DIVISION OF YOUTH AND FAMILY SERVICES v. K.M IN THE MATTER OF T.C

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2564-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF

T.C.,

Minor.

_________________________________________________

November 7, 2011

Submitted October 18, 2011 - Decided

Before Judges Payne and Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, FN-02-55-10.

Joseph E. Krakora, Public Defender, attorney

for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Victoria Galinski, Deputy Attorney General,

on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor child (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, K.M., the mother of a thirteen-year-old daughter, T.C., appeals from a May 3, 2010 fact-finding order determining by a preponderance of the evidence that K.M. abused T.C. by inflicting excessive corporal punishment on her and by causing protracted impairment of the child's emotional health. On appeal, K.M. argues that the court erred in its evaluation of the underlying facts and their applicability to the statutory standard for excessive corporal punishment set forth in N.J.S.A. 9:6-8.21c. She contends that any punishment inflicted was not sufficiently severe to constitute excessive corporal punishment, and that T.C. exaggerated what had occurred because she feared that she would be required to move with her mother to Georgia when she wished to remain with her father in New Jersey. We reject K.M.'s arguments and affirm.

I.

The record reflects evidence that T.C. was subjected to repeated episodes of corporal punishment during the July 4, 2009 weekend, consisting of lashings with a belt, slaps and punches. On July 6, 2009, T.C.'s father, F.C., who had ceased his relationship with K.M. upon T.C.'s birth, but remained in town, reported the abuse to the Division of Youth and Family Services (DYFS). On July 7, 2009, following an investigation of the referral, DYFS assumed emergent custody of T.C., transferring physical custody to F.C. K.M. was charged by the police with aggravated assault and second-degree endangering the welfare of a child.1 A pre-placement medical examination of T.C., conducted at the Hackensack University Medical Center by pediatrician Usha Avva, M.D., disclosed bruises to T.C.'s left arm and upper left leg that were deemed consistent with belt marks of greater than forty-eight hours in age.

On July 9, 2009, DYFS filed a verified complaint for custody of T.C. An order to show cause was issued by the court that day that maintained joint legal custody of T.C. by her parents but transferred physical custody to T.C.'s father, F.C., under the care and supervision of DYFS, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. At the time, F.C. was a married police officer with two minor children. The parties were directed to appear on August 13, 2009 and to show cause at that time why custody should not be continued as preliminarily ordered.

Following a hearing on the order to show cause and two case management conferences, a fact-finding hearing was conducted on December 16, 2009, January 27, 2010, March 15, 2010, and April 1, 2010. The judge issued a written decision on May 3, 2010 finding abuse by K.M. Thereafter, on June 10, 2010, a dispositional hearing took place, following which K.M. was ordered to undergo a psychological examination and attend anger management classes and psychotherapy. Supervised visitation by K.M. was permitted at the discretion of T.C. K.M. declined to undergo the psychological evaluation at the advice of counsel as the result of the pendency of the criminal matter. At a compliance review hearing conducted on September 9, 2010, K.M. again refused to undergo a psychological evaluation for the reason previously stated. On October 28, 2010, the litigation was terminated upon K.M.'s consent that T.C. remain in the physical custody of her father. This appeal followed.

Our review of the record satisfies us that sufficient competent evidence was presented to the court to permit it to conclude that T.C. was physically and emotionally abused by her mother. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). Recorded testimony was given by T.C. in camera in the presence of her law guardian. In response to the court's questions, she stated that on July 4, 2009, she and a friend planned to go to the beach with the friend's mother on July 5, but changed their minds, receiving permission from the friend's mother to go the following week. However, when T.C. told K.M. of the change in plans, T.C. attributed the change to a decision by the friend's mother. When K.M. learned that T.C. had not told her the truth, K.M. grabbed T.C. by the collar of her shirt, yelling at her about her lying. T.C. resisted, and in response, K.M. made T.C.'s friend return to her home on foot, despite the fact that it was midnight and the street was dangerous. Following a confrontation over whether T.C. could call her father, during which K.M. badmouthed T.C.'s father, provoking a response by T.C. that K.M. was "stupid," K.M. dragged T.C. into T.C.'s room by the arm and started hitting her with a studded belt on the left side of the body. After ten to fifteen blows, K.M. pushed T.C. onto her bed and commenced using a leather belt, with which she hit T.C. between two and five times. The two then fell to the floor where the struggle continued, with T.C. kicking K.M. in an attempt to get her off her body.

