NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-13048-13T4

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

K.H.,

Defendant,

and

W.H.,

Defendant-Appellant.

IN THE MATTER OF Ke.H., Ki.H.,

Ki.H. and Ka.H., Minors.

June 16, 2015

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, FN-20-97-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Ki.H. (David Valentin, Assistant Deputy Public Defendant, on the brief).

PER CURIAM

Defendant W.H.1 (Walter) appeals from a finding that he abused or neglected his minor daughter, Hailee. On appeal, he argues

POINT I: THE JUDGE'S FACT-FINDING DECISION FAILED TO COMPORT WITH THE STATUTORY AND CASE REQUIREMENTS FOR FINDING ABUSE OR NEGLECT AS TO A PARENT; AS SUCH, APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED.

POINT II: ERROR WAS COMMITTED IN THE TRIAL COURT'S EVALUATION OF THE UNDERLYING FACTS. ACCORDINGLY, THIS COURT'S SCOPE OF REVIEW IS EXPANDED.

POINT III: RESPONDENT FAILED TO MEET THE STANDARD OF PROOF REQUIRED TO FIND APPELLANT GUILTY OF ABUSE OR NEGLECT.

POINT IV: THERE WAS NO EVIDENCE OF EITHER MEDICAL NEGLECT OR DOMESTIC VIOLENCE TO JUSTIFY A FINDING OF ABUSE OR NEGLECT.

We have considered these contentions in light of our review of the record and applicable legal principles. We affirm.

In December 2011, plaintiff, the Division of Child Protection and Permanency (Division),2 was contacted by a school nurse at Hailee's school. Then thirteen-year-old Hailee had been sent to the nurse's office after she wrote a letter to a friend in which she stated "stop lying before I kill myself and get a bad reputation." During their discussion, Hailee told the nurse that she and her teenage brother Harry were subjected to abuse by their father, including being "punched, smacked, tripped, cursed at and called dumb." She also disclosed that about a month earlier she had tried to cut herself. She claimed that her father had threatened to kill her, her siblings, and their mother, Harriet, and in the past he had hit their mother. Hailee stated that she had not reported the abuse earlier because she did not want to be separated from her mother and siblings. The nurse reported to the Division that Hailee had "old marks/wounds all over her arms like she has been in an accident."

The nurse called Harriet to come to the school, and according to the nurse, she admitted that her husband hit the children, but denied that he punched them. The nurse told Harriet that in order to return to school, Hailee had to be cleared by a hospital. She instructed Harriet to take Hailee to the hospital without her husband. Instead, Walter took Hailee to the hospital where Hailee did not disclose any abuse during the examination because, on the drive to the hospital, Walter warned her that she had better not tell anyone at the hospital, about the family's business.

The following day, Hailee returned to the school nurse, and also wrote a note in which she stated that her claims of abuse had been "a lie." However, in the same note she stated that Walter "said he was going to kill us all only if I tell anyone."

A Division caseworker responded to the school that day and interviewed Hailee. The child told the caseworker that Walter hit her and her brother Harry every day, sometimes with his hands, and sometimes with a belt. She also showed the caseworker a bruise on her knee, which she said Walter had caused. Hailee said that her father had not hit her mother since she attempted to leave him a few years earlier. She also stated that she did not like her father and was afraid of him, as were her brother and mother, and she had not told anyone about the abuse because Walter had threatened to kill her and her brother if they told anyone about it.

The caseworker later met with the family members individually. Harriet told the caseworker that Hailee was not suicidal, but she had been harassed by fellow students since starting at a new school. She denied any domestic violence or corporal punishment in the family, and denied that Walter ever hit the children. Walter similarly denied that Hailee was suicidal, claimed she had written the letter because fellow students had been bothering her, denied any domestic violence or abuse, and said that when he was a child his parents did not hit him, so he does not hit his children. Harry denied that his father hit him or his siblings, and denied that his parents ever argued or got into physical altercations. However, according to the caseworker, he seemed "nervous and guarded" and "did not establish or maintain eye contact at any time during the interview." Although Hailee was fearful, believing that her father was watching the interview from inside the family store, she repeated her claims of abuse, and expressed fear of her father, who had told her that she "better not tell [the Division] anything because they would take her away." She stated that she loved her father, but wished she, her mother and siblings could live apart from him, and that he would receive treatment for anger management.

