NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3445-11T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.P. and J.B.,

Defendants,

and

L.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.S., C.S. and

L.S., Jr., minors.

__________________________________

March 20, 2013

 

Submitted February 12, 2013 - Decided

 

Before Judges Ostrer and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-158-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the briefs).

JeffreyS. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.S., C.S. and L.S., Jr. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant L.S. appeals from the trial court's December 13, 2011 order finding that he abused or neglected his twenty-seven-month-old daughter, C.S. (Carrie)2 when he disciplined her by striking her with a wooden brush, and causing large, purple bruises. We affirm.

I.

The sole witness at the fact-finding hearing was the Division's worker, Karin Paris. She testified she responded to a referral on March 24, 2010. The Division offered into evidence its five-page screening summary prepared that day. According to the summary, Carrie primarily lived with her mother S.P. (Sally). However, defendant was watching Carrie on March 22, 2010, while Sally was out. Carrie smeared feces on the wall. According to the summary, "As a consequence, the father smacked the child on the behind," causing bruising on both legs below the buttocks.

Defense counsel objected to admitting the summary in evidence to the extent the summary also included the reporter's opinion that Carrie's bruises resulted from use of an instrument. The court admitted the document into evidence, subject to the limitation, "if there's any included hearsay the Court will ignore that . . . evidence at the conclusion of the case."

Paris testified she saw Carrie the same day she received the referral. Upon examining her, Paris noted "several bruises, one on top of the other" on both sides of her legs. The bruises "began from the top of her thigh where the joint meets down to almost the side of the kneecap," and covered "virtually the entire side of . . . both legs." The bruising was "a darker tone, purplish, [with] some . . . redness around." Paris also testified "[t]here were some small scratches, very fine scratches on the side." Paris stated her attempt to interview Carrie was uninformative, given her age and limited communication skills. However, Carrie's sister, A.S. (Amy) reported that she saw her father hit her sister.

The court admitted into evidence one color photo of the child. When asked if the photo accurately depicted the way Carrie looked upon examination, Paris testified Carrie's bruising "looked worse in person than it does actually in the picture." She testified the bruises looked bigger, darker, and were more defined than reflected in the photograph.

Paris stated she interviewed Sally, who said she had gone to a bar the evening of March 22 and left Carrie and Sally's two other children with defendant. She discovered the bruises the next morning, when she prepared Carrie for daycare. Sally called defendant, and "he told her that he hit the child because she was going to smear her feces somewhere in the house." Later that day, after Sally's mother returned from work, the two women reported the incident to police. Paris's attempts to interview defendant were unsuccessful.

The Division offered into evidence as a business record the report of a March 25, 2010, examination of Carrie. It was created at the Division's request by a pediatrician, Stephanie V. Lanese, M.D., from the CARES Institute at the University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine. Defense counsel objected, arguing the physician should be required to testify in person, and the report was not material, relevant or competent evidence. The court admitted the report, stating it was prepared "by a consultant regularly employed by the Division," citing N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328 (2010), and In re Guardianship of Cope, 106 N.J. Super. 336 (App. Div. 1969).

Dr. Lanese's written evaluation revealed Carrie to be healthy, except for extensive bruising on her legs:

Along [Carrie]'s left lateral thigh, hip to almost buttock, there was a large area of bruising. This measured approximately 12 cm long and almost 5 cm in width. Within the bruising is a purple-black discoloration with some yellowing to it. . . . there is some linear quality to it; small strips of petechiae,3 especially up in the hip area. There are also some superficial scratches; very thin, red, measuring from 4 cm in width to 2 cm in width. These are up near the buttocks. On the right hip, there is also an area of bruising measuring approximately 9 to 10 cm in length and 6 to 7 cm in width. Within the bruising it is purple-red with a little bit of brownish-yellowish discoloration. The marks on the right upper lateral thigh have a specific pattern to them. They appear to have red, linear stripes with some sparing of the skin between them. The stripes themselves appear to be equally distant from each other and are grouped together. There are two different groupings of these linear marks; one goes up to the thigh in one direction and the other comes up the thigh at an approximately 30 to 40 degree angulation from the first. This definitely has a pattern to it, but it is unclear what the object may have been that created this pattern.

The doctor opined the bruises on Carrie's right leg were created "not simply [by] a hand, as the linear, red marks are too close together to be a slap mark." Sally had reported to Dr. Lanese that defendant had said "he had to spank her [Carrie] because she spread poop on the wall." Dr. Lanese expressed concern in her report that defendant "may have some unrealistic expectations for [Carrie] during her potty training time," stated the punishment was "excessive," and recommended defendant be evaluated and receive parenting education.

