DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.V.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00933-14T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

M.V.,

Defendant-Appellant,

and

J.V. and M.S.,

Defendants.

__________________________________

IN THE MATTER OF I.V. and I.S.,

Minors.

___________________________________

August 25, 2016

Submitted February 1, 2016 Decided

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-313-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.S. (Catherine Davila, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.V. (Melissa R. Vance, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

M.V. ("mother") appeals from a November 6, 2013 fact-finding Family Part order determining she had abused her then fifteen-year old daughter, I.V. ("Ivana"),1 by inflicting excessive corporal punishment in violation of N.J.S.A. 9:6-8.21(c)(4)(b). After reviewing the evidence adduced at the fact-finding hearing, the briefs, and the applicable legal principles, we reverse and remand for further proceedings.

I

The evidence consisted of the testimony of two employees of the New Jersey Division of Child Protection and Permanency ("the Division") and documentary evidence, which included one Division employee's written statement of what the mother, Ivana, and Ivana's then nine-year old brother ("Isaac") reported to that employee about an incident that occurred the day before, May 15, 2012.2 At that time, the mother, Ivana, Isaac, and the children's maternal great-grandfather lived together in the same household. We summarize the pertinent evidence.

A

According to Ivana, on May 15, 2012, the mother became angry at her because she did not get home from school on time and had taken cosmetics belonging to the mother. While arguing in the mother's bedroom, the mother demanded that Ivana turn over her cell phone. The child tossed the phone on the bed and the mother then smashed the phone against the wall. The child went into her bedroom and tried to shut the door behind her, but her mother caught the door with her hand and entered the room.

Ivana then yelled at her mother, who responded by pulling Ivana's hair "hard." Ivana pushed her mother away, but the mother then hit, punched, and scratched Ivana's face, back, and legs, and also kicked her legs. Both ended up "scuffling" on the bed. While it was not clear how they ended up in this room, Ivana claims that once in the kitchen the mother grabbed Ivana by and scratched her neck.

One of the Division employees observed two, five-inch red linear "marks" on the child's neck, a "reddish" mark under her right eye, scratches and bruising on her back, and bruising on one of her thighs. The employee admitted that some of the bruises appeared to be in the process of healing.

There is no evidence Ivana required medical attention. Ivana advised the Division's employees that she was not afraid of her mother, and the Division did not seek to remove either child from the mother's home.

B

Isaac had a different version. Issac informed one of the Division employees that he saw Ivana throw a phone at the mother, who responded by pushing Ivana onto a bed. Ivana then kicked, punched, and cursed at the mother. He claimed the mother did not kick his sister although, when Ivana was kicking her, the mother slapped Ivana's neck with an open hand. He did not go into the kitchen and thus did not witness anything that occurred there. Isaac also claimed Ivana hits herself in the face and scratches her cheeks when she becomes angry.

C

The mother's version was that, because Ivana had lied to her about some matter, the mother instructed Ivana to turn over her phone to her. After she "finally got the phone," Ivana began to curse at her. The mother told Ivana that she was going to call the police, to which Ivana replied "Fuck you, bitch" and started to leave their home. The mother then pushed Ivana onto the bed and they "both started fighting." The mother claimed Ivana kicked and punched her until the children's great-grandfather entered the room, when the fighting ceased.

The mother went into the kitchen, grabbed a knife, and cut one of the child's jeans, telling Ivana she could leave the house but could not take any clothing the mother had purchased for her. Ivana tried to leave but the mother pinned Ivana's arms against a wall to stop daughter from running away.

The mother claimed Ivana scratched her left arm during the "altercation." She admitted she may have scratched Ivana, but denied kicking her; grabbing, choking, or scratching her neck area; or hitting her daughter with enough force to cause any injuries. One of the Division employees noticed scratching on one of the mother's arms.

The mother advised the Division that she believed her daughter was upset because she learned she had to repeat the ninth grade for a second time, meaning that in the upcoming fall the child would be a high school freshman for three years in a row. The mother informed the Division she was willing to undergo a psychological evaluation in order to shed more light on her own psychological functioning.

D

The trial court found in favor of the Division, concluding it had proved the mother had assaulted Ivana and that the mother's conduct was an "overreaction [that] constituted excessive corporal punishment within the meaning of [N.J.S.A. 9:6-8.21(c)(4)(b).]" The court found as follows

The physical altercation started in defendant's bedroom and then moved to the child's bedroom where defendant started hitting, punching, scratching her and both ended up scuffling [on] the bed. [Ivana] had marks from her mother scratching her upper body. Defendant's excuse was that when she finally got the phone[,] [Ivana] started to leave and tried to slam the door on her. Defendant claimed that [Ivana] became confrontational and started cursing at her and said that she was going to leave and started to head for the door. Consequently, defendant pushed [Ivana] down on the bed and both started fighting. Defendant claimed that [Ivana] kicked and punch[ed] her but this was while the mother had her pinned down on the bed and was choking her.

II

On appeal, the mother argues the trial court erred when it found the mother had inflicted excessive corporal punishment upon Ivana because the court: (1) assumed facts that were not in evidence and failed to consider certain facts that were in evidence; (2) relied upon Ivana's hearsay statements even though they had not been corroborated; (3) failed to consider that Ivana had a history of hurting herself; and (4) did not make a finding that the mother had failed to provide Ivana with a minimum degree of care.

The scope of our review of a Family Part court's factual findings is ordinarily limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Generally, we defer to a court's findings of fact because a trial court 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). Findings made under those circumstances 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)). However, here, the court's factual findings were not derived from evaluating the testimony of witnesses. Further, neither witness had personal knowledge of what occurred between the mother and Ivana during the subject incident. Thus, we need not defer to the trial court's factual determinations.

