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

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                                NOT FOR PUBLICATION WITHOUT THE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-2719-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.D.,

          Defendant-Appellant,

and

H.D.,

     Defendant.
_________________________

IN THE MATTER OF E.B.,

     a Minor.
_________________________

                   Submitted December 5, 2019 – Decided February 14, 2020

                   Before Judges Suter and DeAlmeida.
             On appeal from the Superior Court of New Jersey,
             Chancery Division, Family Part, Hudson County.
             Docket No. FN-09-0336-16.

             Joseph E. Krakora, Public Defender, attorney for
             appellant (Robyn A. Veasey, Deputy Public Defender,
             of counsel; Kevin G. Byrnes, Designated Counsel, on
             the briefs).

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

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

PER CURIAM

      D.D. (Daniel)1 appeals, following a fact-finding hearing, from an order of

the Family Part finding that he inflicted excessive corporal punishment on his

son, E.B. (Eddie), constituting abuse and neglect under  N.J.S.A. 9:6-8.21(c)(4).

We affirm.

                                     I.

      We glean the facts from the fact-finding hearing. Daniel is Eddie's father.

On Monday, April 11, 2016, nine-year old Eddie went to school with a visibly



1
  We use initials and pseudonyms to maintain the confidentiality of the parties
and their child. R. 1:38-3(d)(12).
                                                                         A-2719-18T3
                                          2
black and blue eye. He told his teacher—although initially reluctant—that his

father hit him in the face "several times" and "punched him in his leg" because

he did not fight back against another child in his classroom. The teacher testified

that, on the previous Friday, Eddie accidentally hit his friend with the brim of

his hat and the friend "smacked him" with an open hand. Eddie had a "little

redness" on his face, but there were no marks. She reported the incident to both

parents. Eddie told his teacher that his father hit him in the face and punched

him because of that incident.

      Eddie confirmed to the school principal that his father had done this to

him. The school contacted the Division of Child Protection and Permanency

(the Division). Eddie told the Division's caseworker he had been "play-fighting"

with a friend. Eddie explained to her "his father hit him because he felt that

[Eddie] was in a . . . real fight and that [Eddie] didn't hit back and his father was

teaching him a lesson by hitting him." His father slapped him "in his face five

times with his hand and hit him in the left eye." He also punched him in his

thigh. Eddie told the caseworker his father previously hit him with a belt "but

now that he's bigger, he hits him with his fists."




                                                                             A-2719-18T3
                                         3
      The Division's investigation revealed Eddie previously was removed from

his parents' care when they lived in New York because "he sustained an injury

from his father hitting him" with a belt.

      Daniel did not testify at the fact-finding hearing, but explained to a

detective from the Special Investigation Unit that Eddie was in a fight at school.

He denied hitting his son. He also recounted that Eddie received two black eyes

and a swollen nose about three weeks earlier from another fight at the school.

The caseworker followed up with Eddie's teacher and principal, who both denied

there was any prior incident at the school. Eddie's teacher also testified she did

not have "behavioral issues" with Eddie.

      A family friend testified at the fact-finding hearing that he walked home

from school with Daniel, Eddie and his own children on Friday, April 8, 2016.

He did not notice any bruising until Eddie took off his hat and he saw a

"yellowish blue" bruise underneath Eddie's eye on the left. It looked to him like

it had been treated with an icepack. He testified he "never once" saw Eddie with

any other bruises. He did not ask Daniel about the bruise because Daniel told

him about the fight at school.




                                                                          A-2719-18T3
                                        4
       Eddie's mother H.D. (Hannah) insisted the injury to Eddie's eye occurred

in school but acknowledged that Daniel hit Eddie in the thigh. The photographs

showed Eddie's black and blue eye and three circular bruises on Eddie's thigh.

       The Division conducted an emergency "Dodd removal"2 of Eddie and then

was granted care, custody and supervision of him.         The Division filed a

complaint under  N.J.S.A. 9:6-8.21(c) against Daniel alleging abuse and neglect

by the infliction of excessive corporal punishment and against Hannah for

failing to protect Eddie.

       Dr. Anthony V. D'Urso, an expert in psychology, child psychology, and

child abuse, testified at the fact-finding hearing. Based on his examinations of

Eddie, he concluded that although Eddie did not have a "diagnosable condition"

such as a "psychiatric disorder," he did have "some long[-]standing anxiety . . .

specific to the abuse that occurred[.]" His evaluation "clinically supported

physical abuse by [Daniel], emotional abuse by [Daniel] and emotional neglect

with [Hannah]" because Eddie's symptom-pattern "would be hard to feign."

       The Family Part judge found the Division met its burden under  N.J.S.A.