At this point, K.M. called out to T.C.'s twenty-year-old male cousin, who had been in the adjoining room, stating to him: "[Y]ou're gonna be my defendant (sic) in court." Although T.C. stated that the cousin had heard what was occurring and witnessed part of it, the cousin denied it at the fact-finding hearing, stating that he was called into the bedroom by K.M. as a witness to events, but at the time, K.M. was attempting to restrain T.C. who was "on the ground, like, doing a bicycle kick" and yelling that K.M. was not going to get full custody of her. However, he admitted that K.M. had previously threatened that she was going to give T.C. a beating, and K.M. had "grabbed" a belt from him before entering T.C.'s bedroom. The cousin testified that he guessed that K.M. was going to use the belt to hit T.C.

T.C. stated that the assault left marks and bruises on her left arm near the shoulder area, on her rear end, and on the left thigh. T.C. did not call anyone regarding the incident, because K.M. took her cell phone.

The next day, T.C. was awakened when K.M. pulled the comforter on which she had been sleeping out from under her.2 She was then ordered to clean all the cabinets to rid them of bugs. Thereafter, T.C. was ordered to clean out the refrigerator and then to clean the oven, but when she was unable to render it clean, K.M. slapped T.C. in the face five times, leaving a small line.

After being dropped off at her father's house on July 5, T.C. told him what had taken place during the past two days. However, F.C. did not inform either DYFS or the police, and he returned T.C. to her mother that evening. Upon her return, K.M. ordered T.C. to clean the bathroom floor and then go to bed.

On July 6, K.M. woke up T.C. and ordered her to start cleaning again. Because she was not working fast enough, K.M. punched her repeatedly in the chest, leaving marks in her collar bone area. Thereafter, K.M. took T.C. and her cousin to IHOP for breakfast. While there, they spoke to a friend of K.M.'s, C.N., who testified at the hearing that T.C. looked a little "pouty," but was otherwise okay. She observed no bruising on her. The cousin similarly testified that he noticed no bruises on T.C.

T.C. informed the judge that her mother told her that she resented the fact that T.C. had been born when K.M. was so young, because she was deprived of a meaningful social life thereafter. K.M. could not "complete" her first job because T.C. was only eight, and K.M. did not want her to live with her father. Later, when T.C. was thirteen, K.M. commenced training with the Bureau of Alcohol, Tobacco and Firearms (ATF) in Georgia, but had to return early to New Jersey because T.C. had developed symptoms of depression and anorexia. Additionally, K.M. wished to move to Georgia, but T.C. was resisting the move.

T.C. stated that, as retaliation and when she misbehaved, in addition to multiple cleaning chores, K.M. required her to endlessly write out the definitions of words such as love, parent, guardian, punishment, responsibility and respect.

When asked whether K.M. had used a belt on her before, T.C. replied "Yep." T.C. testified that K.M. would hit her with her belt whenever T.C. "did something" or when K.M. got mad. She was hit when she "didn't do something right," when she "forgot to like clean the floor," and when she got a C+ in math. She had most recently been hit one week before July 4. T.C. said that she had told her grandmother what was occurring, but her grandmother had responded that she could not interfere with K.M.'s discipline.

When called to the stand, T.C.'s father testified that on July 5, 2009, while at a barbeque at a friend's house, he observed what appeared to be welts from a belt on T.C.'s thigh, a mark on her arm, another mark on her chin and a mark on her eyelid. He testified, additionally, that T.C. complained of pain in her chest. She was crying, and stated that she was afraid to return to K.M. The father also testified that on July 5, T.C. was not properly dressed, and when asked why, she stated that these were the only clothes that K.M. would permit her to wear, and that she was forbidden to bathe or fix her hair. Nonetheless, the father returned T.C. to her mother because their custody order required it, and as a police officer, he could not violate the order without workplace repercussions. On Monday, July 6, he had gone to court in an attempt to gain custody of T.C., and was told to inform DYFS of the weekend's events, which he did.

When asked if he had any prior concerns about T.C.'s care, the father stated that, when he questioned T.C., she had told him that she was forced to stay up late cleaning, and that her mother made her feel guilty about everything that she had missed in life. T.C. said that she was only permitted to eat what and when her mother said she could. He had no prior knowledge of K.M.'s infliction of physical abuse.

