NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.S.,1 and R.D., P.B., M.B., B.B., P.G and O.S

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3821-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

N.S.,1

Defendant-Appellant,

and

R.D., P.B., M.B., B.B., P.G.,
and O.S.,

Defendants.
__________________________

IN THE MATTER OF Z.D.
and Z.D., minors.
___________________________

Submitted September 20, 2021 – Decided October 5, 2021

1
We use initials and pseudonyms to protect the identities of the children and
parties and to preserve the confidentiality of these proceedings. R. 1:38-
3(d)(11).
Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0185-19.

Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Designated Counsel, on
the briefs).

Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Lisa Cerasia, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor Z.D. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Noel C. Devlin,
Assistant Deputy Public Defender, of counsel and on
the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor Z.D. (Zi.D.) (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Cory H.
Cassar, Designated Counsel, on the brief).

PER CURIAM

Defendant N.S.,2 the biological mother of Z.D. (Zeke), born in 2014, and

Z.D. (Zara), born in 2013, appeals from a June 27, 2019 Family Part order

finding she physically abused or neglected these two children and emotionally

2
Defendant R.D., the biological father of Zeke and Zara, and co-defendants
P.R., M.B., B.B., P.G., and O.S., have not filed an appeal.
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2
abused all of the children living in her home by allowing violence to continue

in their presence within the meaning of N.J.S.A. 9:6-8.21(c)(1), (2) and (4)(b).

N.S. also appeals the May 5, 2020 order terminating the litigation. The Law

Guardians seek affirmance. Having reviewed the record, we conclude the

judge's twenty-three-page fact-finding decision was supported by sufficient

credible evidence and is consistent with the applicable law. Therefore, we

affirm both orders.

We discern the following facts from evidence adduced at the fact-finding

hearing. In August 2018, O.S., who is N.S.'s boyfriend, moved into a four-

bedroom apartment with Zeke and Zara, along with the following other adults

and children: P.B., who is the mother of J.B., A.J., T.B., and A.B.; M.B., P.B.'s

mother; B.B., P.B.'s sister; and P.G., M.B.'s sister. In total, six adults were

living in the subject household. On December 5, 2018, the Division of Child

Protection and Permanency (Division) received a referral from University

Hospital regarding allegations that then three-year-old Zeke was injured at

home. Earlier that day, a teacher's aide, A.P., observed Zeke crying and noticed

a bruise on his cheek. A.P. escorted Zeke to the school nurse, A.A., and noticed

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when he went to wash his hands, he was "shaking" and "walking extremely slow

. . . like an elderly . . . person."

A.A. examined Zeke, and following a full body scan, noted his back was

bruised and scarred, his feet and ankles were blistered, his legs were inflamed,

and he had circular marks resembling cigarette burns on his left leg above the

knee. During the ambulance ride en route to University Hospital, Zeke told N.S.

that P.B. dunked him in hot water. Zeke also told A.P. that his "mommy" burned

him with a cigarette. The hospital records indicated that Zeke presented with

"new and old injuries consistent with child abuse." In addition, the hospital

records noted Zeke had "round healed circles to right arm. Wounds consistent

with cigarette burns."

Division investigator Klidy Valderrama interviewed A.P. and A.A. at

Zeke's school. Because Zeke was fatigued and uncommunicative, Valderrama

was unable to interview him at the hospital, but she testified about eighteen

photographs she took of his injuries, including multiple bruises on his body; a

strap-shaped bruise on his back; and second-degree burns above his ankles. The

investigator also interviewed N.S., M.B., O.S., Zeke, Zara, and O.J. According

to N.S., she did not notice any injuries on Zeke's face but suspected P.B. bruised

Zeke's cheek due to ongoing physical altercations between P.B. and B.B.

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During M.B.'s interview at the Essex County Correctional Facility

(ECCF), she told the investigator she was not residing at the home on December

5, 2018 because M.B. was hospitalized after P.B. attacked her. M.B. recalled

seeing N.S. and O.S. hit Zeke and Zara, and O.S. using a belt on numerous

occasions. N.S. was present during some of the whippings but did not intervene.

M.B. stated that on one occasion, O.S. struck Zeke with a belt and drew blood.

Valderrama interviewed then four-year-old A.J. at the hospital. A.J. stated

Zeke was hospitalized because N.S. and O.S. make Zeke "bleed until they die,"

and added N.S. and O.S. hit Zeke and Zara. During his December 5, 2018

interview, A.J. also told Valderrama that P.B. poured a pot of hot water on Zeke

in the bathtub, and P.B. hit Zeke and Zara with a belt.