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 . . . to exercise a minimum degree of care . . . 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)(b).]

The statute does not define the term "excessive corporal punishment," but in N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2011), the Supreme Court noted that not all forms of physical discipline are prohibited. Id. at 36. The Court recognized that

[a] slap of the face of a teenager as a form of discipline with no resulting bruising or marks does not constitute "excessive corporal punishment" within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). That is not to suggest approval of such behavior. But, 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.

[Ibid.]

In Dep't of Children & Families v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. improv. granted, 208 N.J. 355 (2011), we observed that a single act of violence committed against a child might constitute excessive corporal punishment if a child suffers a fracture or a serious laceration, or where medical intervention is necessary. Ibid. However, "absent evidence showing that the inflicted injury constitutes per se excessive corporal punishment[,]" consideration of the circumstances facing the parent is necessary to determine whether the infliction of the physical punishment in question amounted to excessive corporal punishment. Id. at 512.

In K.A., the mother struck her eight-year old child four or five times on the shoulder with a closed fist, causing bruising. Id. at 506. The child suffered from a disorder that made her disruptive, and the mother cared for the child full time without any respite. Id. at 507. On one occasion the child was misbehaving and was resistant to passive means of discipline. Id. at 506-07. In a moment of frustration, the mother punched her child but was immediately remorseful and sought help to enable her to tolerate her daughter's difficult, trying behavior. Ibid. In finding the mother had not inflicted excessive corporal punishment, we considered those extenuating circumstances. Id. at 511-12. Further, that mother did not lacerate the child's skin and the child did not need medical treatment. Ibid.

However, in Dep't of Children & Families v. C.H., 414 N.J. Super. 472 (App. Div.), adhered to on reconsideration, 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we found that hitting a five-year-old child with a paddle multiple times in the face because the child told the neighbor there was no electricity in her home was "'beyond any semblance of reason, and provide[d] no justification for [the mother's] decision to administer any measure of corporal punishment to a five-year-old child.'" Id. at 478.

If the facts as asserted by Ivana were uncontroverted and properly corroborated,3 the trial court's conclusion the mother inflicted excessive corporal punishment may have been supported by the evidence.4 After all, according to Ivana, the mother unjustifiably pulled her hair; hit, punched, and scratched her face, back, and legs; kicked her in the legs; and grabbed her by and scratched her neck.

However, the facts asserted by the mother present a

different scenario. The mother claims she and Ivana quarreled but, when her daughter said "Fuck you, bitch" and started to leave their home, the mother pushed Ivana onto the bed. We note here that, ordinarily, merely pushing a child onto a bed does not constitute excessive corporal punishment, unless such action happens to cause a certain degree of injury.

The mother contended they both started fighting, but she suggests it was the child who was the aggressor and was fighting the mother. The mother asserts Ivana was kicking and punching her, and denies she assaulted her daughter in the manner Ivana claimed.

We note that even though Ivana had scratches, bruises, and red marks, it is not clear from this record whether such injuries or marks resulted from the mother defending herself against Ivana's kicks and punches or if those effects were caused by excessive corporal punishment. Further, while the mother admits pinning Ivana against a kitchen wall, she did not do so to punish her daughter but in a desperate attempt to keep Ivana from leaving the house.

Further, Isaac's statement, which was admissible hearsay, see N.J.S.A. 9:6-8.46(a)(4); N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div. 2014), supports the mother's claim Ivana was the aggressor and that the mother was merely defending herself against her. Isaac reported Ivana threw the phone at the mother, who responded by pushing Ivana onto the bed. Ivana then kicked and punched the mother. He did see the mother slap Ivana's neck with an open hand, but in response to Ivana kicking the mother. The trial court did not address Isaac's statement in its decision.

As our Court observed 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 is plain from the divergent accounts of what occurred here, the court could not have fairly determined which account was credible from the statements provided to the Division by Ivana, the mother, and Isaac. Certainly the Division's witnesses who testified were not eyewitnesses to the incident. Although there was testimony about the injuries the Division employees observed on Ivana and the mother, that testimony is inconclusive on the question of whether the mother inflicted excessive corporal punishment, a fact-sensitive issue that cannot be determined on the basis of conflicting statements made to others by non-testifying witnesses.

Consequently, we are compelled to reverse the order on appeal and remand this matter to the Family Part for a new hearing and detailed fact-finding consistent with this opinion. In light of our disposition, we need not reach the mother's remaining arguments.

Reversed and remanded.

1 We have fictionalized the names of the children in this opinion in order to protect their privacy.

2 We are mindful that, as specified in the record, the contents of P-5 in evidence were not admitted for the truth of the matter asserted. With respect to P-6 in evidence, although they appear within the body of this exhibit, none of the hearsay statements in P-6 were admitted into evidence.

3 The court accepted as true Ivana's version of what had occurred and used the child's statements to make a finding of abuse. Although the court may have had reason to believe Ivana's statements were corroborated, the court failed to identify what that corroboration was. While a child's uncorroborated hearsay statement is admissible, such statement is not "sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).

4 We note that the court misunderstood a portion of Ivana's and the mother's statements concerning what had occurred between them. The court found that, in addition to hitting and scratching her, the mother had also punched Ivana. However, the child never claimed the mother had punched her.

In addition, the court rejected the mother's claim Ivana had kicked and punched her because, according to the court, "the mother had [Ivana] pinned down on the bed and was choking her." We assume the court reasoned that Ivana could not have kicked and punched her mother if Ivana was pinned down. However, there was no evidence the mother had pinned the child down on a bed or, for that matter, had choked her daughter.