NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.U

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                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1929-18T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

D.U.,

         Defendant-Appellant,

and

S.I. and G.O.,

         Defendants.


IN THE MATTER OF R.I. and D.I.,

         Minors.


                   Argued January 7, 2020 – Decided April 28, 2020

                   Before Judges Fisher, Accurso and Rose.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Atlantic County,
            Docket No. FN-01-0341-16.

            Adrienne Marie Kalosieh, Assistant Deputy Public
            Defender, argued the cause for appellant (Joseph E.
            Krakora, Public Defender, attorney; Robyn A. Veasey,
            Deputy Public Defender, of counsel; Adrienne
            Kalosieh, on the briefs).

            Robert George Amrich, Deputy Attorney General,
            argued the cause for respondent (Gurbir S. Grewal,
            Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Robert George
            Amrich, on the brief).

            Meredith Alexis Pollock, Deputy Public Defender,
            argued the cause for minor R.I. (Joseph E. Krakora,
            Public Defender, Law Guardian, attorney; Meredith
            Alexis Pollock, on the statement in lieu of brief).

            Todd S. Wilson, Designated Counsel, argued the cause
            for minor D.I. (Joseph E. Krakora, Public Defender,
            Law Guardian, attorney; Courtney Elizabeth Lyman,
            Assistant Deputy Public Defender, on the statement in
            lieu of brief).


PER CURIAM

      Defendant D.U. appeals from a November 26, 2018 fact-finding order,

now final, that she abused or neglected her nine-year-old son D.I. (Damen) by

excessive corporal punishment, in violation of  N.J.S.A. 9:6-8.21(c). Because

that conclusion is supported by substantial credible evidence in the record, we


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affirm. See N.J. Div. of Youth & Family Servs. v. L.L.,  201 N.J. 210, 226

(2010).

      School officials made the referral that brought the family to the

Division's attention in April 2016. Over the next few weeks, the Division

investigated allegations that defendant and her live-in boyfriend, defendant

G.O., beat Damen with a belt and withheld food when his soccer or basketball

play was poor. Defendant denied they physically disciplined her son or his

sister R.I. (Rachel), then twelve years old. Neither defendant nor her

boyfriend, however, made any direct response to the claim that they denied the

boy food. Defendant showed the Division worker a picture of Damen showing

his muscles and asked whether he "look[ed] hungry." Defendant's boyfriend

told the worker that "starvation is different from missing a meal."

      The day after the Division first made contact with the family, the school

again called the Division, this time to advise Damen again reported being

beaten by both his mother and her boyfriend, that the boyfriend had threatened

the boy with a belt after the worker visited his home, and that defendant had

advised school officials they were not to counsel the boy. A little more than a

week later, defendant reported Damen missing. When police found him at a

neighbor's home, he claimed his mother's boyfriend had beaten him with a


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thick, black belt and he was afraid to go home. Defendant admitted knowing

her boyfriend had yelled at Damen, but didn't know whether anything else had

occurred. She claimed the boy lied frequently, and she believed he had

exaggerated the encounter. Defendant and her boyfriend signed a safety

protection plan agreeing that Damen would not be left alone with defendant's

boyfriend. Both, however, told the worker the Division should take the nine-

year-old to "teach him a lesson."

        When defendant refused to have Damen evaluated by the CARES [Child

Abuse Research Education and Service] Institute, the Division filed a

complaint for care and supervision.1 On the day before the first court

proceeding, Damen refused to go home with his mother, expressing fear that

he would be beaten. That pattern would repeat itself several times throughout

the pendency of this matter, with Damen's Law Guardian calling the Division

on his behalf on more than one occasion to report the boy was afraid to go

home.




1
  The Division sought care and supervision of only Damen, not Rachel. The
children have been represented by separate counsel throughout these
proceedings. Defendant, who is no longer in a relationship with her boyfriend,
has resumed custody of Damen. The Law Guardians for the children have
each taken no position on defendant's appeal.
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      Damen claimed defendant's boyfriend regularly beat him, once, before

the Division's involvement, so badly he couldn't go to school for three days

while the swelling subsided. Although the Division's review of school records

confirmed the boy was absent as he claimed, defendant maintained the family

had been on vacation. While the matter was pending, Damen claimed the

boyfriend smacked him in the ear with an open hand. The boy was later

discovered to have a ruptured eardrum and an infection. His pediatrician could

not say whether the rupture was caused by the infection or having been struck

on the ear. Damen claimed his mother would "sometimes" stop her boyfriend

from hitting him, but reported she would also sometimes hit him with an open

hand. A teacher reported seeing defendant slap Damen during a parent-teacher

conference. Rachel told workers that neither defendant nor her boyfriend hit

her or her brother.

