NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.J.

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NOT FOR PUBLICATION WITHOUT THE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.

Y.J.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF G.J., a Minor.

_________________________________

June 10, 2015

Argued December 10, 2014 Decided

Before Judges Waugh and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-109-13.

David A. Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs).

Christian A. Arnold, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief).

James A. Louis, Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant Y.J. (Yolanda)1 appeals the Family Part's September 9, 2013 order finding that she abused her son G.J. (Gary). There is no dispute that Yolanda sprayed Gary in the face with pepper spray2 on February 12, 2013. However, Gary and Yolanda gave significantly different versions of the events leading up to Yolanda's use of the pepper spray. Nevertheless, the Family Part judge decided the case by making credibility findings based solely on documents and the testimony of two witnesses employed by plaintiff Division of Child Protection and Permanency (Division), neither of whom witnessed the event. Because we find that procedure defective under the circumstances of this case, we reverse and remand for a new hearing.

I.

We discern the following facts and procedural history from the record on appeal.

The Division received a referral concerning the pepper spray incident from the Elizabeth Police Department shortly after 11:00 p.m. on February 12. An Elizabeth police officer was at Trinitas Hospital with Gary, who was being treated in the emergency room.

At the time of the incident, Gary was fifteen years old. According to Gary, Yolanda was preparing to take her boyfriend to work at approximately 7:00 p.m. Gary asked Yolanda to drop him off at a friend's house, but Yolanda refused. Gary "kept being persistent," and followed Yolanda outside to her car. She blew the horn to let her boyfriend know she was ready to leave. Gary held the passenger-side car door open to prevent Yolanda from leaving, and may have tried to get into the car. Yolanda "started screaming at him," sprayed pepper spray in his face, and drove off with her boyfriend.

According to Yolanda, Gary had been asking her to buy him hair gel for several days, but she had been unable to do so because she did not have the money. When she returned home on February 12, and while she was waiting to take her boyfriend to work, Gary approached the passenger side of Yolanda's car, opened the door, and said: "Did you get my [f]ucking gel." Yolanda replied that she had, but would give it to him when she returned. He then began to "yank" her as she held the steering wheel with one hand. She screamed, but no one came out to help her.

Yolanda told the Division worker that she was concerned that she might fall out of the car and hit her face. At the time, according to Yolanda, she was five weeks pregnant and was also afraid that a fall might endanger her unborn child. She described Gary as both taller and heavier than her. Yolanda reached into a bag located in the arm rest area of the car, retrieved the can, and sprayed pepper spray in Gary's face. She told the worker that "she felt like she needed to protect herself," but also that she "felt[] badly for what she had done and did not mean to hurt her child."

After he was sprayed, Gary ran inside the house and splashed cold water on his face. He then went to his uncle's house in Elizabeth, from where he called the Elizabeth police at 8:43 p.m. The police reported the incident to the Division, and transported Gary to the hospital. Gary was treated with saline solution by an emergency room physician. No medical reports were introduced into evidence by the Division.

The Division's special response worker, Elaine Ellerby-Nurse, arrived at the hospital around 1 a.m., about six hours after the incident. Gary told her that the right side of his face and his right eye were in pain. She observed that the entire right side of his face was red, and that both eyes were red and irritated. Ellerby-Nurse attempted to contact Yolanda that night, both by telephone and in person, but was unable to do so.

According to Gary, his mother never hit him and this was the first time she had used pepper spray. He also told Ellerby-Nurse that he had an anger problem, and had been prescribed Adderall for Attention Deficit Hyperactivity Disorder. However, he had not been taking his medication for a year.

The Division assigned a family service worker, Nizihah Wilson, to the case on February 13. She interviewed Gary and Yolanda, as well as Yolanda's other children. Yolanda told Wilson that, after the incident, she saw Gary walking down the street as she drove home from taking her boyfriend to work. According to Yolanda, her father had called her to let her know that Gary was at her mother's home.

The Division filed its verified complaint seeking care, custody, and supervision of Gary on January 14. The Family Part judge granted the Division's application and appointed a law guardian for Gary. After living with relatives for three months, Gary was reunited with Yolanda.

The judge began a three-day factfinding hearing on June 24. After the Division moved its reports into evidence, Wilson testified regarding her investigation on February 13. Wilson outlined Yolanda's and Gary's differing versions of events. Ellerby-Nurse testified about her interview of Gary in the emergency room following the incident. She related Gary's version of the incident, his reaction to being sprayed, and the treatment he received at the hospital. Ellerby-Nurse also described her observations of Gary's injuries.

