DIVISION OF YOUTH AND FAMILY SERVICES v. R.J.J IN THE MATTER OF A.J AND C.B.P Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2747-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.J.J.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF A.J. AND C.B.P.,

Minors.

___________________________________

October 26, 2011

Submitted October 13, 2011 - Decided

Before Judges Waugh and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0479-10-C.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.J.J. (Roberta)1 appeals from the September 27, 2010 order of the Family Part finding that she abused her son A.J. (Albert) and daughter C.B.P. (Carol). We affirm, although we direct modification of the order to reflect that the abuse occurred to Albert only.

I.

We discern the following facts and procedural history from the record on appeal.

On April 23, 2010, the Division of Youth and Family Services (DYFS) received a referral from Albert's school that Albert, who was then eleven years old, had told his teacher that his mother had beaten him with a belt on April 21, 2010. The teacher observed, among other marks, red, black, and blue bruising under the left eye and extending over the nose. Albert told the teacher that his mother hit him in the face with a belt.

A DYFS caseworker interviewed Albert at school on April 26. He told the caseworker that his mother hit him on his arms, chest, back, and face with a belt because he had talked back in class. According to Albert, his mother started hitting him while they were downstairs. When she hit him on the leg, he fell and hit his face on some furniture. After his mother picked him up, he ran up the stairs. When he was upstairs, his mother hit him in the face with the belt.

Although Albert told the caseworker that this was the first time he was hit with the belt, he reported that his mother sometimes punched him in the chest or slapped him in the back of the head when he got in trouble. He also told the caseworker that he was afraid of his mother because she is "always hitting" him. The caseworker observed light scabbing on Albert's chest, as well as a bruise on his shoulder. She also observed that Albert's eye was black, and he had a mark on each of his arms, neck, and forehead.

The caseworker interviewed Roberta at her home on the same day. The DYFS report reflects the following:

Worker asked what his form of discipline was when he came home. [Roberta] stated that when [Albert] arrived she asked him what happened and he told her. She admitted to hitting [Albert] with a belt on his arm and back approximately [three to four] times. Worker asked how he received the black eye. [Roberta] corrected worker and stated that he has a bruise under his eye. Worker informed her that his eye is bruised however there is some swelling on the lid. She reported that [Albert] ducked to keep from being hit and she caught him in the face with the belt. She stated that no one else was home at the time.

Worker asked how [Albert] is usually disciplined and she stated that she usually takes things away or he's not allowed outside. She stated that he gets yelled at for not doing things around the house but she doesn't really have a problem with him at home. [Roberta] reported that [Albert] has been having a problem with his teacher this year and she couldn't have him threatening his teacher. She stated that he's fine with all of his other teachers, but his main teacher and he don't see eye to eye.

The records of a medical examination on April 27, six days after the incident, reflect that Albert had visible "bruising on the left side of [his] forehead, . . . under [his] left eye, . . . [and] on both upper arms, and [an] upper back bruise was reported."

DYFS filed a complaint seeking care and custody of Albert and Carol on May 14, 2010. The resulting order to show cause was heard on May 17, at which time Roberta consented to entry of an order giving care and supervision to DYFS. She retained custody and agreed to participate in services.

On September 2, the Family Part judge held a pre-hearing conference. The Deputy Attorney General (DAG) representing DYFS told the judge that she would be offering a DYFS report and photographs as exhibits and the DYFS intake worker as a witness. Roberta's attorney told the judge she would have no exhibits, but might offer Roberta as a witness if she wanted to testify.

The fact-finding hearing took place on September 27. The DAG moved two exhibits into evidence, the DYFS report and the photographs. Roberta's attorney did not object. DYFS, the Law Guardian, and Roberta each rested without offering any witnesses. In her closing argument, Roberta's attorney made it clear that Roberta did not dispute the basic underlying facts. Instead, her defense was based upon her legal argument that Roberta's conduct did not rise to the level of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4).

Following closing arguments, the judge placed her findings of fact and conclusions of law on the record. After finding the facts as set forth above, she continued:

The worker then visited with the home. She admitted to hitting [Albert] with the belt on his arm and back approximately three to four times. And, then she reported that [Albert] ducked to keep from being hit, which is something that is not unusual for kids to do. I mean, nobody likes to be hit with the belt. And, very few kids, stand still for a beating.

. . . .

And, in his case, he suffered an injury to his eye, which could have been a serious injury -- not from the belt itself, even though he did have a strap mark on his face. But, apparently he tripped, hit his eye on the TV, and that caused an injury also. She indicates, however, that he ducked to keep from being hit, and that's when she hit him in the face with the belt.

The injuries are also recorded from Virtua Health in Camden. The child was seen then the following day. The triage time was April 27th. And, they noticed that the injury occurred six days prior. But, but he had faint bruising on the left side of the forehead, bruising also noted under the left eye, bruising noted on both upper arms and upper back bruise reported. So, these injuries had occurred six days prior, and this child still had remnants of injury.

Abuse can be as a result of [an] incident that occurs to a child or a number of incidents that occur over a period of time. This was a significant event on this child.

This was not one strap mark. This is not somebody that took [a] strap . . . to the buttocks of a child and did not leave marks. There were multiple . . . serious [injuries] that harmed this child[, there] was not a substantial risk to harm, there was a harm to this child.

He did not need medical attention in the sense that the marks healed themselves. But, this child could have suffered a serious injury to his eye. And, that also placed him at substantial risk of further harm.

So for all those reasons, I find that this child is an abused and neglected child within the meaning of N.J.S.A. 9:6-8.21.

The judge entered an order finding that Roberta had "used excessive corporal punishment to discipline her child, [Albert], and this placed both children at risk of harm." The litigation was subsequently dismissed on December 20, with the children remaining in their mother's custody. This appeal followed.

