NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES v. K.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

K.D.,

Respondent-Appellant.

_____________________________

May 5, 2014

Submitted April 8, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from the Division of Child Protection and Permanency, Department of Children and Families, Docket No. AHU 11-1363.

K.D., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).

PER CURIAM

Defendant K.D. appeals from the decision of the Director of the Division of Child Protection and Permanency, affirming the substantiation of her abuse of her daughter, D.D. Finding no disputed issues of material fact, the Director granted the Division's motion for summary disposition, and did not refer the case to the Office of Administrative Law for an evidentiary hearing. We affirm.

We agree with the Director that the material facts are undisputed. On July 8, 2011, K.D. and her husband, N.D., were in the midst of a heated argument over family finances in the living room of their home. K.D. was seated next to K.D. and N.D.'s eleven-month-old daughter, M.D., feeding her from a jar of baby food. K.D. and N.D.'s almost three-year-old daughter, D.D., was standing near a wall. N.D. was seated on the couch, about five feet from K.D.

Frustrated and angry, K.D. threw the jar of baby food against the wall near her husband. It bounced off the wall and struck D.D. on the right temple. N.D. immediately took D.D. to a nearby emergency room, where D.D. was evaluated. D.D. developed an oval-shaped contusion or bruise, about two inches long and an inch-and-a-half wide, beginning at the right end of her eyebrow, and ending near her hairline. There was swelling and discoloration. D.D. did not lose consciousness, vomit, or complain of headache or vision loss. D.D. was playful in the emergency room. No x-ray was taken and she was sent home with N.D. that night.

The Director accepted K.D.'s claim that she did not intend to strike or harm D.D. K.D. also claimed she did not intend to strike her husband. She stated she threw the jar at the wall "to send a message" to him. A Division worker reported that N.D. initially asserted that his wife threw the jar at him. But, he later stated, in accord with his wife, that she threw it at the wall.

K.D. was involved with the Division in 2008, after a report ultimately deemed unfounded by her then eleven-year-old daughter, A.C., that K.D. threatened to kill her. K.D. participated in a psychological evaluation, and anger management and counseling services.

The Director held that K.D.'s behavior made D.D. an abused or neglected child under N.J.S.A. 9:6-8.21(c)(4)(b), which states:

"Abused or neglected child" means . . . (4) . . . 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 [or her] 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; or by any other acts of a similarly serious nature requiring the aid of the court . . . .

The Director held K.D. engaged in grossly or wantonly negligent conduct with reckless disregard for her child's safety. Relying on G.S. v. Department of Human Services, 157 N.J. 161 (1999), the Director found that K.D. failed to exercise a minimum degree of care and inflicted harm on her child. The Director found that K.D. "did not control her temper," threw an object near her daughter, striking her in the forehead, and causing a severe bruise near the eye, an "incredibly sensitive and vulnerable area of a child's body." Fortunately, D.D. did not suffer more serious injury. Although K.D. did not intend to harm her daughter, the Director held that lack of intent did not preclude a finding of abuse. The Director stated:

Although K.D. did not intend to strike D.D. with the jar, the Supreme Court has held that "[w]hether the guardian intended to harm the child is irrelevant. If a parent or guardian commits an intentional act that has unintended consequences, that action is considered 'other than accidental' within the meaning of Title 9."

[(quoting G.S., supra, 157 N.J. at 176).]

Finally, the Director held that K.D.'s actions were "even more unreasonable" in light of her past participation in services for anger issues, and her presumed knowledge of how to cope with frustration and anger.

On appeal, K.D. argues that she hit her daughter inadvertently. She asserts it was an isolated incident. She expresses remorse for her behavior, reviews her accomplishments at work and as a mother, and discusses her subsequent efforts along with her husband's to better communicate and cope with stressful and provocative situations. She provides supportive statements of a friend and a family member.

We review the Director's fact-findings to determine whether they are supported by sufficient credible evidence. In re Taylor, 158 N.J. 644, 657 (1999). Our role is to assess whether the agency's decision was arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We engage ina "'careful and principled consideration of the agency record and findings.'" Taylor, supra, 158 N.J.at 657-58 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.85, 93 (1973)). On the other hand, we are not bound by the agency's legal conclusions. G.S., supra, 157 N.J.at 170 (citing Mayflower Sec. Co., supra, 64 N.J.at 93); see alsoManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

Applying these principles, we affirm the agency's order substantially for the reasons set forth in the Director's decision. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. A factfinder must "focus on the harm to the child and whether that harm could have been prevented." Id. at 182. In this case, there was sufficient evidence to support the Director's finding. The dangers and risks associated with K.D.'s decision to hurl a glass jar at a wall in the vicinity of her child were obvious. The harm to D.D. was easily preventable. K.D. disregarded those risks, and failed to exercise the requisite minimum degree of care. As a result, D.D. suffered a bruise to the head constituting abuse. See N.J.A.C. 10:129-2.2.

We appreciate K.D.'s accomplishments and the strides she states she and her husband have made in coping with family stresses and communicating more effectively with each other. We also recognize that in determining whether a parent has abused a child, relevant factors may include "the isolation of the incident" and the circumstances triggering a parent's behavior. SeeDiv. of Youth & Family Servs. v. K.A., 413 N.J. Super.504, 512 (App. Div. 2010) (stating that in determining whether a parent has inflicted excessive corporal punishment under N.J.S.A.9:6-8.21(c)(4)(b), a court may consider "(1) the reasons underlying [the parent's] actions; (2) the isolation of the incident; and (3) the trying circumstances which [the parent] was undergoing due to [the child's] psychological disorder"), certif. dismissed, 208 N.J. 355 (2011). On the other hand, "Each proven act of neglect [or abuse] has some effect on the [child]. One act may be substantial or the sum of many acts may be substantial." Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) (alteration in original) (internal quotation marks and citation omitted). Whether medical intervention is necessary is also a factor in determining whether a single event suffices. K.A., supra, 413 N.J. Super. at 511. In this case, we are satisfied that the single incident was sufficient to constitute abuse under the statute.

Affirmed.