NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.U.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05322-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.U.,

Defendant-Appellant.

-

IN THE MATTER OF N.U., a Minor.

November 20, 2014

Submitted November 5, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-233-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian for minor N.U. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.U. appeals from a May 22, 2013 Family Part order1 determining that she abused or neglected her son, N.U., within the meaning of Title 9, N.J.S.A. 9:6-8.21c(4)(b). Having reviewed the record, we conclude that the judge's fact finding decision was supported by sufficient credible evidence and is consistent with the applicable law. Therefore, we affirm.

I.

This case arises out of a referral made by a pediatric emergency room physician to the Division of Child Protection and Permanency (Division) on October 12, 2012. While the doctor was attending to nine-year-old N.U. for an unrelated illness, she noticed that he winced at her touch. She subsequently discovered bruises on N.U.'s "left shoulder, right shoulder, the mid back, and the left flank," which were "reddish purple in color" and appeared "fresh." The doctor further observed "mild swelling of the bruises of the mid back." When questioned by the doctor, N.U. said that his mother's boyfriend, M.M. "whooped" him with a belt because he misbehaved in school. N.U. similarly told the Division's investigator that M.M. "hit him with a belt and that it hurt" and that he "was afraid of" both M.M. and M.M.'s mother, R.H. He further said "he would also get whooped by [K.U.] with a belt" if he got into trouble at school, but he was not afraid of his mother.

K.U. stated to the doctor that "we all do it," referring to herself, M.M., and R.H., hitting N.U. when he misbehaved at school. However, K.U. told the investigator that she was the one who hit N.U. with the belt, and not M.M. K.U. also said she gave M.M. and R.H. "permission to chastise and discipline [N.U.] whenever he act[ed] up and she [had] no problems with this."

On that same day, the Division conducted a Dodd emergency removal.2 The court eventually granted custody to the child's biological father, A.E., with K.U.'s consent.

A fact finding hearing was held before the Family Part judge on May 22, 2013. The judge heard testimony from the doctor as well as the Division case worker who responded to the referral, and interviewed both N.U. and K.U. at the hospital. Over defendant's objection, the judge also received in evidence six exhibits: the hospital's emergency record, the hospital's aftercare instructions, photographs taken by the case worker depicting the bruising on K.U., and three Division records (a pre-placement assessment, completed by the doctor; a screening summary, and an investigation summary). K.U. did not testify.

At the conclusion of the hearing, the judge found K.U. abused or neglected her child by a preponderance of the evidence based on the testimony of the doctor and the investigator, as well as six admitted exhibits. In reaching this decision, the judge cited the bruising that the doctor observed and the subsequent statements by the child identifying M.M. as the person who hit him and that he was afraid of M.M. and R.H.

The judge also cited the child's statements that he "had been previously beaten violently, in addition to [M.M.]'s mother" and K.U. In addition, the judge referred to K.U. refusal to provide M.M.'s name. The judge also noted that K.U. "indicated that she hit the child and said that she gave permission to the boyfriend and his mother to discipline the child" as well. In reference to the bruises, the judge cited that the doctor "was an expert and indicated these linear marks . . . were indicative of belt marks."

The judge summarized the trial evidence as follows

It is very clear that the mother took the blame for this in an attempt to protect the boyfriend when it was very clear that the child not only told the Division worker, but also told the doctor that it was [M.M.] that did this. There would be no reason for this child to lie at this point, the child was in a situation where he was being tended to for these things. So the mother not only protected the boyfriend by not giving any information, but also by admitting that she was the one who beat him up as opposed to the boyfriend. This is a shocking revelation to the Court that any woman under any circumstances would prefer the boyfriend over her own child.

. . . The preponderance of the evidence has been met. It is clear to me that this child was the subject of excessive corporal punishment. Being hit by a belt, per se, is excessive corporal punishment. It's not a slap. . . . It is not a situation where it was a one-time thing. Apparently, this was a continuous pattern of abuse by the mother and the mother allowing someone else to do it, as well.

II.

As the reviewing court, we are bound to accept the trial court's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). Although we review legal conclusions by the trial judge de novo, we owe a particular deference to fact finding by family court judges because of their special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Consequently, we only disturb a family court's findings if they are "'so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In light of these standards, we find no basis to disturb the trial judge's findings of fact, and those findings support her legal conclusion.

