NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. I.T and S.W IN THE MATTER OF O.T H.T S.T., S.T., and A.T Minors –

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5683-13T1

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

I.T.,

Defendant-Appellant,

and

S.W.,

Defendant.

________________________________

IN THE MATTER OF O.T., H.T.,

S.T., S.T., and A.T.,

Minors.

________________________________

SubmittedMay 10,2016 Decided June20, 2016

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-103-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, S.T. and A.T. (Randi Mandelbaum, Designated Counsel, on the brief).

PER CURIAM

I.T. appeals a June 26, 2013 fact finding order reflecting the trial court's finding of abuse and neglect as to I.T.'s children: Susan, Arnold, Oliver, Harry, and Steven.1 We affirm the trial court's finding as to Susan and reverse as to the other children.

On August 11, 2012, the Division of Child Protection and Permanency (the Division) received a referral concerning an incident that occurred at 3:00 a.m. that morning between I.T. and his daughter, Susan. The allegations were that Susan was arguing with her brother Kevin, which woke I.T., who came downstairs and punched Susan in the face and hit her with a belt, broom, and clothes hanger. The report stated that the beating went on for an extended period of time, and Susan sustained injuries and swelling as a result of the beating.

On August 14, 2012, Susan was evaluated at the Regional Diagnostic Treatment Center by Dr. Monica Weiner who issued a written report that Susan's arms were bruised and swollen, and that Susan complained of muscle pain in her back and sides when she took deep breaths. Dr. Weiner reported that Susan's injuries were consistent with her statement that she was beaten and kicked until she fell down and concluded that Susan was a victim of physical and emotional abuse by I.T.

The Division substantiated I.T. for physical abuse and recommended that he attend parenting classes and referred him to domestic violence counseling services to address his anger issues. I.T. did not comply with the Division's recommendations. The Division received another referral pertaining to the family on August 20, 2012. The referral concerned alleged physical abuse of Arnold by I.T.

The Division filed a complaint for care and supervision of the children on August 30, 2012. The complaint, brought under Titles 9 and 30, alleged that I.T. had physically abused the children over the course of several years and that they were at substantial risk of harm. The complaint also alleged that I.T. physically abused his wife, S.W., over an extended period of time in the presence of the children.

The court conducted a fact-finding hearing over four days in May 2013 and June 2013. The testimony focused largely on the August 11, 2012 allegations of Susan's abuse by I.T., as well as his abuse of Arnold.

Susan testified that in the early morning hours on August 11, 2012, she and her brothers were in their dining room when she and Kevin engaged in an argument. Kevin attacked Susan, who testified that she picked up a broomstick and attempted to hit Kevin with it. Susan stated that the altercation lasted a minute or two, after which I.T. came downstairs. When I.T. came down, Kevin was crying and told I.T. that Susan had attacked him and called him names. I.T. began yelling at Susan and slapping her. According to Susan, I.T. took a hanger from a closet and beat her with it, retrieving a new hanger when it broke, to continue the beating.

According to Susan, I.T. hit her with a belt and she felt blows on her back and arms. She also contended that I.T. hit her with a broomstick, after which he told her to go upstairs. After she ran upstairs and slammed her door, I.T. followed her into her room and hit her again, berating her and calling her names. According to Susan, when I.T. left the room, he told her to stop crying; when the crying continued, he returned to her room and hit Susan again.

Arnold testified that he had been with Susan and Kevin when their argument developed into a physical altercation; he was concerned that the noise would wake I.T., who he feared would be upset. Arnold's testimony was consistent with his sister's account that I.T. hit her with his hand and with a belt; however, he did not think I.T. was hitting Susan with the belt at full force and did not see I.T. use a hanger or broom to strike Susan. Arnold testified that the beating lasted more than a minute and that after Susan went upstairs, I.T. sat in a chair looking as though he was upset about what he had done. Arnold did not observe any marks on Susan, and no one in the home attempted to get medical help for her.

Arnold also testified that on the evening of August 20, 2012, he and I.T. were sitting at a table. I.T. became upset because Arnold put his elbows on the table when there was no cloth underneath. I.T. told Arnold to take his elbows off the table and although Arnold complied, I.T. began to slap him repeatedly in the head, leaving him shaking and with his ears ringing.

Three other children testified that they did not see I.T. hit Susan. Kevin denied seeing a physical altercation between Susan and I.T. He stated that he did not hear Susan complain of any pain the following morning, nor did he observe any injuries.

