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

RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2414-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

           Plaintiff-Respondent,

     v.

C.M.,

           Defendant-Appellant,

     and

S.J.,

          Defendant.
____________________________________

IN THE MATTER OF R.C., N.A.J.,
J.J.-C., S.J.-C. and S.J.-C.,

          Minors.
_____________________________________

           Argued November 8, 2017 – Decided November 21, 2017

           Before Judges Fisher and Fasciale.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Essex County,
           Docket No. FN-07-0220-15.

           Mary Potter, Designated Counsel, argued the
           cause for appellant (Joseph E. Krakora, Public
           Defender, attorney; Ms. Potter, on the brief).
            Michael Antenucci, Deputy Attorney General,
            argued the cause for respondent (Christopher
            S. Porrino, Attorney General, attorney; Andrea
            M. Silkowitz, Assistant Attorney General, of
            counsel; Mr. Antenucci, on the brief).

            James J. Gross, Designated Counsel, argued the
            cause for minors (Joseph E. Krakora, Public
            Defender, attorney; Mr. Gross, on the brief).

PER CURIAM

       The Division of Child Protection and Permanency commenced

this   Title   Nine      action   against     defendant    C.M.    (Carolyn,      a

fictitious name, as are all names used in this opinion), alleging

that in October 2014 she abused or neglected her then six-year-

old child, Samuel, by striking him with a belt. We conclude the

evidence fully supported the trial judge's factual findings, and

we agree with the trial judge that this form of physical punishment

was excessive within the meaning of controlling legal principles.

       Title Nine defines an abused or neglected child, in part, as

a child "whose physical, mental, or emotional condition has been

impaired" by a parent's failure 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."       
N.J.S.A.    9:6-

8.21(c)(4)(b). This appeal focuses not so much on whether Carolyn

inflicted physical punishment on the six-year-old child with a

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belt – there seems to be no dispute about that – but whether such

conduct violates the statute's "excessive corporal punishment"

provision.

       The judge heard from only one witness during a brief, one-

day evidentiary hearing. That witness, a Division representative,

briefly testified about photographs she took of the child a day

after the abuse. She testified that the photographs, which were

admitted in evidence, revealed the child still retained red marks

on his arms and legs from having been struck by Carolyn with a

belt the day before. The Division representative also testified

that Carolyn admitted inflicting this punishment:

           [Carolyn] stated that she held [Samuel's]
           hands down and beat him on his hands with the
           belt. And she admitted to, also, hitting
           [Samuel's twin sister] with the belt. She,
           also, stated that she can't believe that she
           can't beat her own children.

This   punishment,   according   to       the   information   obtained   from

Carolyn by the witness, was inflicted because Samuel misbehaved

by "ripp[ing] up" some "collectible comics."

       In addition, the Division representative testified that, in

the aftermath of a February 2014 referral, Carolyn entered into

an agreement not to physically punish her children.1


1
  Carolyn argues the existence of this agreement was not proven
because such a document was not moved into evidence. But, the


                                      3                              A-2414-15T3
     Carolyn did not testify, nor did she call any witnesses.

     After hearing summations, the trial judge rendered an oral

decision, finding that events occurred as recounted by the Division

representative. Referring to Carolyn's agreement not to physically

punish her children, and her insistence of a right to "beat her

own children," the judge concluded that Carolyn had used excessive

corporal punishment.

     Carolyn   appeals   the   order   memorializing   this   finding   of

abuse, arguing:

          [SAMUEL] WAS NOT AN "ABUSED OR NEGLECTED
          CHILD" DUE TO HIS MOTHER'S DISCIPLINE AS HIS
          PHYSICAL CONDITION WAS NOT "IMPAIRED," HE
          REQUIRED NO MEDICAL TREATMENT, [CAROLYN]
          ACCEPTED FULL RESPONSIBILITY AND COMPLIED WITH
          COUNSELING RESULTING IN [SAMUEL'S] RETURN
          HOME.

We find insufficient merit in this argument to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

     We write further only to emphasize our rejection of Carolyn's

contention that the Supreme Court's decision in New Jersey Division

of Youth & Family Services v. P.W.R., 
205 N.J. 17, 36 (2011)

compels a different result because, there, the Court concluded



Division representative testified that such an agreement existed,
defense counsel did not object to that testimony, and Carolyn did
not testify or otherwise refute the Division representative's
testimony. Consequently, the trial judge was entitled to find that
such an agreement existed.

                                   4                             A-2414-15T3
that a parent's "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)." We find a qualitative difference

between slapping the face of a teenager without sufficient force

to leave a mark and the striking of a six-year-old with a belt

with enough ferocity to leave visible marks a day later. These

distinguishing circumstances and Carolyn's breach of her earlier

agreement not to physically punish her children, fully supported

the judge's conclusions.

    Affirmed.




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