Ellerby-Nurse testified that Gary told her that he "was afraid" to go home and that "[h]e felt that his mom had crossed the line." She explained that she decided to conduct an emergency removal for those reasons. After her unsuccessful efforts to contact Yolanda, she brought Gary to his maternal grandmother's house.

On August 15, the judge placed an oral decision on the record. He outlined what he characterized as Yolanda's avoidance of the police and the Division, which he thought demonstrated her indifference to the injury she caused Gary. The judge noted that Yolanda had not comforted Gary when she later saw him walking down the street. The judge also found that Yolanda did not demonstrate genuine remorse for what she had done, though he noted that the proper inquiry was whether the child suffered harm and not the parent's mental state. In that regard, he found that "there was medical intervention that was necessary in this particular case."

The judge addressed the discrepancies in the versions of the incident given by Gary and Yolanda. He "put greater credibility in what [Gary] says than . . . what mom told the caseworker. I don't . . . believe that [Gary] was physically yanking on [Yolanda]. . . ." He thought it unlikely that Gary was yanking on Yolanda because she still "somehow [had] the strength and agility to be able to get into a . . . bag," locate the spray, and then use it. "And I think that even if he was [yanking her], this is why we have to talk about why her actions were unreasonable . . . why it was excessive corporal punishment." The judge explained that Yolanda should have tried to free herself or "diffuse the situation," for example by giving Gary the hair gel. He explained that, by Yolanda's own admission, Gary was on the passenger side of the car, and that "[a]ll she [had] to do [was] get out of the left side of the car." In sum, he concluded that "there were so many better ways to address and handle a situation where you didn't need to utilize mace."

The judge took judicial notice that "anyone utilizing a can of mace has absolute, full knowledge of what the propellant that's in the can will do." He observed that "[t]here's only one purpose behind a can of mace," which was to "immobilize, stop, cause pain," or "cause a person to lose their ability to see." The judge noted that Gary's face and eyes were still red and painful six hours after Yolanda sprayed him. The judge also observed that, after Yolanda sprayed Gary, she failed to take any steps to "ascertain the extent of his injury and the necessity for medical treatment." Gary "was clearly in pain and suffering, and [Yolanda] simply drove off with her boyfriend."

In summary, the judge found that, because Yolanda both sprayed her son in the face with pepper spray and thereafter failed to care for him, she had used excessive corporal punishment within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). The implementing order was entered the same day. This appeal followed.

II.

On appeal, Yolanda argues that the trial judge erred in finding abuse and neglect based on the facts in the record. She also argues that the judge erred in taking judicial notice concerning the nature, purpose, and effect of pepper spray.3 Gary, through his Law Guardian, also urges us to reverse the finding of abuse.

The scope of our review of a Family Part judge's factual findings is ordinarily limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Deference to a judge's factfinding is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

In this case, however, the judge's factual findings were not the result of his evaluation of the testimony of witnesses with first-hand knowledge of what actually happened on February 12, 2013. Consequently, the factual findings in this case are subject to broader review, without the deference owed to findings of fact based on the judge's feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." E.P., supra, 196 N.J. at 104. Instead, we review the judge's decision as if he had decided a motion for summary judgment, by viewing the facts in the light most favorable to Yolanda and determining whether, as so viewed, the judge's finding of abuse or neglect would be warranted. See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012).

Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. 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. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A. 9:6-8.8(a).]

The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).

Title Nine provides that an abused or neglected child is one

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 . . . 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.

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

The statute does not, however, define the term "excessive corporal punishment."

In New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 36 (2011), the Supreme Court noted that,

by qualifying the prohibition [of corporal punishment] with the term, "excessive," the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. Limiting state involvement only to interference with excessive corporal punishment requires the exercise of judgment by reviewing courts before a finding of physical abuse is entered against a parent.

The Court also observed that "[a]buse and neglect cases are generally fact sensitive" and that "[e]ach case requires careful, individual scrutiny." Id. at 33.

In addressing the issue of "excessive corporal punishment" in the context of a parent slapping her teenage daughter in the face, the P.W.R. Court found the practice to be "hardly admirable." Id. at 20-21, 35. Nevertheless, the Court refused to credit the Family Part's finding of physical abuse because "[t]here was no evidence developed in [the] record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [the parent's] actions." Id. at 35-36.

In Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 512 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), we found no excessive corporal punishment in a case in which the parent struck the child "five times on the shoulder with a closed fist," but "the force used did not lacerate the child's skin and did not require any type of medical intervention," and "[b]ruises, although visible, never exposed [the child] to any further harm if left untreated." We noted that the Administrative Code lends assistance in identifying excessive corporal punishment by listing types of injuries, including bruises, which may constitute abuse. Id. at 510-11 (citing N.J.A.C. 10:129-2.2).

The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.

When viewed solely from the perspective of the facts as asserted by Gary, we would have no difficulty agreeing with the trial judge's conclusion that the Division proved abuse by the required preponderance of the evidence. According to Gary, he was holding the door open because he wanted a ride, his mother started yelling at him, and then sprayed him with pepper spray so she could leave to take her boyfriend to work. However inappropriate Gary's conduct may have been in trying to force his mother to give him a ride, Yolanda's conduct quite clearly amounted to excessive corporal punishment, which caused harm to Gary for at least several hours.

However, when viewed solely from the perspective of the facts asserted by Yolanda, the result is unclear. If, as Yolanda told the Division's worker, Gary was angry and trying to pull her out of the car and she was afraid that she or her unborn child would be injured, her use of the pepper spray was more in the nature of self-defense than corporal punishment. The question then becomes whether Yolanda's use of pepper spray was an overreaction that amounted to "conduct that [was] grossly or wantonly negligent" and "reckless disregard for the safety of others," or whether it was a justifiable, if unfortunate, response to what Yolanda reasonably perceived to be a danger to herself and her unborn child. In the words of Model Jury Charge (Civil) 3:10B, "Assault and Battery" (2015) (emphasis added), an individual "may resist the use or threatened use of force" and "may meet force with force, but [she] may use only such force as reasonably appears to [her] to be necessary under all the circumstances for the purpose of self-protection." In our view, that issue is not susceptible to determination on the basis of second-hand reports.

As the Supreme Court held in P.W.R., supra, 205 N.J. at 33, "[a]buse and neglect cases are generally fact sensitive" and "[e]ach case requires careful, individual scrutiny." As outlined above, the two versions of the underlying incident in this case do not necessarily lead to the same result and the conclusions to be drawn from Yolanda's version of the event require "careful, individual scrutiny." A factfinder hearing live testimony could accept parts of one version, but not others, which could also influence the outcome.

In addition, the Division did not present a prima facie case of abuse because it relied solely on the hearsay accounts that were uncorroborated. We have noted that "[i]t is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 108 (App. Div. 2006). Due to that difficulty, N.J.S.A. 9:6-8.46(a)(4) provides an exception to the hearsay rule and allows "previous statements made by the child relating to any allegations of abuse or neglect [to] be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." While "[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence[,] . . . corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).

The fact that Gary may have told several people the same narrative of the circumstances under which he was pepper-sprayed by his mother does not provide corroboration for the purposes of N.J.S.A. 9:6-8.46(a)(4). The two witnesses who testified were not eyewitnesses, and testified primarily to what they had been told by others. Although Ellerby-Nurse testified to her observation of Gary's eyes and face, thereby verifying that he had been sprayed, that was not a disputed issue. The question was why and under what circumstances he had been sprayed. And, as we have already explained, that issue is extremely fact sensitive and cannot fairly be determined on the basis of conflicting hearsay statements.

Consequently, we reverse the order on appeal and remand to the Family Part for a new hearing consistent with the principles outlined in this opinion. We understand that the hearing judge whose decision is before us has been reassigned to another county. As a result, the new hearing will take place before a new judge.

Reversed and remanded.

1 We use pseudonyms to refer to the individuals in this case for the purpose of clarity and confidentiality.

2 The judge, witnesses, and parties use "mace" and "pepper spray" interchangeably. Our understanding is that "Mace" is the brand name of a variety of pepper sprays, although "mace" is frequently used as a general term for pepper spray.

3 In light of our decision to remand for a new hearing, we do not reach the issue of judicial notice, other than to observe (1) that, if it is to be taken at all, there must be appropriate compliance with the provisions of N.J.R.E. 201; and (2) that the judge did not consider N.J.S.A. 2C:39-6(i), which defines pepper spray that can be lawfully possessed as a "chemical substance not ordinarily capable of lethal use or of inflicting serious bodily injury, but rather, is intended to produce temporary physical discomfort or disability."