DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.P.

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                        NOT FOR PUBLICATION WITHOUT THE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-4260-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

R.P.,

        Defendant-Appellant,

and

J.M. and M.P.,

     Defendants.
________________________________

IN THE MATTER OF Ro.P., J.M. and
J.M., Minors.
________________________________

              Argued November 13, 2017 – Decided April 11, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0241-14.

              Ryan T. Clark argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ryan T. Clark, Designated Counsel, on the
              briefs).
            Peter D. Alvino, Deputy Attorney General,
            argued the cause for respondent (Andrea M.
            Silkowitz, Assistant Attorney General, of
            counsel; Alaina M. Antonucci, Deputy Attorney
            General, on the brief).

            Danielle Ruiz, Designated Counsel, argued the
            cause for minors (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Danielle
            Ruiz, on the brief).

PER CURIAM

     Defendant R.P. appeals from an August 14, 2014 Family Part

order    finding    she   abused    or    neglected     her   thirteen-year-old

daughter    Ro.P.   (Rachel)1      by    unreasonably    inflicting   excessive

corporal punishment.       Because we agree with the Division of Child

Protection and Permanency and the Law Guardian that there is

substantial credible evidence in the record supporting the trial

judge's finding of abuse or neglect, we affirm.

                                          I.

     The facts giving rise to this action are largely undisputed.

On April 11, 2013, a Division caseworker responded to defendant's

home in response to a referral that defendant hit her thirteen-

year-old daughter Rachel with, among other things, a metal spoon.

The caseworker interviewed Rachel, who wore a brace on her right

wrist.     Rachel reported that after she arrived home from school


1
   We refer to the child by a fictitious name in order to protect
her privacy.


                                          2                             A-4260-15T2
that   day,   defendant    was   upset   their   home    was   disorganized.

Defendant threw a full two-liter soda bottle at Rachel, hitting

her in the head, and then struck Rachel twice on the right wrist

with a metal spoon.       When defendant's friend intervened and took

the spoon away, defendant struck Rachel twice on the leg with a

plastic guitar.

       While defendant and her friend argued, Rachel left with her

two younger siblings and ran to a neighbor's home.                 Defendant

later went to the neighbor's home and confronted Rachel, who

refused to return to defendant's home.            Defendant attempted to

drag Rachel, first by grabbing and tugging at her, and then by

pulling her hair.     During the altercation, defendant and Rachel

fell to the ground.       The neighbor intervened and the altercation

ended.

       Rachel's seven-year-old brother told the caseworker he saw

Rachel come into a bedroom with defendant chasing after her.                   He

saw defendant pick up a plastic guitar and strike Rachel with it.

Rachel also told the caseworker that two weeks earlier defendant

struck her with a curtain rod because she did not clean her room.

       Defendant admitted striking Rachel with the metal spoon and

plastic   guitar   because   the   child   failed   to    clean   her     room.

Defendant also acknowledged following Rachel to the neighbor's

home, where they had a physical altercation and fell to the floor.

                                     3                                  A-4260-15T2
     During   the   caseworker's   interview   of    Rachel,   the     child

complained of discomfort and loss of mobility in her right wrist

that she attributed to defendant's "assault."        She reported having

difficulty rotating her wrist.         The caseworker and defendant

brought Rachel to Bayonne Medical Center.           The hospital records

reflect there was soft tissue swelling in Rachel's right wrist and

trauma to her right hand with subsequent pain, but the X-rays were

inconclusive as to the presence of a fracture.        It was recommended

that Rachel return for additional X-rays to determine if there was

a fracture.

     Rachel returned to the hospital one week later.           Additional

X-rays confirmed her wrist was not fractured.          The records show,

however, she sustained a hand sprain.

     The court determined defendant was "out of control with anger"

and "violent," and that throwing a full two-liter soda bottle at

a thirteen-year-old child's head "is a horrendous, unsafe, [and]

violent act."   The court concluded that by striking Rachel with a

metal spoon on the wrist, "striking her on the leg with the next

implement she [could] get in her hands," and pulling her hair

while in a rage, she caused the pain and swelling that required

medical attention at the hospital.       The court found defendant's

actions "collectively" constituted excessive corporal punishment,



                                   4                                 A-4260-15T2
and entered a fact-finding order that defendant abused or neglected

Rachel.   Defendant appeals the court's order.2

     Defendant    presents    the        following   argument   for    our

consideration:

            POINT I.