O.S. was interviewed by Valderrama at the ECCF. He claimed he had

been incarcerated since November 30, 2018. O.S. noticed a bruise on Zeke's

cheek prior to his incarceration and mentioned it to N.S. O.S. also stated that

P.B. hung M.B. out of a window and physically attacked M.B. and B.B.

According to O.S., he never physically abused Zeke or Zara.

Three-year-old T.B. was interviewed at the hospital by Valderrama on

December 5, 2018, and claimed she saw P.B. and M.B. put Zeke in hot water

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because he misbehaved; saw P.B. punch and kick Zeke and Zara; and P.B. and

B.B. "whooping" them. T.B. also said P.G. hits Zeke and Zara with a brush.

Seven-year-old J.B. was interviewed at the hospital by Valderrama. He

noticed Zeke's burns in the morning the day prior. The next day, December 6,

2018, Valderrama interviewed J.B. again who claimed Zeke's burns were caused

by J.B. accidently pushing him onto the radiator and his siblings were lying

about the pot of water being poured on Zeke. However, J.B. stated N.S. and

O.S. slap Zeke and Zara, whoop them with a belt, and confirmed O.S. drew

blood when he whooped Zeke and T.B. exited the room with blood on her face

that was not hers.

Forensic Interview Specialist Karen Zambrano Casey conducted forensic

video interviews (FVI) of Zeke, Zara, and A.J. A.J. reiterated his story that the

previous night P.B. and M.B. poured hot water from a pot on Zeke while he was

in the bathtub because sometimes he's bad and "pees" on himself. Zeke tried to

get out of the bathtub, but P.B. and M.B. pushed him back down and instructed

A.J. to get a belt and used it to "whoop[]" Zeke. N.S. was asleep in another

room when this occurred. On another occasion, P.B. gave A.J. "a chance to hit"

Zeke, and P.B. helped T.B. whoop Zeke because she doesn't hit very hard. O.S.

and M.B. also whooped Zeke with a belt according to A.J.

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On December 5, 2018, Zara told Zambrano Casey that Zeke gets in trouble

when he urinates on himself, and she has to give him a butt-whooping, which

P.B. taught her how to do. Zara claimed one time P.B. whooped Zeke with a

belt, as did Zara. On another occasion, Zara explained that T.B. and everybody

pushed Zeke and whooped him with their hands because "he peed on himself."

Zeke told Zambrano Casey that O.S. whoops him with a belt on his back,

fingers, and "tun tun," and added "everybody" whoops him, including N.S.,

M.B., and P.B. During the interview, Zeke showed Zambrano Casey the "boo-

boos" on his ankles and feet, which he described felt "bad" after P.B. put hot

water on him in the bathtub. At the conclusion of the interview, Zeke spat on

Zambrano Casey, swung his arms and hit her, saying he was "mad."

On December 6, 2018, Detective Casey McCabe of the Essex County

Prosecutor's Office conducted an FVI of J.B. He confirmed seeing blood on the

belt O.S. used to whoop Zeke and Zara and O.S. threatening Zeke and Zara with

"body shots," although J.B. did not describe what that term meant. J.B. also

stated that N.S. and O.S. "take it to the next level," "[t]hey don't even talk to

their kids before they whoop them . . . or give them a second chance."

On December 7, 2018, Zeke underwent a medical evaluation by Dr.

Monica Weiner, the Medical Director of Metro Regional Diagnostic and

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Treatment Center. In addition to her examination, Dr. Weiner observed Zeke's

FVI, reviewed his records from University Hospital, and the photographs of his

injuries. Zeke told Dr. Weiner "[d]addy" had burned him with a cigarette, and

that hot water burned his feet. Dr. Weiner concluded "[t]his burn pattern is

consistent with [the children's] statements that hot water was poured on [Zeke]."

In addition, Dr. Weiner identified "several round hyper[-]pigmented

lesions approximately 7-8 mm in diameter on [Zeke's] right lower arm and his

left lower leg." She opined that these marks were consistent with past cigarette

burns and noted:

multiple bruises and patterned marks on his torso,
including his suprapubic area and penis, and his sides.
There were several looping or curved marks, indicating
impact with a looped or curved object. . . . There were
patterned marks on his suprapubic area and his left
lower abdomen. There was extensive bruising on his
right lower abdomen and on [December 5, 2018], the
glans of his penis was red and swollen. These lesions
are consistent with the reports that [Zeke] was hit with
a belt and also punched and kicked. There were also
extensive bruises on his back, which could be
consistent either with impact from a belt or . . .
punching or kicking.

