NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. G.J-J. and D.A

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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     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 NOS. A-2102-18T2
                                                                    A-2103-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

G.J-J. and D.A.,

     Defendants-Appellants.
_________________________

IN THE MATTER OF G.D.,
D.A., JR., B.A., and H.A.,

     Minors.
_________________________

                   Submitted March 18, 2020 – Decided April 8, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FN-07-0455-17.
            Joseph E. Krakora, Public Defender, attorney for
            appellant G.J.-J. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Laura M. Kalik, Designated
            Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant D.A. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Ilea Anne Kozak, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Donna Sue Arons, Assistant Attorney
            General, of counsel; Mary L. Harpster, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor G.D. (Melissa R. Vance, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendants G.J.-J1 (Gina) and D.A. (David) appeal from an October 6,

2017 order finding that they abused or neglected G.D. (Gaby), born in 2004,

Gina's biological daughter and David's stepdaughter, by inflicting and allowing

to be inflicted upon her excessive corporal punishment. We consolidated both

appeals. When Gaby returned home from school later than expected, Gina began

hitting Gaby with a belt for lying about her whereabouts. David watched, but




1
  We use initials and pseudonyms to preserve the privacy of the parties. R.
1:38-3(d)(12).


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other than telling Gina to stop, he did not interfere. We affirm the findings

against both defendants.

      As shown by security footage, the matter escalated into Gina pushing

Gaby into a corner of an elevator where she continued to yell at her. Gina

proceeded to pull Gaby out of the elevator and bite her arm. Gaby ran to the

apartment complex's security booth, and the guards called the police. Although

Gina and David attempted to convince Gaby to return home, she refused. The

police took Gaby to the hospital and the matter was referred to the Division of

Child Protection and Permanency (Division).

      During the Division's investigation, D.A. Jr. (David Jr.), born 2010, B.A.

(Beatrice), born 2013, and H.A. (Helene), born 2015, David and Gina's

biological children, were taken into the Division's custody. While Gina admitted

to hitting Gaby with a belt on the day of the incident and on previous occasions,

she denied ever biting her. David Jr., Beatrice and Helene were later returned,

but Gaby, who did not want to come home, was adopted by relatives living in

Canada.

                                       I.

      Since the age of two, Gaby lived with her grandparents and other relatives

in Haiti. In 2015, she immigrated to the United States to live with Gina, David

and her three younger half-siblings.

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        Gina and David repeatedly instructed Gaby that she should walk directly

home after school by herself, instead of staying with friends. On April 13, 2017,

Gaby arrived home at her usual time of around 4:20 p.m. Because school was

dismissed early, Gina expected her earlier. Although Gaby told Gina she came

straight home, Gina believed the child was lying and began to hit her with a belt

in front of David in the living room of their one-bedroom apartment. Gaby

claimed that David also "took [the] belt and hit her once," but, worried that "he

[was] going to kill her and get in trouble," he stopped.

        To escape, Gaby acted as though she was leaving the apartment to take

out the garbage. Upon realizing she had nowhere to go, she returned. Gina did

not believe Gaby had gone to take out the garbage, so she and Gaby went into

the elevator to go down to the trash room. As the trial court noted, the security

footage showed that Gina was "obviously very angry with her child." She had

"shove[d] [Gaby] into a corner of the elevator" and as she "pull[ed] the reluctant

[Gaby] out [of the elevator], it appears that [she] bit[] the child on the upper

arm."

        Gaby then ran to the security booth outside her apartment building. She

was "visibly shaking, crying, and scared" and told the security guards she did

not want to return home. Gina and David arrived at the security booth to

convince Gaby to return home, but she refused. The trial court noted that the

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audio and video footage from the security booth showed David "berat[in g] and

interrogat[ing] [Gaby] in a loud, very angry . . . voice," asking her: "What is

your problem?"; "What did you take out the house and run away with?"; "Why

did you come here?"      David even threatened to send Gaby back to Haiti,

exclaiming, "My name is on all your documents. So, I can ship you back

whenever I want. I will not let you to put me into trouble. I'm done with you.

I'm getting all your stuff ready." Gaby remained at the security booth until the

police arrived and took her to Newark Beth Israel Medical Center (NBIC).

