NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.G.

Annotate this Case

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NOT FOR PUBLICATION WITHOUT THE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,1

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF

J.G. and R.G., minors.

__________________________________

November 25, 2014

 

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.G. appeals from a March 15, 2013 Family Part order, entered following a fact-finding hearing, concluding D.G. had abused or neglected his minor child, J.G., causing the child physical injury by use of excessive corporal punishment. The judge found D.G.'s wife, D., the mother of J.G., had not participated or been complicit in the abuse.

On appeal, D.G. argues the trial judge erroneously admitted and relied on hearsay evidence, which deprived him of a fair trial making the judge's conclusion against the weight of the competent evidence. Following our review, we reject these arguments and conclude the preponderance of adequate, substantial and credible evidence in the record proved D.G. abused or neglected J.G.

These facts are taken from the hearing record. At trial, the Division caseworker, J.G.'s elementary school nurse, the child's resource parent and an expert who performed a psychological evaluation of D.G. testified on behalf of the Division. Documentary evidence was introduced by both the Division and D.G. and the court reviewed a DVD of an interview of J.G. conducted by the Hudson County Prosecutor's Office (HCPO). Additional documentary evidence was admitted by agreement of the parties. Neither D.G. nor D. testified.

On September 7, 2011, first-grader J.G. was escorted to the school nurse's office to allow Joanne Devine, R.N. to evaluate an eye injury. Nurse Devine observed J.G.'s right eye was "totally distorted . . . due to a large contusion of the right upper cheek, which had caused swelling of the upper and lower eyelids, as well as redness in the eye." Nurse Devine asked J.G. how she was hurt, and relayed the child's responses

One was she slept on a book. So I said, "Are you sure about that, [J.G.]?" Which she replied, "No. My mother you know accidentally hit me with a book after reading me a story." And I [Nurse Devine] said to her again, "Are you sure, [J.G.]?" And then she told me she was swinging the book and she struck herself in the upper right cheek. . . .

Nurse Devine contacted the Division, which dispatched an emergency response worker to investigate the circumstances surrounding the child's injury. At this time, Nurse Devine was also treating J.G. for bedbug bites on her hands, wrists and forearms, which had been diagnosed months earlier by the Hackensack University Medical Center emergency room.

Responding to Nurse Devine's call, the Division interviewed J.G. at school. J.G. was asked how she injured her eye to which she responded "she had the book in her bed and she was hit by the book." J.G. identified the book as "something and freckles."

On September 12, 2013, a second Division worker visited D.G., D., J.G. and her younger brother, R.G. at the family home. The worker asked J.G. to show her the book she was reading when she injured her eye.

J.G. [] returned from her room with a children's hardcover book [] name[d] [] William and Freckles . . . . J.G. showed th[e] worker how she had taken the book and thrown it into the air and it had fallen next to her eye. J.G. said she was no[-longer] keeping her book in bed . . . . J.G. asked th[e] worker if she wanted to see her room, th[e] worker stated yes, and followed her into her room[.] J.G. had a neat bedroom which she shared with her brother. The room was very tidy and organized[;] J.G. showed th[e] worker her clothing and her toys. J.G. was smiling broadly the entire time th[e] worker was in the bedroom. J.G. was asked if she was happy in her home and she said yes, she liked her parents and they took good care of her and her brother.

The Division concluded the allegations of abuse were unsubstantiated.2

The Division was again contacted on December 2, 2011. J.G. was taken to Nurse Devine's office after she made a threatening statement to a peer. At that time, "[J.G.] disclosed that her father hits her with a belt." Nurse Devine examined the child and observed she had

contusions (multiple) on the lower back. No belt welts noted. Duration of the contusion questionable. When asked if dad hit her with the belt often[,] she stated yes. When asked why dad hit her she stated that she wasn't listening. . . . Her mother was present when she was hit and "didn't say anything. . . ."

