NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.G.

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NOT FOR PUBLICATION WITHOUT THE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,1

Plaintiff-Respondent,

v.

A.G.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF

J.M. AND L.M., minors.

__________________________________

November 18, 2014

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0041-13.

Gregory K. Byrd, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Byrd, on the briefs).

Steven J. Klein, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Klein, on the brief).

James A. Lewis, Deputy Public Defender, argued the cause for minors J.M. and L.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURRIAM

Defendant A.G. appeals from a May 31, 2013 order terminating this protective services litigation, which included a finding the Division had proved she and J.A., her paramour, abused or neglected her child J.M., born in 1999. Specifically, the judge found A.G. failed to exercise adequate supervision to protect J.M. from excessive corporal punishment inflicted by J.A.

On appeal, A.G. does not challenge the judge's findings and conclusions in respect of J.A.'s conduct. Rather, she maintains the judge erred in finding she was complicit in the abuse by allowing J.A. to strike J.M. with a belt. A.G. argues the judge misinterpreted her comment to J.A. that he could hit the children, so long as he did not leave marks, which she contends was an instruction not to harm the children when administering punishment. Also, A.G. concedes she attempted to mislead the Division during its investigation, but advances her objectives were solely to prevent the children's removal. A.G. asserts the evidence of a single act by J.A., which exceeded the bounds of acceptable discipline, accompanied by her instructions that he not do so, fails to support a finding of abuse or neglect.

We have reviewed these arguments in light of the record and the applicable law and find A.G.'s assertions unavailing. The evidence presented by the Division supports the factual findings and conclusions by the trial judge. Accordingly, we affirm.

On November 16, 2012, Judge Ronald D. Wigler conducted the fact-finding hearing. The sole witness was the Division's investigative intake worker, Orville Chatham. The Division also admitted, without objection, photographs of J.M.'s injuries and its file records. Neither J.A. nor A.G. testified or presented additional evidence. These facts are taken from the hearing record.

A.G. is the mother of two children: L.M., born in 2002, and J.M. The children and A.G. live with J.A. as a family unit and have not had prior interaction with the Division.

On July 11, 2012, a school nurse at a high school summer program contacted the Division regarding a twelve-inch long, two-inch wide bruise she observed on then thirteen-year-old J.M.'s back. J.M. told the nurse his "step dad" hit him with a belt on his back and leg two days ago, because he "disobeyed and was playing with the neighbors." J.M. said he was not afraid to go home, although there were times he felt that way. J.M. returned home that night.

The following day, Chatham met with J.M. in the school nurse's office. J.M. explained J.A. hit him and his younger sister, L.M., because they had been talking with the neighbor's children through the apartment window. J.A. told the children this was dangerous because there was an air conditioning unit in the window. When the children ignored the warning, J.A. disciplined them. A.G. was home during the incident, and J.M. heard her say something to J.A. like "you c[an] hit the children, but do not leave marks or bruises." It is not clear whether A.G. uttered this comment before or after J.A. struck J.M. Chatham observed and photographed the bruise on J.M.'s back, which he found consistent with the nurse's description. Chatham saw no other marks.

J.M. explained his mother had hit him in the past, but now disciplined him by withholding privileges. He also admitted J.A. used verbal discipline, but "sometimes . . . would hit them with a belt." J.M. stated J.A. had hit him before, but the last time had been more than a year ago around October 2011. J.M. confirmed he was not afraid to go home.

That evening, Chatham went to the family's residence. He interviewed L.M., who was then age ten. L.M. explained she was the one who hit J.M. by striking him across the back and showed Chatham the belt she allegedly used. He asked her to demonstrate the motion she used to strike her brother. Chatham recorded his observation that L.M.'s swing was "perhaps too slow to have caused the marks or bruises that have been observed on [J.M.]'s back" because L.M. was "much shorter and slimmer than . . . her older brother." When asked if she was telling the truth, L.M. affirmed she was.

Chatham then talked with J.M., who stated "[J.A.] did not hit him and that it was his sister that hit him." When asked why his story changed from the one told earlier that day, "[J.M.] did not make eye contact . . . [and] shrugged his shoulders at the question." Chatham described J.M.'s demeanor, this way: "[J.M.] didn't appear to be himself as introduced to me originally . . . . [H]e appeared to have been, you know, told not to say much."

