NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.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NOT FOR PUBLICATION WITHOUT THE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.

S.W.,

Defendant,

and

J.W.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF J.W. AND J.W.,

Minors.

_____________________________________

July 2, 2014

 

Submitted May 5, 2014 Decided

 

Before Judges Harris and Sumners.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-506-11.

 

Howes & Howes, attorneys for appellant (W. Timothy Howes, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nora Pearce, Deputy Attorney General, on the brief).

PER CURIAM

Defendant, J.W. (Jerry)1, appeals the March 19, 2012 Family Part Order finding he abused or neglected his two sons pursuant to N.J.S.A. 9:6-8.21(c)(4). We affirm based upon our review of the record and applicable law.

I.

The record reveals the following facts. S.W. (Sue) and Jerry were divorced in 2003. They have two sons, Jay, born in 2000, and Jon, born in 2003. Their contentious divorce and lengthy custody battle in Pennsylvania resulted in shared custody of their sons. In accordance with an August 28, 2009 custody order, during the school year, Sue has primary custody, and Jerry has the boys every other weekend and on Wednesday nights. During the summer, the responsibilities switch, Jerry has primary physical custody on weekdays, absent the days the boys are at camp, and Sue has them every other weekend as well as every other Thursday. Sue now resides in New Jersey2, while Jerry continues to reside in Pennsylvania.

On April 19, 2011, the New Jersey Division of Child Protection and Permanency (Division) received a report involving an incident that had occurred between Jerry and Jay on April 17, 2011, during the boys' weekend visit. According to the report, Jay indicated that "his dad picked him up from his collar twice and scratched his nose." It was also reported that Jay asserted "that his father is very abuse [sic] toward him and his little brother Jon." Thereafter, another referral was received from a school guidance counselor regarding Jerry's abusive conduct towards Jay and Jon during their weekend visits at his home.

The Division subsequently launched an investigation. Erica Bauman, Division caseworker, visited Sue's home on April 19, 2011, to interview Sue, Jay, and Jon.

Sue confirmed that she was aware of the incidents reported, but "appeared reluctant to speak negatively about her ex-husband [,] saying the boys are going through a defiant period." She stated that she had spoken with Jay about the injury to his nose when he returned home from his weekend visit. In the Division's investigation report, Sue provided her understanding of the April 17, 2011 incident:

[Jay] [had] indicated he was getting upset with his father while sweeping the basement floor due to being given a series of chores to complete so he told his dad he was driving him crazy. . . . [Jay] [told her] his father got angry with him for being disrespectful[,] so he picked him up by his throat[,] lifting him to the basement ceiling[,] then dropping him on the floor and repeated the action of picking him up and dropping him [to the floor] a second time. . . . [Jay told her] he went to put away his coat upstairs after the incident as directed by his father and realized he was bleeding from his nose. . . . Jay [advised her that he] thinks his father scratched him in the face when he dropped him.

 

Sue indicated that Jay did not receive any medical attention for the abrasion because it was healing properly from Neosporin that was applied.

Sue also confirmed that she was aware of an April 4, 2011 incident involving Jerry and Jon in which, "Jon was slapped in the face by his father and had a hand print mark on this [sic] face." Sue indicated that she had no knowledge of what prompted the incident; however, "there have been physical altercations [involving the children and Jerry in] the past several visits."

In addition, Sue revealed another incident that took place six days earlier, on or about April 13, 2011, when the children visited Jerry. The children told Sue that they were arguing in their bedroom at their dad's house. Jay and Jon, independently, told her that when their dad entered the bedroom to stop the argument, "[Dad] threw [Jay] into the closet[,] causing him to hit his head and cut his foot on [a] protruding nail[,] and Jon was thrown toward the bed[,] causing [Jon] to hit his head on the bedpost."

Sue also stated that she did not contact Jerry regarding any of these incidents because they do not communicate directly, but rather contacted a Division parent coordinator to express her concerns.

