NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2094-12T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.C.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF R.S. and J.S.,

Minors.

__________________________________

July 31, 2014

Submitted June 2, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-186-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Fabiola E. Ruiz-Doolan, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, 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 (Sean P. Lardner, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, L.C., appeals from a judgment of abuse or neglect of her then thirteen-year-old son, R.S., during an attempted religious ritual to treat the child's misbehavior. The attempt to perform a "laying of the hands" prayer session included physical restraint of the child to the extent that he suffered visible injuries. We affirm.

Defendant lived with her son and daughter, the children's grandmother, and a male companion, F.B., who was described as the children's stepfather although he and defendant were not married. The Division of Child Protection and Permanency (the Division) first became involved with the family on May 18, 2010, after receiving a referral from R.S's school. The Division was informed that the boy had come to school with a puffed-up eye, and bruises on his face, neck, and back. The boy had tried to hide the injuries by wearing a hoodie. After his condition was discovered, the boy told the school nurse that his stepfather had grabbed and choked him the previous evening, hit him in the eye, and sat on his chest to hold him down.

In an interview the same day with a Division caseworker, the boy said that he was told to clean his room, during the course of which his stepfather hit him in the eye, put him in a headlock, pulled him down to the floor, and lay on top of him to the point where it hurt his shoulder and he could not breathe. While he was on the floor, his mother told him to pray, and his stepfather was "telling the demons to come out." After about six to eight minutes, his stepfather released him, and he went out the window to get air because he was having difficulty breathing. His shoulder hurt because of the weight of his stepfather. He said his parents often pray for the demons to come out, but this was the first time they physically restrained him in that way and injured him.

The caseworker observed bruising around both eyes with red dots, a scratch across the boy's neck, and a light bruise on his shoulder. The caseworker also spoke to the school psychologist, who said the boy had attempted suicide a few weeks earlier.

The caseworker interviewed defendant-mother, who reported that the boy had taken a DVD and a video game device out of her room without permission. He was not listening to her and his stepfather and not cleaning his room. She went to get the blessed oil to pray for her son in performance of the ceremony of "laying of the hands," as practiced in her church. F.B. put some oil on the boy's head and on his own hands. The boy would not cooperate and began fighting with F.B. He was jerking around, and so, defendant-mother held him down by the hip area and F.B. had the boy's head in a headlock. Although F.B. had a choke hold as he and the boy fell to the floor, he immediately released the hold into a lesser restraint, and a wrestling match ensued between stepfather and son.

Defendant said that her son had redness in his eyes from rubbing his face in the carpet. In addition, the boy cut his finger during the incident as he was flailing about and broke a glass picture frame. Defendant confirmed that, at an earlier time, the boy had talked of killing himself with a shoelace around his neck, but she had stopped him.

The caseworker then interviewed F.B., who said the family is Christian with Pentecostal background. He said the boy would hurt himself or talk about hurting himself. On the night of the incident, F.B. was trying to pour oil on the boy s head as part of the ritual and was holding him from behind. They fell to the floor when the boy started acting out. He tried to restrain the boy because he knew it was the demonic oppositions coming out, and they continued to pray as he lay behind the boy holding him. F.B. said that the boy may have bruised his eye as he was shaking his head in the carpet.

The caseworker spoke with Dr. Urban at AtlantiCare Medical Center, who examined the boy that day. The doctor said "the redness dotted area around [the child s] eye was petechiae and abrasion from possible strangulation." He also said that bruising on the child s neck was consistent with being put in a choke hold.

On May 18, 2010, the Division filed a verified complaint and obtained an order to show cause for care, supervision, and physical custody of the boy and his younger sister.