            THE FACT-FINDING ORDER MUST BE REVERSED AS THE
            TRIAL COURT MADE INADEQUATE FINDINGS TO
            SUPPORT A HOLDING THAT THE DAUGHTER IS AN
            ABUSED OR NEGLECTED CHILD AND THE RECORD LACKS
            SUBSTANTIAL CREDIBLE EVIDENCE THAT SHE HAS
            BEEN ABUSED OR NEGLECTED.

                                    II.

     Our review of fact findings from the Family Part are "strictly

limited."    N.J. Div. of Youth & Family Servs. v. I.H.C., 
415 N.J.

Super. 551, 577 (App. Div. 2010).          We will not disturb a finding

that is "supported by adequate, substantial, and credible evidence

in the record."    N.J. Div. of Youth & Family Servs. v. N.T., 
445 N.J. Super. 478, 505 (App. Div. 2016) (quoting N.J. Div. of Youth

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




2
   Following the caseworker's interviews on April 11, 2013, the
Division placed a homemaker in defendant's home to ensure the
children's safety. On August 21, 2013, the children were removed
and placed in the Division's care and custody. After a series of
compliance hearings, on June 9, 2015, the court granted legal and
physical custody of the children to their adult half-siblings. On
March 22, 2016, the court entered an order terminating the Title
Nine proceeding. Defendant appeals only the August 14, 2014 fact-
finding order.

                                     5                            A-4260-15T2
     More specifically, a reviewing court must ask whether the

findings made are reasonable in light of "credible evidence in the

record when considering the proofs as a whole" and "giving due

regard   to    the    opportunity   of       the   trial   judge   to   determine

credibility."        N.J. Div. of Youth & Family Servs. v. A.G., 
344 N.J. Super. 418, 443 (App. Div. 2001) (citing Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 
65 N.J. 474, 484 (1974)).                        We

defer to the findings of family court judges because they have

"the opportunity to make first-hand credibility judgments about

the witnesses who appear on the stand" and have "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. M.C. III, 
201 N.J. 328, 342-

43 (2010).

     The Division bears the burden of proving a child was abused

or neglected by a preponderance of the evidence.                   
N.J.S.A. 9:6-

8.46(b). Under Title Nine, an "abused or neglected child" includes

              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 parent or guardian, as
              herein defined, 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 similarly
              serious nature requiring the aid of the
              court[.]

                                         6                                A-4260-15T2
              [N.J.S.A.        9:6-8.21(c)(4)(b)                 (emphasis
              added).]

A parent or guardian fails to meet this minimum standard of care

when "she is aware of the dangers inherent in a situation and

fails adequately to supervise the child or recklessly creates a

risk of serious injury to that child."                    G.S. v. Dep't of Human

Servs., 
157 N.J. 161, 181 (1999).                    A failure to achieve this

minimum   degree      of   care   can    arise       by     a    parent    or    guardian

unreasonably      inflicting      harm     "including            the     infliction      of

excessive     corporal     punishment[.]"            
N.J.S.A.      9:6-8.21(c)(4)(b)

(emphasis added).

     The phrase "excessive corporal punishment" is not defined in

the statute.      Dep't of Children & Family Servs., Div. of Youth &

Family Servs. v. K.A., 
413 N.J. Super. 504, 510 (App. Div. 2010).

Our Supreme Court has noted that excessive corporal punishment

cases   are    fact   sensitive,     deeming         them       "idiosyncratic,"        and

cautioning     that   courts      "ought       not   assume       that    what    may    be

'excessive' corporal punishment for a [] child must also constitute

. . . excessive corporal punishment in another setting[.]"                            N.J.

Div. of Youth & Family Servs. v. P.W.R., 
205 N.J. 17, 33 (2011).

