NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

R.P.,

Defendant-Appellant,

and

D.B.,

Defendant.

-

IN THE MATTER OF L.P. AND W.P.,

Minors.

-

October 14, 2016

Argued September 22, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0684-14.

Andrew J. Shaw, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Shaw, on the briefs).

Elizabeth A. Davies, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Davies, on the brief).

Lisa M. Black, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).

PER CURIAM

Defendant R.P. appeals from a September 22, 2014 fact-finding order reflecting the Family Part's finding of abuse and neglect as to R.P.'s nine-year-old son, W.P. (Warren).1 The court found defendant used excessive corporal punishment on W.P. when he smacked him fifteen times on his buttocks and slapped him two times on his face, leaving physical injuries visible the following day at school. On appeal, defendant admits these allegations but argues they do not constitute excessive corporal punishment. We disagree and affirm the trial court's finding.

I.

At the time of the incident, Warren was in the fourth grade. Defendant asserts his and Warren's account of the corporal punishment are "essentially the same," but the record shows their versions differ in some respects. According to defendant, the day before the incident, Warren returned home from school with "a large number" of things defendant and his fiancée, J.W. (Janice), did not recognize as belonging to him. According to Warren, he only had a necklace that was not his. They both agreed Warren told defendant the items were gifts. When Janice accompanied Warren to school the next morning, she learned Warren had stolen the items. The teacher and Janice told him to give the items back and apologize to his class for stealing.

Warren told the court he came home with a second calculator later that day. When Janice asked him, Warren told her it was given to him. Janice usually punished Warren by telling him to hold a heavy object for a period of time. She called defendant to tell him about the calculator, and defendant said he would smack Warren five times for each time he put the heavy object down without permission. Janice told Warren to lift the heavy object three times, but he refused. When defendant got home, he slapped Warren fifteen times without his pants on, for not lifting the heavy object. When he refused again, Warren states defendant slapped his face, three times "as hard as you can."

Defendant's account of the incident differs from Warren's in the following ways. According to the investigation summary of the Division of Child Protection and Permanency (the Division), which the court admitted into evidence at the fact-finding hearing, defendant said Warren returned home with a second calculator after school.

During the fact-finding hearing, defendant said Warren had the same items in his backpack again. When defendant asked Warren where he got the calculator, he told him the teacher gave it to him. Defendant did not believe him, so he asked him again. Warren again said he got it from his teacher. Defendant told Warren he was lying, and he should tell the truth. When Warren refused to change his story, defendant told him to tell the truth or "you're going to get five smacks on the butt." Warren repeated the teacher gave him the calculator, so defendant gave him "five whacks on the butt" over his clothing and diaper. Defendant repeated the question two more times and smacked Warren five times each time he refused to admit he had stolen the calculator. After the third series of five slaps, Warren said, "Yes. I stole them from the teacher's purse." Defendant told him to stand in the corner, so he could finish looking through his backpack. Warren refused to turn around and watched as defendant found other items in his backpack.

When defendant asked Warren how he got the additional items, he initially said they were gifts from his teacher, but he eventually admitted he had stolen them. Warren then started screaming he did not have to stay in the corner. This woke his brother and Janice's children. Defendant told him to stop, or he would smack him again. Warren said he did not have to listen to him, so defendant "smacked him in the face." Defendant told Warren to stop screaming. He said no, so defendant smacked him a second time. Defendant asked him whether he was going to stop screaming, and he said yes. Defendant thanked him. Defendant said fifteen minutes elapsed between defendant's first smack of Warren's buttocks and his last smack of his face.

Afterwards, defendant noticed Warren's face was red. He apologized and got him an ice pack. He had not intended to hit him so hard. Defendant told Warren he had to sleep on the living-room floor because the other children did not want to be near him.

The next morning, Warren's face was still red. Defendant accompanied him to school to inform his teacher about what had happened. The teacher said, "I can't believe that he had stolen them out of my purse." Defendant said Warren was "lucky to still be standing" and left him at school to go to work. Later that day, Gloucester City Police and the Division contacted defendant about the incident. The Division also met with Warren and took photos of his injuries.

