NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. I.T.

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NOT FOR PUBLICATION WITHOUT THE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.

I.T.,

Defendant-Appellant.

________________________________________

IN THE MATTER OF R.T.,

Minor.

________________________________________

June 8, 2015

Submitted April 28, 2015 Decided

Before Judges Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0108-13.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, R.T. (Linda Vele Alexander, Designated Counsel, on the brief).

PER CURIAM

Defendant (Inez1) appeals from an order finding that she abused or neglected her niece, Raquel. We affirm.

Inez is Raquel's paternal aunt. She was granted custody of Raquel with the consent of Raquel's parents, with whom Raquel never resided. The New Jersey Division of Child Protection and Permanency(the Division)received areferral regardingRaquel from herschool. Thereport statedthat "Raqueldisclosed that[Inez] hits her, smacks her, grabs her hair, yells at her and threatens her, [and] the aunt says that she wish[es] that she was dead."

A Division intake worker interviewed Raquel, who explained her aunt had a history of hitting her and calling her names. Raquel was concerned because Inez wanted "to kill her" and said she wanted "Raquel to die[.]" Photographs of Raquel revealed scratches on Raquel's neck and arm, as well as a bruise on her back. Raquel detailed a recent episode where Inez was angry with Raquel forarriving homelate after helping another child with hishomework. Inezhit Raquel"all overher bodywith anopen handand also punched her in the back." Only when Inez's husband, Eddie, threatened to call the police did Inez stop. On other occasions, Inez had beaten Raquel continually until she ran from the home. Raquel requested she be removed from Inez's care.

Inez reported to Division workers that she wanted Raquel out of the home. She stated Raquel was the "devil" and living with her had been "hell." Inez admitted to the incident Raquel had referred to after being late. Inez indicated that she endorsed corporal punishment as a form of discipline and was upset that Eddie had attempted to protect Raquel. Eddie advised Division workers he was "aware of incidents [when] Inez has hit Raquel and . . . has gotten in between Inez and Raquel plenty of times." Eddie stated he could not care for Raquel due to his work schedule and believed it would be best if Raquel was removed because he was "afraid his wife [would] hurt Raquel when he is not around."

Inez refused services offered by the Division. Raquel's parents indicated they were not in a position to care for Raquel. The Division filed for care, custody and supervision of Raquel. At a fact-finding hearing, a Division intake worker and Raquel testified. Inez argued the court should not make a finding of abuse and neglect, asserting that Inez admitted hitting Raquel, but failed to meet the requirements of excessive corporal punishment. At the conclusion of the fact-finding hearing, the court found

it was appropriate to remove the child from her current home, as not to do so would affect her health, safety and welfare, and as far as services are concerned, either they have been offered and not fully taken advantage of or they're just not working and there's not enough time at this point to give more services without any potential harm to the child.

The court also concluded Inez hit Raquel on multiple occasions and that the punishment "was going too far, so that I find that there was excessive corporal punishment here."

On appeal, Inez argues that she did not commit an act of abuse or neglect, as those terms are defined in N.J.S.A. 9:6-8.21(c). Inez contends the court did not have "competent evidence" to substantiate a finding of abuse or neglect.

The scope of our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We must defer to the trial court's factual findings if they are supported by sufficient credible evidence in the record. Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Furthermore, deference to the trial court's factual findings is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court also "should accord deference to family court fact-finding" because of that court's "special jurisdiction and expertise in family matters." Id. at 413.

Title Nine of the New Jersey Statutes "controls the adjudication of abuse and neglect cases." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). The term "abused or neglected child" is defined to include

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a 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)(4) (emphasis added).]

The phrase "minimum degree of care" refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citing Miller v. Newsweek, 660 F. Supp. 852, 858-59 (D. Del. 1987)). "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)). "[When] an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds [that person] responsible for the injury he [or she] causes." Id. at 179 (citing Fielder, supra, 141 N.J. at 123).

A parent or guardian "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181 (citation omitted). "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." Id. at 181-82.

Failure to exercise a minimum degree of care includes "the infliction of excessive corporal punishment . . . ." N.J.S.A. 9:6-8.21(c)(4). "Corporal punishment" is not prohibited but Title 9 does prohibit "excessive corporal punishment," which is not defined by the statute. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010) (citation and internal quotation marks omitted), appeal dismissed as improvidently granted, 208 N.J. 355 (2011). "However, "by qualifying the prohibition 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." N.J. Div. of Youth & Fam. Servs. vs. P.W.R., 205 N.J. 17, 36 (2011).

We have defined "excessive" as "beyond what is proper or reasonable." K.A., supra, 413 N.J. Super. at 511 (citation omitted). What is proper or reasonable for one child may be different for another, depending on various factors, including a child's age. P.W.R., supra, 205 N.J. at 33 ("[O]ne ought not assume that what may be 'excessive' corporal punishment for a younger child must also constitute unreasonable infliction of harm or excessive corporal punishment in another setting involving an older child."). The Administrative Code lends assistance in identifying excessive corporal punishment by listing types of injuries, including bruises, which may constitute abuse. N.J.A.C. 10:129-2.2; K.A., supra, 413 N.J. Super. at 510-11. A single act of violence could be excessive corporal punishment if it causes an injury requiring medical intervention, K.A., supra, 413 N.J. Super. at 511, but occasional slaps in the face to a teenager, that do not leave bruises, may not be excessive corporal punishment. P.W.R., supra, 205 N.J. at 35-36. However, punishment will be considered excessive where a parent's intentional act exposes a child to the substantial probability that injury would result from the parent's conduct. M.C. III, supra, 201 N.J. at 345. In all determinations regarding excessive corporal punishment, abuse is evaluated by "looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children[.]'" K.A., supra, 413 N.J. Super. at 511. (alterations in original) (quoting G.S., supra, 157 N.J. at 176).

The application of these considerations led this court to conclude in K.A. that a mother's actions did not constitute "excessive corporal punishment." The mother in that case repeatedly hit her child on the shoulder leaving visible bruises several days after the incident. Id. at 507-08. We considered the reasons behind the mother's actions the child did not respond to "passive means of discipline such as a time-out," the fact that the child had a psychological disability and that it was an isolated incident for which the mother was remorseful as reasons mitigating against a finding of excessive corporal punishment. Id. at 512.

Here, Inez struck Raquel several times on multiple occasions, leaving scratches and bruising on Raquel's body. In addition, Inez made no attempt to employ a passive form of discipline, such as a time-out, before she engaged in corporal punishment. In K.A., the mother was remorseful for her actions. Id. at 508. By contrast, Inez was not remorseful, referred to Raquel as the "devil," requested Raquel be removed from her home and was adamant that her "discipline" was appropriate. In sum, Inez's thought process evinced a callous disregard for the harm, both physical and emotional, that resulted from her conduct.

We are satisfied there is sufficient credible evidence in the record to support the court's determination that Inez "abused or neglected" Raquel as those terms are defined in N.J.S.A. 9:6-8.21(c)(4). The record amply supports that Inez failed to exercise the minimal degree of care for the child by engaging in acts of excessive corporal punishment. The court's finding was based upon an analysis of the dangers and risks associated with the various reported incidents and after an assessment of the credibility of the witnesses. We defer to those findings where, as here, they "'are substantially influenced by the [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Affirmed.

1 We have used fictitious names for the purpose of confidentiality.