NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.B.

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NOT FOR PUBLICATION WITHOUT THE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

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF N.B.,

Minor.

______________________________________

Submitted May 5, 2014 Decided June 16, 2014

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0103-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Eva Pagano, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.B. (Charles Ouslander, Designated Counsel, on the brief).

PER CURIAM

S.B. appeals from an order dated November 29, 2012, finding that he engaged in excessive corporal punishment when disciplining his minor child N.B., as a result of which, N.B. was an abused or neglected child. We affirm.

On May 1, 2012, the Division of Child Protection and Permanency1 (Division) filed a complaint in the Family Part seeking custody, care and supervision of N.B. The Division had earlier removed the child from S.B.'s custody, after receiving a report that he used excessive corporal punishment in disciplining N.B., who was eight years old at the time. N.B.'s biological mother was deceased. The Division placed N.B. in the care of his paternal grandmother.

The court granted the Division's application for interim relief and authorized N.B.'s paternal grandmother to continue to act as the child's caretaker. The court later required S.B. to participate in a psychological evaluation, and ordered an evaluation of the child. N.B. remained in the care of his grandmother.

In July 2012, N.B. was reunited with defendant, and the court ordered defendant to continue counseling services through the Division. In November 2012, the court conducted a fact-finding hearing to determine whether N.B. was an abused or neglected child, as a result of the aforementioned corporal punishment.

Evidence presented at the hearing indicated that, on April 16, 2012, N.B. was upset in school and refused to get on the bus to go home. The school contacted S.B., who picked up N.B. and took him to the home of a family member. The following day, a counselor at the school asked N.B. why he did not want to get on the school bus. The counselor noted that N.B. appeared very sad and was more quiet than usual.

N.B. told the counselor that, the day before, he had been "in the red," which indicated that his behavior in school was not satisfactory. N.B. did not want to go home because he knew he would be in trouble. When questioned further by the counselor, N.B. revealed that he had been hurt.

N.B. pulled up a sleeve and showed the counselor a welt on his arm above his elbow. He also showed the counselor additional welts on his back, stomach and other arm. The counselor asked N.B. how he got the welts, and he told her that his father hit him with a belt.

The counselor reported the matter to the Bridgeton Police Department (BPD) and the Division. Officer Kenneth Leyman of the BPD arrived at the school, and N.B. was brought to the principal's office, where he met Leyman. N.B. told Leyman that his elbow hurt because his father hit him with a belt. Leyman observed what he described as distinct, horizontal welts on the boy's triceps, just above the elbows. N.B. also told Leyman his stomach and back hurt.

N.B. raised his shirt and Leyman observed multiple horizontal welts across the boy's lower back, and a single horizontal welt across the upper back. Leyman also observed a bruise on the lower-right portion of N.B.'s back and another welt across his stomach. In his report, Leyman noted that the welts were consistent with injuries inflicted with a belt.

Detective Shawn Peek of the BPD arrived at the school for further investigation. He contacted the Cumberland County Prosecutor and brought N.B. to the prosecutor's office. There, Peek interviewed N.B. He told Peek that the previous day, his father struck him with a belt, causing the injuries to his body. N.B. said he thought that S.B. hit him because he received "a red card" in school, but S.B. did not say anything to him before striking him with the belt.

Peek testified that the bruises on N.B.'s back were particularly severe and he was concerned about the significant bruise across N.B.'s lower right abdominal area. Peek located S.B. and asked him to come to the police station, where they discussed the allegations. Peek said the marks showed that S.B. had imposed discipline upon the child beyond what was reasonable and necessary, and it put the child at risk. S.B. was arrested and charged with fourth-degree cruelty to a child.

The Division's worker, Lisa Felix, made arrangements for N.B. to be temporarily placed with his paternal grandmother. Felix also had N.B. examined by the Division's nurses. They were concerned about the abdominal bruising. N.B. was taken to a medical center, where he was seen by a pediatrician, Dr. Stephanie Lanese.

Dr. Lanese testified that the marks on N.B.'s body were consistent with marks caused by a belt. She was concerned because corporal punishment had been imposed using an object that left marks on the child. Her other concern related to the location of the injuries because "important parts" of the body could be harmed.

She noted that if a child moves while a parent is swinging a belt, the child could be hit in the eye, ear, mouth, nose or some other place that is "even more vital." The child also could suffer internal bleeding, broken bones or even death "in some cases." The doctor pointed out that the abdomen is "less protected" and striking a child there could "hurt more vital organs."

Dr. Lanese also said she was concerned about the psychological impact of N.B.'s injuries. N.B. told her that he felt "sad" when he learned he had gotten "in the red zone" in school because he knew he was "going to get a beating." She said that a child who thereafter gets "into the red zone" would only think about getting a beating, and this could be psychologically "very traumatizing to a child."

