DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.C., JR

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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NOT FOR PUBLICATION WITHOUT THE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.C., JR.,

Defendant-Appellant,

and

A.S.,

Defendants.

_____________________________________

IN THE MATTER OF M.C., III AND S.B.,

minors.

_____________________________________

November 2, 2016

 

Submitted May 31, 2016 Decided

Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County, Docket No. FN-04-348-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).

The opinion of the court was delivered by

SUTER, J.S.C. (temporarily assigned)

Defendant appeals from a finding by the trial court under Title Nine1 that he physically abused two of his children. We affirm Judge Kathleen M. Delaney's decision.

I.

Defendant (father) is the biological father of Michael and the adoptive father of Sebastian.2 Sebastian, who was born in the Ivory Coast and is father's biological nephew, was placed in father's care in the summer of 2009 when Sebastian's father returned to Africa. Michael, who was born in Liberia, came to live with father in November 2009. Both children were seventeen when this litigation commenced. Father has other children, only one of whom, David, was part of this litigation.

Father notified the police on November 1, 2013 that Michael and David were missing because they had not attended school. Both children were picked up by the police later that day while walking home. Michael told the police he did not go to school because he was looking for a job to earn money for clothes, claiming his father did not provide them. When the children alerted the police to possible physical abuse by father, the Division of Child Protection and Permanency (DCPP) became involved.

Michael told the DCPP investigator that his father regularly hit him with a belt and showed a mark on his left arm allegedly attributable to the belt. He was afraid of his father. He related that father hit Sebastian and David too. Sebastian gave similar information. Michael and Sebastian told the DCPP that their father also hit them with other objects, including a broom handle, and that the beatings generally drew blood.

The DCPP conducted an emergency "Dodd removal"3 of Michael, Sebastian, and David that day. David was placed with his mother; the older boys, Michael and Sebastian, were placed in a foster home. Father was arrested and charged with, among other things, endangering a child, N.J.S.A. 2C:24-4.4 The DCPP was granted care, custody and supervision of Michael and Sebastian on November 6, 2013.

In connection with the DCPP's investigation, Michael and Sebastian were interviewed by pediatrician Monique Higginbotham, M.D. Michael reported his father hit him two to three times per week with a belt for minor things such as not saying "good morning." He related one incident where he hid in the bathroom to avoid his father's physical punishment. Although Michael would not consent to a full physical examination, the examination of his upper body revealed "three linear[,] parallel[,] raised scars" that "support[ed] his disclosure of being beaten with a belt or other linear object." The doctor concluded this was "indicative of longstanding and repeated physical abuse over a period of several years" and that "[h]e is at risk for further physical abuse and maltreatment should he return to the care of [father]." The doctor recommended Michael begin "trauma-focused cognitive behavioral therapy specific [sic] for physical abuse."

Sebastian told the doctor that he and his brothers were beaten "a lot." Father would beat them with a belt or broomstick and throw things, such as shoes, at them. Sebastian reported two specific incidents: one where his father pushed him and he broke his arm, and never received medical treatment, and another where father struck him forcefully in the eye with his fist. Sometimes father would lock the doors to avoid alerting the neighbors to the abuse. The physical examination of Sebastian's upper body revealed "a linear scar on [his] right upper arm" and an "oval-shaped, raised scar" on his left upper arm. Dr. Higginbotham concluded "[t]he information Sebastian provided . . . is indicative of chronic repetitive child physical abuse."

A fact-finding hearing was conducted in which Judge Delaney found Michael's testimony credible that father hit him and his brothers with a belt and other objects to the point of bleeding, and that these beatings left scars. According to Michael, the beatings were too numerous to count; they occurred once or twice a week. Michael was beaten for minor infractions such as returning home with an incorrect amount of change, for not saying "good morning," or for not getting his sister a towel.

Judge Delaney also found Sebastian to be credible when he testified that, shortly after he came to live with father, he was beaten once a month to the point of bleeding, generally with a belt. He recounted incidents where his father shoved him and he fell, breaking his arm which then went untreated. On another occasion he was punched in the eye so hard that he saw a flash.

