karen testified she was "aiming at his lower half[,]" but Zeke "began to duck and, you know, flinch and squirm." As a result, she struck him once on his face. She testified she never intended to strike him anywhere but on "[h]is bottom . . . his thigh, buttock area." She was not aware that Zeke suffered any lacerations or bruising.

Two days later, on October 21, 2011, Zeke told his counselor at UMDNJ that Karen had hit him with three belts, leaving a small scratch on his left check and several bruises on his arm and leg. The counselor called the Division, which went to Karen's home that evening. The Division removed Zeke from Karen's care, took him to the hospital for a physical examination, and placed him in a resource home.

On October 24, 2011, Yosef Hegazy, a Division caseworker, interviewed Karen, who cooperated with the investigation. Karen explained what had occurred and admitted to having struck Zeke with a belt on October 19. Hegazy reported that Karen was "clearly stressed and overwhelmed with [Zeke's] behavioral issues."

Zeke told Hegazy his mother had struck him with three belts all at the same time. He also stated his mother had hit him with a wire and "a water bottle full of water" in the past and that he was afraid of her.

On October 25, 2011, the Division filed a verified complaint seeking custody of Zeke. That day, the judge granted the Division custody, care, and supervision of the child.

Because of his continued, and worsening behavioral problems, Zeke was admitted to an inpatient program at Newark Beth Israel Medical Center. Karen cooperated with the services offered by the Division, which included a psychological evaluation and counseling.

Because Karen had fully complied with all its requests, the Division determined in January 2012 that it was in Zeke's best interests to return him to her care and custody. Zeke was placed at the Holley Center, where he could receive inpatient counseling and services for his behavioral problems. Although it submitted a report to the court indicating it wished to dismiss the litigation, the Division advised the judge it still wanted to proceed with a fact-finding hearing on the issue of whether Karen had abused and neglected the child before the matter was dismissed.

Judge Garry J. Furnari conducted the fact-finding hearing on April 30, 2012. The only witnesses who testified were Hegazy and Karen. Hegazy testified he had observed bruising on Zeke's "upper back, around the shoulder area, the lower back, [and] the left inner thigh." He also observed a "lash mark" on the child's left arm and a "bruise on his left cheek." Hegazy stated Zeke had reported that the injuries were inflicted when his mother struck him with multiple belts. The Division did not produce any of the belts at the hearing. Karen testified in the manner noted above.

At the conclusion of the hearing, Judge Furnari found the Division had not demonstrated that Karen had abused or neglected her child. The judge found that Hegazy "did not have very much direct personal knowledge of a lot of the case," and instead based much of his testimony on the documents in the case file. While Hegazy's testimony was "honest and straight forward," the judge was concerned that Hegazy "did not . . . investigate or evaluate and apparently the Division did not as well all of the circumstances of the alleged use of corporal punishment, except by his interview with the child and with the mother." Significantly, the judge found that Hegazy did not investigate, or substantiate, Zeke's claim that Karen had hit him "with three belts."

Judge Furnari found Karen was "extremely candid, straight forward [and] honest" in her testimony. He noted that Zeke had a history of severe behavioral problems and that Karen had been coping with them as best as she could. Karen had enrolled Zeke in a succession of different programs and she participated "in classes to help her cope with the difficulties of having a child with behaviors" of the type displayed by Zeke.

Turning to the day of the incident, the judge found Karen's family had been the victims of a home invasion earlier in the day. When she arrived home from work, Zeke advised her he had been suspended from school for the second time that week for fighting. The judge stated that, despite employing "positive reinforcement" in the past, Karen was "extremely frustrated on the day in question." Under those circumstances, the judge found Karen hit Zeke "five times with a belt" and, bearing in mind that the child had been in at least two fights at school that week, that at least some of the bruises were "the result of the mother striking the child."

Under the unique circumstances of this case, however, Judge Furnari found that Karen had not used excessive corporal punishment. The judge stated that "the isolation of the incident" as compared to how Karen normally punished Zeke, coupled with "the trying circumstances" that overcame her that day, led him to conclude the Division had not established that Karen's actions constituted abuse and neglect. The judge continued:

Now, this is not to say that this Court approves of or suggests that it's appropriate or it is the method by which one should punish. It simply says that under the circumstances of this case, the Division has not met its burden of proving what the statute defines as excessive corporal punishment.

 

With the Division's consent, Judge Furnari transferred legal custody and continued physical custody to Karen and dismissed the matter. The April 30, 2012 order further permitted the Division to continue to monitor the family. This appeal followed.

II.

On appeal, the Division argues Karen's actions were not reasonable under the circumstances and, therefore, the judge erred in finding that her actions did not constitute abuse or neglect. Our task as an appellate court, however, is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines an "abused or 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 . . . 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; or by any other acts of a similarly serious nature requiring the aid of the court.

 

"Excessive corporal punishment" is not defined in the statute. Instead, courts focus on "the harm suffered by the child, rather than the mental state of the accused abuser." Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. dismissed, 208 N.J. 355 (2011).