Division case worker, Diane Noboa met J.G. and Nurse Devine at the school. Noboa

observed bruises on [J.G.]'s lower back on her tail bone. The bruises were observed to be dark red[,] almost brown in color. There were two bruises observed on her back. The bruises were circular in shape and about the size of a nickel. [J.G.] also had bruises on the lower part of her right leg towards her ankle and below her knee. The bruises on her leg were also of dark reddish color. The bruises on her leg were also circular/oval shaped and about the size of a quarter. [J.G.] disclosed that she obtained theses [sic] bruises due to her dad hitting her last week. She reported that her father hits her with a belt all the time. She reported that she is hit with a belt at least once a week. When asked what she did to get in trouble[,] she reported that she doesn't listen. She denied she is hit with any other objects. She reported that her mother is present in the home when her dad hits her with the belt. She stated that her mother doesn t say anything to her father to make him stop. She stated that her mother also hits her with a belt[,] but she denies that she leaves any marks or bruises on her. She reported that the last time she was hit was yesterday by her father with the belt buckle due to her father catching her playing with a knife in the kitchen. She stated that her father saw her playing with the knife, advised her that she shouldn't be playing with any knives, . . . went to his room[,] got the belt and came back to the kitchen and hit her with it four times on her legs and back.

J.G. also reported D.G. hit then eight-month-old R.G. in the stomach with an open hand if "he didn't want to drink his milk." Next, Noboa spoke with the school's anti-bullying teacher, Nicole Costeria, who reported J.G. had "a pattern of behavioral issues[,] such as hitting other children and pulling her classmate's hair." When the school attempted to speak with J.G.'s parents concerning her behavior, "[D.G.] [was] observed to be upset about the behavioral problems that have been reported against [J.G.]" Further, "[Noboa] was warned by [Nurse] Devine and [Costeria] regarding [D.G.]'s violent behavior towards the school," as D.G. had been arrested for disorderly conduct after threatening the school superintendent. Noboa also contacted the HCPO, to report the alleged physical abuse. The HCPO agreed to conduct an investigation.

Noboa spoke to D. and informed her of the referral to the Division and the pending investigation by the HCPO. Also, she explained the need for a medical exam and an assessment of J.G. by the Crisis Unit at Hoboken University Medical Center (HUMC). D. refused these requests and referred Noboa to her attorney. Ultimately, D. spoke to the HCPO, but declined to allow J.G. to participate in the suggested evaluations.

The Division "determined that the children were currently at risk in the care of their parents due to the physical abuse reported by [J.G.], the marks observed on her body[] and [D.]'s refusal to work with the Division even after she was informed that there were concerns for her daughter's mental health and safety." At approximately 5:35 p.m., the Division effectuated a Dodd removal.3

Noboa transported J.G. to the HCPO where Detective Kara Torres conducted and videotaped an interview with the child. Noboa then escorted J.G. to the HUMC for a pre-placement physical, medical examination and psychological evaluation. J.G.'s HUMC medical examination revealed three quarter-sized bruises on her lower back as well as the presence of a rash. A mental health evaluation resulted in a diagnosis of Adjustment Disorder, not otherwise specified, with an accompanying recommendation for crisis counseling and outpatient therapy. R.G. was also examined and no visible bruises or marks were noted. The children were placed with a resource family.

The Division filed its protective services complaint. During the order to show cause hearing, D.G. and D. denied they used corporal punishment to discipline J.G. or R.G. The judge considered the initial proofs and granted the Division's request to be awarded temporary custody, care and supervision of the children and granted the parents weekly supervised visits.

J.G. next participated in a psychological evaluation with a psychosocial team at Audrey Hepburn Children's House (AHCH) (AHCH team), led by Anthony V. D'Urso, Psy.D. There, J.G. recounted who would punish her, how she was punished, its frequency, and how she felt afterwards. When asked to explain how she got the bruises on her body, "[J.G.] indicated she fell in Puerto Rico two weeks prior." Noboa confirmed, by letter, J.G. had been to Puerto Rico earlier that summer, but not within the last few weeks. In her letter, Noboa also expressed statements by the resource family relating J.G.'s comments amounting to coaching by D.G. and D. J.G. told her resource parents D.G. said "'to tell people you lied so you and your brother can go home. Tell them that you fell on vacation in Puerto Rico.'" When confronted with this information, J.G. "continued to repeat she received her bruises in Puerto Rico. She denied anyone told her what to say during the evaluation."

The AHCH team clinically found that J.G. suffered both physical and emotional abuse by her parents' conduct. The team determined D.G. and D. "unreasonably inflicted emotional harm on [J.G.] by asking her to recant her allegation of physical abuse, [suggested she] refuse food at the foster home[] and falsely indicate[d] to her she is returning home sooner than they were advised by the Division."

On January 6, 2012, J.G. and R.G. were placed with relatives. Later that month the HCPO arrested D.G. and charged him with aggravated assault with bodily injury, endangering the welfare of a child, and criminal child abuse and neglect; D. was arrested and charged with endangering the welfare of a child and criminal child abuse and neglect.