There were also several bruises on his face, including
one under his right eye which appeared to have a pattern
of a circular shape crossed by a line. . . . There was also
a small contusion on his inner right upper lip. All of
these could be consistent with impact with a belt or
hand or foot.

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Dr. Weiner commented Zeke's injuries were "too numerous to count" and

that he endured "ongoing physical abuse." She added that making Zeke "the

target of most of the physical abuse is also emotional abuse" and "[e]xposing

the other children in the home to [Zeke's] physical abuse . . . and encouraging

them to abuse [Zeke] themselves is emotional abuse of the other children."

Finally, Dr. Weiner noted that during her examination, Zeke displayed severe

mood swings and transitioned frequently from being cooperative and playful to

becoming combative. His behavior included swearing, spitting, and trying to

bite the adults in the room, which Dr. Weiner opined could be attributable to

emotional abuse.

As a result of this investigation, on December 7, 2018, the Division filed

a complaint under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 against N.S. and

R.D. for custody of Zeke and Zara. N.S. was present at the hearing and

represented by counsel. The judge determined that an emergency Dodd 3

removal of all of the children from the home was appropriate. At the

3
A "Dodd removal" refers to the emergency removal of a child from the home
without a court order as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82.

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prosecutor's request, N.S.'s visitation with Zeke and Zara was suspended

pending completion of the criminal investigation into the matter. 4

On December 13, 2018, Dr. Shaina Groisberg, a pediatrician specializing

in child abuse, evaluated Zara, who reported P.B. "put hot water on my baby

brother." Zara also mentioned that O.S. and P.B. gave her butt-whoopings. She

stated, "I'm not going to that house no more. Because I don't want to, I don't

like it." Dr. Groisberg observed a 7 mm circular hyper-pigmented mark on the

back of Zara's right shoulder consistent with a past cigarette burn . The expert

concluded Zara had been the subject of emotional abuse due to her persistent

exposure to violence in the home.

On January 19, 2019, Dr. Groisberg evaluated A.J. He admitted that P.B.,

his mother, poured hot water on Zeke because he urinated in the bathtub. Dr.

Groisberg concluded A.J. was coached by his mother and feared her. As with

Zara, Dr. Groisberg concluded A.J. was also the subject of emotional abuse in

light of his exposure to violence in the home and the encouragement he received

to inflict pain on the other children residing there. Dr. Groisberg added that

being encouraged to participate in the infliction of harm could lead to a lasting

4
The record does not mention the outcome of the criminal investigation.

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10
impact on the children's "interpersonal relationships, behavior problem[s,] and

aggression[,] . . . depression, anxiety[,] and post-traumatic stress disorder."

On May 7, 2019, the Division concluded its investigation and found the

allegations of abuse and neglect were substantiated for all of the adults living in

the home. The Family Part conducted a fact-finding hearing over a period of six

nonsequential days. The judge heard fact testimony from Valderrama and A.P.

Dr. Weiner and Dr. Groisberg were called as expert witnesses in the field of

pediatrics with a sub-specialty in pediatric child abuse. N.S. was incarcerated

at the time of the hearings, but attended on May 22 and 23, and waived her

appearance on May 28. She did not testify and neither did R.D. The Law

Guardian did not call any witnesses.

At the conclusion of the hearing, the judge found, by a preponderance of

the credible evidence, that N.S. abused and neglected Zeke and Zara in violation

of N.J.S.A. 9:6-8.21(c)(1), (2), and (4)(b). The judge found N.S. physically

abused Zeke and Zara, and emotionally abused all of the children in the home

by allowing the violence to continue in their presence. In reaching her decision,

the judge emphasized "[i]t is inconceivable that the adults living in the home

were unaware of the abuse." The judge found "that the children's out[-]of

[-]court statements were corroborated by physical and testimonial evidence."

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She highlighted the fact that "all of the verbal children indicated that there was

ongoing violence in the home," and Zeke "suffered emotional abuse as the 'target

child.'" In conclusion, the judge found "[a]ll the adults in the home failed to

protect the children." This appeal ensued.

On appeal, N.S. challenges the sufficiency of the evidence supporting the

judge's findings and argues: (1) the judge's conclusion the children were

emotionally abused is grounded on expert testimony that is untethered to any

accepted or reliable foundation; (2) the judge deprived N.S. of due process by

sua sponte shifting the burden of proof to her to demonstrate her lack of

involvement in the alleged negligent and abusive conduct; and (3) the judge

erred by admitting recordings of the children's FVI's because the recordings

were not properly authenticated. For the reasons that follow, we disagree and

affirm.

