NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

F.W.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF H.C., K.C., A.C.

and I.L., minors.

____________________________________

January 6, 2014

 

Submitted December 9, 2013 Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-136-12.

 

Joseph E, Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer K. Russo-Belles, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

Defendant F.W. appeals from an order of the Family Part finding that he "abused and neglected" his thirteen-year-old stepdaughter, I.L., within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.

By way of background, at the time of the incident on November 30, 2011, I.L., who was born on November 16, 1998, lived with her mother M.C. and stepfather F.W., a juvenile corrections officer, and her three cousins. M.C. and F.W. had been married for seven years. By all accounts, including her own, I.L. was a problematic child.1 According to records of the William Davies Middle School, which I.L. attended, I.L. was disciplined at school several times for inappropriate and disruptive behavior.2

On the day prior to the incident in question, F.W. searched I.L.'s bedroom and found seven pornographic movies. The next day, November 30, 2011, F.W. searched his stepdaughter's room again. When I.L. returned home that afternoon, she discovered her bedroom was a mess, with papers scattered throughout her dresser as well as hairspray bottles and books thrown on the floor. According to I.L., she "freaked out" because she had just cleaned her bedroom. When she learned that F.W. caused the mess looking for a notebook, I.L. confronted her mother M.C., arguing that she was not going to clean her room again and that F.W. should have to clean the mess.

F.W. was taking a shower when he heard the argument between I.L. and M.C. He got out of the shower and asked, "What's the problem?" I.L. told him, "You're going to be the one to clean my room." F.W. then became angry and retrieved a belt, with which he proceeded to beat I.L. According to I.L., F.W. beat her in the lower back, buttocks and thigh approximately five times each. F.W. then hit I.L. once in the neck with the belt. When I.L. grabbed the belt, F.W., with his hand, began to choke her. I.L. believed that she would lose consciousness or die. After the incident, I.L. left home for a period of time, but returned later and slept downstairs.

The next day, December 1, 2011, the Division of Youth and Family Services (Division)3 received a referral from I.L.'s middle school concerned over I.L.'s physical safety. A Division caseworker arrived at the school the next day where she interviewed I.L. and, with a school nurse present, photographed I.L.'s bruises. The photographs depicted a 2.5 cm linear bruise above the clavicle, a 1 cm linear red mark on the left side of I.L.'s neck, an 11.5 cm long and 6 cm wide bruise on her left thigh, a 10 cm long and 4 cm wide bruise on her left flank, a

1 cm linear cut on her left flank and a 3 cm long and 10 cm wide bruise on her right buttock.

The Division caseworker also interviewed M.C. When advised that her daughter's bruises were severe and excessive, M.C. stated that I.L. was disrespectful and "had it coming." M.C. then stated that I.L. should have been beaten sooner because she was previously found with a sixteen-year-old boy in her room. M.C. admitted that she witnessed F.W. beat I.L. with a belt, and that she attempted to intervene, but was not successful. M.C. denied witnessing F.W. choke I.L. M.C. also stated that she believed that F.W. was justified in beating I.L.

The matter was referred to the Atlantic County Prosecutor's Office; however, M.C. and F.W. refused to cooperate with the investigation. They also refused to allow I.L. to be interviewed.

On December 5, 2011, Dr. Lanese conducted a physical examination of I.L. and observed "numerous bruises on the buttocks, thighs, back and part of the neck." Dr. Lanese found the injuries on I.L.'s neck to be "most concerning" due to the neck being a "more delicate region of the body" that could have resulted in "more serious injury." Dr. Lanese also found that the primary impact of I.L.'s experience was psychological and that it was recommended that she attend physical abuse therapy.

As part of the Division's investigation, F.W. was interviewed and gave the following account. When he got out of the shower on November 30, 2011, he observed I.L. "being vulgar" to M.C., cursing and refusing to clean her room. F.W. admitted "spank[ing]" I.L. two or three times on the buttocks, over her clothing, but denied hitting her with a belt on the neck or choking her. He also denied ever beating her with a belt before.

The Division substantiated F.W. for abuse and neglect against I.L.

Earlier, the Division had effected an emergency removal of I.L. and her three cousins, all of whom were placed with a relative. On December 9, 2011, the Family Part judge affirmed the removal and a consent order was entered permitting the minor children to return to the custody of M.C. on the condition that F.W. was restrained from the home. The court ordered that all of F.W.'s contact with the minor children was to be supervised by the Division. These restraints were continued by order of January 6, 2012. At a case management conference on April 3, 2012, where it was reported that conditions in the home had improved, the court ordered the minor children to remain in the care and supervision of the Division, directed M.C. and F.W. to comply with services, and permitted F.W. to reside in the home with M.C. and the minor children. The court also allowed F.W. to have unsupervised contact with the minor children.