A single occurrence of corporal punishment may be deemed excessive if medical intervention is necessary and the injury was foreseeable. Ibid. For example, in New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 335 (2010), a two-hundred pound father chased down his two teenage children, caught and grabbed them, and all three ended up on the floor. Both children were injured. One child sustained a bruised and swollen hand, while the other had rib tenderness and an abrasion behind the ear. Ibid. The Supreme Court held that, although the father "may not have intended to harm his children, his actions were deliberate" and constituted abuse because he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct." Id. at 345.

Similarly, in Department of Children & Families, Division of Youth & Family Services. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we found that a mother who struck her five-year old child for telling a neighbor the family did not have electricity in their home had inflicted excessive corporal punishment. The mother admitted to using corporal punishment since the child was three-years old and she struck the child once or twice a month "as her way to ensure that [the child] would not 'end up on the streets or doing drugs.'" Id. at 417. In the incident which led to the Division's involvement, the child sustained three- to four-inch red marks on the right side of her face, two-inch dark red scratches on her elbow and left cheek, and a greenish mark on her back. Id. at 416. The mother also "exhibited no remorse for her conduct and was not receptive to any counseling recommendations." Id. at 417.

On the other hand, in New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 36, (2011), the Supreme Court concluded 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[.]" Because abuse and neglect cases involving corporal punishment are "generally fact sensitive" and "idiosyncratic[,]" the Court held each case "requires careful, individual scrutiny." Id. at 33.

In finding that Karen had not engaged in excessive corporal punishment, Judge Furnari relied upon our recent decision in K.A., where we held that a mother, who punched her eight-year old, autistic daughter four or five times on her shoulder, had not abused the child by inflicting excessive corporal punishment. Supra, 413 N.J. Super. at 513. In so ruling, we examined the reasons underlying the mother's conduct, "the isolation of the incident[,]" and "the trying circumstances which [the mother] was undergoing due to [the child's] psychological disorder." Id. at 512. We explained:

[The mother] was confronted with a psychologically disruptive child, unable or unwilling to follow verbal instructions or adhere to passive means of discipline such as a time-out. [The mother] was alone, without support from either her spouse/co-parent or from other members of her extended family, such as an experienced mother or aunt. Out of sheer frustration, or through an ill-advised impulse, she struck her child five times. These blows, though undoubtedly painful, did not cause the child any permanent harm, did not require medical intervention of any kind, and were not part of a pattern of abuse.

 

[Ibid.]

 

In addition, we noted that the mother accepted full responsibility for her actions and complied with all of the Division's requirements as to services and counseling. Ibid. "By the Division's own account, the situation improved significantly after this isolated event and there was no need for continued Division involvement." Ibid.

We believe Judge Furnari properly applied K.A. to the facts of this case in finding Karen had not inflicted excessive corporal punishment upon Zeke. Like the situation in K.A., what Karen did "appear[ed] to be aberrational to this family." Id. at 513. While Zeke had alleged that his mother, his father, his uncle, and his cousins had struck him with objects in the past, the Division found that each and every one of these allegations were unfounded. Judge Furnari found Karen's testimony, that she usually punished Zeke with time outs and the like, "extremely credible" and we defer to that finding.

In addition, the judge found that Karen had continuously attempted to assist Zeke in dealing with his Oppositional Defiant Disorder and resulting severe behavioral problems. She enrolled Zeke in a number of programs, both on an inpatient and outpatient basis. On her own, she arranged to attend classes that would help her to cope with Zeke's condition. These findings further support the judge's ultimate conclusion that this was an isolated, aberrational incident.

When the incident occurred, Karen was obviously under stress. Her brother-in-law and nephew had been robbed at gunpoint on the first floor of her home that morning.3 As soon as Zeke arrived home, he told his mother he had been suspended from school for the second time that week for fighting. While, like Judge Furnari, we do not condone Karen's conduct, the judge's finding that Karen was simply overcome by "the trying circumstances" that confronted her is amply supported by the record.

Like the child in K.A., Zeke did not suffer any permanent harm. While Zeke was taken to the hospital "for a physical" two days after the incident, he required no treatment for the scratch and bruises that were found.

Finally, Karen accepted full responsibility for her actions. She told the Division caseworker what had occurred during the post-incident interview on October 24, 2011. She again accepted responsibility by testifying candidly at the fact-finding hearing. Karen complied with everything the Division required in terms of services and, by the time of the hearing, the Division had determined that the litigation should be dismissed and Zeke returned to Karen's care.

Under these circumstances, we find no basis to disturb Judge Furnari's decision that the Division did not meet its burden of proving by a preponderance of the evidence that Karen had abused Zeke by inflicting excessive corporal punishment upon him.

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 Fictional names are used to protect the privacy of the child and for ease of reference.

3 While the Division asserts Karen had a "support system" in place, since her boyfriend lived with her and her sister lived downstairs, there is no evidence that Karen's boyfriend or sister were home at the time of the incident or that they had taken active roles helping to care for Zeke in the past.