On May 19, 2010, the boy was evaluated by Stephanie Lanese, M.D., at CARES (Child Abuse Research Education & Service) Institute. Upon physical examination, Dr. Lanese reported that the boy "demonstrated petechiae around both eyes, eyelids and the soft pallet of the mouth . . . a scratch on the right side of the neck, bruising on the left shoulder, and a small scratch on his back . . . [and] a small laceration on his left hand." The doctor further stated:

The petechiae or red small dots are consistent with strangulation. Strangulation causes these petechiae to occur in the soft tissues of the face, especially around the eyes and in the mouth on the small pallet. His history of not being able to breathe and having trouble swallowing after the fact are also consistent with strangulation.

In addition to these medical opinions, Dr. Lanese also wrote in her report that what happened to the boy is considered excessive even though "the laying of hands, which may be done by pastors and other Christian representatives, is considered a religious means of improving behavior problems." She further stated: "[t]he laying of the hands should be done in a controlled environment, which would not cause pain or injury to the child when doing so. This should not include strangulation or kneeling on the chest, which can lead to severe sequelae such as hypoxia [lack of oxygen in the blood] or even death."

Defendant testified at a hearing in May 2010 on the return of the order to show cause. She explained that her family is Christian and deeply religious. Her church practices the "laying of the hands" ceremony when members pray for one among them. F.B. is a minister of the church and was attempting to treat her son's misbehavior and disobedience when the incident of May 17, 2010, occurred in their home.

Defendant further testified that her son was disobeying her request that he clean up broken glass in his room. The boy was not acting like himself, and so, she and F.B. decided to pray for him and perform the "laying of the hands," which she described as "just holding their head, heart, or wherever on their body, and just pray over them." She testified that F.B. went to go get the oil, put some on his hands, and on the boy s head, but the boy started to fight. She said they tried to "restrain him and calm him down" so he would not get hurt on the broken glass or fall down the steps. She described F.B. as lying to the side of the boy with his upper body across the boy s shoulders, while she had her hand on her son s back and was praying. Defendant testified that her son was "fussing. . . yelling really mean things . . . started to squirm around on the ground . . . and rocking his head back and forth in the carpet."

She said after the incident, she tended to her son s injured finger and put some ice on his eyes. The boy apparently suffered injury to his eye and face when he was down on the floor, not because he was struck by F.B.

The family court nevertheless found that the boy was at risk of harm and granted temporary custody and supervision to the Division. The boy was placed in a foster home for several months, until the court authorized his return home to defendant in October 2010. F.B. was later permitted to resume residing at the home with defendant and the boy in January 2011.

On June 18, 2012, F.B. was dismissed from the Title 9 abuse or neglect case. Before that date, he had pleaded guilty to criminal charges and a Title 9 finding against him arising from the incident. With respect to defendant-mother, the family court conducted a civil fact-finding hearing on the Title 9 allegations in October 2012. Defense counsel offered in evidence defendant's testimony from the order to show cause hearing, and the Division did the same with respect to the caseworker's testimony from the earlier hearing. Two Division reports and the records and reports of Drs. Urban and Lanese were also admitted in evidence without objection, except that defense counsel requested generally that the court disregard inadmissible hearsay. After reviewing the evidence, the court placed its decision on the record on November 29, 2012, and executed a fact finding order the same day concluding that defendant's conduct constituted abuse and neglect of her son.

On appeal, defendant contends there was insufficient evidence to find abuse and neglect.

The safety of children is the paramount concern in Title 9 abuse or neglect cases. N.J.S.A. 9:6-8.8. The Division must prove abuse or neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). Abuse or neglect is defined by N.J.S.A. 9:6-8.21(c), in relevant part as follows:

"Abused or neglected child" means . . . (4) . . . 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, as herein defined, to exercise a minimum degree of care . . . (b) . . . 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; . . . (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others, or property.

Here, the trial court found that defendant failed to provide a minimum degree of care for her son, allowed her son to be the victim of excessive corporal punishment by F.B., failed to protect him against harm, and knowingly participated in an incident that resulted in injury to her son requiring medical attention. The court concluded that the incident was more than a religious ritual since the boy had suffered significant injury.

