A-0 OF CHILD PROTECTION AND PERMANENCY v. M.W IN THE MATTER OF Y.C and A.W minors October 23, 2014

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NOT FOR PUBLICATION WITHOUT THE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.

M.W.,

Defendant-Appellant,

_______________________________

IN THE MATTER OF Y.C. and A.W.,

minors.

_______________________________

October 23, 2014

Submitted September 10, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0111-12.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, 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 for Y.C., a minor (Lisa M. Black, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, for A.W., a minor (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Appellant M.W. appeals a trial court's determination following a fact-finding hearing that she inflicted excessive corporal punishment upon her thirteen-year old daughter, Y.C., in violation of N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.

I

The pertinent evidence adduced at the fact-finding hearing was as follows. Lauren Furdyna, an intake worker for respondent New Jersey Division of Child Protection and Permanency (Division), testified that on May 10, 2013, the Division received a referral from a nurse at Y.C.'s school. Furdyna met with Y.C. that day, and learned that Y.C. and her mother had argued that morning over an outfit Y.C. wanted to wear to school. M.W. instructed Y.C. to change her clothes and Y.C. went to her room. When M.W. later entered Y.C.'s room and discovered Y.C. had not yet changed, M.W. wrapped a leather belt around her hand but left a portion of the belt and the belt buckle attached dangling from her hand.

M.W. then swung the buckle at Y.C. a number of times, hitting her in the arm. Although Y.C. admits that, just before her mother hit her, Y.C. had been "getting an attitude," there was no indication Y.C. was physically aggressive toward her mother. In fact, Y.C. was sitting on the edge of her bed when her mother began to strike her, and Y.C. did not fight back but merely retreated toward the other side of the bed. M.W. stopped striking Y.C.'s when her arm started to bleed. Furdyna observed marks, a cut, and a "bloody area," on Y.C.'s left arm and noted the school nurse applied ice to the marks.

Furdyna interviewed the mother, who admitted hitting the child twice with the belt buckle, which left marks on the child's arm. M.W. conceded that she had "taken it too far." The mother did not allege that the child had threatened her or was in any way physically aggressive toward her. When the fact-finding hearing commenced, the mother, who did not testify, stated she was willing to participate in counseling and any other services the Division recommended.

Furdyna testified about another incident that occurred just a few weeks before. The mother came home and discovered Y.C. dyeing her hair. According Y.C., her mother immediately rinsed the dye out of her hair and, while doing so, hit Y.C. in the face a number of times, leaving red marks. M.W. admitted she forced the child's head under a sink. Furdyna also mentioned that approximately one year before, Y.C. alleged M.W. hit her with a belt, leaving a mark on her arm. The incident, however, was determined to be unfounded.

Stephanie Lanese, M.D., a pediatrician who was also qualified as an expert in child abuse, testified that she examined Y.C. on May 14, 2012, four days after the incident. The doctor observed on Y.C.'s arm four bruises, a laceration she described as an "open wound" that was "a little concerning" as it was susceptible to becoming infected, and hyper-pigmented linear marks. Y.C. complained that her arm still hurt. The doctor also saw a large bruise on Y.C.'s thigh and a laceration on her foot.

The doctor conceded that the physical injuries would heal but expressed concern about the psychological impact of the violence, which can cause problems with interacting with others later in life. Also, Y.C. told the doctor she had been suspended from school in the past for fighting. The doctor noted that Y.C. was learning from her mother to use violence as a way to solve problems.

Y.C. briefly testified. She claimed she and her mother were arguing over her outfit when Y.C. became angry and pushed her mother, who responded by hitting Y.C. with a belt buckle. The court did not find Y.C.'s claim that she pushed her mother credible, concluding Y.C. was merely trying to protect her mother.

The trial court determined M.W. caused Y.C. physical harm. Further, given the form of and reason for the punishment refusing to change her clothes and exuding an attitude the mother violated N.J.S.A. 9:6-.21(c)(4)(b) by inflicting excessive corporeal punishment. The court did find, however, that Y.C. did not suffer any emotional harm. The court referenced the two previous incidents but they do not appear to have influenced the court's ultimate findings.1

II

Abuse and neglect actions are controlled by the standards set forth in N.J.S.A. 9:6-8.21 to -8.73. New Jersey Div. of Youth & Family Servs v. P.W.R., 205 N.J. 17, 27 (2011)(citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). The Division must prove by a preponderance of the evidence at a fact-finding hearing that a child was abused or neglected. N.J.S.A. 9:6-8.46(b). Title Nine states, in pertinent part, that an

[a]bused 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" includes punishment that results in bruises or lacerations. P.W.R., supra, 205 N.J. at 36 (concluding that the slap of a teenager's face may not constitute "excessive corporal punishment" if no bruises or marks result.) 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 includes "[w]ounds, bruises, abrasions" as injuries that may be abuse, certif. granted, 204 N.J. 40 (2010), app. dis., 208 N.J. 355 (2011)). While in K.A. we found the mother of an eight-year old who punched her daughter four to five times on the shoulder with a closed fist, leaving bruises, had not inflicted excessive corporal punishment, we determined the circumstances were unique.

In K.A., the child suffered from a psychological disorder that made her unduly disruptive. The mother, who cared for the child without help from any other adult, was unable to control her daughter through verbal persuasion or passive means of discipline. In a moment of frustration the mother punched her child, but was contrite, accepted responsibility for her actions, and was willing to participate in Division services. The court found her conduct aberrational and excusable under the circumstances.

Here, while Y.C. stubbornly resisted changing her clothes, her stance was passive. She was neither combative nor physically menacing; Y.C. did not even fight back while her mother whipped her but merely retreated by moving backwards. Before resorting to physical violence, M.W. did not attempt to prevail upon her daughter by using non-violent means of discipline, such as threatening to remove privileges.

Also unlike the mother in K.A., there was no evidence M.W. was overwhelmed; in fact, as the mother did not testify, it is not known what exactly triggered her conduct. But even if the mother felt frustrated by her daughter's conduct that day or by child-rearing in general, there was evidence the maternal grandmother assisted M.W. with caretaking. Finally, while at the outset of the fact-finding hearing M.W. agreed to participate in Division services, there is no evidence she was remorseful. Under these circumstances, whipping a child with a belt buckle to the extent of causing the kind of bruising and laceration described by the doctor, over a relatively unremarkable act of defiance, constitutes excessive corporal punishment.

After carefully considering the record and the briefs, we conclude M.W.'s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed.

1 The incident that was determined to be unfounded should not have been admitted into evidence. When an allegation is unfounded, N.J.S.A. 9:6-8.40a(a) requires the Division to "expunge from its records all information relating to [the unfounded] report, complaint, or allegation" of abuse. However, the admission of this allegation was harmless.