Albert testified that when he came downstairs, he saw Kevin and Susan fighting, and Arnold trying to break them up. He testified that all members of the household had come downstairs, including I.T. According to Albert, I.T. told the siblings to stop fighting, but he did not observe any physical altercation between Susan and I.T.

Steven testified he observed Susan and Kevin hitting each other while Arnold attempted to split them up. Steven testified that when I.T. came downstairs, he asked what happened. According to Steven, I.T. told the children that he would punish them in the morning and went back upstairs. Steven stated that he did not see his father physically attack Susan that evening.

S.W. testified that she was in bed when she heard screaming from downstairs. She went downstairs about two minutes after I.T. and when she arrived downstairs, she saw Susan on the floor, and I.T. hitting her with a hanger. According to S.W., when she asked what was happening, I.T. said that the children were disturbing his sleep. She testified that, when the hanger broke, I.T. went to the closet and retrieved a second hanger, which also broke. S.W. stated that I.T. picked up a broomstick and hit Susan with it and told Steven to retrieve a belt from his bedroom. S.W. testified I.T. hit Susan with the belt and when she attempted to intervene, I.T. pushed her away. Susan ran upstairs to her room, and I.T. followed, calling her names.

On June 26, 2013, the trial judge issued an oral opinion. At the outset, regarding Arnold, the court concluded that the incident wherein I.T. slapped Arnold did not rise to the level of excessive corporal punishment. Regarding Susan, the court concluded that if I.T. had beaten Susan in the manner described by the witnesses at trial, Susan would have suffered more physical harm. The court expressed some skepticism about Dr. Weiner's conclusions, indicating her testimony wherein she concluded that Susan's injuries were consistent with Susan's description of the beating - was geared toward a finding not supported by objective observations. The court also found S.W.'s testimony generally inconsistent with that of the other witnesses and motivated by a desire for a particular result, and that Susan's account of the beating did not comport with the injuries found by Dr. Weiner or the Division caseworker's observations. Nonetheless, the court believed the incident had occurred and rose to the level of excessive corporal punishment.

The record demonstrates the court carefully considered the testimony of each witness, noting that Arnold's testimony was consistent with Susan's insofar as she was beaten with an object, but differed with respect to the instrumentalities used in the incident. The court also found that Kevin likely changed some aspects of the story and concluded that the way in which Kevin described the event was not credible, and opined that I.T. "did not simply walk down the stairs and simply say to the two of them okay you shouldn't fight." The court similarly concluded that Albert's account of the events was incredible. The court did, however, find that Steven's account of the events was credible.

After reviewing all the documents admitted into evidence, and considering the testimony, the trial judge specifically concluded that I.T. awoke at 3:00 A.M., came downstairs where his children were fighting, was angry, and struck Susan with his hand, a hanger, and a belt. The court found these acts constituted excessive corporal punishment, and entered a June 26, 2013 order that I.T. had "used excessive corporal punishment when disciplining his daughter [Susan]. Abuse as to one child puts all the children at risk of harm."

On November 18, 2013, the court terminated litigation relating to Arnold and Susan because they had both reached the age of majority and were not receiving services. The case remained open as to Oliver, Harry, and Steven, who all remained in their mother's care. On June 11, 2014, the litigation as to the remaining children was dismissed. This appeal followed.

On appeal, defendant argues the court's decision should be reversed because there was insufficient evidence to establish that he abused or neglected Susan. We disagree.

Our review of the trial court's fact finding is limited. "[T]he findings on which [a trial court's decision] is based should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-484 (1974). "Because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), an abused or neglected child is one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his 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. The Division must prove its case in a fact finding hearing by a preponderance of the evidence. N.J.S.A. 9:6-8.44, N.J.S.A. 9:6-8.46(b).

"Excessive corporal punishment" is not defined by statute, but is determined on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). In K.A., we noted that "excessive corporal punishment" should be read in light of the term's common usage and understood meaning. Id.