A Title Nine contested factfinding hearing against F.W. was conducted consisting of the submission of documentary proofs by both parties. At the close of evidence and following summations, the court found that the Division had met its burden by a preponderance of the evidence that F.W. had abused and neglected I.L. by imposing "excessive corporal punishment" upon her. The judge reasoned:

However, I accept the . . . Division's argument and the law guardian's argument that on the date of November 30th, 2011, that [I.L.'s] behavior while it was rude and . . . it was disrespectful and probably was very defensive because her room had been search[ed], probably with good reason, that the response of [F.W.] was unreasonable and inappropriate and I think it falls squarely under the provisions of N.J.S.A. 9:6-8.9(d)(2) . . . and I find that [F.W.] unreasonably inflicted or allowed to be inflicted harm or the substantial risk thereof in addition to actually inflicting the harm because of the choking, . . . it could have easily gone too far, including the infliction of excessive corporal punishment under circumstances which do not indicate that the child's behavior is harmful, in this case to herself, others or property.

 

It's clear to me that [F.W.] lost his temper on this occasion and not just a little bit. It was an extreme incident and while he may not have left the room to get the belt he went and got the belt and hit [I.L.] numerous times from her neck to her thigh and that left substantial marks as the proof of that beating.

 

I accept [I.L.'s] representations to the caseworker that [F.W.] also choked her. That left a mark. That could have easily injured her or his anger could have caused him to kill her and that is why I say it's not only inflicting harm, but a substantial risk of harm in that choking.

 

. . . .

 

It's clear and I certainly understand the emotions that occur with a child who is this problematic. It's the response to those emotions -- and in this we can't really focus on how [F.W.] was feeling. What we have to look at is not his mental state, but the harm suffered by the child, but because of that mental state I think [F.W.] went over the top in his discipline of this child for this infraction.

 

. . . .

 

Abuse and neglect cases are fact sensitive, each one requiring careful scrutiny and I do find that excessive corporal punishment was inflicted here on this child. It impacted her, thankfully not long term physically, but certainly the concern is, and she's already got some mental health issues potentially, it impacted her greatly I think.

On appeal, F.W. contends that:

 

I. THE DIVISION DID NOT ESTABLISH THROUGH SUFFICIENT CREDIBLE EVIDENCE THAT THE DEFENDANT USED EXCESSIVE CORPORAL PUNISHMENT. THE FAMILY COURT ERRED IN FINDING I.L. AN ABUSED OR NEGLECTED CHILD PURSUANT TO N.J.S.A. 9:8.21(c)(4)(b).

We disagree.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts have special expertise with issues involving the welfare of children; therefore, we should accord deference to family courts' fact-finding determinations. Id. at 413; see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

There are two exceptions, however, to this very limited scope of appellate review: first, when the trial judge's decision is "so wide of the mark as to be clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction[,]" Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks omitted), and "[s]econd, where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom . . . ." Id. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Moreover, "[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).

"Actions initiated by [the Division] charging abuse and neglect of children are governed by statute." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003); N.J.S.A. 9:6-8.21 to -8.73. The purpose of Title Nine "is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8(a). The primary concern of Title Nine "is the protection of children, not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).

A trial court's "determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Title Nine defines an "abused or neglected child," in relevant part, as

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 . . . 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 . . . .

 

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

Although the statute does not define "excessive corporal

punishment," the trial judge was not without guidance to determine the meaning of this term. N.J.A.C. 10:129-2.2

provides the classes of injuries that may amount to abuse or neglect under this statute. They include, in part:

(9) Cuts, bruises, abrasions, welts or oral

injuries; [and]

 

(12) Mental or emotional impairment[.]

 

[N.J.A.C. 10:129-2.2(a)(9) and (12) (emphasis added).]

 

This court has also approved the following jury charge used when this offense is submitted to a jury for determination: "[T]he law 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,

239-40 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); see also Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). "[W]e evaluate a claim of abuse by looking to the harm suffered by the child, rather than the mental state of [the parent] . . . ." K.A., supra, 413 N.J. Super. at 511.