II.

Our review of a trial court's finding of abuse or neglect is guided by well -

established principles. "[W]e accord substantial deference and 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 Child Prot. & Permanency v.

N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth &

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Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014)). "Indeed, we recognize that

'[b]ecause of the family courts' special jurisdiction and expertise in family

matters, [we] should accord deference to family court factfinding.'" N.J. Div.

of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (first alteration in

original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

However, "if the trial court's conclusions are 'clearly mistaken or wide of

the mark[,]' an appellate court must intervene to ensure the fairness of the

proceeding." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 227-228

(2010) (alteration in original) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P.,

196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal

conclusions, which we review de novo. N.J. Div. of Youth & Fam. Servs. v.

A.B., 231 N.J. 354, 369 (2017).

"The Division bears the burden of proof at a fact-finding hearing and must

prove . . . harm . . . by a preponderance of the evidence." N.J. Dep't. of Child.

& Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013) (citing

N.J.S.A. 9:6-8.46(b)). The Division must sustain that burden "through the

admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth

& Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)).

In making a determination of abuse and neglect, the trial court should base its

A-3821-19
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decision on the totality of the circumstances. N.J. Div. of Youth & Fam. Servs.

v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). In light of the standards,

we find no basis to disturb the judge's findings of fact, and those findings support

her legal conclusion.

As defined in Title 9, "abuse or neglect" may occur when a child's

"physical, mental, or emotional condition has been impaired . . . as a result of"

a parent who fails 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." N.J.S.A. 9:6-8.21(c)(4)(b). A parent or

guardian may fail to exercise the minimum degree of care if "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." G.S. v. Dep't of Hum.

Servs., 157 N.J. 161, 181 (1999) (citation omitted). The Division must prove its

allegations by a preponderance of the evidence at a fact-finding hearing.

N.J.S.A. 9:6-8.46(b)(1).

Parental rights include the right to take reasonable measures in

disciplining a child, including corporal punishment. N.J. Dep't of Child &

Fams., Div. of Youth & Fam. Servs. v. K.A., 413 N.J. Super. 504, 510 (App.

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14 Div. 2010) (citing State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002)).

"A determination of abuse must be shown by a preponderance of the evidence

during a fact-finding hearing." Ibid.

"[P]revious statements made by the child relating to any allegations of

abuse or neglect" are admissible, and not considered hearsay, as long as they are

not the sole basis for the court's finding of abuse or neglect. N.J.S.A. 9:6- -

8.46(a)(4). Proof of any injuries sustained by the child that are "of such a nature

as would ordinarily not . . . exist except by reason of the acts or omissions of the

parent or guardian" is prima facie evidence of abuse or neglect. N.J.S.A. 9:6- -

8.46(a)(2).

"Excessive corporal punishment" is not defined by statute but is

determined on a case-by-case basis. K.A., 413 N.J. Super. at 510. In K.A., we

noted "excessive corporal punishment" should be read in light of the term's

common usage and understood meaning. Id. at 511. While the boundaries of

what constitutes "excessive corporal punishment" are undefined in the statute,

we have placed particular weight on the statute's inclusion of the word

"excessive" and have stated that "[t]he term 'excessive' means going beyond

what is proper or reasonable." Ibid. Thus, while "moderate correction" may be

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reasonable, "a single incident of violence against a child may be sufficient to

constitute excessive corporal punishment." Id. at 510, 511.

Excessive corporal punishment may occur when "the child suffers a

fracture of a limb, or a serious laceration, or any other event where medical

intervention proves to be necessary . . . provided that the parent or caregiver

could have foreseen, under all of the attendant circumstances, that such harm

could result from the punishment inflicted." Id. at 511 (citation omitted). The

administrative code provides further guidance, listing injuries that may

constitute abuse or neglect, including "[c]uts, bruises, abrasions, welts or oral

injuries." N.J.A.C. 10:129-2.2(a)(9).

We noted that certain types of injuries inflicted by a parent or guardian

may be considered per se excessive corporal punishment:

A situation where the child suffers a fracture of a limb,
or a serious laceration, or any other event where
medical intervention proves to be necessary, may be
sufficient to sustain a finding of excessive corporal
punishment, provided that the parent or caregiver could
have foreseen, under all of the attendant circumstances,
that such harm could result from the punishment
inflicted.

[K.A., 413 N.J. Super. at 511.]