A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). This deferential standard of review is especially appropriate because of the family court s "specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

An appellate court may expand its highly deferential scope of review when the alleged error does not involve credibility of witnesses but instead turns on the trial court's application of the law to the underlying facts and the implications the court draws from those facts. G.L., supra, 191 N.J. at 605. Nonetheless, an appellate court should only disturb the trial court's findings and conclusions if they are "so wide of the mark that the judge was clearly mistaken." Ibid.

In this case, the trial court's findings were supported by adequate, substantial, and credible evidence, including testimony at the order to show cause hearing, which contained statements of witnesses and a description of the boy's physical condition the next day at school. The judge referred to "the injuries described by the reporter, and by all indications the reports that came from the child's school, that he came to school with his eyes puffed up, had bruises around and all over his face, all of his neck and on his back. He was complaining that his chest hurt, his ribs were hurting." Dr. Urban's findings on examination of the child were echoed by similar findings of Dr. Lanese the following day. Dr. Lanese reported "petechiae around both eyes, eyelids and the soft pallet of the mouth [which was consistent with strangulation], a scratch on the right side of the neck, bruising on the left shoulder . . . a small scratch on the back of his back . . . [and] a small laceration on his left hand." While the injuries were not life-threatening or permanent, they were serious enough that the boy attempted to hide his face in school by wearing a hoodie.

The court also relied on the boy's report of what had occurred when he spoke to the Division caseworker. The court found that the boy's version, rather than defendant's and F.B.'s versions, was corroborated by the physical manifestations of the injuries. The judge stressed that during the incident the boy was held in a choke hold and the weight of his stepfather on top of him during "the wrestling match" restricted the boy's breathing and he needed several minutes to recover after he was released. The court found that the boy was placed at a substantial risk of harm as evidenced by the physical signs of strangulation and the bruising of his body. The court also rejected as lacking credibility defendant's testimony that she and F.B. restrained the boy because they were trying to protect him from harming himself on the broken glass or by falling down stairs.

The court's oral opinion did not refer to the specific statutory basis of its finding of abuse or neglect. However, the court's order of November 29, 2012, cited N.J.S.A. 9:6-8.21(c)(4), and not the excessive restraint provision of subsection (6) of the same statute.

We find no reason to disturb the trial court's findings of fact and conclusions of law. In N.J.S.A. 9:6-8.21(c)(4), "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 Servs., 157 N.J. 161, 178 (1999). The Division was not required to prove that F.B. intentionally harmed the boy or that defendant allowed such intentional harm. There was sufficient evidence from which the court could conclude that F.B. inflicted harm and defendant was at least grossly negligent in allowing F.B. to inflict harm on the boy. There was also sufficient evidence that the boy was impaired and in imminent danger of becoming impaired as a result of defendant's failure to exercise a minimum degree of care for his protection and safety. N.J.S.A. 9:6-8.21(c)(4)(b).

Defendant contends next that the trial court erred in discrediting her religious purpose in addressing the disobedience and misbehavior of her son. She relies on the provision of N.J.S.A. 9:6-8.21(c) that states:

No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

The trial court requested briefs and legal argument on the application of that statutory provision. It then ruled that the provision was in the nature of an affirmative defense and defendant bore the burden of proving her conduct came within its terms. We agree. While the Division had the burden of proving abuse or neglect by a preponderance of the evidence, N.J.S.A. 9:6-8.46(b)(1); N.J. Div. of Youth & Family Servs. v. R.D., 412 N.J. Super. 389, 402 (App. Div. 2010), the burden was on defendant to prove the affirmative defense that the incident occurred as a religious ceremony that constituted treatment of the child by spiritual means.

The court determined that defendant did not prove her actions and those of F.B. qualified as good faith treatment of the boy by spiritual means, in accordance with the tenets and practices of a recognized church, and by a duly accredited practitioner. Defendant testified about the "laying of the hands" ceremony practiced in her church, but neither defendant nor any other witness suggested that an unwilling teenager could be restrained against his will to the point of injury in order to complete the ceremony. Furthermore, defendant's testimony was not sufficient to prove that F.B. was a "duly accredited" practitioner of the ceremony, as required by the statute.

