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

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0927-17T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

G.A. and A.A.,

Defendants,

and

E.M.,

Defendant-Appellant.
_____________________________________

IN THE MATTER OF L.M., EZ.M., A.M.,
and J.M., Minors.
_____________________________________

Submitted October 9, 2018 – Decided October 15, 2018

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FN-13-0250-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (James D. O'Kelly, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Joshua P. Bohn, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor L.M. (Todd S. Wilson, Designated
Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor EZ.M. (Michele C. Scenna,
Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor A.M. (Danielle Ruiz, Designated
Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor J.M. (Linda Vele Alexander,
Designated Counsel, on the brief).

PER CURIAM

This matter arises from a series of incidents in which the defendant father,

E.M., abused his children by engaging in excessive corporal punishment. 1 In

the most recent incident that was the focus of the court's fact-finding, the father

beat his son, EZ.M. ("Emory") with a brush, because Emory came home late

1
We use initials for the parties to protect their identities. R. 1:38-3(d)(12). We
also use pseudonyms for some of the children for ease of the reader.
A-0927-17T1
2
from school. An ensuing examination revealed marks on the child's leg that

remained from when the father beat him with a computer cord roughly three

months earlier. The Division of Child Protection and Permanency ("the

Division") thereafter conducted an investigation, which included interviewing

the child and his family members, and reviewing the results of a medical

evaluation. After determining the allegations of child abuse or neglect were

substantiated, the Division filed the present action for custody, care, and

supervision of the four children.

After the fact-finding hearing, the trial court determined the Division had

proven by a preponderance of the evidence that the father had abused or

neglected the children by inflicting excessive corporal punishment in violation

of N.J.S.A. 9:6-8.21(c)(4)(b). Among other things, the trial court found the

child's grandmother, the doctor, and a Division caseworker provided credible

testimony to support the finding of abuse. This appeal by the father followed.

We affirm.

On March 22, 2016, defendant E.M.'s daughter, L.M. ("Lori"), reported to

her school's guidance counselor and a Division caseworker, Jennifer Gregorio,

that E.M. had beaten Emory with a brush during the children's most recent visit

A-0927-17T1
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with E.M. This punishment occurred after Emory had come home late from

school. When Lori asked Emory if he was okay, he reportedly replied, "I'm used

to it." Lori's report prompted Gregorio to interview Emory, who corroborated

Lori's report of the beating and described additional instances of his father's

corporal punishment.

E.M. stated to Division workers in the past that he intentionally does not

leave marks when he strikes his children, in order to avoid detection. However,

Emory stated to the contrary that he had sustained injuries and marks from such

punishment in the past, and he referenced a mark on his upper thigh from a

beating approximately three months earlier. Gregorio took Emory to the school

nurse for examination and photographed the marks.

After Emory's interview and examination, he was accompanied to police

headquarters by Gregorio and a detective. The detective interviewed E.M. He

denied the accusation of beating Emory with a brush, stating, "I haven't popped

my kid in a long time." Gregorio arranged a protective plan, under which E.M.'s

contact with Emory would be supervised around the clock by his paramour. The

caseworker also arranged for Emory to be examined by Steven Kairys M.D., the

following day.

A-0927-17T1
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Gregorio then conducted interviews with the paramour's children at their

home, and traveled to defendant G.A.'s home where Emory's three siblings, Lori,

A.M., and J.M., resided. Gregorio interviewed Emory's mother A.A., his

siblings, and his maternal grandmother G.A. Emory is the only one of the four

children who resides with E.M. Emory stated that his siblings "do not like

visiting their father too much." All four children have expressed fear of their

father, due to past instances of abuse.

Based on these circumstances, the Division filed a Title Nine complaint

in the Family Part in March 2016, seeking care, custody, and supervision of

E.M.'s four children. The court granted the Division legal custody of the

children and ordered that E.M.'s parenting time be suspended. G.A. was granted

temporary custody of Emory by court order.

Dr. Kairys' examination confirmed that the mark on Emory's leg was

caused by being beaten with a cord or belt approximately three months earlier.

Emory recounted to Dr. Kairys past instances of his father's abuse, telling the

doctor that he did not want to live with his father.

Both Gregorio and Dr. Kairys testified for the Division at the ensuing fact-

finding hearings in July and August 2016. G.A. testified on her own behalf at

A-0927-17T1
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the final hearing in December 2016, recounting her personal knowledge of

E.M.'s abusive behavior that had occurred over the course of several years.