Defense counsel also objected to admission of the Division's investigation summary into evidence as a business record, stating it included hearsay and an expert opinion. The summary included Paris's observation that "[Carrie's] bruises . . . appeared to have been inflicted by an object. Based on the size of the bruises & the level of discoloration, the child's injuries seemed to have been inflicted by multiple strikes." According to the summary, Sally said that defendant admitted he hit Carrie, but did so only once on each leg, and defendant had not previously engaged in such corporal punishment.

Also included in the investigation summary was Paris's report of information received from a detective of the Somers Point Police Department. The detective reported the defendant confessed to hitting Carrie with a wooden brush.

3/29/10 @ 9 AM

Wkr received a message left [b]y Detective Sgt. Somers dated 3/27/10. The Detective reported that [defendant] was incarcerated the night before, after confessing to the physical abuse. [Defendant] was charged w/ child endangerment & assault. . . .

 

10:55 AM

Wkr. called Detective Somers . . . & inquired about the statement [defendant] gave during his confession. The Detective reported that [defendant] said that he was watching the children by himself and hit [Carrie] multiple times w/ a wooden brush. Wkr. was informed that Dad reported that the child is in the process of being potty trained & has a habit of trying to smear feces on the wall. The Detective stated that Dad reported that the night of the incident [the] child went to the bathroom & he noticed she had her diaper off on the floor to try to smear the feces.4

 

The investigation summary also included Paris's report of her interview of Carrie. "Wkr asked 2 yr. old [Carrie] how she got her 'boo-boos.' The child pointed at her right leg & said 'Dad did boo-boo' then pointed at her left leg & said Mom did it." Paris concluded Carrie "did not appear to comprehend what the Wkr was asking her & was not consistent in her responses."

The court found Paris to be credible. As it was undisputed that defendant had engaged in corporal punishment, the court framed the issue to be whether the punishment was excessive under N.J.S.A. 9:6-8.21(c)(4)(b). The court concluded it was.

The court found that Carrie was under the care of defendant on the night in question, and that defendant disciplined the child "because she was trying to smear feces on the wall and he hit her once on each leg." The judge found, based on defendant's reported confession, that "he hit the child because she was in the process of being potty trained and has a habit of trying to smear feces on the wall." Relying on Paris's testimony and Dr. Lanese's report, the court found the bruising was "severe" and covered a large area of both upper thighs and buttocks. Citing the reported confession, the court found "the striking was caused not by a hand strike, but by the use of an instrumentality by the defendant's own admission, a wooden brush." The court also relied on Dr. Lanese, who opined that an instrument was used to strike the child. Although a "one-time event," the court found that defendant had engaged in excessive corporal punishment.

[G]iven the youth of the child, being only two years old, the fact that she was essentially doing what is natural to a child; this child, by the evidence before me, was in the process of being potty trained. Children very often explore their bodies and explore the products of their bodies when they are being potty trained. This is not a situation in which the level of punishment used here was congruent with the activity of the child. This is not, as in K.A.,5 a slapping on the back because the child is not doing homework. . . .

 

This is a two-year-old child who did not warrant this level of discipline.
 

Therefore, given all these facts which the Court has found . . . the Division has shown by a preponderance of the evidence that the child in this matter was an abused and neglected child within the statute in this case.

 

The court entered an order December 13, 2011 finding defendant "abused or neglected the child(ren) in that on March 23, 2010, [defendant] while having custody of the minor child, [Carrie], then 2 years of age, disciplined [Carrie] by striking her with a wooden brush, causing large, purple bruises, and that this punishment was excessive."

The order also terminated the litigation, in accord with the Division's recommendation. The Division's counsel had reported that in the months following the incident, defendant and Sally participated in numerous services, the issues that led to the litigation had been remedied, defendant had "learned appropriate parenting techniques," and the children were now safe in both parents' care.

Defendant appeals and argues the Division failed to prove abuse or neglect by a preponderance of the competent, material and relevant evidence. In particular, defendant argues the corporal punishment was an isolated incident; the injuries were not permanent, involved only bruising, and did not require medical treatment; and the finding that defendant used a wooden brush was unsupported by competent evidence. The Division and the Law Guardian urge us to affirm the court's order.

II.

We defer to the trial court's factual findings, particularly based on its expertise in family matters, if they are supported by substantial credible evidence in the record. See M.C., III, supra, 201 N.J. at 342-43; N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). However, we review the trial court's legal determinations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A.

We consider first the governing legal principles. An abused or neglected child is

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[.]

 

[N.J.S.A. 9:6-8.21.]

 

The Division must show by a preponderance of the evidence that abuse has occurred. K.A., supra, 413 N.J. Super. at 510.

