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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0A-5188-13T3

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant.

________________________________

IN THE MATTER OF J.B., a minor.

________________________________

December 17, 2015

Submitted December 7, 2015 - Decided

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-507-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Reid Adler, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.B. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

After a fact-finding hearing, the Family Part determined that defendant J.B. inflicted excessive corporal punishment upon his minor son J.B. (Jake)1 and thereby committed abuse and neglect in violation of N.J.S.A. 9:6-8.21(c)(4). Defendant appeals that determination. He contends that his conduct in striking his son as a means of physical discipline was not egregious and does not warrant placing him on the Child Abuse Registry. We affirm.

The stipulated record presented to the trial court shows that on February 6, 2013, defendant was home while Jake's mother was at work. Jake, who was then five years old, came home from kindergarten on a school bus. Defendant learned from the bus driver that Jake had used crude language on the bus towards another child. The two of them walked home together from the bus stop.

To punish the son for his behavior on the bus, defendant struck Jake five or six times with a belt. Defendant later admitted that he had beaten Jake with a belt on past occasions, stating that it was how he himself had been disciplined as a child.

School officials noticed the belt marks on Jake the following day. A subsequent medical examination revealed that the defendant's blows left a five-inch bruise on the child's right thigh, plus two large bruises on his right forearm measuring respectively eight and four inches. The doctor noted that "[t]here appear[ed] to be some parallel marks that suggest either the width of a belt or possibly a buckle," but that the injuries were superficial and would ultimately heal without any long-term residual effects. An examining nurse observed that Jake did not complain of pain and that he moved his limbs about freely. A social worker who met with Jake concluded that he could be returned home and that he did not have to be supervised when he was with his father.

The school officials reported the incident to the Division of Child Protection and Permanency ("the Division"), which performed an investigation. Defendant cooperated with the Division staff and was apologetic concerning the beating.

The Division charged defendant with abuse or neglect, specifically alleging that he had inflicted excessive corporal punishment on his young son. Upon considering the proofs, including photographs of the multiple marks the beating left on the child, Judge Angelo DiCamillo concluded that the Division had met its burden of proof by a preponderance of the evidence. Although Judge DiCamillo credited defendant for his remorse and his cooperation with the Division, the judge found it significant that the beating with the belt had caused bruises on multiple parts of the body of "a very young child."

Defendant appeals, contending that the proofs were insufficient to support the judge's finding of a statutory violation. We disagree.

The applicable law is clear. The relevant portion of Title Nine, N.J.S.A. 9:6-8.21(c)(4)(b), defines "an abused or neglected child" to include a child under the age of eighteen

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 . . . (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[.]

[(Emphasis added).]

The Division's regulations elaborate that evidence of "cuts, bruises, abrasions [or] welts" may reflect injuries to a child that will qualify as "abuse or neglect" under the statute. See N.J.A.C. 10:129-2.2(a)(9).

The case law concerning excessive corporal punishment is consistent with Judge DiCamillo's finding of abuse in this case. A parent using corporal punishment may only inflict "moderate correction" that must be reasonable under the circumstances. State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). Force that exceeds that reasonableness limit is sufficient to trigger the statute.

For example, we have held that a mother committed an act of child abuse by inflicting corporal punishment by beating her daughter with a paddle in Department of Children & Families, Division of Youth & Family Services v. C.H., 414 N.J. Super. 472, 481 (App. Div.), aff'd on reconsideration, 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011). Likewise, in New Jersey Division of Youth & Family Services v. S.H., 439 N.J. Super. 137, 147 (App. Div.), certif. denied, 222 N.J. 16 (2015), we ruled that a parent had administered excessive corporal punishment by striking a child with a golf club as discipline for using profanity, leaving the child with bruises.

Defendant attempts to liken this case to New Jersey Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011), in which we concluded that a mother's actions in striking her eight-year-old child on the shoulder with a closed fist did not rise to the level of excessive corporal punishment. Notably, the child in K.A. had a pervasive developmental delay and attention deficit disorder, for which she was medicated. Id. at 506. When that special needs child refused one day to complete her homework, the mother in K.A. attempted several times to discipline her with "time out" sessions, but to no avail. Ibid. Out of immediate frustration, the mother struck the child four or five times over a short period of time lasting only four or five seconds. The child only sustained a small cluster of bruises and no lacerations. Id. at 512.

Here, the child who was beaten is several years younger than the child in K.A. and has no apparent diagnosed behavioral disorders or deficits. Unlike the mother in K.A., defendant immediately began striking his child without first attempting non-physical means of discipline. Rather than using his bare hands, defendant used an instrumentality, a belt, to strike the child, a fact indicative of his purposeful attempt to inflict pain. The beatings took place over a longer period of time in two different rooms within the home. The multiple welts left on Jake exceed the bruising in K.A. Viewed in their totality, the circumstances here are plainly more severe than those that existed in K.A.

Our scope of review is limited. We must defer on appeal to the trial judge's factual findings if they are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). In addition, we must bear in mind the Family Part's special expertise in adjudicating cases brought by the Division in the Children in Court dockets, and the judges' opportunity to compare and evaluate the cases' similarities and differences against the criteria of Title Nine. R.G., supra, 217 N.J. at 553 (2014).

Taking all of this into account, we agree with the Division and the Law Guardian that there is substantial credible evidence in this record to support the trial court's finding of abuse or neglect. The decision is also consistent with case law and the elements of the statute and regulation.

Affirmed.

1 We use a fictitious name for the son, both to protect his privacy and also because his initials are the same as defendant's.