Most significant to the trial court's decision, F.B. became violent in restraining the boy, and the boy was in pain and was injured as a result. He could not breathe, and the physical injuries showed signs of strangulation. Even though F.B. and defendant may not have intended to strangle the boy, the conduct descended to that level of forcible restraint and could not be considered good faith spiritual treatment of the boy. The court did not err in concluding that the evidence did not support a defense under the quoted provision of N.J.S.A. 9:6-8.21(c).

Defendant also argues that the court improperly relied on the report of Dr. Lanese regarding the correct manner of conducting the "laying of the hands" ceremony. We agree that, as a medical doctor, Dr. Lanese was not qualified to provide evidence on the tenets of defendant's religion, but the portion of her report that opined on the ceremony was extraneous to the court's decision. The court did not need the doctor's opinion to conclude that the actions of F.B. and defendant went beyond "treatment by spiritual means alone through prayer." Ibid. Admission of Dr. Lanese's opinion about the proper manner of conducting the religious ceremony was harmless error.

Finally, defendant contends she received ineffective assistance of counsel at the fact finding hearing. She contends her attorney failed to object to hearsay offered by the Division caseworker regarding what Dr. Urban told her about the child's injuries, and also hearsay contained in Dr. Lanese's report that the injuries were consistent with strangulation. She argues her attorney should have insisted that the doctors be called as live witnesses so that counsel could cross-examine and discredit their conclusions. In addition, defendant contends her attorney failed to call witnesses on behalf of defendant to support her claim that her actions were part of the "laying of the hands" ceremony of her church.

Defendant's due process right to effective assistance of counsel in a Title 9 abuse or neglect case is judged by the same two-prong test as the Sixth Amendment right to effective assistance of counsel in a criminal case. N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 346-47 (App. Div.), certif. denied, 192 N.J. 296 (2007). As set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J.42, 51-52 (1987), defendant must first show that counsel's performance was "deficient," which requires a showing that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant" by the constitution. The burden of proving the first prong of the test is formidable because the courts recognize a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S.at 689, 104 S. Ct.at 2065, 80 L. Ed.at 694.

Second, defendant must show that "the deficient performance prejudiced the defense," which requires a showing that the court's judgment "resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693. Prejudice must be proven by showing there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. at 698.

Here, the Division caseworker's testimony about what Dr. Urban told her was cumulative information that was already contained in the medical records of AtlantiCare Medical Center admitted in evidence. Those records were admissible in a Title 9 abuse or neglect case pursuant to N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), and In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). The caseworker's testimony did not add significantly to the contents of the admissible records.

Furthermore, Dr. Urban's statement that the marks on the child's neck and face were consistent with strangulation was not meant to suggest that F.B. intentionally tried to strangle the child. Rather, it was offered to prove that the boy suffered injuries as a result of F.B.'s headlock and choke hold, both of which defendant admitted had occurred.

Likewise, Dr. Lanese's medical conclusions about the nature and cause of the boy's injuries were consistent with the medical records and did not go beyond the admissions in defendant's testimony. Defense counsel's failure to insist on live testimony by the doctors so that they might be cross-examined did not prejudice defendant.

With respect to calling witnesses to testify about the "laying of the hands" ceremony, the certifications of potential witnesses now proffered by defendant do not assist her in justifying the violent restraint of her son to perform the ceremony. Defendant has not proffered any testimony that the specific conduct of F.B. and defendant that was alleged to constitute abuse or neglect was acceptable in her church in performing the religious ceremony.

Defendant did not present a prima facie case of ineffective assistance of counsel. There was no violation of her due process rights in the legal representation provided for her at the abuse or neglect fact finding hearing.

Affirmed.