G.A. testified she saw the children being hit by their father on multiple

occasions. She observed marks left by their father's physical punishment,

overheard E.M. abuse the children's mother in their presence, and was told by

the children about their father beating them with objects, punching them, and

throwing objects at them.

E.M. was informed in advance that the final hearing would occur on

December 7, 2016. However, he failed to appear in court on that scheduled date.

Defense counsel expressed that E.M. wished to testify, and speculated that he

might have been out of town, despite being on notice of the court date. Due to

E.M.'s inexplicable absence, the court denied defense counsel's request for

adjournment to allow E.M. to testify at a future date.

Sifting through the evidence, the trial judge concluded the Division's

witnesses were credible and that the Division had demonstrated, by a

preponderance of the evidence, that E.M. engaged in excessive corporal

punishment on multiple occasions. The court accordingly issued an order on

December 7, 2016, finding that the four children had been abused or neglected

A-0927-17T1
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by their father. This appeal followed. The various Law Guardians for the

respective children join with the Division in opposing the appeal.

II.

We proceed with a recognition of our limited scope of review of the

Family Part judge's decision. We must defer to the factual findings of the Family

Part if they are sustained by "adequate, substantial, and credible evidence" in

the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552

(2014). Our reviewing courts afford particular deference to family court fact -

finding, due to the special jurisdiction of that court and its expertise in family

matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The Court has also held

that deference to a trial court's determinations is particularly warranted "when

the evidence is largely testimonial and involves questions of credibility."

Cesare, 154 N.J. at 412 (citation omitted).

Nevertheless, where there is an alleged error in the trial court's evaluation

of the underlying facts, the scope of appellate review is expanded. N.J. Div. of

Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, deference

in such circumstances should still be accorded unless it is determined that the

trial judge's findings were clearly mistaken. G.L., 191 N.J. at 605.

A-0927-17T1
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E.M. argues the trial court denied him due process by allowing the

Division to amend its pleadings at trial, allegedly relying on unestablished

summaries of alleged past abuse, and in depriving him of an opportunity to

testify in his own defense. Apart from these procedural contentions, E.M. argues

the Division's evidence was insufficient to establish excessive corporal

punishment. None of these arguments have merit.

The statutory context of this case is N.J.S.A. 9:6-8.21(c)(4)(b), which

defines "an abused or neglected child" to include a child under the age of

eighteen

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 parent or
guardian . . . to exercise a minimum degree of care . . .
(b) 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[.]

[(Emphasis added).]

The Division's regulations elaborate that evidence of "[c]uts, bruises, abrasions

[or] welts" may reflect injuries to a child that will qualify as "abuse or neglect"

under the statute. See N.J.A.C. 3A:10-2.2(a)(9).

A-0927-17T1
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A parent using corporal punishment may only inflict moderate correction

that must be reasonable under the circumstances. See e.g., State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002). Force that exceeds this

reasonableness limit is sufficient to trigger the statute. See, e.g., New Jersey

Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 147 (App. Div.

2015) (holding that a parent administered excessive corporal punishment by

striking a child with a golf club as discipline for using profanity, leaving the

child with bruises); Dep't of Children & Families, Div. of Youth & Family Servs.

v. C.H., 414 N.J. Super. 472, 481 (App. Div.), aff'd on reconsideration, 416 N.J.

Super. 414 (App. Div. 2010) (holding that a mother committed actionable abuse

or neglect through beating her daughter with a paddle).

The statute does not require that the child in question experience actual

harm to constitute abuse or neglect. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining

that the Division need not wait until a child experiences an actual injury) (citing

In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court

does not need to "wait to act until a child is actually irreparably impaired by

parental inattention or neglect.")). Instead, a child can be abused and neglected

A-0927-17T1
9
if his or her physical, mental, or emotional condition has been "impaired or is in

imminent danger of becoming impaired[.]" N.J.S.A. 9:6-8.21(c)(4).

The Title Nine analysis is fact-sensitive, and the court must consider the

totality of the circumstances. See N.J. Div. of Youth & Family Servs. v. P.W.R.,

205 N.J. 17, 33 (2011). The primary focus of the statute is to preserve the safety

of the child. N.J.S.A. 9:6-8.8(a).