      Following a contested hearing on the Division's order to show cause,

during which the court interviewed both children, the judge granted the

Division custody, care and supervision of Damen, stating he had never seen a

child as scared to go home as Damen was. The court continued custody of

Rachel with defendant, but granted the Division care and supervision.




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      At the fact-finding hearing, the Division presented the testimony of Dr.

Martin Finkel, co-director of the CARES Institute and an expert in pediatrics

and child abuse, and Dr. Deborah Mulgrew, a physician board certified in

adolescent psychiatry. Dr. Finkel testified that the numerous curvilinear marks

he observed on Damen's thighs, buttocks and torso were "clearly non-

accidental" and consistent with the boy's report of being beaten repeatedly

with a belt, primarily by defendant's boyfriend but by his mother as well.

      Based on his interview and physical exam, Dr. Finkel opined that Damen

suffered from excessive physical discipline inflicted with a belt and was "an

extraordinarily frightened, scared young man," afraid to return to his mother

and her boyfriend and to express his feelings out of fear of retaliation. Dr.

Mulgrew testified that she found Damen, anxious, depressed and extremely

frightened about returning home. She testified that Damen never appeared to

relax during their interview, and told her he believed the marks from the

beatings he received would never go away. Dr. Mulgrew diagnosed Damen as

suffering from post-traumatic stress disorder caused by physical abuse.

      The judge found the testimony of the Division's experts "trustworthy and

credible." He deemed the opinion of defendant's forensic pathologist, who

conceded Damen bore scars, but claimed they were not distinctive enough to


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identify the object that inflicted them, less persuasive. The judge noted the

expert never examined Damen, but relied on reports and photographs of the

boy's injuries. He found the testimony of defendant's psychologist, who

opined that although Damen had suffered mental trauma he did not have

PTSD, less credible. The judge noted the psychologist assigned more blame to

defendant's boyfriend, but had been forced to concede on cross-examination

that he had omitted mention of Damen's statements to him that defendant also

hit him with a belt.

      The judge rejected defendant's testimony that she never abused or hit

Damen as not credible. Although finally admitting she would give Damen

"taps of love" on his face to re-focus him, the judge concluded defendant "was

clearly hitting" Damen both in the face and with a belt. He found her

testimony that the marks on Damen's body were injuries sustained playing

soccer and other sports as unworthy of belief. The judge also found defendant

"knew or should have known" her boyfriend was hitting Damen with a belt and

failed to "appreciate the gravity of the fear and trauma" inflicted on her son.

Although acknowledging defendant had complied with all services, that

Damen had returned home, and the conditions that led to his placement had

been remediated, the judge concluded defendant and her boyfriend had


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physically and mentally abused Damen within the meaning of  N.J.S.A. 9:6-

8.21(c)(4)(b).

      Defendant appeals, contending the Division failed to prove she

"participated in excessive corporal punishment in disciplining" Damen

resulting in physical and emotional impairment. Specifically, defendant

argues that the determination that she beat Damen with a belt or was present

when her boyfriend did so was not supported by a preponderance of the

evidence; that Damen's "statements do not corroborate themselves through

repetition"; that "[s]kin marks and temporary emotional upset cannot be

deemed 'protracted impairment'"; and that she did not fail to exercise "a

minimum degree of care" because she asked Damen about the cause of his

distress and he refused to tell her.

      We find those arguments, which are premised entirely on alleged errors

in the judge's fact finding, utterly without merit. 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 & Family Servs. v. E.P.,  196 N.J. 88, 104 (2008). We are not free to overturn the factual findings and legal

conclusions of a trial judge "unless we are convinced that they are so


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manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Rova Farms

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

omitted).

      Our review of the trial court's factual findings in this abuse and neglect

proceeding is strictly limited to determining whether those findings are

supported by adequate, substantial and credible evidence in the record. N.J.

Div. of Youth & Family Servs. v. Z.P.R.,  351 N.J. Super. 427, 433 (App. Div.

2002). Because the trial judge's findings that defendant inflicted excessive

corporal punishment on her son have such support in this record, we are bound

by them in deciding the appeal. See Rova Farms,  65 N.J. at 484.

      We affirm the abuse and neglect finding in this matter substantially for

the reasons expressed by Judge W. Todd Miller in his thorough and thoughtful

opinion of November 26, 2018.

      Affirmed.




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