In his interviews and testimony, defendant tried to justify hitting Warren fifteen times on his buttocks and two or three times on his face. Defendant stated Warren had "elevated testosterone levels," describing him as "probably twice as strong as any nine-year old."2 Defendant also said Warren had attention deficient hyperactivity disorder and oppositional defiant disorder. Defendant claimed he had read many books on these disorders to learn how to handle Warren's misbehavior, although he admitted none of them told him to smack Warren in his face or hit him fifteen times on the buttocks. Warren's misbehavior included pushing his sister and hitting other children without ever causing any serious injuries. About a year prior to the incident, Warren threw objects into their house's chandelier, causing it to smoke. He also threatened to "shoot everyone" at some point in the past. More generally, he tended to "throw tantrums and scream[]" when he was upset.

When defendant's children misbehaved, he usually made them stand still in the corner and if they moved, their time restarted. He told the Division, "this was the first time that he hit [Warren] in a long time." He added, "[Warren] is just too much to deal with," and he offered to "sign the papers to get rid of [him]."

On June 6, 2014, the Division filed a verified complaint and an order to show cause with the Family Part seeking custody, care, and supervision of Warren and his brother, L.P. (Larry), the two children defendant had with D.B. (Debbie). The court granted the Division's request, based upon the imminent danger presented by defendant administering excessive corporal punishment under N.J.S.A. 9:6-8.21(c). The court's order maintained defendant and Debbie's legal custody of Warren and Larry, but it granted Debbie physical custody of Warren and Janice physical custody of Larry.

On September 15, 2014, the judge interviewed Warren about the incident, and held a fact-finding hearing a week later. In addition to defendant, the court heard testimony from Warren's mother, who stated Warren came to live with her on June 6, 2014; while he wore a diaper when he arrived, he had not needed to wear a diaper since then. The judge reviewed the photos taken the morning after the incident, describing them as "shocking." In the photos of Warren's face, the judge described "white linear marks . . . where [defendant's] fingers are." "[T]he rawness of these photos is striking. There's red marks. There's -- you can almost see the blood vessels having been irritated underneath the skin. It's all over the left side of the face." The court added, "And some parts of it are darker, almost a purple color . . . . There's also red marks behind the left ear . . . ." In the photos of Warren's buttocks, the judge saw "bruising and redness." The judge further observed, "These . . . pictures show a rawness in the . . . injuries to this child. Again, different discolorations. Some [are] red. Some are purple. But it's all over the child's buttocks . . . ."

The court expressed surprise at the extent of the injuries to Warren's buttocks given the protection his diaper would have afforded. The court refrained from exploring why Warren wore a diaper, because "there's no expert testimony with respect to exactly what the issue is with the child wearing a diaper, although . . . I'm pleased to hear that he doesn't wear one anymore." The judge concluded, "So these pictures, in my opinion, are very vivid and I can only imagine what they would be like if it was actual hand to actual skin." The judge further noted defendant pled guilty to simple assault3 on June 30, 2014.

The judge then discussed the credibility of Warren's and defendant's testimony. She found Warren "a credible witness" because "he knew that it was important to tell me the truth." The judge found defendant "thinks that there was really nothing wrong with what he did." The court then concluded,

[D]id the child do something wrong? Yes. Was it handled by the school? Yes. But to come home and have this -- the father and the child have this confrontation that went on for fifteen minutes to the point where the child suffered these injuries is a grave concern for the [c]ourt.

I think the Division has proven a Title 9 in this case. This is a man who is a large man who, in my opinion, went over the line and committed excessive corporal punishment.

On April 1, 2015, defendant filed his notice of appeal.

II.

Our review of the trial court's fact finding is limited. "[T]he findings on which [a trial court's decision] is based should not be disturbed unless they are so wholly insupportable as to result in a denial of justice . . . ." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (internal quotations omitted). "Because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "We defer to the credibility determinations made by the trial court because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, supra, 154 N.J. at 412).

Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), 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 a result of the failure of his parent or guardian 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; or by any other acts of a similarly serious nature requiring the aid of the court. The Division must prove its case in a fact-finding hearing by a preponderance of the evidence. N.J.S.A. 9:6-8.44 & 46(b).

"Excessive corporal punishment" is not defined by statute but is determined on a case-by-case basis. Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). In K.A., we noted "excessive corporal punishment" should be read in light of the term's common usage and understood meaning. Ibid.

Defendant cites K.A. to argue his behavior did not constitute excessive corporal punishment. In K.A., the mother hit her daughter with a closed fist four or five times in her shoulder, leaving bruises. Id. at 506. The mother's lapse of judgment lasted four or five seconds, and she "accepted full responsibility for her actions." Id. at 506, 512. We also cited the "aberrational" nature of the incident, and the Division's failure to remove the child from the mother's care, in support of our decision to reverse the finding of substantiated abuse. Id. at 513.

In this case, defendant hit Warren repeatedly over a period of fifteen minutes, and the judge found defendant thought "there was really nothing wrong with what he did." Defendant also told the Division he had previously hit Warren. Defendant argues the trial court lacked evidence to support this fact, but defendant's admission to the Division is sufficient for the trial court to find this incident was not "aberrational." The trial court also granted the Division's motion to remove Warren from defendant's physical custody. Clearly, the facts of this case do not warrant a reversal of the trial court's decision on the same grounds as K.A.

Defendant also argues the trial court had insufficient evidence he inflicted excessive corporal punishment upon Warren because he did not require medical attention and did not sustain permanent injury. The trial court's description of Warren's injuries confirm he experienced the type of bruising to his buttocks and face contemplated by N.J.A.C. 10:129-2.2(a)(9).

Courts must exercise their judgment in determining whether the acts in a specific case are excessive and justify a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). What constitutes excessive corporal punishment is a fact-sensitive inquiry. Ibid. In P.W.R., the court found 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)." Id. at 36. The sixteen-year-old had been slapped by her mother for skipping school and over disputes about her being sexually active. Id. at 24-25.

In Department of Children and Families, Division of Youth & Family Services v. C.H., 414 N.J. Super. 472, 476 (App. Div.), reaff'd, 416 N.J. Super. 4 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we affirmed a finding of excessive corporal punishment when a mother used a paddle on her five-year-old child, resulting in bruising and other marks which, although excessive, did not require medical attention other than an examination. In New Jersey Division of Youth and Family Services v. S.H. and M.H., 439 N.J. Super. 137, 147 (App. Div.), certif. denied, 222 N.J. 16 (2015), where a mother bit and hit her teenager with a golf club, we rejected the trial judge's conclusion the child's injuries did not manifest excessive corporal punishment because the Division did not conclude the injuries required immediate medical attention. The need for medical attention is not a prerequisite for a finding excessive corporal punishment occurred.

Here, the trial judge found hitting Warren fifteen times on his buttocks and twice on the face constituted an unreasonable response to taking a calculator and other items without permission and refusing to turn his back to his father, who had already hit him fifteen times. Although defendant did not use a belt or paddle to beat his son, his large size allowed him to inflict physical injuries usually associated with such beatings. The photos taken the day after the beating confirmed the degree of painful injury Warren suffered. As the judge noted, "[A]ny time [you are] smacking a child in the facial area, especially with the force used by [defendant], clearly . . . [there is] a risk of much more physical injury than this child sustained[,] and he did sustain injury." We conclude the record contains substantial, credible evidence supporting the judge's finding of abuse or neglect. The court's finding is not contrary to statute and is in line with the holdings in S.H., C.H., and K.A. We discern no reason to disturb it.

Affirmed.

1 We use pseudonyms for the family members to protect their privacy and for ease of reference.

2 In comparison, defendant stands six-feet tall and weighs 252 pounds.

3 N.J.S.A. 2C:12-1(a)(1) defines simple assault as an "[a]ttempt[] to cause or purposely, knowingly or recklessly cause[] bodily injury to another." The court took judicial notice of the conviction, without objection.