The statute prohibits excessive corporal punishment, not corporal punishment generally. K.A., supra, 413 N.J. Super. at 510 (stating "a parent may inflict moderate correction such as is reasonable under the circumstances") (citation and quotation omitted). The statute requires us to consider "the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children.'" Id. at 511 (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)).

In K.A., we described a two-part test for determining whether a person has inflicted excessive corporal punishment. First, the court must determine whether the parent inflicted "per se" excessive corporal punishment:

A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary, may be sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.

 

[Id. at 511.]

 

When the parent's actions do not rise to the level of per se excessive corporal punishment, then the court must examine the surrounding circumstances. Id. at 512. In K.A., we considered: "(1) the reasons underlying K.A.'s actions; (2) the isolation of the incident; and (3) the trying circumstances which K.A. was undergoing due to [the child]'s psychological disorder." Ibid. We stated, "These factors form the prism through which we determine whether K.A.'s actions were indeed 'excessive.'" We did not preclude consideration of additional factors in an appropriate case.

In K.A., a mother hit her eight-year-old daughter four or five times on the shoulder with a closed fist because the child defied K.A.'s instructions to stay inside her room during a time-out. Id. at 505-06. The strikes left a round bruise with several smaller dotted bruises above it on the child's shoulder. Id. at 506. The child had "pervasive development disorder and attention deficient [sic] disorder" at the time of the incident. Ibid. In addition, the mother lacked a support network and was overwhelmed by the difficulties in raising a disabled child largely on her own.

Acknowledging that the administrative code cites "bruises, abrasions, [or] welts" as the types of injuries that may constitute abuse under N.J.A.C. 10:129-2.2, we found no per se excessive corporal punishment. The mother did not lacerate the child's skin, the child did not need medical intervention, and the visible bruises did not expose the child to further harm if left untreated. Id. at 511-12. We also concluded there was no excessive corporal punishment based on the surrounding circumstances: the mother was confronted with a psychologically disruptive child, lacked support from relatives because they all lived abroad and her husband worked long hours, defendant took full responsibility for her actions, and she complied with the Division's services. Id. at 512-13.

Applying the K.A. two-part test, we reached a different conclusion in Dep't of Children & Families v. C.H., 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011). In that case, the parent struck a five-year-old in "multiple locations, including a vulnerable area." 416 N.J. Super. at 416. There were "red demarcations on the right side of [the child's] face, three to four inches long, and . . . dark red scratches, two inches in length, on [the] right elbow and left cheek, as well as a greenish demarcation on the middle of the child's back." As for the related circumstances, we discerned sufficient evidence in the record that the infliction of harm was not an isolated incident, as the parent admitted she had administered corporal punishment since the child was three, and had spanked the child most recently because she told a neighbor the family did not have electricity. The parent also expressed no remorse and declined to participate in counseling. Id. at 417.

In N.J. Div. of Youth & Family Servs. V. P.W.R., 205 N.J. 17 (2011), the Court upheld the Division's finding that an allegation of excessive corporal punishment was unfounded where a parent occasionally slapped a sixteen-year-old daughter in the face as a form of discipline. Citing K.A., supra, although not expressly endorsing the two-part test, the Court stated, "[t]here was no evidence developed in this record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment[.]" Id. at 35-36 (citing K.A., supra, 413 N.J. Super. at 511-12). The Court also held that the age of the child punished is a relevant factor. "[F]or example, one ought not assume that what may be 'excessive' corporal punishment for a younger child must also constitute unreasonable infliction of harm, or excessive corporal punishment in another setting involving an older child." Id. at 33. While not approving corporal punishment, the Court stated, "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." Id. at 36.

B.

Before applying these principles to the record evidence, we must address defendant's argument that the court erred in relying on the embedded hearsay statement of the police detective regarding defendant's confession about use of the wooden brush. Defendant does not challenge on appeal the court's admission into evidence of Dr. Lanese's report.

"We grant substantial deference to the trial judge's discretion on evidentiary rulings." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted). However, that discretion must conform to applicable legal standards. See Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). N.J.S.A. 9:6-8.46(b) provides that evidence in an abuse or neglect fact-finding hearing must be "competent, material and relevant[.]" N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). Documentary evidence from hospitals "or any other public or private institution or agency" pertaining to "any condition, act, transaction, occurrence or event relating to a child" is admissible in an abuse or neglect hearing "if the judge finds that [such evidence] was made in the regular course of . . . business . . . ." N.J.S.A. 9:6-8.46(a)(3). The "regular course of business" standard in N.J.S.A. 9:6-8.46(a)(3) should be interpreted to mirror the standard in the hearsay rule, N.J.R.E. 803(c)(6). M.C., III, supra, 201 N.J. at 346.