"[A] parent may inflict moderate correction such as is reasonable

under the circumstances of a case," but punishment is excessive

where it goes "beyond what is proper or reasonable."                            K.A., 413


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2 N.J. Super. at 510-11.    "[W]e evaluate a claim of abuse by looking

to the harm suffered by the child, rather than the mental state

of the accused abuser."     Id. at 511.

     The New Jersey Administrative Code and our case law provide

guidance    for   determining    when       conduct   constitutes   excessive

corporal punishment.     For example, N.J.A.C. 3A:10-2.2(a)3 lists

injuries and risks of harm that "may be abuse or neglect[,]"

including head injuries, sprains or dislocations, and substantial

risk of physical injury or environment injurious to health and

welfare.     N.J.A.C. 3A:10-2.2(a)(2), (8) and (11).                Where the

alleged abuse does not fit neatly into one of these categories,

the determination of whether a parent's action rises to the level

of abuse or neglect requires consideration of not only the nature

of the child's injury, but also the circumstances surrounding the

incident.    K.A., 
413 N.J. Super. at 512.

     In K.A., we found an isolated incident with a "psychologically

disruptive    child,    unable    or        unwilling   to   follow    verbal

instructions or adhere to passive means of discipline" did not

constitute abuse or neglect.       Ibid.        There, a mother struck her


3
  At the time of the incident and the Family Part's order, N.J.A.C.
10:129-2.2(a) listed injuries and risks of harm that may constitute
abuse or neglect.    Effective January 3, 2017, N.J.A.C. 10:129-
2.2(a) was recodified in N.J.A.C. 3A:10-2.2. The recodification
did not change the pertinent substantive provisions here. See 
49 N.J.R. 98(a).

                                        8                             A-4260-15T2
eight-year-old child with a closed fist for about five seconds

after the child defied her mother's instructions.                 Id. at 506.

The incident left "four quarter-sized bruises" on the child's left

shoulder, ibid., but "the force used did not lacerate the child's

skin [or] require any type of medical intervention,"               id. at 512.

We found that the "[b]ruises, although, visible, never exposed

[the child] to any further harm if left untreated[,]" and the

isolated incident was "not part of a pattern of punishment." Ibid.

      Similarly, in P.W.R. the Court concluded 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[.]'"


205 N.J. at 36.     The Court recognized the need for "some parental

autonomy in the child-rearing dynamic that, of necessity, may

involve   the     need    for    punishment[,]"    and   that     the   State's

involvement is limited only to instances of "excessive corporal

punishment."      Ibid.

      In contrast, in M.C. III the Court affirmed a finding of

abuse or neglect where a father grabbed, choked, and punched his

teenage children, and the children were brought to the hospital

and treated for injuries such as scratches, abrasions and swelling,

and a soft tissue injury. 
201 N.J. at 333-37. The Court determined

the   defendant    abused       or   neglected   the   children    because     he

"intentionally grabbed [them] and disregarded the substantial

                                         9                              A-4260-15T2
probability that injury would result from his conduct."                    Id. at

345.

       In Dep't of Children & Families, Div. of Youth & Family Servs.

v. C.H., 
414 N.J. Super. 472, 476 (App. Div. 2010), we affirmed

an abuse or neglect finding where a mother struck her four-year-

old daughter with a paddle in the face, arms, and leg, even though

the child did not require medical attention when the injuries were

discovered the next day.        We found the defendant's "unreasonable

infliction      of   corporal   punishment   was   established        by     [her]

admitted use of corporal punishment regularly[.]"             Id. at 481; see

also N.J. Div. of Youth & Family Servs. v. B.H., 
391 N.J. Super.
 322, 340 (App. Div. 2007) (affirming a finding of excessive

corporal punishment where a parent struck a six-year-old child

with a belt and caused a welt under the child's eye).

       In N.J. Div. of Youth & Family Servs. v. S.H., 
439 N.J. Super.
 137, 140-41 (App. Div. 2015), we determined a mother abused or

neglected her fifteen-year-old son by throwing a shoe at him,

hitting him with her hands and a golf club, and biting him on his

back three times.        We distinguished K.A. and P.W.R. because of

"the   nature    and   extent   of   the   injuries   .   .   .   .    and      the

instrumentalities used to inflict them."           Id. at 146.