      Division caseworkers arrived at NBIC around midnight to speak with

Gaby. Gaby explained what happened that day, confirming that her parents,

who always believed she was lying, hit her with a belt when she arrived home

from school and her mother bit her. She revealed that she was also hit the week

before and that her current relationship with her mother was "[not] that good,"

describing her as "mean." Gaby said her mother "yells a lot and beats her."

      The caseworkers took pictures of Gaby's bruises on both thighs as well as

the bite mark on her arm. The doctor reported that while the "biting appears

pretty fresh," the bruising on Gaby's legs could have taken place "[a]s recent as

[twenty-four] hours ago or up to [three] days ago."

      The caseworkers then went to speak to Gina and David at their apartment.

Gina admitted she "whopped" Gaby with a belt because she was angry at her for

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lying, but denied biting Gaby. This was "the [fifth] or [sixth] time she ha[d] hit

[Gaby] with a belt." She also acknowledged hitting Gaby with her hand. David

explained that while he has physically disciplined Gaby in the past, he stopped

doing so for about the past six months "due to his profession" as a doctor in

residency. He denied beating Gaby that day and said he verbally instructed Gina

to stop beating her.

      The caseworkers also interviewed then seven-year-old David Jr. who

explained that although he did not witness the events of April 13, his parents

have hit him and his sisters Beatrice and Gaby in the past as punishment. He

said that Gaby is hit "so badly because she lies a lot."

      David Jr., Beatrice, and Helene were taken to NBIC for physical

examinations. While David Jr. told the doctor that his parents told him "not to

say anything to anyone about who hits him," Beatrice explained that when she

gets in trouble, she is "whipped" with a belt. The children were placed in

resource homes.

      The court initially granted the Division custody of the children, barring

Gina and David from unsupervised contact with them. The court returned

custody of the three younger children to their parents thereafter. Gaby expressed

wanting to live with relatives in Canada, who she previously had lived with in



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                                         6 Haiti. In August 2017, Gina was served with a criminal complaint for the abuse

or neglect of Gaby.

      The court held a three-day fact-finding hearing at which Gina and David

were present with counsel.     The Division presented the testimony of two

caseworkers and introduced into evidence the security footage of what occurred

in the elevator and at the security booth.      No evidence or witnesses were

presented by the defense or the law guardian.

      On October 6, 2017, the court in an oral opinion found by a preponderance

of the evidence that Gina "failed to exercise a minimum degree of care by

unreasonably inflicting excessive corporal punishment" on Gaby and David also

"failed to exercise a minimum degree of care by allowing . . . harm or a

substantial risk thereof, including infliction of excessive corporal punishment."

The same day, the court signed a dispositional order stating that Gaby "shall

continue under the custody, care and supervision of the Division, with placement

as deemed appropriate by the Division," and David Jr., Beatrice and Helene

"shall continue under the care and supervision of the Division; with the Division

being authorized to make announced and unannounced visits to the ho me of the

defendants."




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      A year later, the court approved Gaby's adoption by her relatives in

Canada. The order reflected that Gina supported the plan. In December 2018,

the court issued an order terminating this litigation.

                                        II.

      Our review of a family court's abuse or neglect finding is limited. See

N.J. Div. of Youth & Family Servs. v. S.H.,  439 N.J. Super. 137, 144 (App. Div.

2015). We must determine whether the decision "is supported by 'substantial

and credible evidence.'" N.J. Div. of Youth & Family Servs. v. F.M.,  211 N.J.
 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J.
 261, 279 (2007)).

      We defer to the trial court's factual findings, because that court has "the

superior ability to gauge the credibility of the witnesses . . . and because it

possesses special expertise in matters related to the family." Ibid. Our review

is, however, "less constricted when the 'focus is not on credibility but alleged

error in the trial court's evaluation of the underlying facts and the implications

to be drawn therefrom.'" S.H.,  439 N.J. Super. at 144 (quoting N.J. Div. of

Youth & Family Servs v. C.S.,  367 N.J. Super. 76, 112 (App. Div. 2004)).