Rule 5:12-4(d) also permits the Division to submit in evidence "reports by staff personnel," but it must do so "pursuant to N.J.R.E. 803(c)(6) and 801(d)," which refer to the business record exception. Nonetheless, reports admitted pursuant to Rule 5:12-4(d) or N.J.S.A. 9:6-8.46(a)(3) are still subject to other hearsay limitations, including those imposed by N.J.R.E. 805 concerning embedded hearsay statements,6 and N.J.R.E. 808, concerning expert opinion included in a hearsay statement admissible under an exception. See, e.g., Cope, supra, 106 N.J. Super. at 343 (holding "the [Division] should be permitt[]ed to submit into evidence, pursuant to [former] Evidence Rules 63(13) and 62(5), reports by [Division] staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case") (emphasis added).

Applying these principles, we conclude the court erroneously admitted defendant's reported confession to the police detective, included in the investigation summary. Defendant's statement was admissible as the statement of a party-opponent, N.J.R.E. 803(b), and a statement against interest. N.J.R.E. 803(c)(25). However, the detective's report of the confession was hearsay, and not subject to the specific exceptions under Rule 5:12-4(d) or N.J.S.A. 9:6-8.46(a)(3).7 Nonetheless, as we discuss below, the admission of the defendant's reported confession was harmless error.

C.

Turning to the issue of whether defendant's actions constituted excessive corporal punishment, in accordance with K.A., we first address the nature of the injuries. Although it is a close question, we need not find that the bruising constituted per se excessive corporal punishment. As in K.A., defendant's actions did not result in the laceration of Carrie's skin or a bone fracture, require the child to obtain medical intervention, or expose the child to further harm without medical treatment. On the other hand, as in C.H., the child exhibited injuries to two body parts each of the child's legs. Moreover, the bruising was severe, involving petechiae, and covered a significant area.

The evidence of the surrounding circumstances support the court's finding. Excluding defendant's confession that he used a brush to strike his child, Dr. Lanese's opinion established defendant used an instrument of some kind.8 However, even if he used only his hand, he used it with substantial force. As the Court observed in P.W.R., supra, the child's age is significant. In this case, the parent inflicted substantial corporal punishment on a twenty-seven-month old child who likely did not appreciate the nature of her actions, let alone disobey her parent, as the child did in K.A. Carrie was also ill-equipped, given her age, to cope with the severity of the response.

We appreciate that this was a "one-time event" as in K.A., supra, 413 N.J. Super. at 512, and defendant complied with some services. Cf. C.H., supra, 416 N.J. Super. at 417 (observing the parent "was not receptive to any counseling recommendations"). However, there was no evidence to suggest defendant encountered trying circumstances in caring for Carrie. Unlike the mother in K.A., defendant was not raising the child largely on his own. Rather, the record suggests Sally was the primary caretaker. Defendant was simply watching the children while Sally went out one evening.

In sum, we discern sufficient credible evidence in the record to support the trial court's finding of excessive corporal punishment constituting abuse or neglect.

A

ffirmed.

1 Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services is now known as the Division of Child Protection and Permanency. We will refer to the agency as the "Division."

2 We use pseudonyms rather than initials for the reader's convenience, and intend no disrespect to the persons so named.

3 Petechiae are "pinpoint, round spots that appear on the skin as a result of bleeding under the skin. The bleeding causes the petechiae to appear red, brown or purple." Mayo Clinic, Petechiae, available at http://www.mayoclinic.com/health/ petechiae/MY01104.

4 Paris noted, "Wkr. requested a copy of [defendant's] confession. The Detective said that he could have it available for the Wkr. tomorrow during his shift." However, there is no evidence in the record the confession was obtained.

5 Dep't of Children & Families v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011).

6 N.J.R.E. 805 states:

A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.

7 The Division incorrectly asserts the investigation summary was admitted "without a hearsay objection." Defense counsel objected to the investigation summary's admission for the "same" reason as he objected to the Division's screening summary, and he objected to admission of the screening summary because of "included hearsay[.]"

8 We note that Paris herself opined, in her investigation summary, that defendant used an instrument to strike Carrie. See Cope, supra, 106 N.J. Super. at 344 ("In the case of conclusionary statements, the author should be a person qualified to give an opinion on the subject under discussion (e.g., a psychiatrist or psychologist for diagnosis of mental disease or impairment), and no conclusion should be received unless the report contains a statement of the facts or procedures upon which it is based."). However, the court did not rely on that opinion to find defendant used an instrument.