A.G. confirmed L.M. caused the bruise on J.M.'s back. Chatham called J.M. into the room to show his mother the bruise, which he did. After the boy left, Chatham explained his professional opinion was L.M. was physically incapable of causing J.M.'s injuries. "A.G. continued to remain adamant that she was told by [J.M.] that it was [L.M.] that hit him," and insisted J.A. was not home when the incident occurred.

Chatham interviewed J.A., who "adamantly denied that he hit and cause[d] the marks and bruises." He stated he was physically abused as a child and "would never physically abuse another child." Further, J.A. denied any history of domestic violence and explained he used verbal not physical discipline.

Chatham took the children, accompanied by A.G., to a hospital for a physical examination. Dr. Robert Gorski, M.D., examined J.M. and concluded his bruise was "suspicious for abuse." This "reinforced the Division's staff's concern about the parents' lack of candor concerning the injuries, and the ability of A.G. to protect the children from J.A." Chatham again broached the issue with A.G., stating he did not believe L.M. caused J.M.'s injuries; A.G. remained unwavering in her position that J.A. did not hit the children and they were not coached to blame one another.

Having inquired whether relatives were available to care for the children pending the Division's investigation and learning A.G. had no family in the area, Chatham considered, but rejected as inappropriate, A.G.'s suggestion the children be placed with a neighbor. The Division determined the children must not remain in A.G.'s care. Chatham returned to the residence to pack clothing, to effectuate a Dodd removal.2

While A.G. was packing the children's things, J.A. became very emotional, hugged the children, and asked Chatham whether the removal would be necessary if he now told the truth. Chatham stated the decision was made.

As the children entered a van to leave, Chatham again asked them for the truth. Both children finally confirmed J.A. had hit J.M. L.M. stated she also was hit by J.A. on her shoulder with the same belt, but the bruise had faded. The children verified A.G. did not hit them. A.G. later conceded, however, she "coached [J.M.] to change his story" and "told her children to lie."

The children were taken to a resource home where they remained pending the litigation, a period of approximately six months.3 During trial, Chatham testified his impression of A.G.'s remark to J.A. about not leaving marks, reflected A.G.'s main concern to avoid the children being placed in foster care.

Crediting Chatham's testimony, Judge Wigler found J.A. used excessive corporal punishment and A.G. "did not use adequate supervision or guardianship or did not use proper supervision as a parent to protect her children from the excessive corporal punishment." He explained

What this Court finds very troubling . . . a lot has been said about [A.G.] and that her remarks should be construed as her trying to protect [J.M.]. That was . . . [how A.G. and J.A.] want me to interpret that statement. . . . "You can hit the child, but just don't leave any marks." I guess reasonable people could differ as to the interpretation.

I might have been . . . persuaded by the argument there, except with what happened to the children.

. . . .

[Y]ou tried to blame [L.M.] for [the injury]. That's reprehensible. That is absolutely reprehensible to try to blame your daughter for causing this, and that was not trying to protect anybody but yourselves. . . . [B]y you trying to coach and have your own children lie to the authorities, you weren't trying to protect anybody but yourselves, and that's despicable.

And . . . because of that, there's no way that that comment now in the context of this overall case can be heard to or interpreted to try to protect the child[.]

The children were ordered to remain in their resource home and family therapy continued. A.G. and J.A. had visitation, which was later expanded. The children returned home on January 25, 2012. When the litigation was concluded, A.G. filed this appeal.

It is axiomatic that due process protects the parent-child relationship. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982)). Parental rights, however, are not absolute, and are "tempered" by the State's duty to intervene against unfit, abusive or neglectful parents or guardians. K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

The adjudication of abuse or neglect is governed by Title Nine, N.J.S.A.9:6-8.21 to -8.73, which is designed to protect children who suffer serious injury inflicted other than by accidental means. G.S. v. Dep't of Human Servs., 157 N.J.161, 171 (1999) (citing N.J.S.A.9:6-8.8). An "abused or neglected child" is defined in N.J.S.A.9:6-8.21(c), and the proofs necessary to establish abuse or neglect are measured by a preponderance of evidence standard.4 N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011); see alsoN.J.S.A.9:6-8.46b ("In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted."). Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S.supra, 157 N.J.at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id.at 179.

Whether a parent has engaged in acts of abuse or neglect involves a totality of the circumstances analysis. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.320, 329 (App. Div. 2011). In conducting this analysis, we must determine whether the parent failed to exercise a minimum degree of care, N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super.61, 69 (2014), "by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof[.]" N.J.S.A.9:6-8.21(c)(4)(b). In V.T., we recognized that "the elements of proof are synergistically related. . . . One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J. Super.at 329-30 (citation and internal quotation marks omitted).