Defendant cites K.A. to argue that his behavior did not constitute excessive corporal punishment. In K.A., a mother hit her daughter on the shoulder with a closed fist after unsuccessfully trying to modify her behavior through a timeout. There, we determined that no abuse or neglect occurred, noting that it was an isolated incident, and that the child was "psychologically disruptive . . . unable or unwilling to follow verbal instructions or adhere to passive means of discipline such as time-out." Id. at 512. In this case, there is no evidence that Susan had any such issues, or that I.T. attempted to remedy the situation via non-corporal means of discipline. Additionally, in K.A., the child was hit on the shoulder with a closed fist, resulting in bruising. In this case, although the trial court declined to find that Susan's bruises were a direct result of I.T.'s actions, it found that Susan was hit with multiple instruments and that those actions rose above the level of reasonable correction.

I.T. also argues that there was insufficient evidence that he inflicted excessive corporal punishment upon Susan because she did not require medical attention, and did not sustain permanent injury. Dr. Weiner's report indicated that Susan experienced the type of bruising to her arms that the regulation contemplated. See N.J.A.C. 10:129-2.2(9). As the trial judge noted, however, it is not entirely clear that this bruising was a direct result of I.T.'s actions because of the incongruence between the reported brutality of the beating and the bruising that she exhibited.

Courts must exercise their judgment in determining whether the acts in a specific case are excessive and justify a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011). What constitutes excessive corporal punishment is a fact-sensitive inquiry. Id. at 33. In P.W.R., the Court found that a "slap of the face of a teenager as a form of discipline with no resulting bruising or marks does not constitute 'excessive' corporal punishment within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)." Id. at 24. The sixteen-year-old had been slapped by her mother for skipping school and over disputes about her being sexually active with her boyfriend. Id. at 25.

In Department of Children and Families, Division of Youth & Family Services v. C.H., 414 N.J. Super. 472, 476 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we affirmed a finding of excessive corporal punishment when a mother used a paddle on a five-year-old child, resulting in bruising and other marks which, although excessive, did not require medical attention other than an examination. In New Jersey Division of Youth & Family Services. v. S.H. and M.H., 439 N.J. Super. 137 (App. Div.), certif. denied, 222 N.J. 16 (2015), where a mother bit and hit her teenager with a golf club, we rejected the trial judge's conclusion that the child's injuries did not manifest excessive corporal punishment because the Division did not conclude that the injuries required immediate medical attention. Id. at 49. The need for medical attention is not a prerequisite for a finding that excessive corporal punishment occurred.

Here, the trial court found that the use of instruments to inflict corporal punishment upon Susan constituted an unreasonable response to seeing his children fighting. This finding is not contrary to statute and is in line with the holdings in S.H., C.H., and K.A., and we discern no reason to disturb the judge's finding as to Susan.

However, in his oral decision, the court found that the Division proved by a preponderance of the evidence that I.T. used excessive corporal punishment against Susan on August 11, 2012, and also found that I.T. did not use excessive corporal punishment on Arnold on August 20, 2012. Notwithstanding those limited findings, the June 26, 2013 order included all of the children, stating "abuse as to one child puts all the children at risk of harm" without specific findings as to the children other than Susan and Arnold. At the end of litigation, Susan and Arnold had both reached the age of majority. Oliver, Harry, and Steven were in sole physical custody of S.W., with both defendants retaining joint legal custody.

N.J.S.A. 9:8-46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any child of, or in the responsibility of, the parent or guardian." In this case, there was no testimony or documentary evidence indicating abuse or neglect as to Oliver, Harry, or Steven. Although the court's finding of abuse toward Susan was admissible evidence as to abuse toward the other children, it was not dispositive as to those children. It is well-settled that while the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S.,372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383, (1999)), certif. denied, 182 N.J. 426 (2005). In the context of exposure to domestic violence, we have addressed the issue of whether a battered mother can be "found to have abused her infant son because the son was present and at times in her arms, unharmed, when his mother was physically attacked . . . ." Id. at 15. We determined that the "potential harm to the mental or emotional condition of the child resulting from observing the abuse" could not justify a finding of abuse or neglect by itself. Id. at 22; accord N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (noting "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs").

Rather, there must be some evidence of emotional injury to a child "either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated . . . with stress, distress[,] or emotional difficulty." S.S., supra, 372 N.J. Super. at 22. In the same vein, because the record herein did not support the finding of abuse or neglect as to Arnold, Oliver, Harry, or Steven with substantial, credible evidence from the record, we reverse the trial court's finding of abuse or neglect as to Arnold, Oliver, Harry, and Steven.

Affirmed in part, reversed in part.

1 We use pseudonyms to protect the identities of the children.