       Here, defendant argues the court erred in finding abuse or

neglect because her conduct was not excessive, Rachel did not

                                     10                                    A-4260-15T2
suffer a significant injury, and their altercation was an isolated

incident.     Defendant contends the circumstances here are similar

to those K.A. and, for that reason, the court's abuse or neglect

finding cannot be sustained.     We are not persuaded.

     In K.A., the defendant imposed punishment in response to the

actions of a disruptive child with a psychological disorder, and

we found the reasons underlying the actions, the isolation of the

incident, and the trying circumstances the defendant faced due to

the child's conduct provided "the prism through which we determine

whether . . . actions [are] indeed 'excessive.'"          K.A., 
413 N.J.

Super. at 512.     We noted that a consideration of such factors is

required where a child's injuries do not constitute "per se

excessive     corporal    punishment"   to    determine    whether    the

defendant's actions "amount[] to excessive corporal punishment."

Ibid.     (alteration in original).

     Defendant was not confronted with a disruptive child who, due

to a psychological disorder, presented trying circumstances to a

parent.     See ibid.    To the contrary, Rachel is a thirteen-year-

old child who defendant chose to strike in the head with a two-

liter soda bottle and on the wrist with a metal spoon simply

because she failed to clean her room.        But the punishment did not

end there.      After being disarmed by her friend, defendant was

undeterred; she followed Rachel into a bedroom, imposed additional

                                  11                             A-4260-15T2
discipline by striking her with a plastic guitar, and later by

pulling her hair, causing a fall to the ground.

     In B.H. and C.H., our findings of abuse and neglect "were

based [in part] on the use of an instrument to hit the child" and

"the unreasonable and disproportionate parental response" to the

child's actions. S.H., 
439 N.J. Super. 146-47. In K.A., defendant

struck her child only with her hands.   
413 N.J. Super. at 506.    In

contrast, defendant opted to impose discipline by using a soda

bottle, metal spoon and plastic guitar before choosing to pull

Rachel's hair.

     Further, defendant's use of implements to impose corporal

punishment on April 11, 2013, was not an isolated incident.       See

id. at 512-13 (finding no abuse or neglect in part because the

incident was "aberrational to this family").   Rachel reported that

defendant struck her with a curtain rod two weeks earlier, again

for simply failing to clean her room.

     In addition, the child in K.A. sustained bruises that did not

require medical intervention.   See K.A., 
413 N.J. Super. at 512.

Rachel was taken to the hospital, where it was noted that she

suffered trauma to her hand and swelling. The hospital recommended

that she return to determine if she sustained a fracture.         The

subsequent X-rays showed no fracture, but the records show Rachel

suffered a hand sprain.   See N.J.A.C. 3A:10-2.2(a)(11) (providing

                                12                          A-4260-15T2
allegation of a sprain may be an injury that may be abuse or

neglect).    The mere fact that Rachel's injuries healed without

active medical intervention does not require a reversal of the

court's abuse or neglect finding. See, e.g., C.H., 
414 N.J. Super.

at 476 (affirming an abuse or neglect finding where the injuries

did not require any medical attention).

     Applying the factors we found determinative in K.A., we are

satisfied   the   court   correctly    concluded   defendant   abused    or

neglected Rachel by imposing excessive corporal punishment.             See


413 N.J. Super at 512.    The reason underlying defendant's actions,

Rachel's unclean room, does not support defendant's decision to

strike the child with the soda bottle, metal spoon and plastic

guitar.   The incident was not isolated.      And, the record does not

reveal any circumstances supporting defendant's use of the various

implements to impose the corporal punishment defendant employed

here.     Punishment is excessive if a parent's intentional act

exposes a child to the substantial probability that injury would

result from the parent's conduct.         M.C. III, 
201 N.J. at 345.

Defendant's use of the various implements to impose discipline

exposed Rachel to a substantial probability she would sustain

injury and, in fact, caused injury to the child.

     Affirmed.



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