Importantly, a court does not have to wait until a child is actually harmed before it can act on behalf of the welfare of the minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super.222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J.365, 383 (1999)), certif. denied, 200 N.J.505 and 201 N.J.272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502 and 3537, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 344 (2010).

In our review, we must defer to the Family Part's findings of fact supported by the evidence 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. A.R., 405 N.J. Super.418, 433 (App. Div. 2009). See also, N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super.427, 433 (App. Div. 2002) ("'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974))). Deference to a trial court's supported factual findings is warranted because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [and] 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). See alsoN.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 448 (2012). Thus, family court's factual findings are overturned only when "they are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice." Ibid. (citation and internal quotation marks omitted).

We have acknowledged "'[t]he law does not prohibit the use of corporal punishment.'" N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010), certif. denied, 208 N.J. 355 (2011) (quoting State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003)). Title Nine "prohibits the infliction of excessive corporal punishment." Ibid. "Excessive corporal punishment" is a term used but not defined by Title Nine. Ibid. "'The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case.'" Ibid. (quoting T.C., supra, 347 N.J. Super. at 240). Whether a particular course of punishment is "moderate" or "reasonable" is evaluated "by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because 'the main goal of Title [Nine] is to protect children.'" Id. at 511 (quoting G.S., supra, 157 N.J. at 176) (internal brackets omitted).

Applying these standards to the facts at bar, we reject A.G.'s challenge to Judge Wigler's factual findings. J.A.'s use of force and employing of instrumentality to inflict pain upon J.M. unquestionably was excessive and unlawful. Both J.M. and L.M. stated they were hit by J.A. in the past. During the July 2012 incident, A.G. was present when J.A. struck J.M. The record does not show she interceded to stop J.A. or administered to the child after the beating. A.G. never told J.A. he should not hit J.M. with a belt, but commented, "don't leave marks." Chatham interpreted this comment as designed to avoid detection of the conduct, rather than to circumscribe the limits of proper discipline. A.G.'s contrary interpretation, advanced before the trial judge and on appeal, is not supported by any direct evidence. Judge Wigler viewed this statement in the context of A.G.'s subsequent acts and rejected the inference she argued could be drawn. We do not find the judge's determination is unsupported or "wide of the mark." F.M., supra, 211 N.J. at 448.

First, A.G. refused to acknowledge J.A. abused J.M. Even though the children asserted J.A. struck them, A.G. continued deny J.A.'s conduct. Second, A.G. coached the children to lie, requiring L.M. to accept blame for her brother's injuries. A.G.'s attempt to sidetrack the Division's investigation could not be construed to protect the children. Third, Judge Wigler credited Chatham's testimony and noted no contravening evidence supported A.G.'s suggested interpretation.

Considering all the facts, Judge Wigler found "there's no way that that comment [telling J.A. not to leave marks] now in the context of this overall case can be heard to or interpreted to try to protect the child[.]" Rather, A.G. acted to prevent scrutiny of herself and J.A., to avoid intervention by the Division. We agree.

There also is no support for A.G.'s assertion her attempt to coach the children to tell a different story was a "panicked" decision. Her failure to accept responsibility for how she and J.A. treated these young children supports the finding the children were at risk of harm. A.G.'s refusal to acknowledge the harmful conduct also supports a finding of her willingness to lie, which demonstrates an inability to exercise a minimum degree of care to protect the children and preserve their safety. See V.T., supra, 423 N.J. Super. at 329 (the "totality of the circumstances" are to be considered when determining a case of abuse or neglect).

Any additional arguments not specifically addressed in our opinion were considered and found to lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). In our opinion we refer to the agency as the Division.

2 "'A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

3 As requested by the Division, A.G. participated in a forensic psychological evaluation conducted by Elizabeth E. Groisser, Psy.D., "to assess [her] level of psychological functioning, capacity to parent, and service needs." During the clinical interview, she remained "strongly adamant" J.A. was innocent. Dr. Groisser opined A.G. was "relying on denial as a primary way of . . . avoiding frustration and overwhelming negative emotion." She concluded A.G. was "either in denial about what happened to her son or is protecting her paramour." This evidence although part of the record, was not considered by the trial judge and will not be considered in our review.

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