Bauman then interviewed Jay, ten years old at the time, away from his mother and brother, concerning the allegations. She observed "a small abrasion on the tip of [his] nose." Jay stated that the abrasion happened on April 17, 2011, during his weekend visit with his dad. Bauman's report provided,

[Jay] was trying to complete one chore (sweeping the basement floor), his dad gave him two more things to do. [Jay] said he got frustrated trying to do all the things at once and told his dad he was driving him nuts. . . . [Jay] reported his father lifted him up yelling, "That's disrespectful," then dropped him on the floor and lifted him up a second time then dropped him on the floor again. [Jay] said after he was dropped the second time, his dad told him to go pick up his coat. [Jay] said he picked up his coat then went to finish sweeping the basement and felt his nose running. [Jay] said he then went to the bathroom and discovered his nose was bleeding[,] so he cleaned his nose and put Neosporin on it. Bauman asked [Jay] how his father lifted him up. [Jay] reported he "grabbed" him up by his neck and demonstrated the action for Bauman by wrapping his hands around his neck. Bauman asked how high he lifted him, [Jay] reported he almost touched the basement ceiling. Bauman asked how he landed when his father dropped him. [Jay] reported he landed on his knees both times. [Jay] reported no marks or bruises but said his knees were sore.

 

Jay also told Bauman about an April 4, 2011 incident, which he did not observe. Jon told Jay their dad "smacked and punched [Jon] a couple of times." And when Jon pushed back, his dad yelled at Jon and eventually spanked Jon with his belt. Jay said he saw a "red hand mark" on Jon's face.

Bauman also reported that Jay revealed another incident when there was an argument about cleaning their bedroom and his dad "picked him off the ground by his collar, then threw him against the wall causing him to hit his foot on a nail and his head on the wall." Dad then "threw Jon on the floor causing him to hit his forehead on the bed rail." Jay stated he is afraid of his dad and does not feel safe because he gets hit every time he visits his dad. This was the incident that Sue stated occurred on or about April 6, 2011.

Bauman next interviewed Jon, nine years old at the time, away from his mother and brother. Jon confirmed the facts in a referral regarding the April 4, 2011 incident, stating:

He asked his dad for the car keys that morning to wait in the car for his dad to take him to school. [Jon] said he wanted to sit in the back seat for "personal space" but [Dad] told him to sit in the front . . . [Jon] told Bauman he went inside and sat on the couch crying because he couldn t sit in the back seat. [Jon] said [Dad] came inside and told him to get up[,] then counted to five. [Jon] said he still didn t get up[,] so [Dad] grabbed him by the arm and dragged him to the basement door . . . [Jon] said he sat there crying and didn t get up. [Jon] said [Dad] grabbed his arm again and began dragging him back to the couch. [Jon] said they got halfway to the couch and [Dad] stopped and then told him to get up. [Jon] said he stayed on the floor crying so [Dad] got the belt and started hitting him . . . about two to three times. Next, [Jon] said [Dad] dragged him back to the couch and [Jon] sat on the floor in the front of the couch while [Dad] knelt beside him yelling at him. [Jon] said he told [Dad] he needs to be hit[,] then [Dad] slapped him in the face four to five times. [Jon] said he then began punching and hitting Dad back. [Jon] said he had a red mark on his face [as a result of the altercation].

 

Jon stated he did not go to school after his dad slapped him on the face that morning. Like Jay, Jon told Bauman he was afraid of his dad and does not feel safe around him because he hits him every time he visits his dad.

On April 20, 2011, the Division contacted the Child Protective Services of the Department of Human Services (DHS) in Philadelphia to report the two incidents that occurred at Jerry's Pennsylvania residence. DHS subsequently determined the allegations of child abuse to be unfounded. Despite the finding of no child abuse, Jerry was referred for services, in which he voluntarily enrolled.