The caseworker also spoke to the children's paternal grandmother, Anna. Anna told the caseworker that Walter was often "too hard" on the children, meaning that he stressed education and did not accept mediocrity. She denied that he used any physical discipline on the children, but added that she was from Jamaica, where corporal punishment was commonly used, and she had beaten Walter when he was a child.

The Division caseworker determined she "could not" substantiate Hailee's claims of physical abuse based upon the investigation thus far, because there was no physical evidence supporting Hailee's statements. However, the Division continued its investigation, and remained concerned about Hailee's mental health. The Division also had concerns regarding the history of domestic violence between the parents because, although the parents denied any such history, the Division's investigation had uncovered two incidents, in 2006 and 2007, during which Walter had physically assaulted Harriet.

The Division urged Walter and Harriet to follow up with mental health services for Hailee. When they did not, the Division substantiated them for medical neglect and for creating a substantial risk of harm to Hailee. It filed a verified complaint for protective services and obtained an order to show cause for an investigation, in order to compel the family's cooperation with a home assessment, psychological assessments of Hailee and Harry, and to have Harriet undergo a domestic violence evaluation. However, the parents did not authorize psychological evaluations of the children. Further, Harriet did not speak with a domestic violence liaison.

As part of its investigation, a Division caseworker made an unannounced visit to Hailee's school. There, a counselor reported that both her parents had been uncooperative in obtaining services for Hailee, who was struggling academically. When the caseworker spoke with Hailee, she initially recanted her allegations of abuse, but then repeated them. She stated that her father had not hit her since the Division had been involved with the family. However, he had been verbally abusive. Walter blamed Hailee for the Division's involvement, and wanted her to record her psychological examination, so Harry could listen to it and know how to respond when he was examined. She told the caseworker that she loved her father, but she did not want to live with him, and he needed help. As a result, on the return date of the order to show cause, the Division removed the children from the home on an emergent basis, and placed them in separate foster homes. Two days later, the Division filed an amended verified complaint for protective services to the emergent removal, and obtained a court order for custody of the children.

The Division referred Walter for a substance abuse evaluation and batterer's counseling. Harriet was referred for domestic violence counseling, and both parents were referred for psychological evaluations. Visitation with the two children was temporarily suspended for several months, until Harriet was permitted supervised visitation, and Walter commenced therapeutic visitation. Hailee and Harry were referred for individual counseling. They also had visits with each other.

At the ensuing fact-finding hearing, the Division's caseworker testified as to her investigation and findings. The court also took testimony from Hailee in chambers, with her parents watching by video.

Hailee stated that her father was both physically and verbally abusive to her and her brother Harry, that he hit them with his hands, a broom, or three belts together, for minor mistakes, or for no reason at all. Hailee said she had been hit for not cleaning correctly, for being clumsy, and just to move her out of the way. She also stated that her mother and grandmother had tried to stop Walter's abuse, but he did not listen to them, and he had physically abused her mother for as long as she could remember. She said she had not reported the abuse until recently because she was scared, and after her initial report of abuse, her father had told her not to say that he hit her, or she would be taken away and never see her family again. Hailee stated that she loved both her parents, and she missed her family and wanted to go home. At the same time, she expressed fear of her father when he is out of control, and stated that she wanted to live just with her mom.

Walter testified, and Harriet and Anna testified on his behalf. Anna stated that she never observed her son physically or verbally abuse his children, or yell or curse at them, and she was not aware of him having any anger problems, or ever committing violence against his wife. She also denied telling the Division caseworker that she had beaten her son when he was a child. Walter and Harriet denied that Walter abused the children, or that there had ever been any domestic violence in their home. Walter stated that he was "a great father" who spent a lot of time with his kids, and that Hailee's allegations were lies. Harriet further stated that she and her husband had been cooperative with the Division, but claimed there had been a series of miscommunications, particularly with respect to scheduling Hailee's psychological evaluation.