Juvenile Detective Tina Clouse testified at the hearing that, on July 7, she took a statement from T.C. in the presence of a DYFS representative, and at that time confirmed that there was a bruise on the back portion of T.C.'s arm and a faded bruise on her leg. The bruises were photographed, and the photographs were introduced into evidence at the hearing. The existence of bruising was further confirmed at the hearing by Dr. Avva. On July 7, Detective Clouse took a statement from T.C. in the presence of DYFS investigator Leticia Gonzalez that was consistent with what T.C. had told the judge in her in camera interview.

DYFS investigator Gonzalez testified that the photographs of T.C.'s injuries that had been admitted in evidence "don't do any justice" to the bruises that she observed on T.C., which consisted of discoloration to her jaw, three linear marks on her left arm of approximately two inches in length and a four-inch bruise on her left knee. She testified additionally that T.C. complained of pain in her chest from her mother's punches and of pain in her thighs. Gonzalez testified that, in a subsequent interview of K.M., conducted as part of her investigation, K.M. acknowledged that on July 4 she had grabbed a belt and "popped" T.C. with it. She also admitted that she had slapped T.C. on the face with an open hand two times on the following day. When asked how T.C. had incurred the marks found on her body, K.M. did not respond. Gonzalez also sought confirmation of T.C.'s statement that her mother kept her up late doing chores, and K.M. replied that the latest she had ever stayed up for that purpose was 1:00 a.m. As the result of the evidence obtained by Gonzalez, DYFS deemed the allegations of physical abuse of T.C. to have been substantiated.

Testimony was also given by Erica Balch, a psychological counselor who had been treating T.C. weekly since late February as the result of reports of depression and weight loss. During her testimony, Balch acknowledged a September 23, 2009 letter to DYFS, in which she had stated that, initially, T.C. was very reserved, although she had disclosed parenting techniques used by K.M. that appeared to be strict. However, she stated in the letter:

I was completely surprised to receive a call after the July 4th weekend disclosing what had taken place. I met with [T.C.] on July 10th and remember that session quite well. She was completely verbal, as if a flood gate had opened, and disclosed to me that the abuses had been going on for some time and that she had kept her silence because she was afraid that she would not be believed. She remarked that she decided to disclose everything now because she felt she now had actual proof, would be believed, and it would stop. I was very surprised by the intensity of her words and emotions.

Balch confirmed having viewed bruises on T.C.'s "legs, everywhere," and she testified that she had been told by T.C. that the abuse had been going on for a number of years. Additionally, Balch testified that it seemed K.M. was "obsessed with punishment," and she mentioned as examples the word definition exercise, cleaning the kitchen floor with a tooth brush, and forcing T.C. to stay up late in order to clean. She regarded K.M.'s non-corporal discipline to be "skirting in the gray area" the type of conduct that needed to be reported to DYFS. As a consequence, Balch discussed T.C.'s disclosures with T.C.'s father, in the hope that he would look into matters. Balch testified further that T.C. had informed her that she felt that she had been robbed of her right to have a loving and kind mother, and that she had no desire to have a relationship with her now or in the future.

In addition to testimony by Balch, testimony was given by Heather Newman, a clinician employed by the Center for Evaluation and Counseling. The Center had been retained by DYFS to provide an evaluation of T.C. for the purpose of determining the extent to which T.C. had been affected by having been physically abused by her mother, to provide a neuropsychological evaluation, and to make appropriate recommendations. Newman saw T.C. for that purpose on August 14, 2009. Following an interview, in which T.C. had disclosed that her mother was verbally abusive and violent on a daily or weekly basis, particularly following her return from her aborted ATF training, Newman testified that the facts as stated by T.C. led her to conclude that T.C. was both emotionally and physically abused by K.M. In support of that finding Newman relied on testimony that T.C. was made to pull down her pants prior to lashings, which would result in humiliation and constitute emotional abuse. The use of a belt on her bare rear end would then constitute physical abuse. As another example of emotional abuse, Newman cited K.M.'s threat that the next time she would kill T.C. Newman testified that the abuse had resulted in psychological damage to T.C., in that she had become increasingly mistrustful of her mother and had commenced modeling her own behaviors on her mother's aggressive acts.

