DIVISION OF YOUTH AND FAMILY SERVICES v. N.R.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2809-07T42809-07T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

vs.

N.R.P.,

Defendant-Appellant,

IN THE MATTER OF N.S.H.,

W.M.H., N.N.F. and M.S.,

Minors.

___________________________________________________________

 

Submitted October 8, 2008 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-200-07.

Yvonne Smith Segars, Public Defender, attorney for appellant N.R.P. (Jean B. Bennett, Designated Counsel, and Adrienne Kalosieh, Assistant Deputy Public Defender, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors N.S.H., W.M.H, N.N.F. and M.S. (Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the trial judge entered an order that determined defendant, N.R.P., had "abused or neglected" her children "in that she used excessive corporal punishment upon [her son N.N.F.] by using a belt on him . . . plac[ing] him at significant risk of harm." Defendant contends the judge's finding in this regard "was not supported by the record." The Division of Youth and Family Services (D.Y.F.S.) and the law guardian representing N.N.F. counter by arguing that the judge's findings and conclusions were based upon sufficient credible evidence and should not be disturbed. We have considered defendant's argument in light of the record and applicable legal standards. We affirm.

I.

On November 8, 2006, D.Y.F.S. filed a verified complaint seeking the care, custody and control of defendant's four children, N.S.H., age ten, W.M.H., age nine, N.N.F., age six, and M.S., III, age four. We need not detail the proceedings that occurred prior to, or after, the fact-finding hearing because they are not relevant to the issue presented on appeal. It suffices to say, however, that on December 10, 2007, at D.Y.F.S.' request, the trial judge entered an order terminating the proceedings and returning the children to defendant's custody because "conditions ha[d] been remedied."

D.Y.F.S.' sole witness at the fact-finding hearing was caseworker, Jennifer Sabatino, who testified that on November 3, 2006, she responded to "a referral concerning a six[-]year old boy being physically disciplined at school." In the verified complaint D.Y.F.S. alleged that two days earlier, defendant had been summoned to N.N.F.'s school because he had become violent and had threatened to kill himself. According to the school authorities, defendant arrived at the school and punched N.N.F. very hard in the chest three times to awaken the boy who had calmed down and was sleeping. Defendant allegedly dragged N.N.F. out of the classroom.

Sabatino testified that she interviewed defendant and her children in her home. She asked N.N.F. what happened and the child "said he was beaten with a belt on his back, his neck, his arm, [] his knee, and his butt." Sabatino observed marks on N.N.F.'s body that were consistent with having been hit with a belt. N.N.F.'s brother, W.M.H., told Sabatino that he held N.N.F. down at defendant's request while she hit him with the belt because the child, who was naked at the time, was "squirming around trying to get under the covers, trying to get away from the belt while he was being beat." W.M.H. told Sabatino that he had been "punched" by defendant, and his sister, N.S.H., claimed that defendant had "smacked [her] in her face."

Sabatino described the marks on N.N.F.'s body.

They were linear, red . . . the ones on his back were long and linear. Then he had two on his arm -- one on his upper arm, one on his forearm. On the back of his neck he had a half centimeter in diameter s[c]ab on his buttocks that was unexplainable.

Questioned by Sabatino about the marks, defendant denied "that the[y] . . . were from a belt. She said that she hit him on the butt and did not know where the marks on his back came from," claiming some of the marks were from "eczema." Sabatino took pictures of the marks and these were introduced into evidence at the hearing.

Sabatino testified that the children were removed from the home on an emergency basis, N.J.S.A. 9:6-29, and N.N.F. was medically examined that evening. N.J.S.A. 9:6-8.30c. On the medical report from that examination, the doctor noted "several abrasions, superficial to back and upper neck and to [right] upper arm and 1/2 cm healing scab to [left] buttock. No active bleeding." On the back of the report, the doctor failed to indicate on the anatomical drawings provided where the marks were located on N.N.F.'s body, and he failed to attribute any specific cause to them.

Defendant testified that when Sabatino and her co-worker arrived at her home, she explained the circumstances that occurred at N.N.F.'s school two days earlier. According to defendant, "I didn't punch [N.N.F.], but . . . I [] hit him with the back of my hand waking him up . . . ." Defendant denied causing the marks that were on N.N.F. Defendant testified that Sabatino was in the home "a lot of hours" and N.N.F. was "sliding up and down steps . . . jumping all around," implying those actions may have caused the marks. Defendant denied seeing any marks caused by a belt, but explained "[N.N.F.] ha[d] a lot of marks on him. He's a little boy who is actually a very rough little boy." Defendant claimed that N.N.F. had eczema and would sometimes pick the healing scabs caused by that condition.

When asked if she had "ever hit the children with a belt," defendant responded that she had hit N.N.F. with a belt. Defendant insisted she only used the child's own belt, which was "very lightweight," hit him only in his buttocks, and struck him only "two or three times." Defendant, who was pregnant at the time of the incident, claimed N.N.F. "went to fight [her], and grab [her], and [was] kicking at [her]." She feared N.N.F. "would kick [her] in [her] stomach." At the conclusion of defendant's testimony, she moved to dismiss the complaint, arguing that D.Y.F.S. had failed to demonstrate "abuse or neglect."