On separate occasions in April and May 2011, Jay and Jon were interviewed by Dr. Marita Lind, M.D., Assistant Professor of Pediatrics, New Jersey Cares Institute, for diagnosis and treatment of any residual effects due to physical abuse they may have experienced. Based upon her interviews and review of the Division's records, Dr. Lind reported that Jerry applied excessive force to punish both boys to the point that they feared him. She also recommended that Jay and Jon "would benefit from seeing a mental health professional who can determine an appropriate treatment plan for [their] experience of physical abuse."

On May 11, 2011, the Division executed an emergency removal of Jay and Jon to protect them from the violent episodes reported during their visits with Jerry.

On May 13, 2011, at an order to show cause hearing, the Family Part judge found that Jay and Jon's removal was appropriate for their overall safety due to the threat of imminent danger. Furthermore, Jerry was ordered to complete evaluations for psychological and psychiatric, domestic violence, and substance abuse. The court placed Jay and Jon in the Division's care and supervision. Jerry was granted liberal visitation rights supervised by the Division.

On June 16, 2011, at the continued order to show cause hearing, the court maintained the Division's care and supervision of Jay and Jon, but ordered that Sue have legal and physical custody of the boys. It was further ordered that Sue undergo substance abuse evaluation and treatment.

On July 21, 2011, the Family Part judge held separate in-camera interviews with Jon and Jay. Neither party s attorney submitted questions to be asked in the interviews.

Fact-finding hearings were held on December 16, 2011 and February 16, 2012. The aforementioned reports by the Division and Dr. Lind were admitted into evidence.

Sue testified that her children have been fearful of Jerry due to the April 2011 incidents. She also stated that Jerry's temper flared again in December 2011 at the hospital when Jerry had a heated argument with Jon over homework. She maintains the argument would have escalated if other people were not present.

Jerry testified regarding his version of the incident with Jon on April 4, 2011:

[T]he kids were already dressed and I was getting my stuff on, and [Jon] comes in, he asks for my car keys and one of the things with the children is they, I have a third row seat in the car and the kids, they both like to sit in the third seat. . . . So one of the things I have done because they like to act up in the car, I would allow only one of them to sit in the third, back seat . . .

 

So [Jon] was trying to do like a preemptive strike so he comes and asks for the car keys and I tell him no. He, you know, he gets a little upset and he continues to ask me for the same thing, and I repeatedly tell him no, you can t have the car keys. So eventually once I m dressed and we are downstairs I m telling [Jon] at this point, you know, you have to get your coat on because we have to go to school. . . .[Jon] can be stubborn like that sometimes, so eventually as sort of a, as a way to get him motivated to put his coat on, I said to [Jon], if you do not put your coat on, I m going to not allow you to take your Gameboy and he says back to me, my mommy bought it for me. So I said okay. So I pulled out my cell phone and I called, you know, their mother on the speaker phone, and so I said to [Sue] with [Jon] present, I basically summarized what [Jon] was doing and said I m letting you know this because I m going to keep [Jon s] game because of this behavior. So she says, okay, she says something basically like, listen to your father . . . [then I tell him] to get your coat on. He's still refusing so I take and, you know, hold the coat out and I put the coat on him. He still refuses to move, so I load up all my bags on me and I go to pick [Jon] up and I just throw him over my shoulder . . . to carry him out . . . . Well when we get to the door [Jon] grabs onto the side of the door, he won't let the door go, so I m steadily talking to him, [Jon] we have to go, you know, and I tell him if you don't let the door go, then I'm going to take you back in and I'm going to give you a spanking . . . he still is refusing . . . and I tap him on his backside like two times [with an open hand] . . . I actually take my belt and I tap him on his backside twice with the belt.

 

. . . .

 

The boy, he was upset, understandably so, but no, no injury.