As defined in Title 9, "abuse or neglect" may occur when a child's "physical, mental, or emotional condition has been impaired . . . as the result of" a parent who fails to "exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted by harm, or substantial risk thereof, including the infliction of excessive corporal punishment[.]" N.J.S.A. 9:6-8.21c(4)(b). A parent may fail to exercise the minimum degree of care if he or she "is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). The Division must prove its allegations by a preponderance of the evidence at a fact finding hearing. N.J.S.A. 9:6-8.46b(1).

While the boundaries of what constitutes "excessive corporal punishment" are undefined in the statute, we have placed particular weight on the statute's inclusion of the word "excessive" and have stated that "[t]he term 'excessive' means going beyond what is proper or reasonable." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011). Thus, while "moderate correction" may be reasonable, "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment." Id. at 510, 511. Excessive corporal punishment may occur when "the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary . . . provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted." Ibid. The administrative code provides further guidance, listing injuries that may constitute abuse or neglect, including "[c]uts, bruises, abrasions, welts or oral injuries[.]" N.J.A.C. 10:129-2.2(a)9.

K.U. argues there is insufficient credible evidence to support the trial court's finding that she abused or neglected N.U., and also challenges the admission of four exhibits. We disagree and find there is sufficient credible evidence to support the trial judge's findings and that the challenged evidence was properly received.

K.U. admitted to punishing the child when he misbehaved in school and that she permitted her boyfriend and her boyfriend's mother to also "discipline" him. This case is distinguished from cases where physical harm to a child did not constitute abuse or neglect; here, N.U. was hit with a leather belt and left with bruises, and this type of punishment had occurred previously. Cf. N.J. Div. Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011) (finding a stepmother slapping a teenager's face that left no marks or bruises did not constitute excessive corporal punishment); K.A., supra, 413 N.J. Super. at 512 (finding no excessive corporal punishment when a mother struck her child "five times on the shoulder with a closed fist" because the child suffered no permanent harm, did not require any medical care, and it was "not part of a pattern of abuse"). This was not an isolated incident and the evidence shows K.U. at least permitted or condoned the punishment inflicted upon N.U.

We also find K.U.'s arguments concerning the exhibits admitted into evidence are without merit. K.U. challenges the admission of N.U.'s emergency room records from the hospital, the hospital's aftercare instructions for N.U., the Division's screening summary, and the Division investigation summary.

N.J.S.A. 9:6-8.46a declares admissible as prima facie evidence of its contents

any writing, record or photograph, . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency[.]

While the statute does not define "in the regular course of business," its meaning should be "interpreted as identical to the meaning of that phrase in the business-records exception to the hearsay rule." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346 (2008) (citing N.J. Div. of Youth & Family Servs. v. E.D., 223 N.J. Super. 401, 413-14 (App. Div.), certif. denied, 118 N.J. 232 (1989)); N.J.R.E. 803(c)(6). Additionally, corroborated statements by the child in an abuse and neglect case may be admissible, even if hearsay. N.J.S.A. 9:6-8.46a(4) ("[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.").

Additionally, Rule 5:12-4(d) further permits reports prepared by the Division's staff to be submitted into evidence. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010). These reports are "treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). As they are "prepared by the qualified personnel of a state agency charged with the responsibility of overseeing the welfare of children . . . [the reports] supply a reasonably high degree of reliability . . . ." In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). Division reports must be "'prepared from [the author's] own first-hand knowledge of the case,'" with any conclusion supported by "'a statement of the facts or procedures upon which it is based.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008) (alteration in original) (quoting Cope, supra, 106 N.J. Super. at 343-44).

Although the record would support affirming the trial court's decision relying only on witness testimony and uncontested documents, we find the judge properly admitted the challenged exhibits under N.J.S.A. 9:6-8.46a and Rule 5:12-4(d). The doctor who cared for N.U. and participated in the preparation of the child's hospital medical record, testified at trial and was subject to cross-examination. The hospital records were created in the ordinary course of business and there is no evidence they were untrustworthy. See N.J.R.E. 803(c)(6); cf. N.J. Div. Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174-75 (App. Div. 2012) (finding the Division's reliance on doctors' written reports created after the initiation of litigation was improper without producing the experts for cross-examination). The Division's investigation summary and screening summary were also properly admitted pursuant to Rule 5:12-4(d). See Cope, supra, 106 N.J. Super. at 344; I.Y.A., supra, 400 N.J. Super. at 90-91.

Affirmed.

1 This order became appealable as of right after the court entered a final order terminating litigation on that same date, May 22, 2013.

2 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citations and internal quotation marks omitted).