NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. I.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

I.E.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF I.E., T.G. and

J.F., Minors.

_________________________________

June 20, 2014

Submitted June 3, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-199-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, and Richard Foster, Assistant Deputy Public Defender, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.E., T.G. and J.F. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

I.E. (Irene2), appeals from an October 4, 2011 order determining that she abused or neglected her fifteen-year-old son James by whipping him with an extension cord, leaving bruises on his arm.3 We affirm.

New Jersey Division of Youth and Family Services (Division) Investigator Nicole Green testified at the factfinding hearing that she responded to the Asbury Park Police Station and interviewed James, who told her that the week before, after he threw two bags of his mother's marijuana out of the window, she accused him of stealing $35 from her and whipped him with an extension cord. James reported that his mother beat him often. Officers photographed bruises on James' arm, each of which measured approximately five inches long, and were consistent with being struck with a whip-like object.

James's two younger siblings, Iris and Theresa, were located and interviewed by the Division. Eleven-year-old Theresa said that James was selling and using marijuana and would sometimes come home smelling of the drug, on this occasion resulting in an altercation where James pointed two knives at his mother. Theresa said she did not see James get whipped on the date in question, but she did say that Irene would sometimes hit the children with an open hand.

Five-year-old Iris claimed she saw her mother whip James "hard with an extension cord" and that Irene would sometimes whip her sister Theresa with the cord as well. Iris also claimed that she observed her mother in possession of marijuana, which she described as "black stuff you wrap in paper." Iris also stated that Irene would sometimes hit James and Theresa with belts.

Irene also testified at the factfinding hearing. Irene claimed that James was a difficult child to raise and had stolen $400 from her on the night in question. She then stated that she grabbed James by the arm, but he escaped and grabbed two butcher knives. She denied hitting James that night, but did admit to sometimes hitting her two oldest children with her hands and sometimes a belt.

The judge concluded that the photographs entered into evidence showing visible bruises a week after the incident, in addition to the Division's witnesses, established that Irene had used excessive corporal punishment against James. The judge was sympathetic to Irene and believed her testimony that James was a difficult child to raise, noting that James suffers from a traumatic brain injury from being hit by a car, and that Irene received little help from James' father. The judge concluded, however, that Irene had gone too far in physically punishing James excessively on repeated occasions.

Irene raises the following issues on appeal:

POINT I: THE COURT'S FINDING THAT DEFENDANT, I.E. ABUSED AND NEGLECTED HER CHILDREN IS BLATANTLY INCONSISTENT WITH THE EVIDENCE AND MUST BE REVERSED.

POINT II: EVEN IF THE TRIAL COURT'S FACTUAL FINDINGS ARE ACCEPTED AS CORRECT, THE PLAINTIFF FAILED TO PROVE THAT ABUSE AND NEGLECT OCCURRED AS A MATTER OF LAW.

POINT III: THE DEFENDANT-APPELLANT'S NAME SHOULD BE REMOVED FROM THE CENTRAL REGISTRY.

We must "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We may not "second-guess or substitute our judgment for that of the family court," so long as "the record contains substantial and credible evidence to support" the family court's decision. Id. at 448-49. Child welfare cases "are encased in a double layer of deference, including the substantial deference owed to a trial court's findings of fact and to Family Part judges' expertise in [family] matters." N.J. Div. of Youth & Family Servs. v. J.G., __ N.J. __, __ (2014) (slip op. at 19) (internal quotation marks omitted).

Through the admission of "competent, material and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, Title Nine provides the following definition of abuse or neglect:

"Abused or neglected child" means a child less than 18 years of age . . . 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 . . . 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)(b).]

"Excessive corporal punishment" entails physical punishment that results in "bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [a parent's] actions." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011); see also N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div.) (citing to N.J.A.C. 10:129-2.2, which lists examples of abuse or neglect to include "[c]uts, bruises, abrasions, [or] welts"), certif. granted, 204 N.J. 40 (2010), app. dis., 208 N.J. 355 (2011).

Irene relies primarily on K.A. In that case, a mother disciplined her disobedient child by striking the child "four or five times on the shoulder with a closed fist," causing bruises. Id. at 506. An administrative law judge did not substantiate abuse or neglect based on that incident. Id. at 506-08. The Division Director disagreed, however, and substantiated the mother for abuse or neglect for using excessive corporal punishment. Id. at 508-09.

We reversed. Judge Fuentes, writing for the panel, observed that "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment," but concluded that the injury in that case was not excessive per se because "the force used [by the mother] did not lacerate the child's skin and did not require any type of medical intervention. Bruises, although visible, never exposed [the child] to any further harm if left untreated." Id. at 511-12.

Having concluded that the single incident was not itself excessive corporal punishment, Judge Fuentes next "examine[d] the circumstances facing [the mother] to determine whether striking [the child] five times on the shoulder with a closed fist amounted to excessive corporal punishment." Id. at 512. It did not because the mother was confronted with a disobedient special needs child who was unresponsive to "passive means of discipline[.]" Ibid. The mother also received little to no help from the child's father and, "[o]ut of sheer frustration, or through an ill-advised impulse, she struck her child five times." Ibid.

Some similarities exist here, namely, that James has a psychological disorder and the mother received little to no help from James's father. There was evidence adduced here, however, that Irene not only struck her children with an open hand, but also whipped them with belts and electrical cords on more than one occasion, in marked contrast to K.A. Also, the mother in K.A. "accepted full responsibility for her actions, was contrite, and complied with Division-sponsored counseling." Id. at 512. Irene, on the other hand, denied using an extension cord, expressed frustration with James, and believed she was justified in her actions based on his behavior.

Irene relies on the portion of K.A. holding that a single incident of corporal punishment resulting in bruising is not excessive per se. The Law Guardian and the Division point out that K.A. does not stand for the proposition that whipping children with an electrical cord or a belt on more than one occasion may not constitute excessive corporal punishment. See, e.g., Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 483 (App. Div. 2010) (upholding a finding of abuse or neglect where an unremorseful mother struck her son in the face with a paddle and admitted to regularly hitting the child); see also Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 415-17 (App. Div. 2010) (adhering to prior decision and distinguishing K.A. on a motion for reconsideration), certif. denied, 207 N.J. 188 (2011).

The judge's decision was based on substantial credible evidence adduced at the factfinding hearing that Irene whipped her children on more than one occasion, similar to C.H.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We use fictitious names to protect the identity of the children.

3 James is now in the Kinship Legal Guardianship of his paternal grandmother. N.J.S.A. 3B:12A-1 to -7.