Ultimately, abuse and neglect cases are "fact sensitive[,] [e]ach case requir[ing] careful, individual scrutiny." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). For example, excessive corporal punishment has been found where, as strikingly similar here, a father, after having an argument with his children, choked his thirteen-year-old daughter and hit her stomach and back after grabbing his fifteen-year-old son by the neck. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 334, 345 (2010). Similarly, where a mother hit her five-year-old child "in multiple locations, including a vulnerable area[,]" causing demarcations on the child's face, right elbow, left cheek, and back, and admitted to using corporal punishment on the child starting at three years of age once or twice per month, we found excessive the corporal punishment used by the mother. Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).

In contrast, in P.W.R., supra, the Court held that "[a] slap of the face of a teenager as a form of discipline with no resulting bruises or marks does not constitute 'excessive corporal punishment' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)." 205 N.J. at 36. Critically, the Court did draw a distinction between slapping a teenager without leaving a mark, and the type of beating that was inflicted in this case, which left extensive bruises and lacerations on I.L.

Although hardly admirable, we agree that such occasional discipline does not fit a common sense application of the statutory prohibition against "excessive" corporal punishment. There was no evidence developed in this record showing the existence of bruises, scars, lacerations, fractures or any other medical ailment suffered as a result of [P.W.R.'s] actions.

 

[Id. at 35-36 (emphasis added).]

 

And in K.A., supra, we found no excessive corporal punishment where a mother hit her "psychologically disruptive" eight-year-old child "five times on the shoulder with a closed

fis[t]," but "the force used did not lacerate the child's skin and did not require any type of medical intervention[,]" and the

"[b]ruises, although visible, never exposed [the child] to any

further harm if left untreated." 413 N.J. Super. at 506, 512-13.

Although the mother's behavior was an isolated, aberrational

event, we stated that even "a single incident of violence

against a child may be sufficient to constitute excessive

corporal punishment[,]" such as when "the child suffers a

fracture of a limb, or a serious laceration, or any other event

where medical intervention proves to be necessary . . . ." Id. at 511.

Here, there is ample, credible evidence to support the abuse and neglect finding. F.W. admitted hitting I.L. and M.C. witnessed her husband beating I.L. with a belt. Indeed, I.L. reported she was struck multiple times with a belt, which left severe bruises and marks on her buttocks, neck and flank, and a laceration on her left flank, that were visible five days after the incident and were corroborated by photographs and a medical examination. This is hardly the occasional discipline of a wayward or incorrigible teenager condoned by the Court in P.W.R. Moreover, I.L. reported that F.W. choked her, a form of punishment so severe that Dr. Lanese opined could have led to more serious injury.

Thus, I.L. suffered actual harm at the hands of her stepfather. The so-called "punishment" meted out by F.W. cannot be considered a "moderate correction" that is "reasonable under

the[se] circumstances . . . ." T.C., supra, 347 N.J. Super. at 240. On the contrary, F.W.'s acts against his stepdaughter amount to excessive corporal punishment and support a finding that I.L.'s "physical, mental, or emotional condition . . . [was] in imminent danger of becoming impaired as the result of the failure of [F.W.] . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . excessive corporal punishment" upon I.L. N.J.S.A. 9:6-8.21(c).

Affirmed.

 

1 During the personal interview portion of a physical abuse evaluation conducted by Dr. Stephanie Lanese of New Jersey Child Abuse Research Education and Service (CARES) Institute, I.L. admitted

messing with all the wrong people and talking back to teachers and the bus driver and started smoking weed and alcohol, started having sex, not coming home, sneaking boys into the house, continuing to have sex, and she stayed out all night once, and lied, saying that she had been jumped.

 

2 On September 8, 2011, I.L. received after school detention for being disruptive on the school bus. On September 14, 2011, I.L. was again disruptive on the school bus, calling a girl a "whore" and describing activities she engaged in with her boyfriend. As a result, I.L.'s school bus privileges were suspended. On September 19, 2011, I.L. was again disruptive and received lunch detention. The following day, the school district found evidence that I.L. was the target of an act of harassment, intimidation or bullying. On September 28, 2011, I.L. kicked a student in the groin and was observed to be wearing an inappropriate blouse. I.L. ran away from staff when confronted. On October 3, 2011, I.L. was disruptive in school by saying inappropriate comments to another student of a sexual nature and saying that the student was engaged in sexual acts. I.L. was required to complete a 500 word essay on the definition and negative effects of sexual harassment and complete fifteen hours of community service.

3 Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.