 

Furthermore, Jerry testified regarding the April 17, 2011, incident. He stated, while Jay was sweeping the floor he admonished Jay for not hanging up his jacket, and Jay told him he gets on his nerves,

[s]o that catches me off guard a little bit, you know, no big deal, he's a kid, kids can do stuff like that, so when he got close to me I picked him up by the shoulders, picked him up basically eye level and I gave him the same speech or sermon my parents have given me, you know, I'm not your friend, I'm your father, you don't talk to me like that . . . [I] lift him up like twice . . . not very high, so when I bring him back down, I bring him back to the floor, he recoils his legs back, and so when I go to set him down he just falls down a little bit to the ground. . . . I said now go back upstairs and hang your coat up.

 

. . . .

 

When he comes back down he says, dad look at my nose. So when I see the nose, he has a scratch on his nose, I say okay, go upstairs, [and] get the Neosporin, get the peroxide, . . . we meet in the kitchen.

 

On numerous occasions throughout his testimony, Jerry tried to convey to the Family Part judge that the allegations against him happened against a larger background of his long-standing contentious relationship with Sue, and this fit a pattern of allegations against him in Pennsylvania that were deemed to be unfounded.

On March 19, 2012, the Family Part judge issued an oral opinion and accompanying fact-finding order, and ruled that based on his findings of fact and conclusions of law pursuant to N.J.S.A. 9:6-8.21(c), Jerry "not only perpetrated two specific acts of purposeful physical abuse against both children, but he also perpetrated emotional harm/abuse by creating an environment of fear in which they had to endure during most of [Jerry's] parenting time." This appeal followed in which Jerry raises the following issues:

POINT ONE: THE PROCEDURAL ERRORS MADE BY THE TRIAL COURT DEPRIVED THE APPELLANT OF BASIC DUE PROCESS RIGHTS. [NOT RAISED BELOW]

 

POINT TWO: THE DIVISION HAS FAILED TO PROVE THAT THE CHILDREN WERE ABUSED OR NEGLECTED CHILDREN UNDER N.J.S.A. 9:6-8.21.

 

POINT THREE: THE COURT MUST ORDER THE DIVISION TO REMOVE THE APPELLANT FROM THE CENTRAL REGISTRY BECAUSE THE UNDERLYING STATUTE IS UNCONSTITUTIONAL. [NOT RAISED BELOW]

 

II.

We first address Jerry's contention that his due process rights were violated by a New Jersey court adjudicating this matter, and the "exclusion of evidence regarding his contentious history with his ex-wife" and DHS's finding that no abuse or neglect occurred. We conclude that his due process rights were not violated.

Although the Division correctly points out that Jerry did not raise at trial the issue of whether the New Jersey courts lacked jurisdiction over this matter, we must consider the question of a trial court's jurisdiction if initially presented on appeal. State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

In accordance with the "Uniform Child Custody Jurisdiction and Enforcement Act" (UCCJEA), N.J.S.A.2A:34-31, the courts of New Jersey have jurisdiction to determine a child custody or visitation matter, whether it is permanent or temporary, if New Jersey is the "home state" of the child at the commencement of the proceeding, or was the home state within six months before the proceeding's commencement and the child is now absent from the state but "a parent or person acting as a parent continues to live in this State." Innes v. Carrascosa, 391 N.J. Super. 453, 482 (App. Div. 2007). A "home state" is defined as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months immediately before the commencement of a child custody proceeding . . . [including a] period of temporary absence[.]" Id.N.J.S.A.2A:34-30(e).

Furthermore, "determination of the child's legal residence or domicile is unnecessary as the statutory language 'lived,' included within the definition of home state, connotes physical presence within the state, rather than subjective intent to remain."Sajjad v. Cheema, 428 N.J. Super. 160, 172-73 (App. Div. 2012).

Here, the record provides substantial evidence that the children's "home state" is New Jersey. Jay and Jon live the majority of the time with their mother in New Jersey. They have lived in New Jersey with their mother more than six consecutive months prior to the commencement of the within proceeding. The only time they are in Pennsylvania is when they temporarily visit their father. They attend school in New Jersey. During the school year, they visit their father every other weekend and Wednesday nights. In the summer, they are with him except every other weekend and every other Thursday.