Dr. Lanese further testified that her physical examination indicated that N.B. did not have "any internal problems." She said that the "primary impact" of the experience was psychological. She also explained that, if S.B. did not say anything to N.B. before he started striking him with the belt, that would be of concern because discipline without any explanation could be traumatic.

The judge placed his decision on the record, finding that S.B. had engaged in excessive corporal punishment. The judge noted that, while parents have the right to use corporal punishment when disciplining their children, the question here was whether the punishment was excessive. The judge found, based on N.B.'s statements and Dr. Lanese's testimony, that S.B. beat N.B. with a belt.

The judge additionally found, based on the doctor's testimony, that it was difficult to determine with certainty how many times N.B. was struck with the belt, but the judge said there was no doubt he had been hit with "such force" that it left marks on his body. Photos indicated the beating caused marks that lasted three or four days after they were inflicted.

The judge considered several factors in determining whether S.B. had engaged in excessive corporal punishment. The judge said that S.B. intended to strike N.B. with the belt, even though he might not have intended to hurt the child or leave the marks shown in the photos.

The judge considered the reason why S.B. struck the child, noting that this case did not involve an older child who was "out of control." This matter involved an eight-year-old child who apparently misbehaved in school. The judge also considered the child's age, and the manner in which the punishment was inflicted. The child had been beaten with a belt. Taking note of Dr. Lanese's testimony, the judge pointed out that striking a child with an object rather than an open hand "can result in even more serious injury."

In addition, the judge noted that, while N.B. did not suffer any internal injuries, broken bones or scarring, there was a risk that the child could have sustained internal injuries, as Dr. Lanese had explained. The judge pointed out that N.B. had been struck in the abdominal area, where many vital organs are located.

The judge said that while S.B. may not have intended to strike the boy there, that was the consequence of hitting an eight-year-old with a belt. S.B. could have reasonably anticipated that the boy would move about while being struck with a belt. The judge also found, based on Dr. Lanese's testimony, that the beating placed the child at risk of psychological harm.

The judge determined that the Division met its burden of showing, by a preponderance of the evidence, that S.B. used excessive corporal punishment in disciplining N.B. The judge determined that, as a result, the child's physical, mental or emotional condition was impaired or in imminent danger of being impaired. The judge therefore concluded that N.B. was an abused or neglected child, as defined in N.J.S.A. 9:6-8.21(4).

The judge memorialized his findings in an order dated November 29, 2012. The order provided that N.B. would continue under the Division's care and supervision, with S.B. having legal and physical custody of the child. S.B. was required to participate in counseling. Thereafter, the judge entered an order dated January 2, 2013, terminating the litigation, with the child remaining in S.B.'s legal and physical custody. This appeal followed.

S.B. argues that the Division did not present sufficient credible evidence to support the court's finding that N.B. was an abused or neglected child. S.B. contends that the punishment at issue was "an isolated incident" that only involved bruising. S.B. contends that the corporal punishment inflicted on N.B. was not excessive. We cannot agree.

The scope of our review of the trial court's decision is limited. We must defer to the judge's factual findings if they are supported by adequate, substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's findings is especially appropriate "'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, we defer to the findings of the Family Part because of that court's "special jurisdiction and expertise in family matters[.]" Id. at 413.

N.J.S.A. 9:6-8.21(c)(4) provides in pertinent part that a child is considered "[a]bused or neglected" if the child's

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[.]

"[T]he law does not prohibit the use of corporal punishment." State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). It prohibits corporal punishment that is excessive. Ibid. The law allows a parent to "inflict moderate correction such as is reasonable under the circumstances of a case." Ibid.

A finding of excessive corporal punishment may be sustained if the child suffers a fractured limb, a serious laceration or other event that requires medical intervention if the parent could have foreseen that such harm could result from the punishment. Dept. of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011). In the absence of evidence that a particular injury was per se excessive corporal punishment, the totality of circumstances should be considered in determining whether the punishment was excessive. Id. at 512.

We are convinced that there is sufficient credible evidence in the record to support the court's finding that N.B. was an abused or neglected child, as a result of excessive corporal punishment imposed by S.B. As we have explained, the trial court based its finding on the age of the child, the reason the punishment was inflicted, the severity of the punishment, the use of a belt, the places on the body that were hit, the absence of any verbal explanation for the punishment, and the potential for serious physical and psychological harm to the child.

The testimony of Detective Peek, caseworker Felix, and Dr. Lanese, along with the photographs of the injuries that the child sustained, provided a sufficient evidential basis for the court's findings. We therefore reject as entirely without merit S.B.'s contention that there was insufficient evidence to support the court's determination.

S.B. additionally argues that his name should not be placed on the Division's child abuse registry established pursuant to N.J.S.A. 9:6-8.11. S.B. contends that placement of his name on the registry would cause injury to his "good name and character" and would serve no purpose. Again, we disagree. Where, as here, a court has determined that an individual abused or neglected a child, the name of that individual must be placed on the Division's child abuse registry. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998).

Affirmed.

1 The Division was previously known as the Division of Youth and Family Services.