E.M. contends the trial court acted unfairly in allowing the Division to

amend its complaint during the fact-finding hearing to amend its allegations to

include other past instances of corporal punishment. We disagree. The past

allegations were pertinent to the Division's theory of an ongoing pattern of

physical abuse. The trial court complied with N.J.S.A. 9:6-8.50(b), which

authorizes the court to permit the Division to amend its allegations to conform

to the evidence, so long as the charged parent is afforded a "reasonable time to

prepare to answer the amended allegations."

Here, the court provided E.M. and his counsel with nearly four months of

notice between the second day of trial in August 2016 and the third and final

day of trial in December 2016, at which time G.A. testified and related her

knowledge concerning the repetitive instances of corporal punishment. There

A-0927-17T1
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was ample time for the defense to respond to, or attempt to counter, the

allegations.

We reject E.M.'s argument that the Division and the trial court misused

past unsubstantiated allegations against him as indicia of wrongful conduct. The

evidence of past behavior was not presented as violations for the court to

adjudicate in this case. Moreover, G.A. testified as to her personal knowledge

of abuse that occurred in 2004 and again in 2007, not to unsubstantiated Division

investigations. In addition, as further corroboration, the record contains

multiple statements from the parties' children, and evidence of G.A.'s

unsuccessful efforts to stop the abuse.

E.M.'s claim that he was deprived of a fair opportunity to testify as a

witness in his own behalf is not borne out by the record. To be sure, parents

have the right to testify in their own defense in Title Nine proceedings, N.J. Div.

of Child Prot. & Permanency v. S.W., 448 N.J. Super. 180, 192 (App. Div.

2017). Here, it was E.M., not the court, who deprived himself of the opportunity

to testify.

As we had already noted, E.M. had months of notice of the final hearing

date at which he would be permitted to testify. Yet defense counsel did not

A-0927-17T1
11
know why her client was absent, stating she heard "he might have been out of

town for two weeks."

E.M. has not presented any compelling justification for why he did not

appear at the December 2016 final trial date. If he knew he was going to be out

of town for the final scheduled hearing, E.M. could have requested an

adjournment in advance. E.M.'s absence appears to have been anticipated, if not

deliberate.

E.M.'s circumstances concerning his opportunity to testify are

distinguishable from the reported and unreported cases cited in his brief. Both

cases involve parents who arrived late to their respective hearings, but who were

not completely absent. Unlike the parents in those cases, E.M. demonstrated no

effort to attend the hearing, despite having adequate notice of the court date, and

did not explain his absence. He cannot fairly assert that the court deprived him

of his right to testify.

Given the importance of resolving child welfare cases expeditiously, we

discern no abuse of discretion, let alone a denial of due process, arising from the

trial court's decision to close the record and proceed to issue its final decision

on the last scheduled day of trial.

A-0927-17T1
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B.

We need not say much about the weight of the evidence in this case, or

E.M.'s claim that the Division's proofs did not suffice to establish excessive

corporal punishment by a preponderance of the evidence. We reject his claim

substantially for the sound reasons expressed in Judge Terrence P. Flynn's

decision. We add only a few comments.

The record clearly shows that E.M. harmed Emory through excessive

corporal punishment on one or more occasions. First, Dr. Kairys's expert

testimony stated that Emory was physically harmed when his father beat him

with a computer cord, and that this was not an accidental or isolated incident.

Dr. Kairys noted that E.M. had used enough force to break blood vessels in

Emory's skin, produce bruising that was still visible three months after the

incident, and cause Emory considerable pain. The expert explained that an

inflicted injury that leaves marks and bruises in this manner is consistent with

the medical definition of physical abuse or excessive physical discipline. Dr.

Kairys also expressed his professional concern for future risk of harm to Emory

if E.M.'s pattern of physical discipline did not change.

In addition, G.A. testified that Emory has been in counseling to deal with

the abuse, and that he quit the school's wrestling team because it triggered

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memories of E.M.'s abuse. Furthermore, she testified to a journal in which

Emory wrote that he had suicidal thoughts and considered running away because

he couldn't take the abuse anymore. These signs of physical and emotional harm

virtually speak for themselves.

In sum, E.M.'s procedural and substantive arguments provide no basis to

set aside the trial court's well-reasoned findings of this parent's commission of

abuse or neglect through the infliction of excessive corporal punishment.

Affirmed.

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