The fact that a Pennsylvania court granted Sue and Jerry s divorce in 2003, and later issued a custody order, the UCCJA does not require that Pennsylvania retain jurisdiction to resolve the present abuse allegations, and its effect on the custody of the boys. SeePozzi v. Pozzi, 210 N.J. Super. 522, 525 (Ch. Div. 1986) (holding that under the UCCJA, commencement of the proceedings refers to the present proceedings and not the place where the divorce or custody orders were obtained). Where a custody matter commences in one state, it may move to another state that has a "significant connection" or where there is "substantial evidence". Griffin v. Tressel, 394 N.J. Super.128, 142-45 (App. Div. 2007). For this consideration, pursuant to N.J.S.A.2A:34-71(b), the court weighs the following relevant factors:

whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

 

the length of time the child has resided outside this state;

 

the distance between the court in this State and the court in the state that would assume jurisdiction;

 

the relative financial circumstances of the parties;

 

any agreements of the parties as to which state should assume jurisdiction;

 

the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;

 

the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

 

the familiarity of the court of each state with the facts and issue of the pending litigation.

 

[Id. at 148-49.]

 

Indeed, courts of other jurisdictions applying the UCCJEA have established that a "'significant connection' [exists] when the parent who remains in the state in which the custody order was entered exercises parenting time." Id.at 146-47. Nevertheless, similar to the facts of this case, courts posed with such a question have concluded temporary absences are encompassed under the "home state" rule along with court-ordered visitations. Cheema, supra, 428 N.J. Super.at 173 (citing In re Lewin, 149 S.W.3d 727, 739 (Tex. App. 2004)).

Here, the statutory factors (1), (2), (7), and (8) weigh heavily in favor of New Jersey as the more appropriate forum. As noted, the children live the majority of the time in New Jersey with their mother. The complaints of abuse against Jerry are the only reason to consider modification of Sue and Jerry s custody arrangement.Through the reports, assessments, and testimony revealing abuse towards Jay and Jon, and their feeling of fear and danger while in Jerry's custody, New Jersey is the place to provide them protection.

Since we conclude the boys and Sue have a "significant connection" with this state, "it is unnecessary to consider whether there is 'substantial evidence' in this state. One of the alternative bases for continued exercise of exclusive jurisdiction pursuant to N.J.S.A. 2A:34-66a(1) is satisfied." Griffin, supra, 394 N.J. Super. at 148. Accordingly, we conclude New Jersey has subject matter jurisdiction over this matter.

We next address Jerry's contention that the Family Part judge barred him from presenting evidence regarding DHS's dismissal of the April 2011 abuse allegations and his contentious relationship with Sue resulting in previous unfounded abuse claims brought against him in Philadelphia.

We start with the premise that substantial deference is given to a Family Part judge's evidentiary ruling. State v. Morton, 155 N.J. 383, 453 (1998). Here, the Family Part judge allowed the submission of documents and minimal testimony detailing the volatile history between Jerry and Sue. The Division's report mentions that a violent history played a significant part in their divorce. However, the Family Part judge elected not to elicit expansive testimony regarding such history, but rather relied on the evidence regarding the present allegations of abuse to find that Jerry could not control his anger, which led to excessive punishment of his sons and caused them to fear him.

The abuse or neglect statutes expressly [35] require that the court assess risk to the children. N.J.S.A.9:6-8.21(c). Rightly, the Family Part judge focused his concern with the current allegations involving the children. Any testimony going towards past animus does not meet the standard of relevance defined by N.J.R.E. 401, as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Moreover, eliciting testimony regarding Sue and Jerry's prior history would have presented a history of domestic violence, which would have been subject to exclusion as prior crimes, wrongs or acts under N.J.R.E.404(b).3

In this case, we conclude the Family Part judge did not abuse his discretion in limiting the testimony regarding the parties' contentious history or the findings reached by an agency in another state. Jerry sets forth no authority to support his argument that evidence regarding his prior relationship with Sue should have been admitted. He fails to indicate how this evidence is relevant and probative to the allegations of abuse against him that are principally based upon the allegations by his sons. The Family Part judge was clearly aware of DHS's determination, but did not abuse his discretion by giving it no significance, instead considering the credible evidence of abuse presented by the Division.