In K.A., we concluded that the defendant mother, who punched her eight-

year-old autistic child approximately four to five times in the shoulder after the

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child failed to follow directions, had not inflicted excessive corporal

punishment. Id. at 506, 512. We particularly noted that the defendant's actions

were isolated and occurred during "the trying circumstances which [the

defendant] was undergoing due to [the child's] psychological disorder." Ibid.

Finally, the defendant showed remorse and took responsibility for her actions.

Ibid. We also emphasized that

[the defendant] was alone, without support from either
her spouse/co-parent or from other members of her
extended family, such as an experienced mother or
aunt. Out of sheer frustration, or through an ill-advised
impulse, she struck her child five times. These blows,
though undoubtedly painful, did not cause the child any
permanent harm, did not require medical intervention
of any kind, and were not part of a pattern of abuse.

[Ibid.]

In this matter, the record convincingly established by a preponderance of

the evidence that N.S. abused and neglected Zeke and Zara. We note N.S. did

not object to the experts' testimony that exposure to violence and abuse causes

emotional and psychological harm. For example, Dr. Groisberg testified,

without challenge, "it's well-established in the medical and psychiatric

communities" that exposure to violence causes psychological harm to a child.

Moreover, Dr. Weiner opined that the behavior exhibited by Zeke demonstrated

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emotional and psychological harm attributable to the physical abuse and

exposure to violence he endured.

These expert opinions did not constitute "inadmissible ultimate-issue

pronouncements," and we reject N.S.'s argument on this point. And, the record

contains ample evidence Zeke and Zara were physically abused by N.S. and that

she encouraged other adults in the household to physically abuse the children.

The expert testimony, in addition to the testimony of Valderrama and A.P.,

established a pattern of corporal punishment and exposure to violence in N.S.'s

household. We are unpersuaded by N.S.'s argument, and we will not interfere

with the judge's finding of abuse and neglect. See N.J. Div. of Youth & Fam.

Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001).

III.

We also reject N.S.'s contention that the judge improvidently shifted the

burden of proof to her in violation of her constitutional due process rights. The

judge expressly found the Division sustained its burden of proof. In

summarizing the evidence in the record, the judge emphasized "the defendants

presented no expert testimony to dispute the findings of the doctors that

examined [Zeke] and determined that his injuries were consistent with child

abuse." Moreover, the judge found the photographs taken by the Division and

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Dr. Weiner "depict the extent and gruesome nature of the injuries sustained by

[Zeke] at the hands of the people who cared for him."

The judge's reference to the lack of evidence presented by N.S. and the

other defendants constitutes nothing more than a recognition that the Division's

evidence, which the judge found established N.S. abused and neglected the

children, was not refuted. Further, the judge placed significant weight on Dr.

Weiner's and Dr. Groisberg's expert testimony. Accordingly, the judge did not

shift the burden of proof to N.S., but rather appropriately found the Division

satisfied its burden by a preponderance of the evidence.

IV.

Finally, for the first time on appeal, N.S. argues that the FVIs were not

properly authenticated at the hearing. Where a defendant raises an argument on

appeal that was not previously raised below, we review the argument under the

plain error standard. State v. Robinson, 200 N.J. 1, 20 (2009) (discussing

application of Rule 2:10-2). Under the plain error standard, any errors or

omissions should be disregarded "unless it is of such a nature as to have been

clearly capable of producing an unjust result." R. 2:10-2. "Plain error is a high

bar . . . ." State v. Santamaria, 236 N.J. 390, 404 (2019).

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19
"The 'high standard' used in plain error analysis 'provides a strong

incentive for counsel to interpose a timely objection, enabling the trial court to

forestall or correct a potential error.'" Ibid. (quoting State v. Bueso, 225 N.J.
193, 203 (2016)). Where a defendant raises a new issue on appeal, he or she

"bears the burden of establishing that the trial court's actions constituted plain

error." Id. at 404-05 (quoting State v. Ross, 229 N.J. 389, 407 (2017)). Under

the plain error standard, "[t]he mere possibility of error is insufficient for

reversal." N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J. Super. 593, 622

(App. Div. 2010). In this light, N.S.'s argument lacks sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

We note that N.S. did not object to the admission of the FVI recordings at

the hearing on the basis of lack of authentication. To the contrary, the record

reflects that N.S.'s counsel asked questions related to the authentication of the

recordings but then acquiesced to their admission into evidence. Therefore, we

discern no error, let alone plain error, warranting reversal on the authentication

issue.

Here, the record contains sufficient evidence for the judge to find N.S.

abused and neglected Zeke and Zara, and that they suffered emotional harm by

directly witnessing physical and psychological abuse as defined by Title 9.

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Affirmed.

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