Newman administered psychological tests to T.C., including the self-report inventory, which

revealed that [T.C.] tends to flatten her emotions. She tends to be fearful and mistrustful of others. She can be shy and socially awkward with peers and family members. She desires closeness with others, but tends to be self-protective. She doesn't typically exhibit flippancy or high spirits. She tends to be self-deprecating of her aptitudes. . . . [S]he can be needy and dependent towards supportive people in her life. She can be self-absorbed and distracted by inner thoughts that intrude upon her attention to every day affairs. And in an effort to counteract those characteristics she is likely to have learned to suppress events that could stir up memories and feelings that are disturbing to her.

Newman testified that T.C. was not, at present, sufficiently stable to begin visiting with her mother, and that such visitation should await further therapy and T.C.'s independent decision that visitation take place.

K.M. did not testify, but called as witnesses her own mother, who had cared for T.C. while K.M. was undergoing ATF training in Georgia. The grandmother testified that she had never seen bruises on T.C. caused by corporal punishment, and T.C. had never complained to her of abuse. Her testimony was not entirely clear as to whether she had ever seen K.M. beat her daughter, and her emotional distress on the stand suggested that there were facts that she was withholding, although the court chose not to draw such an inference.

K.M. also called her former paramour of eleven years' duration as a witness. He stated that, until K.M. went to ATF training, T.C. was basically a good child, and most disciplinary actions would end with a verbal reprimand. However, if verbal reprimands were not successful in modifying T.C.'s behavior, she would be "popped" or "lashed," terms that the witness deemed equivalent and described as meaning a spank on the hand or rear end. He stated that he had only witnessed K.M. pop or lash T.C. a couple of times. Additionally, he had once or twice witnessed K.M. pop T.C. on the rear end with a belt, but those episodes had occurred two years ago. The paramour vehemently denied that he had ever hit T.C.

While the paramour was testifying, counsel introduced pictures taken by him on either July 7 or 8 of K.M.'s bruises, allegedly resulting from her weekend struggle with T.C. The photographs depicted a bruise to K.M.'s right upper thigh, right forearm, left forearm, her calf, and on her leg. As the paramour described them, the bruises were "dark purple," and he said that the pictures really did not show "how dark these bruises were." According to him, there were "bruises throughout her whole body . . . I just couldn't believe the bruises on her body."

At the conclusion of the testimony, the court issued a written opinion setting forth the evidence that we have described. The court then found that the injuries to which T.C. testified were in fact caused by K.M. striking her with a belt, and that fact was corroborated by the photographic evidence, the observations of DYFS worker Gonzalez, the interview with Detective Clouse, and the medical examination performed at Hackensack University Medical Center. The court found additionally that K.M.'s conduct was unreasonable in the circumstances and constituted excessive corporal punishment. The court further found that the intensive discipline imposed by K.M., including the copying of definitions and the extensive chores, when combined with the corporal punishment, caused T.C. to be humiliated and fearful of her mother, and constituted psychological abuse or protracted impairment of the child's emotional health, in violation of N.J.S.A. 9:6-8.21c(2).

II.

N.J.S.A. 9:6-8.21c(4) defines an "abused or neglected child" as

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 parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) 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 . . . .

See also N.J.A.C. 10:129-1.3 (elaborating on the definition of "abused or neglected child" and declaring that allegations of "[c]uts, bruises, welts or oral injuries" may be abuse or neglect). A finding of abuse or neglect must be based upon a preponderance of the competent, material and relevant evidence. N.J.S.A. 9:6-8.46b; Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). "[P]revious statements made by the child relating to any allegations of abuse or neglect [are] admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46a(4).

The standards that govern our review of this matter were set forth by the Court in M.C. III, supra, 201 N.J. 328, as follows:

[A]ppellate courts "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotation marks omitted). Indeed, we recognize that "[b]ecause of the family courts' 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).

[M.C.III, supra, 201 N.J. at 342-43.]

Thus, "if there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (quoting Div. of Youth & Family Servs. v. E.P. 196 N.J. 88, 104 (2008) (citation and internal quotation marks omitted)). We owe no deference to the trial court's legal conclusions, which we review anew. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Under this standard, we reject K.M.'s argument that DYFS failed to meet its burden of proof by a preponderance of the evidence that T.C. was abused as the result of the administration of excessive corporal punishment. In this regard, K.M. points to evidence offered by her mother and her former paramour as favorable to her position, and to the absence of any physical evidence of the definitional exercises that T.C. testified she was required to complete. Additionally, K.M. suggests that T.C. was motivated to make false allegations against her by her desire not to move to Georgia, but instead to remain with her father in New Jersey.