9:6-8.21(c)(4) of proving that Daniel used excessive corporal punishment. The

Family Part judge found the Division's witnesses were credible based on their


 2 See N.J.S.A. 9:6-8.29.
                                                                         A-2719-18T3
                                       5
"demeanor while testifying[,] their lack of any personal interest or bias in the

case" and that their testimony made common sense. The court did not find the

family friend's testimony credible because it seemed "contrived by [Daniel]

(who did not testify) in an attempt to deflect blame away from him for the

injuries sustained to his son." The court found Eddie's injuries occurred over

the weekend, not in school. This was corroborated because the bruises to Eddie's

leg could not have occurred in the classroom incident on Friday. The court also

found this was not an isolated event because Eddie previously had been injured

by his father and removed from his parents' custody when they resided in New

York. The court found Daniel "abused and neglected his son . . . by the use of

excessive corporal punishment."

      On appeal, Daniel contends there was inadequate evidence to support the

court's abuse and neglect finding. He argues the trial court erred by allowing

testimony by the expert witness on the "ultimate issue of abuse and neglect."

                                    II.

      We defer to Family Part judges' fact-finding because of their "special

jurisdiction and expertise in family matters[.]" Cesare v. Cesare,  154 N.J. 394,

413 (1998). They also have "the opportunity to make first-hand credibility

judgments about the witnesses who appear on the stand; [and have] a feel of the


                                                                        A-2719-18T3
                                          6
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) (quoting N.J.

Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)). Fact-finding

that is supported by sufficient, substantial and credible evidence in the record is

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

(2010).   The court's interpretation of the law or its legal conclusions are

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

      The relevant portion of Title Nine, N.J.S.A. 9:6–8.21(c)(4)(b), defines an

"[a]bused 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[.]

      "'Excessive corporal punishment' is not specifically defined in Title Nine."

Dep't of Children & Families v. K.A.,  413 N.J. Super. 504, 510 (App. Div.

2010). "'[E]xcessive' means going beyond what is proper or reasonable." Id. at

511. A parent using corporal punishment may only "inflict moderate correction"

that must be reasonable under the circumstances. Id. at 510 (quoting State v.

                                                                           A-2719-18T3
                                        7
T.C.,  347 N.J. Super. 219, 239-40 (App. Div. 2002)). Force that exceeds that

reasonableness limit is sufficient to trigger the statute. See id. at 511. Each case

of alleged abuse "requires careful, individual scrutiny" and is "generally fact

sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R.,  205 N.J. 17, 33

(2011). The "main focus" of Title Nine "is not the 'culpability of parental

conduct' but rather 'the protection of children.'" Dep't of Children & Families,

Div. of Child Prot. & Permanency v. E.D.-O.,  223 N.J. 166, 178 (2015) (quoting

G.S. v. Dep't of Human Servs.,  157 N.J. 161, 177 (1999)).

      We reject Daniel's contention the trial court erred in finding abuse and

neglect under Title Nine. The judge's decision rested on his determination that

the Division's witnesses were credible, and that Eddie's injuries did not occur at

school. This finding was amply supported by the record. Eddie consistently

reported his father inflicted both the black eye and bruises on his thigh as a

lesson for having not fought back against another child in school. It certainly

was not reasonable to teach the child a lesson by striking him with such force

his eye was black and blue and by punching him in the leg so hard he sustained

bruising. The court did not find the family friend's testimony to be credible, and

his testimony did not support Daniel's version. That witness never saw the two




                                                                            A-2719-18T3
                                         8
black and blue eyes and swollen nose that Daniel said occurred three weeks

earlier. The incident at school did not explain how Eddie's thigh was bruised.

      Dr. D'Urso's testimony supported Eddie's version. He concluded Eddie

had "anxiety . . . specific to the abuse that occurred[.]"       This "clinically

supported" the physical and emotional abuse inflicted by Daniel.

      The court did not err in permitting Dr. D'Urso to testify on the issue of

abuse and neglect. There was no objection at the fact-finding hearing, requiring

our review under a plain error standard. See R. 2:10-2 (providing that reversal

is warranted only if the alleged error was "clearly capable of producing an unjust

result"). Moreover, an expert witness is permitted to testify about the ultimate

issue—here abuse and neglect. See N.J.R.E. 704 (providing "[t]estimony in the

form of an opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact").

      This case is not like K.A.,  413 N.J. Super. at 512. There, a parent hit her

child on the shoulder with her fist and caused bruising. Ibid. However, in that

case there was no injury or pattern of abuse, the child was psychologically

disruptive, and lesser forms of discipline had not worked. Ibid. Here, there was

a prior incident where Eddie was struck with a belt. There was no evidence

Eddie was psychologically disruptive or that any form of discipline was needed.


                                                                          A-2719-18T3
                                        9
       Nor was this case similar to P.W.R.,  205 N.J. at 36, where the Court did

not find excessive corporal punishment. There, the parent occasionally slapped

a teenager in the face and did not leave bruises or marks. Ibid. That certainly

was not the case here where there was photographic evidence of Eddie's black

eye and bruises. Eddie told the caseworker his father hit him previously with a

belt but now that he is bigger, "hits him with his fists."

       Our review of the record shows that the Family Part judge took into

consideration all the evidence in reaching the finding that Daniel abused and

neglected Eddie under Title Nine through the use of excessive corporal

punishment.3

       Affirmed.




3
    There was no finding against Hannah. She has not appealed.
                                                                       A-2719-18T3
                                        10