NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.R.S.

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NOT FOR PUBLICATION WITHOUT THE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.R.S.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF M.S.,

A Minor.

_____________________________

October 14, 2014

Submitted September 30, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0434-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.S. (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

Defendant F.R.S. appeals from a September 25, 2012 fact finding order determining that he abused his son M.S. within the meaning of Title 9, N.J.S.A. 9:6-8.21(c)(4)(b).1 We affirm.

The case involves a claim of excessive corporal punishment. According to Jannibell Romero, an investigator for the Division of Child Protection and Permanency (Division), on February 13, 2012, the child's school called the Division to report that M.S. came to school late and told the school nurse that his father hit him that morning. Romero and a colleague went to defendant's home that evening. When they interviewed the child, he told them that his father hit him on his arms and the palms of his hands "about five times" with a belt, after finding out that the child had lied to him about a disciplinary note from school. The child explained that the father told him to go get the belt and then hold his arms out with his palms open while the father hit him.

Romero photographed the child's arms during the visit, using the digital camera in her cell phone. She also photographed the belt the father admitted he used. Romero authenticated the photographs and identified the bruises on the insides of the child's arms and wrists, which were depicted in the photographs. She testified that the child confirmed to her that the bruises were caused by blows from the belt. The color photographs were admitted in evidence.2

The child told Romero that "it had happened before, that this was not the first time, that every time he gets in trouble really bad[,] as he describe[s,] he gets actually hit with a belt." The child told Romero that his father did not always hit him on his arms. According to Romero, "he told me that he gets hit in his behind, his arm and his legs." He also told her that it "hurts a lot."

The father confirmed to Romero that the child's statements to her were true. He admitted hitting the child "five to eight time[s] and . . . at least four time[s] on each arm." The father expressed no remorse to Romero, telling her that his parents had punished him the same way when he was a child, and he did not think the punishment was excessive. He also admitted he had punished the child this way before. He did state to Romero that "he tends to get too aggressive when his child misbehave[s] and when he's disciplining the child." But he explained that he "wasn't raising his child to be like a street child." He told Romero that he would hit the child again "if he has to."

Defendant testified that he told the Division investigators that he "completely disagreed with that being corporal punishment." He told them he "did not know that that [Title 9] law existed and that because of the law I would have to adhere to that law," but he did not believe what he had done was excessive corporal punishment under the law. On cross-examination, he admitted that he now understood that excessive corporal punishment included that which left "excessive marks or bruising." He denied telling Romero that he would hit the child with a belt in the future.

In an oral opinion placed on the record at the end of the fact finding hearing, Judge Lois Lipton found that the facts were essentially "uncontroverted." Based on her view of the photographs and testimony, she found that the child was struck several times with the belt, which "caused bruising on the arms, up and down the arms, [and] on the hands." The judge found that "if anything, the bruises are probably under-represented rather than over-represented" by the photos. However, she noted there were "marks going down the arm from above the elbow to the wrist and they're on the side of the wrist, underneath the wrist substantial bruising." She also noted that during her testimony, Romero had indicated that the bruises were up and down the arms "from practically the shoulder . . . to . . . the palms of the hand.3 Those are substantial bruises. It's black and blue. It's it's red. It had to have inflicted some serious pain."

The judge reasoned that, although the father thought he was "doing the appropriate thing," the issue was not "the parent's culpability but . . . the protection of the child." She also considered that this was not an isolated incident, but something that had happened before. The judge distinguished New Jersey Division of Youth and Family Services v. P.W.R., 205 N.J. 17 (2011), because in that case the mother slapped a teenager in the face once with an open hand, without leaving any marks or bruises. In this case, the judge found that the father had inflicted excessive corporal punishment, leaving bruises, in violation of Title 9.

On this appeal, we are bound to accept Judge Lipton's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). While we review a trial judge's legal conclusions de novo, we owe particular deference to the judge's expertise in family-related issues. Id. at 448; Cesare v. Cesare, 154 N.J. 394, 413 (1998); Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). Based on our review of the record, including the color photographs of the child's injuries, as well as Romero's testimony as to what she observed, we find no basis to disturb Judge Lipton's well-reasoned decision.

Title 9 defines child abuse as including a parent "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment." N.J.S.A. 9:6-8.21(c)(4)(b). The Division's regulations define "the types of injuries or risk or harm that may be abuse or neglect" as including "bruises, abrasions, [and] welts." N.J.A.C. 10:129-2.2. "Abuse and neglect cases are generally fact sensitive" and require "careful, individual scrutiny." P.W.R., supra, 205 N.J. at 33. Factors the court may consider include the child's age, whether the parent intentionally inflicted the punishment, the physical effect on the child such as the presence of bruises or other signs of injury, and whether the parent "disregarded the substantial probability" that the child would be injured by the parent's conduct. Id. at 33-34; N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). At a fact finding hearing, the Division must prove its allegations by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).

We agree with Judge Lipton that hitting a child several times with a belt, with sufficient force to leave large bruises up and down his arms and wrists, constitutes excessive corporal punishment. The fact that the parent had inflicted this type of punishment multiple times in the past, on various parts of the child's body, further supports a finding of abuse. We also find that, even if the father believed that corporal punishment was appropriate, he should have known that the punishment he was imposing was excessive. In fact, he admitted to Romero that he sometimes got carried away in hitting the child.

On this appeal, defendant relies on P.W.R. and K.A. in arguing that the punishment did not constitute child abuse. We cannot agree. As Judge Lipton noted, P.W.R. is distinguishable, because it involved one isolated instance when a parent lost her temper and slapped her teenage daughter with an open hand, leaving no marks or bruises. P.W.R., supra, 205 N.J. at 35-36. Likewise, K.A. involved an unusual situation in which a harried parent, dealing alone with extraordinary stress, momentarily lost control and struck her child on the shoulder. K.A., supra, 413 N.J. Super. at 512-13. The incident was "aberrational" and not part of a pattern of abuse. Ibid.

By contrast, this case did not involve an idiosyncratic situation where an overwhelmed parent momentarily loses control. The father had time to react more thoughtfully and to choose a different form of punishment. Further, as the judge found, what occurred here was part of an intentional pattern of discipline which was excessive even if the father in good faith believed it was appropriate. On this record, we find no basis to second-guess Judge Lipton's decision. Defendant's additional arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The September 25, 2012 order was perfected for appeal when the trial court entered a final order on May 6, 2013 terminating the litigation.

2 Defendant's appendix improperly provided us with black and white photocopies of the color photographs, which do not show the bruises. The Division's appendix provided us with color copies, in which the bruises are visible.

3 That description was consistent with the investigator's contemporaneous written report of what she observed during the home visit. The report was introduced in evidence.