However, K.M. does not address the fact that neither her mother nor her paramour was in the home on the July 4 weekend. She does not address the cousin's testimony that K.M. threatened to beat T.C. and later grabbed his belt, for what the cousin guessed was to effectuate that threat. Further, K.M. does not address her own admission that she grabbed a belt and "popped" T.C. with it on July 4 and slapped her in the face on the following day on two occasions. Additionally she does not address the fact that she admitted keeping T.C. up to as late as 1:00 a.m. to do household chores. K.M. was unable to account for the bruises on T.C.'s body on July 5 and thereafter, the presence of which was corroborated by T.C.'s father, DYFS, the police and the doctor medically examining her. Thus, this is not a case in which corroboration was absent, but rather was one in which the court chose to credit the child victim's substantiated allegations.

We recognize, as did the trial court, that corporal punishment is not prohibited in this State, and 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). However, in the present case, K.M.'s actions were neither "moderate" nor a reasonable reaction to T.C.'s misstatement of why she and her friend were not going to the beach on the following day, but rather were postponing the trip for a week.3

We therefore reject K.M.'s argument that this matter resembles the facts that underlay our decision in Division of Youth and Family Services v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. improvidently granted, No A-24-10 (N.J. June 30, 2011). In K.A., we reversed a final determination of DYFS's Director that a mother, K.A., had committed abuse or neglect when she struck her eight-year-old daughter on the shoulder with a closed fist four or five times, causing a round bruise with several smaller dotted bruises above it. K.A., supra, 413 N.J. Super. at 506, 513. However, in that case, the incident lasted only four to five seconds. Id. at 506. Additionally, we took into account in evaluating the matter the reasons for K.A.'s actions, the isolation of the incident, and the trying circumstances that K.A. was undergoing as a result of her personal lack of support and A.A.'s attention deficit disorder. Id. at 512. We observed:

K.A. was confronted with a psychologically disruptive child, unable or unwilling to follow verbal instructions or adhere to passive means of discipline such as a time-out. K.A. was alone, without support from either her spouse/co-parent or from other members of her extended family, such as an experienced mother or aunt. Out of sheer frustration, or through an ill-advised impulse, she struck her child five times. These blows, though undoubtedly painful, did not cause the child any permanent harm, did not require medical intervention of any kind, and were not part of a pattern of abuse.

[Ibid.]

K.A. thus bears few factual similarities to the present matter. Here, there was no evidence of "trying circumstances" similar to those present in K.A. By all reports, T.C. was a generally compliant child, and K.M. was an experienced mother with adequate personal support. Moreover, the abuse occurred on more than one occasion, and the conduct precipitating the referral to DYFS took place in a sustained manner over a period of three days, not over four or five seconds, as in K.A. K.M.'s conduct cannot be characterized as a merely reactive response to a provoking circumstance. Further, the means of punishment, a belt, differed, and the capacity for harm was far greater.

We similarly distinguish the circumstances of this case from those in P.W.R., supra, 205 N.J. 17. In that case, the Court held that a step-mother's occasional slaps to the face of her sixteen-year-old step-daughter, while "hardly admirable," did not constitute abuse or neglect. Id. at 35. The Court stated:

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 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. In this matter, where DYFS labeled the physical abuse "unfounded," the trial court abused its discretion by utilizing slaps as a basis for a finding of physical abuse.

[Id. at 36.]

Although, as in P.W.R., the present case involves a teenager, here the punishment, consisting of lashings with a belt and punches, as well as slaps, was considerably more sustained and severe, and it left visible signs of injury.

K.M. argues that the proof offered by DYFS of emotional harm was insufficient to sustain the finding of abuse. However, expert evidence in that regard was offered by psychological clinician Newman. K.M. argues as well that T.C. was motivated to report and to exaggerate the July 4 events by a desire not to move to Georgia. However, the possibility of that motivation was thoroughly explored at the fact-finding hearing, and none of the witnesses regarded T.C.'s statements describing the punishments inflicted on her as untrue or exaggerated. The court agreed, and we have no reason to reject its conclusion.

Affirmed.

1 The outcome of the criminal proceedings is not set forth in the record.

2 The cousin was sleeping in T.C.'s bed. T.C. was sleeping on the floor.

3 There was no evidence in the record that K.M. had plans for the next day that were spoiled as the result of the girls' decision to remain home.