On March 3, 2013, the AHCH team issued a report detailing its clinical summary, formulation and recommendations. In addition to a finding of emotional and physical abuse, the AHCH team concluded both D.G. and D. were unfit to parent their children because D.G. posed "a high risk to his children by engaging in continued abusive acts" and D. displayed "characteristics of dependency" which "inclined [her] to minimize her husband's behavior and [made her] . . . incapable of protecting her children from her husband's aggressive tendencies." The AHCH team recommended individual and family psychotherapy, as well as therapeutic supervised visitation.

At trial, the judge credited J.G.'s statements of physical abuse, which were corroborated by Nurse Devine, photographs of bruises, hospital records, and the AHCH report. He found D.G. "struck the child with a belt on more than one occasion" and "exercised excessive corporal punishment in regard to . . . [J.G.]." Citing Dr. D'Urso's testimony, which he found "particularly moving," the judge also specifically relied on Dr. D'Urso's description of "the child's affect, her modeling . . . behavior, her depression, . . . her anxiety . . . putting her head down, and [Dr. D'Urso's] specific quote that . . . 'In our opinion, [J.G.]'s diagnosis of Adjustment Disorder with anxiety is related to her being physically abused.'" The judge found the Division's evidence did not prove abusive conduct by D. or conduct by either parent amounting to the emotional abuse of J.G.

Following additional services, J.G. and R.G. were reunified with their parents and the case was closed. D.G. appealed.

It is axiomatic that due process protects the parent-child relationship. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982)). Parental rights, however, are not absolute, "tempered" by the State's duty to intervene against unfit, abusive or neglectful parents or guardians. K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

The adjudication of abuse or neglect is governed by Title 9, N.J.S.A.9:6-8.21 to -8.73, which is designed to protect children who suffer "'serious injury inflicted upon them by other than accidental means.'" G.S. v. Dep't of Human Servs., 157 N.J.161, 171 (1999) (quoting N.J.S.A.9:6-8.8). An "abused or neglected child" is defined in N.J.S.A.9:6-8.21(c), and the proofs necessary to establish abuse or neglect are measured by a preponderance of the evidence standard.4 N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011); seealsoN.J.S.A.9:6-8.46(b) ("In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted."). Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S.supra, 157 N.J.at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id.at 179.

Whether a parent has engaged in acts of abuse or neglect involves a "totality of the circumstances" analysis. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.320, 329 (App. Div. 2011). We determine whether a "minimum degree of care" was exercised. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 69 (2014). In V.T., we recognized that "the elements of proof are synergistically related. . . . One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J. Super.at 329-30 (internal quotation marks and citation omitted).

Importantly, a court does not have to wait until a child is actually harmed before it can act on behalf of the welfare of the minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super.222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J.365, 383 (1999)), certif. denied, 200 N.J.505 and 201 N.J.272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502 and 3537, 117 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 344 (2010).

In our review, we must defer to the Family Part's findings of fact supported by the evidence and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super.418, 433 (App. Div. 2009); see alsoN.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super.427, 433 (App. Div. 2002) ("'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974))). Deference to a trial court's supported factual findings is warranted because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [and] has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008); see alsoN.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 448 (2012). Thus, a family judge's factual findings are overturned only when "they are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice." Ibid. (citation and internal quotation marks omitted).

Applying these standards to the facts at bar, we reject D.G.'s arguments contending he was denied a fair trial. We determine the judge's findings were based on admissible evidence and the facts, as found, were sufficient to support the order of abuse and neglect.

D.G. first challenges as erroneous, numerous evidential rulings, over his objection, including allowing: (1) Noboa's testimony regarding her view of the "consistency" of J.G.'s statements during her pre-placement physical at HUMC and as given to the HCPO; (2) Dr. D'Urso testimony regarding the testing results of the AHCH Team's evaluation, because, in his role supervising the team, he was not present during the evaluation of J.G.; (3) Nurse Devine's opinion the bruises she observed on J.G.'s body were "consistent" with bruises caused by a belt buckle; (4) the resource parent's testimony regarding J.G.'s statements suggesting she say D.G. "didn't hit me" and to say "she fell"; and (5) D.G.'s psychological examination into evidence.