Ultimately, a family court's decision should not be overturned unless it went "so

'wide of the mark'" that reversal is needed "to correct an injustice." F.M.,  211 N.J. at 448 (quoting N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88,

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104 (2008)). A trial court's interpretation of the law or its legal conclusions are

reviewed de novo. State ex rel. A.B.,  219 N.J. 542, 554-55 (2014); Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      "The purpose animating Title Nine 'is to provide for the protection of

children . . . who have had serious injury inflicted upon them.'" N.J. Div. of

Youth & Family Servs. v. P.W.R.,  205 N.J. 17, 31 (2011) (quoting  N.J.S.A. 9:6-

8.8(a)). Therefore, "[a] Title Nine inquiry should focus on harm to the child,

rather than on the intent of the caregiver." S.H.,  439 N.J. Super. at 145. Pursuant

to  N.J.S.A. 9:6-8.21(c)(4), an "[a]bused or neglected child" is

            a child [less than eighteen years of age] 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 . . . (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.

While "[t]he law does not prohibit the use of corporal punishment," and "a parent

may inflict moderate correction such as is reasonable under the circumstances

of a case," excessive corporal punishment is expressly prohibited. Dep't of

Children & Families, Div. of Youth & Family Servs. v. K.A.,  413 N.J. Super.
 504, 510 (App. Div. 2010). The Division "must prove that the child is 'abused

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or neglected' by a preponderance of the evidence, and only through the

admission of 'competent, material and relevant evidence.'" P.W.R.,  205 N.J. at
 32 (quoting  N.J.S.A. 9:6-8.46(b)).

      Each case of alleged abuse "requires careful, individual scrutiny" and is

"generally fact sensitive." Id. at 33. Although Title Nine does not define

excessive corporal punishment, our court has recognized "'excessive' means

going beyond what is proper or reasonable." K.A.,  413 N.J. Super. at 511. "[A]

single incident of violence against a child may be sufficient to constitute

excessive corporal punishment." Ibid.

      "[T]he use of an instrument to hit the child with such force that visible

marks were left, the unreasonable and disproportionate parental response, and

the fact that the incidents were not isolated but part of a pattern of physical

punishment" are factors the court may consider when determining whether a

child suffered excessive corporal punishment. S.H.,  439 N.J. Super. at 146-47.

                                       III.

      Gina contends that "[m]any of the mitigating circumstances that were

present in K.A., are present here," and therefore, the court should similarly find

that her "conduct was aberrational and excusable under the circumstances."

      In K.A., a mother struck her eight-year-old daughter four or five times

with a closed fist on the shoulder after she refused to complete her homework

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and refused to be disciplined by remaining in her room.  413 N.J. Super. at 505–

06. Although the child sustained bruises, she did not require medical attention.

Id. at 512. We noted that "K.A. was alone, without support from either her

spouse/co-parent or from other members of her extended family."               Ibid.

Additionally, the child was "psychologically disruptive," "unable or unwilling

to follow verbal instructions or adhere to passive means of discipline such as a

time-out," and "diagnosed with pervasive development disorder and attention

deficit disorder." Id. at 506, 512. We reasoned that K.A.'s actions were not

excessive in light of "(1) the reasons underlying K.A.'s actions; (2) the isolation

of the incident; and (3) the trying circumstances which K.A. was undergoing

due to [the child's] psychological disorder." Id. at 512.

                                       IV.

      Gina inflicted corporal punishment by biting Gaby and using a belt to hit

her for lying. By her own admission, Gina concedes that her use of a belt as a

method of corporal punishment was not an isolated incident.

      Because Gaby's bruises and marks resulted in no tears to the skin or

lacerations nor required medical treatment, Gina notes "[t]he Division simply

failed" to established that Gaby was in "an imminent danger to her well -being."

Furthermore, Gina asserts the trial court inappropriately speculated from the

security footage that Gaby suffered emotional harm.

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      The fact that a child did not sustain physical injuries that required medical

intervention does not require a reversal of the court's abuse or neglect finding.

See Dep't of Children & Families, N.J. Div. of Youth & Family Servs. v. C.H.,

 414 N.J. Super. 472, 476 (App. Div. 2010). Gina's response to Gaby arriving

home late was excessive. We can imagine no circumstances where biting and

hitting a child with a belt is reasonable punishment.

