DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.W.

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                     NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0095-16T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

           Plaintiff-Respondent,

     v.

C.W.,

           Defendant-Appellant,

     and

C.B. and J.S.,

          Defendants.
_________________________________

IN THE MATTER OF Q.W. and P.W.,

          Minors.
_________________________________

           Submitted April 10, 2018 – Decided April 19, 2018

           Before Judges Fisher and Fasciale.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Somerset
           County, Docket No. FN-18-0104-15.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (Cecilia M.E. Lindenfelser,
            Designated Counsel, on the brief).

            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Jason W. Rockwell, Assistant
            Attorney General, of counsel; Julie B.
            Colonna, Deputy Attorney General, on the
            brief).

            Joseph B. Krakora, Public Defender, Law
            Guardian, attorney for minors (Karen Ann
            Lodeserto, Designated Counsel, on the brief).

PER CURIAM

       Defendants C.B. (Carol) and C.W. (Carl) are the parents of

two children: Q.W. (Quincy), who was born in 2010, and P.W. (Paul),

who was born in 2011.1 The Division of Child Protection and

Permanency commenced a Title Nine action in July 2014 against

Carol and Carl when informed that the children were found wandering

in the street unsupervised and unclothed. The Division's emergent

removal of the children was sustained by the trial court, and the

Division retained custody as services were provided. The Division

also gathered information about Carl's wife, J.S. (Joan); in the

meantime, the judge required that any of Joan's involvement with

the children be supervised. Carl was permitted unsupervised visits

but was ordered to engage in parenting-skills classes and later

reunified with the children.



1
    All names used are fictitious.

                                     2                      A-0095-16T4
      The Division, however, remained concerned about Carl because,

in the Division's view, Carl was not compliant with provided

services, which included parenting classes. In February 2015, the

judge ordered Carl's compliance and continued his prior order that

Joan's contact with the children be supervised.

      The following month, the Division filed an amended complaint,

alleging Carl and Joan's physical abuse of the youngest child,

Paul. In June 2015, the trial judge heard testimony during a two-

day fact-finding hearing about the allegations in the amended

complaint.

      At the hearing, the Division provided documentary evidence

and called an expert witness and three caseworkers to testify. The

Law   Guardian   also   provided   evidence   and   testimony    from   the

children's daycare staff. And Carl called an expert to testify on

his behalf. Neither Carl nor Joan testified. The judge concluded,

by way of his July 1, 2015 oral opinion that Carl and Joan had

abused   or   neglected    Paul.    Carl   unsuccessfully       moved   for

reconsideration.

      In February 2016, the children were reunited with Carol, and

in July 2016, an order was entered that terminated the litigation;

that order required that Carl's contact with the children be

supervised.

      Carl appeals, arguing:

                                    3                              A-0095-16T4
            I. THE TRIAL COURT ERRED IN           FINDING   THAT
            [CARL] CAUSED INJURY TO PAUL.

            II. THE TRIAL COURT ERRED IN FINDING THAT [THE
            DIVISION] ESTABLISHED A PRIMA FACIE CASE OF
            ABUSE.

            III. THE TRIAL COURT FAILED TO APPLY THE
            CORRECT   DOCTRINE  OF   RES IPSA LOQUITOR
            (ARGUMENT NOT RAISED BELOW).

            IV. THE TRIAL COURT'S FINDING AGAINST [CARL]
            MUST BE REVERSED AS HE DID NOT ACT IN A GROSSLY
            NEGLIGENT MANNER.[2]

We find insufficient merit in these arguments to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only

the following comments.

       The March 2015 referral that was the genesis for the amended

complaint against Carl and Joan resulted from the fact that when

dropped off at daycare Paul exhibited wounds to his ear and a

scratch near his right eye. When a daycare representative attempted

to clean the blood away from Paul's wounds, she noticed bruising

to the front and back of his ears and that a layer of skin was

removed as a result of whatever had recently occurred. When asked

what happened, Paul said Joan "did it." When later medically

examined, it was determined Paul was also suffering from ringworm.

       Because   the   two   separable   claims     arising   from     these

allegations – excessive corporal punishment and a failure to seek


2
    We have renumbered these arguments.

                                    4                                A-0095-16T4
medical treatment – were tried together, as was appropriate, there

was a natural potential for confusion about the legal standards

to be applied. Indeed, at the outset, the judge referred to the

burden-shifting doctrine discussed in N.J. Div. of Youth & Family

Servs. v. J.L., 
400 N.J. Super. 454, 457 (App. Div. 2008), and In

re     D.T.,   229      N.J.    Super.      509,       517     (App.    Div.     1988).

Notwithstanding, we find no merit in Carl's arguments that the

judge applied the wrong standard because we discern from his oral

opinion that the judge found persuasive direct evidence to support

both claims. That is, the judge found the Division's and Law

Guardian's witnesses credible. And he found that their testimony,

the child's statements, the corroborating photographs of the child

and the observations made by the day-care staff, and the expert

testimony,     as    well,     supported        a   finding    that    the   child   was

physically punished to an extent that caused considerable bleeding

in an area around his ear. The fact that the judge observed that

neither Carl nor Joan offered some other explanation for Paul's

injury does not suggest that the judge had shifted the burden of

persuasion to them. The judge only stated the obvious – that the

only    version     offered     for   his       consideration     was    the   version

presented by the Division and Law Guardian. Consequently, the

judge    was   merely    required     to    determine         whether   the    credible

evidence tilted the scales in favor of the Division's allegations

                                            5                                   A-0095-16T4
of abuse and neglect. The judge answered that question in the

affirmative, and we have been presented with no principled reason

to second-guess his finding that Paul's injury occurred while he

was in the care of Carl and Joan and that the nature of the injury

supported a finding that Paul was subjected to excessive corporal

punishment within the meaning of 
N.J.S.A. 9:6-8.21(c)(4).

     The judge also found from the credible evidence that Paul's

ringworm condition was in "various stages of remission" and,

therefore, had persisted for a long enough period of time to

support the Division's contention that Carl failed to timely seek

medical treatment for the child. This, too, provided a sound basis

for a finding of abuse or neglect.

     Affirmed.




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