II.

Roberta raises the following issues on appeal:

POINT 1 - THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A FINDING OF ABUSE OR NEGLECT BECAUSE THE CONDUCT OF THE FACT FINDING HEARING DID NOT COMPORT WITH THE PROCEDURAL REQUIREMENTS UNDER N.J.S.A. 9:6-8.50.

POINT 2 - THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A FINDING OF ABUSE OR NEGLECT BECAUSE THE COURT'S DETERMINATION THAT [ROBERTA] USED EXCESSIVE CORPORAL PUNISHMENT WAS NOT SUPPORTED BY CREDIBLE EVIDENCE UNDER N.J.S.A. 9:6-8.21(c)(4)(b).

POINT 3 - BECAUSE THE ALLEGATION OF ABUSE/NEGLECT AGAINST [ROBERTA] IS NOT SUPPORTED BY CREDIBLE EVIDENCE, HER NAME SHOULD BE EXPUNGED FROM THE CENTRAL REGISTRY OF CHILD ABUSERS.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges when they are based on the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, no testimony was taken in this case.

A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

A.

The matter on appeal was brought in the Family Part pursuant to Title Nine, N.J.S.A. 9:6-1 to -8.73, which is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid.

The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). At a fact-finding hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). The Supreme Court has made it clear that

[b]oth the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted "with scrupulous adherence to procedural safeguards," D.Y.F.S. v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. D.Y.F.S. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). As concisely stated by the court in J.Y., "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b).

[N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009).]

In this case, although the fact-finding hearing was brief, we do not see the type of lax procedure that was of concern to the Court in G.M. The exhibits were admitted into evidence by consent, having been identified several weeks earlier at the pre-trial conference. DYFS is "permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). "[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. 9:6-8.46(a)(4).

Although, "a child's hearsay statement . . . may not be the sole basis for a finding of abuse or neglect," N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011), the record reflects that there was little dispute as to the underlying facts. Roberta admitted to hitting Albert with a belt. Although Albert attributed the black eye to his fall, and Roberta attributed it to his having been hit by the belt, there was no dispute that he was hit in the face by the belt and that he did have a black eye as a result of Roberta's conduct.

At the September 2 pre-hearing conference, Roberta's attorney told the judge that she intended to offer no documentary evidence and that his only witness would be Roberta, if she wanted to testify. Roberta was present for the hearing on September 27. Although she was put under oath at the beginning of the hearing, her attorney did not question her. The inescapable conclusion from the record before us is that Roberta and her attorney decided that she would not testify. Similarly, a DYFS representative was present at the hearing, but defense counsel did not seek to question that witness.

Consequently, we see no merit to Roberta's procedural arguments, which do not require further discussion in a written opinion. R. 2:11-3(e)(1)(E).

B.

The real issue in this case is whether the conduct at issue rose to the level of abuse. That was the gist of the defense at the fact-finding hearing.

Title Nine provides that 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 the result of the failure of his parent or guardian, as herein defined, 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.

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

It does not, however, define the term "excessive corporal punishment."

In P.W.R., supra, 205 N.J. at 36, the Supreme Court noted that,

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.

The Court also observed that "[a]buse and neglect cases are generally fact sensitive" and that "[e]ach case requires careful, individual scrutiny." Id. at 33.

In addressing the issue of "excessive corporal punishment" in the context of a parent slapping her teenage daughter in the face, the Court found the practice to be "hardly admirable," but nevertheless refused to credit the Family Part's finding of physical abuse because "[t]here was no evidence developed in th[e] record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [the parent's] actions." Id. at 35-36.

In Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 512 (App. Div.), certif. granted, 204 N.J. 40 (2010), we found no excessive corporal punishment in a case in which the parent struck the child "five times on the shoulder with a closed fist," but "the force used did not lacerate the child's skin and did not require any type of medical intervention," and "[b]ruises, although visible, never exposed [the child] to any further harm if left untreated."

In the case before us, the DYFS worker who viewed Albert at the school observed the following:

[F]aint scabbing approximately 3 inches in length on his chest; 2in x 1 1/2in bruising on his upper left shoulder blade, 3 inch linear mark on the nape of his neck, 1 inch linear marks on both of the backs of his arms, a black eye (left) and a faint linear mark approximately 3 inches in length across the top of his forehead.

The medical report, based upon an examination six days after the event, reflected the following: "[F]aint bruising on left side of forehead, bruising also noted under left eye, [bruising] noted on both upper arms, and upper back bruise reported."

In addition to multiple bruises, the record reflects that Roberta's actions created a real risk of significant injury to Albert's left eye. Had there been direct contact with the eyeball itself, the result could have been catastrophic. As with any Title Nine case, our primary concern is to protect the child, so our primary focus is on the actual or potential harm to the child. See N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super.414, 416 (App. Div. 2010), certif. denied, 207 N.J.188 (2011). The facts in the record demonstrated that Albert's "physical . . . condition . . . [was] in imminent danger of becoming impaired as the result of the failure of [Roberta] . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . excessive corporal punishment" upon Albert. N.J.S.A. 9:6-8.21(c).

Even when viewed through the "prism" of the parent's reasons for discipline, K.A., supra,413 N.J. Super. at 512, the discipline imposed by Roberta was an excessive response to the report that Albert, an eleven year old, talked back to his teacher. The fact that DYFS was able to resolve the situation through the provision of services, without taking physical custody, does not warrant a different result.

Consequently, we affirm the finding of the Family Part that Roberta abused Albert. Because there was no proof of abuse or neglect with respect to Carol, we direct that the order on appeal be amended to reflect abuse of Albert only.

Affirmed as modified.

1 For the sake of clarity, the defendant and her children will be referred to by pseudonyms.