All of Walter's witnesses suggested that Hailee's problems were the result of her being bullied by classmates. The parents claimed to be proactive in addressing those issues, but admitted that they never followed through on the school's recommendations for addressing Hailee's academic and mental health issues.

After considering the evidence, the court issued its opinion, finding that Walter had physically abused Hailee. The judge found the Division caseworker and Hailee to be credible witnesses, and rejected the defense testimony. While the court found that Anna was "somewhat truthful," it concluded that she was "perhaps not as knowledgeable about what goes on in [her son's home] as she thought she was." As for Harriet, the court found that she was "extremely nervous and programmed during her testimony," and that her testimony lacked credibility. In particular, with respect to the domestic violence

[I]t just simply makes no sense that if someone punches you in the face and you present yourself to the police station with a bruise on your face and you tell the police that you want to make a complaint about your husband that you forget that, that you have forgotten that even though five or six years have passed. It is simply not credible to me that she is unaware that as a result of police responding to domestic violence that her husband was arrested in 2006 and that she herself presented herself . . . in late 2007.

As for Walter, the court rejected his testimony as lacking credibility. The court found that, from its own observations, "throughout the conduct of this case and throughout the testimony" it was "very clear" that Walter "wants to control whatever goes on and that he has issues with domestic violence" and when Hailee wanted to dress or act in ways he disagreed with, his way of keeping control was through physical violence.

The court also rejected the defense claim that Hailee's problems stemmed from bullying, concluding that "the defense's efforts to refocus this on the bullying . . . is a red herring."3

The court entered an order reflecting its finding that Walter had abused or neglected Hailee in that "he engaged in repeated, unwarranted, and excessive physical abuse of [Hailee] over a period of three years, causing bruises and emotional distress, including kicking, slapping, and hitting the child with hands, belt, and broom."

Ultimately, the children returned home to live with both parents and the court terminated the litigation. This appeal followed.

Our review of the Family Part's orders is limited to determining whether the trial court's findings are supported by substantial credible evidence in the record. In performing this function, we "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We will not overturn fact findings unless "necessary to correct an injustice." Ibid.

"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes," N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011), which provide in pertinent part

"Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts . . . upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates . . . a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or 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) 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; . . .

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

See also N.J.A.C. 10:129-1.3.

"The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" P.W.R., supra, 205 N.J. at 31 (quoting N.J.S.A. 9:6-8.8) Accord Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).

Fact finding hearings are held to determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44; N.J. Dep't of Children & Families, Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). At the hearing, the Division must prove abuse or neglect by a preponderance of the evidence, "and only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Determinations are very fact specific and must be made on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010). "If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings." N.J.S.A. 9:6-8.50(a).

Applying these standards, we find Walter's arguments to be without merit. We conclude, sufficient credible evidence supports the court's findings of fact, and those facts support a finding of abuse. To be sure, there was little physical evidence that Hailee had been beaten, in the form of recent bruises, scars, or fractures. Nevertheless, the court credited Hailee's testimony regarding the abuse, and rejected defendant's denials; and Hailee was clearly emotionally harmed. N.J.S.A. 9:6-8.21(c). The court needed no corroboration of her testimony. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 542, 547-48 (App. Div. 2014). Further, the alleged physical abuse could not be viewed as lawful corporal punishment. See, e.g., P.W.R., supra, 205 N.J. at 36-37, 39; Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 506, 510-12 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011). Whether Walter intended to cause his daughter harm, or understands that he caused his daughter harm, is irrelevant. P.W.R., supra, 205 N.J. at 32; M.C. III, supra, 201 N.J. at 344-45; G.S., supra, 157 N.J. at 175-76. The Family Part judge found sufficient credible evidence to support a finding of abuse by Walter, and we agree with the judge's determination.

Affirmed.

1 We use fictitious names for clarity and to protect the children's identities.

2 On June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012 c.16.

3 The court made no finding that Walter had abused Harry or that Harriet had abused her children by failing to protect them from Walter's abuse. The court did not believe Harriet was "fully aware of the extent" of her husband's abuse of Hailee, and thought it clear that Harriet was a victim of domestic violence and she had "attempted to do what she could do within her own abilities to be a good mother to her children.