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

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NOT FOR PUBLICATION WITHOUT THE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.

P.E.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF Z.D., a minor.

_______________________________

October 20, 2016

Submitted September 27, 2016 Decided

Before Judges Kennedy and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-000170-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Z.D. (David R. Giles, Designated Counsel, on the brief).

PER CURIAM

Defendant P.E. (Pam)1 appeals from a February 23, 2015 order finding that she abused or neglected a ten-year-old child by hitting the child, while the child was in her care, causing injuries that required medical attention. We affirm because the findings are supported by substantial credible evidence in the record.

I.

The child, Z.D. (Zoe), was born on May 6, 2004, and resides with her biological father, I.D. (Ivan). S.B. (Sally) is Zoe's biological mother.

Ivan was arrested on unrelated charges on August 30, 2014. Zoe, therefore, was staying with her maternal aunt. The next day, Ivan's girlfriend contacted Pam, who was a family friend, and requested Pam to pick up and care for Zoe. Pam agreed and drove to the aunt's home to pick up Zoe. Zoe, however, did not want to go with Pam, but eventually got into Pam's van.

According to Zoe, while she was riding with Pam, she was crying and Pam became upset. When Zoe would not stop crying, Pam stopped the van and hit Zoe several times using her arm, which was in a cast. Zoe also told the worker that she hit Pam back several times. Zoe went on to report that Pam called her sixteen-year-old daughter and told the daughter to "fuck [Zoe] up" when Pam brought Zoe home.

When Zoe arrived at Pam's home, Pam pulled Zoe from the van and Pam's daughter cursed at Zoe. Zoe then locked herself in a bathroom and called her aunt. Thereafter, Pam drove Zoe part way back to the aunt's home, dropping her off down the street. The aunt observed that Zoe had bruises and Zoe was then taken to the hospital where she was treated for a headache with pain medication.

The police and the Division of Child Protection and Permanency (Division) were notified about the incident. A Division worker met with Zoe and observed that Zoe had red bruises above her eyes, which the worker photographed. Zoe then told the worker what happened to her, including that Pam had hit her several times using her arm, which was in a cast. As part of the investigation, the worker obtained copies of the hospital records, which stated that Zoe was diagnosed with a headache, abrasions, and head injuries.

Since Ivan was in jail, and Sally informed the Division that she was not in a position to care for Zoe, the Division filed for and was granted custody of Zoe. Zoe was then placed with her paternal grandmother. Thereafter, she was returned to the custody of her father. The Division also substantiated Pam for abuse or neglect of Zoe.

A fact-finding hearing was conducted on February 23, 2015. The Division presented testimony from two workers and introduced six exhibits into evidence, including the photograph of Zoe's bruises and Zoe's certified hospital records. Pam, who was represented by an attorney, testified in her own defense. Pam acknowledged that she had been requested to care for Zoe, but Zoe did not want to go with her. When Zoe was placed in Pam's van, she was crying. According to Pam, Zoe "started going crazy," "kicking" and "trying to open the van door." Pam denied causing any injuries to Zoe's face.

After hearing the testimony and considering the exhibits, the Family Part judge found that Pam had abused or neglected Zoe while Zoe was in her care. The judge found the testimony of the two Division workers to be credible. The judge also found the testimony of Pam credible on certain matters, but incredible as to how Zoe was injured. With regard to Zoe's injuries, the judge found that Pam had struck Zoe in her face multiple times with her arm, which was in a cast. The judge accepted the Division worker's testimony concerning Zoe's version of the events, finding that Zoe's version was corroborated by her consistent telling of the events, as well as the photograph and medical records documenting Zoe's injuries. The judge then held that Pam had used excessive corporal punishment that was unreasonable under N.J.S.A. 9:6-8.21(c)(4)(b). Thereafter, the judge terminated the litigation because Zoe had been previously returned to the custody of her father. Pam now appeals the finding that she abused or neglected Zoe.

II

On appeal, Pam argues that there was insufficient evidence to establish that she abused or neglected Zoe. Specifically, she contends (1) the Division did not establish a causal link between the bruises on Zoe's head and Pam's actions; (2) Pam's actions were not unreasonable and did not amount to excessive corporal punishment; and (3) Zoe's statement to the Division case worker was insufficient to support a finding of abuse or neglect.

Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the "health and safety" of children. N.J.S.A. 9:6-8.8(a) and (b). Abuse or neglect occurs when

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 [or her] 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.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by "the totality of the circumstances." Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 401 (App. Div. 2014).

What constitutes excessive corporal punishment is "fact-sensitive." P.W.R., supra, 205 N.J. at 33. For example, our Supreme Court has held that where the defendant intentionally grabs his teenage son by the neck and arm, and causes his teenage daughter to fall to the ground, resulting in bruises, abrasions and swelling is sufficient evidence of excessive punishment. N.J. Div. of Youth & Family Servs. v. M.C. III., 201 N.J. 328, 334-37 (2010). In contrast, however, the Court has also ruled that occasional slapping of "the face of a teenager as a form of discipline - - with no resulting bruising or marks - - does not constitute 'excessive corporal punishment.'" P.W.R., supra, 205 N.J. at 36. The focus should be on the concept of "excessive" and whether the punishment is or is not reasonable under the circumstances. Dep't of Children & Families v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010) (citations omitted), certif. dismissed as improperly granted, 208 N.J. 355 (2011).

Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We defer to the judgments of the Family Part if those findings are "supported 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). A decision should be reversed or modified on appeal only if the findings were "so wholly un-supportable as to result in a denial of justice." Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014).

Here, there was substantial credible evidence to support the finding that Pam abused or neglected Zoe through excessive corporal punishment. The judge found that Pam deliberately struck Zoe in her face several times with an arm that was covered by a cast. Pam denied striking Zoe and, thus, did not testify that she was disciplining the child or that the discipline was reasonable under the circumstances. Indeed, the Family Part judge found Pam's testimony incredible as to how Zoe came to be injured. The judge also found that Zoe was injured as a result of Pam striking her. Zoe's statements to the Division worker were corroborated by a photograph that showed the bruising and the certified hospital records that documented the injuries.

Pam argues that the Division did not establish a causal link between the bruises on Zoe's face and Pam's action. This argument simply ignores the evidence in the record. The Division worker testified that Zoe told her that Pam repeatedly struck her in her face. The aunt then observed the resulting bruises and took Zoe to the hospital. As already noted, the worker documented the injuries by taking a photograph of Zoe's face and by obtaining the certified hospital records.

Finally, Pam argues that Zoe's statement to the Division worker was insufficient to support a finding of abuse. Again, as already noted, Zoe's statements to the Division worker were corroborated by the photograph and the hospital records.

Affirmed.

1 To protect privacy interests and for ease of reading, we use fictitious names for defendant, the parents, and the child. See R. 1:38-3(e); R. 5:12-4(b).