When reviewing evidentiary determinations by a trial judge, we consider whether an abuse of discretion has occurred. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006) ("It is well established that a reviewing court grants substantial deference to the evidentiary rulings of a trial judge."). "On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

We reject as lacking merit the challenge to Noboa's comment regarding the consistency between J.G.'s statements to the HCPO and to HUMC. R. 2:11-3(e)(1)(E). "A lay witness may give an opinion on matters of common knowledge and observation." State v. Johnson, 120 N.J. 263, 294 (1990). Lay opinion is admissible "if it (a) is rationally based on the perception of the witness and (b) will assist [the trier of fact] in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Noboa's comments did not concern an area reserved for expert analysis and were based upon the consistency of what she observed and heard, not what she was told.5

Next, D.G. argues although Dr. D'Urso was permitted to testify as an expert in psychology and child abuse analysis and evaluation by agreement, D.G. objected to Dr. D'Urso's testimony "as a fact witness," because he had no personal knowledge of the testing procedures or results because he did not personally participate in the collection of information relied upon and referenced in the AHCH report. The judge overruled the objection and D.G. renews this argument on appeal, noting for example, Dr. D'Urso related his opinion that J.G. was not truthful when she told the team she was not abused. D.G. argues reliance on this and similar statements regarding the child's truthfulness were inadmissible hearsay, unsupported by personal knowledge, and prejudicial.

As an expert, N.J.R.E. 703 explicitly required Dr. D'Urso to provide a factual foundation or basis for his expert opinion. An expert's testimony "may be based on facts or data derived from (1) the expert's personal observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (citation and internal quotation marks omitted). "[B]are conclusions, unsupported by factual evidence or other data," would be inadmissible as they would constitute "mere 'net opinion.'" Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703.

Here, the foundation for Dr. D'Urso's conclusions came from the AHCH report itself, which was properly authenticated and entered, without objection, into evidence. The trial judge properly limited Dr. D'Urso's testimony to "the four corners" of the AHCH report, noting the expert had supervised, provided collaboration, and reviewed the team's findings. See Anderson v. A.J. Friedman Supply, 416 N.J. Super. 46, 72 (App. Div. 2010), certif. denied, 205 N.J. 518 (2011). ("Trial judges have discretion to preclude an expert from testifying to opinions not contained in his or her report or in any other discovery material."). In this light, we conclude the judge properly exercised discretion and Dr. D'Urso properly testified that his opinion was based upon facts contained within the AHCH report.

Dr. D'Urso, in part, relied on statements made by J.G. to his clinicians. The child's statements regarding abuse are admissible, N.J.S.A. 9:6-8.46(a)(4), but may not be the sole evidential basis of a finding of abuse or neglect. See P.W.R., supra, 205 N.J. at 33 ("[A] child's hearsay statement . . . may not be the sole basis for a finding of abuse or neglect."). "It has long been the law that hearsay statements upon which an expert relies are admissible, not for establishing the truth of their contents, but to apprise the [fact-finder] of the basis of the opinion reached." State v. Humanik, 199 N.J. Super. 283, 305 (App. Div.), certif. denied, 101 N.J. 266 (1985). Accordingly, Dr. D'Urso's testimony relying on the underlying factual statements contained within the AHCH report, is not inadmissible hearsay.

D.G. next challenges Nurse Devine's opinion the bruises she viewed were "consistent" with being struck by a belt buckle and were not irritated or infected bedbug bites. D.G. maintains the testimony was inadmissible expert opinion. We disagree.

Under direct examination Nurse Devine was unwavering and insisted, "I think I've seen enough . . . bedbug bites on [J.G.] to know [] the difference." Nurse Devine also clarified that bedbug bites were on J.G.'s extremities (arms and hands), while bruises were located on her back and legs. Having reviewed the record, we reject D.G.'s contention that Nurse Devine's testimony comparing the shape of the bruise required "complex scientific or technical knowledge," outside the training and experience of Nurse Devine. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701. As the judge noted, Nurse Devine's observational comparison was bottomed by her fifty years of nursing experience.

Nevertheless, any error in allowing this comparison is harmless because the finding that D.G. abused the child did not hinge on the nature of the object which caused her bruises. The finding of abuse was based on the use of an object, presumed to be a belt, to inflict excessive and unacceptable corporal punishment. If the object was something other than a belt, it does not change the fact D.G., in the name of discipline, struck his daughter on the back and legs with such force to bruise her young skin.

D.G. also posits an objection to the resource parent's recitation of J.G.'s comments regarding her parents' attempts to influence her response to questions about the bruises. The argument need not be addressed, as the judge found insufficient evidence was presented to support the Division's claim of emotional abuse.