We next address Jerry's contention that the Division failed to prove that he abused his sons pursuant to N.J.S.A.9:6-8.219(c). Our analysis begins with a review of the applicable legal principles.

The scope of our review affords deference to the Family Part judge. First, deference is accorded to the Family Part judge's fact finding. J.D. v. M.A.D., 429 N.J. Super.34, 42 (App. Div. 2012) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Second, there is special deference given to the Family Part's particularized jurisdiction in family matters based on its expertise in the field of domestic relations. SeeN.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 216 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J.365, 382 (1999)); see alsoN.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 293 (2007) (noting that the trial court has the best "feel of the case").

Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." New Jersey Division of Youth and Family Services v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The Family Part judge's legal conclusions and application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.366, 378 (1995).

The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse or neglect. N.J.S.A.9:6-8.21 to 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super.323, 331 (App. Div. 1991)). A child less than 18 years of age is abused or neglected when the child's

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 . . . 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 similarly serious nature requiring the aid of the court[.]

 

[N.J.S.A.9:6-8.21(c)(4)(b).]

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence [.]" N.J.S.A.9:6-8.46(b); N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J.at 23 (citing N.J.S.A.9:6-8.21(c)(4)(b)).

The Family Part judge determined that the Division satisfied a showing of abuse or neglect by a preponderance of the evidence based upon its investigation and the testimony presented by stating:

Quite frankly, I can t imagine any interview of these children indicating that Dad does not extensively or horribly punish the children. The story of cleaning the floor was a further indication of how Dad is very hard on his children and while being hard in and of itself is not an indication of brutality but it certainly develops an element of this excessive punishment.

 

It s also indicated in a report that let s see, [Dad's] psychological report [Dad] presents as emotionally reactive and having difficulty accurately understanding his feelings and emotional states. He presents as being rather overinflated in his views of himself and also dismisses any personal problems. Then it goes on to recommend the need for therapy before any type of visitation should take place and that therapy or parenting time should take place in a therapeutic setting.

 

To indicate that there is no problem here, that there is no brutality here, the children aren t afraid of their father, is missing the totality of the facts here and as such the court finds that there is a Title 9 finding of abuse. I find it s a purposeful abuse of both children and it is specific instances described but it also indicated that there is a problem of longstanding.

 

These findings are consistent with the evidence presented in the record and we discern no error in the Family Part judge's finding of abuse or neglect in accordance with N.J.S.A.9:6-8.21(c)(4).

The record establishes that on April 4, 2011, Jerry slapped Jon, in the face and left a hand print on his face. On April 17, 2011, Jerry picked up Jay by his collar twice, resulting in a scratch on his nose, and twice dropped him to the floor. Assessments by a pediatrician, Dr. Lind, confirmed a history of abuse by Jerry towards Jay and Jon through regular corporal punishment which caused them to fear him.

Although the Family Part judge noted that there was no history of "many bruises, abrasions, [or] objective injuries," excessive punishment has caused the boys to develop a fear of their father. Under these circumstances, we agree with the Family Part judge that Jerry's conduct went beyond a display of moderate correction to discipline Jay and Jon. Accordingly, we conclude the Family Part judge's determination that Jerry abused or neglected Jay and Jon should not be disturbed.

Jerry's remaining claims are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

 

1 We use fictitious names to protect the confidentially of the children and for ease of reference.

2 The record is not clear when Sue moved to New Jersey, but her sons have been attending New Jersey schools since 2009.

3 N.J.R.E. 404(b) provides that, except for limited circumstances where credibility in a criminal matter is an issue, evidence of "other crimes, wrongs, or acts are not admissible to prove disposition of a person in order to show that person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to material issue in dispute."