Neither Michael nor Sebastian told others about father's treatment of them except when Michael reported father's abuse to his mother in Africa. She told him that he "just got to go with it." Both boys testified that father had threatened to send them back to Africa.

The court did not find David's testimony to be credible because he was inconsistent and got "tripped up" on dates. He testified he made up that his father hit them with a belt, claiming he was angry his father took away his Halloween candy. He further testified that Michael told his other brothers that if they all said father hit them with a belt, then "you can [go] with DYFS and they'll give you anything you want." The court concluded David was likely protecting his parents.

The judge found the DCPP met its burden of showing abuse and neglect under Title Nine because father inflicted physical injury on Michael and Sebastian by "other than accidental means under N.J.S.A. 9:6-8.21(c)(1)." Judge Delaney concluded this was not "a situation where there was a one-time beating . . . We have years and years and years of physical beatings . . . ."5

Father contends on appeal there was inadequate evidence to support the court's abuse and neglect finding.

II.

At the outset, we note our deference to Family Part judges' fact-finding because of their "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). See also N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014). We defer "because [the trial court] has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Fact-finding that is supported by sufficient, substantial and credible evidence in the record is upheld. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We will not hesitate, however, to set aside a ruling that is "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279. The court's interpretation of the law or its legal conclusions are reviewed de novo. See State in Interest of A.B., 219 N.J. 542, 554-55 (2014) (internal citations omitted).

The "main focus" of Title Nine "is not the 'culpability of parental conduct' but rather 'the protection of children.'" Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999)). It is Title Nine that "controls the adjudication of abuse and neglect cases." Id. at 177 (quoting M.C. III, supra, 201 N.J. at 343). N.J.S.A. 9:6-8.21, in pertinent part, defines an "[a]bused or neglected child" as

[A] child less than 18 years of age whose parent or guardian . . . inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ . . . .

[N.J.S.A. 9:6-8.21(c)(1).]

To make out a case of abuse and neglect, the Division must show proof of "imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." E.D.-O., supra, 223 N.J. at 178 (emphasis omitted) (quoting N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013)). Whether a parent has committed abuse or neglect therefore "must be analyzed in light of the dangers and risks associated with the situation." N.J. Div. of Youth and Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (internal quotation marks omitted) (quoting N.J. Dep't of Children and Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)).

We reject father's contention the trial court erred in finding abuse and neglect under Title Nine. The court's finding was amply supported by the record. Judge Delaney's decision was based on her determination that Michael and Sebastian were credible, who the court found testified consistently regarding what they said to the police and the DCPP about regular beatings with a belt the father had administered, often for minor reasons, causing them injury. David was not credible because he got "tripped up" on dates, and his testimony was not consistent with what he earlier had told the police and DCPP. Because he was the younger of the boys, and still resided with his mother and maintained his relationship with father, it was reasonable for the court to conclude he was not being candid in order to protect his parents.

Although father contends on appeal there was no physical evidence of the beatings in any hospital or medical records, Dr. Higginbotham's examination revealed scarring consistent with "chronic, repetitive physical abuse over a period of years" and with a "linear object." Her unrebutted conclusion was that this was the result of "chronic repetitive child physical abuse." The boys did not report the beatings, but there was evidence they feared father's threat to send them back to Africa. Father's theory the boys concocted a conspiracy was not consistent with the fact that father, and not the boys, had initiated the police involvement by calling to report the children missing.

Our review of the record shows Judge Delaney took into consideration all of the evidence in reaching the finding that father committed abuse and neglect of the children under Title Nine.

Affirmed.


1 N.J.S.A. 9:6-8.21 to 8.73 (citation is to Title 9, Subtitle 3, Chapter 6, Article 1, Section C).

2 Fictitious names have been used throughout the opinion to maintain the confidentiality of the parties.

3 The Dodd Act is found at N.J.S.A. 9:6-8.21 to -8.82 (as amended).

4

We do not know the status of father's criminal charges.

5 By a consent order of June 30, 2014, Sebastian was returned to the custody of father. Both boys have since turned eighteen, which terminated the litigation.


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