D.G.'s final evidential challenge maintains the judge erred in denying his objection to bar the Division's presentation of his psychological evaluation, as prohibited character evidence. See N.J.R.E. 404(a). The trial judge conditionally admitted the evidence, stating he would later exclude it if he found it was offered solely to prove a trait or character. The determination was a proper exercise of discretion.

N.J.R.E. 404(a) prohibits admission of evidence "for the purpose of proving that the person acted in conformity therewith on a particular occasion." We reject the notion that a psychological evaluation falls within the purview of this rule.

In Title Nine matters, N.J.S.A. 9:6-8.46 authorizes admission of

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, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.

[N.J.S.A. 9:6-8.46(a)(3).]

Rule 5:12-4(d) mirrors this provision and states: "The Division . . . shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." Further, courts have consistently held "a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) ("'[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent . . . .'" (alteration in original) (quoting N.J.S.A. 9:6-8.46(a)(1))), certif. denied, 192 N.J. 68 (2007); J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978).

The psychological evaluation at issue is a mental health record, made in the ordinary course of business by a professionally trained and licensed evaluator, who complied with the standards and procedures of the profession. Moreover the evaluation was used to diagnose and treat D.G. and cannot be characterized as evidence of D.G.'s past traits to prove his specific present conduct.

Lastly, having rejected D.G.'s evidentiary challenges, we turn to our analysis to the facts underpinning the judge's conclusion D.G.'s conduct amounted to abuse or neglect. D.G. argues the evidence is insufficient to support a finding he engaged in excessive corporal punishment. We disagree.

"Excessive corporal punishment" is not a term defined by Title Nine. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010), certif. denied, 208 N.J. 355 (2011). We have acknowledged "'[t]he law does not prohibit the use of corporal punishment.'" Ibid. (quoting State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003)). However, Title Nine "'prohibits the infliction of excessive corporal punishment. The general proposition is that a parent may inflict moderate correction such as is reasonable under the circumstances of the case.'" Ibid. (quoting T.C., supra, 347 N.J. Super. at 240). Whether a particular course of punishment is "moderate" or "reasonable" is evaluated "by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because 'the main goal of Title [Nine] is to protect children.'" Id. at 511 (quoting G.S., supra, 157 N.J. at 176) (internal brackets omitted).

We have noted, "case law does not require that the evidence be that specific before it can be deemed corroborative of the child's out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 435.

The most effective types of corroboration . . . are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse. . . . [I]n order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse.

[Id. at 436 (citation and quotation marks omitted).]

Contrary to D.G.'s arguments, the evidence at trial was not limited to the subjective credibility attached to the statements of the seven-year-old child. Rather, the objective evidence substantiating abuse included: (1) Nurse Devine's observation of multiple contusions on J.G.'s lower back and how these injuries were distinguished from bedbug bites; (2) the medical evaluation by HUMC identifying three small quarter size bruises and photographs of the bruises; and (3) the clinical diagnosis set forth in the AHCH assessment, and the expert testimony of Dr. D'Urso explaining the anxiety and depression in this young child. Each of these items were consistent with J.G.'s statements and corroborate the abuse she suffered.

Following our review, we determine the preponderance of the evidence convincingly showed D.G. failed to exercise the "minimum degree of care" when disciplining his daughter by exceeding accepted standards of corporal punishment. D.G. struck the child with such force that he caused bruising on her back. See V.T., supra, 423 N.J. Super. at 330 ("The Division can make a prima facie case of abuse or neglect by 'proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian.'" (quoting N.J.S.A. 9:6-8.46(a)(2))). Accordingly, the March 15, 2013 order following the fact-finding hearing will not be disturbed.

Affirmed.


1 On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). In our opinion we refer to the agency as the Division.

2 These terms of art are defined as follows

A "substantiated" finding is one where "the available information, as evaluated by the child protective services investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian." An ["]unsubstantiated["] finding, therefore, is one where the evidence is insufficient to make such an evaluation. This differs from an "unfounded" finding, which is made when "[t]here is not a preponderance of evidence that the alleged child victim was harmed or placed at substantial risk of harm;" or "[t]here is not a preponderance of evidence indicating that a parent or guardian and child were involved."

[N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 607 n.1 (App. Div. 2010) (alterations in original) (citations omitted).]

3 "'A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.S., supra, 412 N.J. Super. at 609 n.2).

4 In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as 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 . . . to exercise a minimum degree of care . . . 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[.]

5 Noboa actually identified inconsistencies between the child's two statements, evidence, which in our view aided D.G.'s theory of the case that D.G. created the story of abuse.