      The trial court stated that it could not accept it was Gaby's parents'

"concern for her wellbeing that caused this extreme behavior or, perhaps . . .

[Gaby's] pattern of lying." In recognizing that the court did not know whether

Gaby was lying, it found "there simply is no justification for the kind of physical

abuse this child suffered. If there were problems . . . with [Gaby's] behavior,

that was not the way to discipline [her] and that was not the way to address

them." Although, like K.A., Gina "accepted full responsibility for her actions,

was contrite, and complied with Division-sponsored counseling," under the

totality of the circumstances, the court did not abuse its discretion in finding that

the Division established by a preponderance of the evidence that Gina abused or

neglected Gaby. See K.A.,  413 N.J. Super. at 512.

                                         V.

      David argues that the Division failed to demonstrate by a preponderance

of the evidence that he did not exercise a minimum degree of care by failing to

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"prevent[] or eliminat[e] the risk of harm to Gaby resulting from her m other's

physical discipline." In distinguishing this matter from N.J. Div. of Child Prot.

& Permanency v. K.N.S.,  441 N.J. Super. 392 (App. Div. 2015) and N.J. Div.

of Child Prot. & Permanency v. J.L.G.,  450 N.J. Super. 113 (App. Div. 2015),

he notes, that his "verbal direction to Gina to stop hitting Gaby constituted a

reasonable and meaningful effort to protect Gaby." He argues that the trial

court's determination of whether he was negligent or grossly negligent by not

interceding "is a conclusion of law to which we are not required to defer." Dep't

of Children & Families, Div. of Youth & Family Servs. v. T.B.,  207 N.J. 294,

308 (2011) (quoting N.J. Div. of Youth & Family Servs. v. A.R.,  419 N.J. Super.
 538, 542-53 (App. Div. 2011)).

      Our Supreme Court has discussed "what standard of care is codified by

the phrase 'failure to exercise a minimum degree of care.'" G.S. v. Dep't of

Human Servs., Div. of Youth & Family Servs.,  157 N.J. 161, 178 (1999).

"Essentially, the concept of willful and wanton misconduct implies that a person

has acted with reckless disregard for the safety of others." Id. at 179. "[A]

guardian fails to exercise a minimum degree of care when he or 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." Id. at 181. "[A] parent

or guardian's past conduct can be relevant and admissible in determining risk of

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harm to the child." N.J. Div. of Youth & Family Servs. v. I.H.C.,  415 N.J. Super.
 551, 573 (App. Div. 2010).

      In finding that David abused or neglected Gaby, the court reviewed the

security camera footage and emphasized:

            [Of] real importance to this [c]ourt is [Gaby's]
            demeanor during these encounters. She doesn't speak
            around her stepfather. She keeps her arms around
            herself and shreds her tissues nervously. She is
            standing alone and refuses to take one step in [David's]
            direction. She refuses to sit down when offered a seat.
            She stands stunned and scared throughout the entire
            three-video episode involving [David], which is very
            different than she is with her mother, . . . where she is
            crying and emotional. She never speaks to him directly.
            In fact, she barely looks . . . at him.

While the trial court recognized that "maybe there is insufficient evidence to

know how hard [David] hit [Gaby] that day or if he even hit her that day," it

noted that under the totality of circumstances, "the evidence is clear . . . that

[David] knew what [Gina] was doing that day and previous days and that such

excessive corporal punishment, the use of the belt, was an accepted form of

punishment for this child."

      By David's own admission, he revealed that "he has whooped [Gaby] in

the past but due to his profession he is done with her" and has not hit her in

about six months. The mere knowledge of a beating, without actually seeing it,



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may be sufficient to establish a noninterfering parent or guardian committed

abuse or neglect. See J.L.G.,  450 N.J. Super. at 121.

      As the trial court concluded, David "obviously felt it was acceptable for

him to sit back and let his wife discipline and hit her daughter while he did

nothing to stop it . . . . [or] intervene. This does not relieve him of responsibility

in this [c]ourt." A review of the totality of the record demonstrates that David's

current inaction and admitted prior behavior rose to the level of gross negligence

or recklessness as a matter of law.

      Affirmed.




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