The judge reviewed the testimony as well as documents D.Y.F.S. introduced regarding its investigation of past referrals that were not substantiated as abuse and neglect. She noted that N.N.F. had actual bruises "that corroborate the statements that he made" to the caseworker. The judge found further corroboration of the child's account in the statements that his siblings made to the caseworker, as well as those they made at the time of the prior referrals. The judge referenced statements made by M.S., Jr., who had been called to the house on the day of the visit, and who expressed "concern and wanted to know how the marks [had] appeared" on N.N.F. The judge further considered the medical report from the examination of N.N.F. that noted the doctor's observations of abrasions on the child's neck, back and arm. She observed that if the doctor had seen any eczema on the child, it would have likely been reflected on the report, but it was not. The judge entered the order now under review.

II.

Defendant argues that the evidence was insufficient to substantiate a finding of abuse and neglect under Title Nine. She acknowledges that she disciplined her child with "a plastic belt, but [she] denies it was harmful, malicious, or excessive." She further contends that the photos used to support the conclusion that she inflicted excessive corporal punishment on N.N.F. were "inconclusive," as the judge noted, and that the medical report also failed to conclude what caused the abrasions. In this regard, defendant notes that the doctor's written notes fail to demonstrate anything but superficial scratches which themselves are not evidence of abuse.

We initially note the limited nature of our review regarding the factual determinations made by the trial judge. "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." Div. of Youth and Family Services v. M.M., 189 N.J. 261, 279 (2007)(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)(internal quotation marks and citations omitted). We accord particular deference to credibility determinations made by the trial judge, and we recognize the special expertise of those judges assigned to the Family Part. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations omitted).

In pertinent part, Title Nine defines an "[a]bused child" as one under the age of eighteen whose:

[P]hysical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . in providing the child with proper supervision . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . .; or by any other act of a similarly serious nature requiring the aid of the court[.]

[N.J.S.A. 9:6-8.9d(2); and N.J.S.A. 9:6-8.21c(4)(b).]

See also N.J.S.A. 9:6-1(a)(defining child cruelty as, among other things, "inflicting unnecessarily severe corporal punishment upon a child"). "[P]roof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent . . . shall be prima facie evidence that a child . . . is an abused or neglected child[.]" N.J.S.A. 9:6-8.46a(2). At a fact-finding hearing, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46b.

It is defendant's essential argument that the judge reached an erroneous legal conclusion by finding that the mere use of a belt on the child, "regardless of the degree, severity, or result," equaled "excessive corporal punishment," and hence child abuse. We conclude the judge reached an appropriate legal conclusion based upon all the evidence and reasonable inferences available to her.

Sabatino testified that she observed marks on the child two days after they were actually inflicted and described them as consistent with being made by a belt. W.M.H. told the worker that defendant asked him to hold the child down while he was naked and while she hit him with a belt. While the emergency medical report did not attribute a cause to the abrasions observed by the doctor, it did reflect that there were "several" of them in the places where Sabatino described them to be.

When Sabatino interviewed defendant, she denied knowing how the marks and abrasions occurred, blaming, instead, the child's eczema, a condition not noted at all on the medical report. While defendant claimed the marks were difficult to see, they were observable to M.S., Jr., who was called to the home while D.Y.F.S. decided whether or not to remove the children. He expressed concern over the abrasions and wanted to know how they occurred.

Meanwhile, defendant testified that she in fact had struck N.N.F. with a belt, though she denied hitting him in any significant way. This, of course, was inconsistent with the statement she made during the initial interview with Sabatino. Perhaps more importantly, defendant described why she struck N.N.F. with a belt--because he had come out of the shower and was misbehaving--and the circumstances--he grabbed the sheet off his bed and she was unable to spank him. Thus, defendant's testimony corroborated key facts told to Sabatino by W.M.H. who claimed his mother made him hold N.N.F. down as she struck the nude child with a belt as he tried to squirm under the covers.

Based upon all of these facts, we cannot conclude that the judge's legal conclusion, i.e., that defendant had inflicted excessive corporal punishment upon N.N.F., was "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted).

Affirmed.

 

M.S., Jr., the father of M.S., was named as a defendant in the proceedings but has not joined or participated in this appeal. N.N.F.'s father is deceased, as is the father of W.M.H. and N.S.H.

The terms "excessive corporal punishment," and "unnecessarily severe corporal punishment," are not defined in Title Nine. However, in the context of a criminal prosecution under N.J.S.A. 2C:24-4a, endangering the welfare of a child, which incorporates by reference Title Nine's definitions of an "abused or neglected child," we approved the following language in the judge's jury charge:

[T]he law does not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment. The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of a case.

[State v. T.C., 347 N.J. Super. 219, 240 App. Div. 2002), certif. denied, 177 N.J. 222 (2003).]

See also, Richardson v. State Bd. of Control, 98 N.J.L. 690, 694 (Sup. Ct. 1923)(interpreting predecessor statute as permitting moderate correction of a child's behavior, but not the unnecessary infliction of severe corporal punishment), aff'd 99 N.J.L. 516 (E & A 1924).

(continued)

(continued)

11

A-2809-07T4

RECORD IMPOUNDED

November 6, 2008