Opinion
DOCKET NO. A-0253-13T3
12-12-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.H., Defendant-Appellant. IN THE MATTER OF K.W., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.W. (Caitlin A. McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0609-12. Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Maynard, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.W. (Caitlin A. McLaughlin, Designated Counsel, on the brief). PER CURIAM
Following a fact-finding hearing held pursuant to N.J.S.A. 9:6-8.44, the Family Part judge entered an order on September 13, 2012, memorializing her conclusion that defendant A.H. had abused fourteen-year old, K.W. ("Ken"), the biological grandson of defendant's fiancée, S.W. ("Stan"). Specifically, the judge found that defendant "exercised excessive corporal punishment by using a belt to discipline [Ken] leaving marks on the child." After a series of compliance reviews over the next several months, plaintiff, the Division of Child Protection and Permanency ("the Division"), moved to dismiss the complaint. On August 2, 2013, the Family Part entered an order terminating the litigation.
We use initials and pseudonyms to protect the identity of those involved.
Defendant now appeals from the fact-finding order, arguing that the Division failed to prove by a preponderance of the evidence that she abused Ken, and that the judge erred in concluding that any corporal punishment she did use was "excessive" pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). The Law Guardian agrees, arguing that the Division failed to prove defendant abused Ken. The Division counters, contending that the judge's factual findings and legal conclusions were supported by substantial credible evidence and should not be disturbed.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
I.
On May 18, 2012, the Division received a referral from Ken's school nurse, to whom the child had initially reported being purposely burned with an iron by defendant. That same day, the Division conducted an emergency removal and placed Ken with a resource parent. At the time of the fact-finding hearing in September, Ken had already returned home to the custody of defendant and Stan, after having been placed in two foster homes during the prior four months and having had both foster parents request that the Division remove Ken from their care because of his behavior.
Although Stan was named as a defendant in the complaint, the Division only sought a finding of abuse against defendant.
Caseworker Latisha Harvey was the sole witness called by the Division at the fact-finding hearing; the Division's "Investigation Summary" was also admitted into evidence. Harvey visited defendant and Ken at home on May 18. Harvey explained to defendant Ken's allegations that she had burned him the day before. Defendant vehemently denied that but candidly admitted that she "tore [Ken's] butt up" with a belt. Defendant said Ken had tried to block the belt's blows with his arms, resulting in scattered bruises on his forearms. Defendant admitted that she "physically discipline[d]" Ken in the past, and that Stan was aware of it.
Photographs were introduced at the hearing, but they are not part of the appellate record.
Harvey learned that Stan had legal custody of Ken since his mother died when he was five years old. Defendant moved into the home in 2009. The Division had substantiated prior reports of abuse against Stan, but there were no prior referrals of any kind against defendant.
Ken's behavioral problems led to suspensions at school, and he was not going to graduate from the eighth grade. He admitted to Harvey that he had been stealing things since he was in first grade. Defendant and Stan had enrolled Ken in many programs for at-risk youth, but Ken's behavioral problems continued. Because of Ken's poor academic performance, defendant and Stan also sought to enroll him in Hampton Academy, a more structured, private day school for children with mental health or special education needs. The school authorities told Harvey that when asked to come to school to address Ken's behavior, defendant always responded, but was "often very harsh" with the child.
Ken told Harvey that he was most recently physically disciplined four months earlier. He denied being "afraid of anyone in the home," and he felt "well cared for overall." Defendant would take away Ken's possessions, such as his videogames and television, as a tactic to curb his bad behaviors. At the time of the incident, only a bed and dresser were in Ken's bedroom.
Harvey testified that "[defendant] did appear to care for [Ken] a lot." Harvey did not feel that the child was in any immediate danger, but her superior made the decision to remove Ken from the home. Ken was taken for a pre-placement physical that revealed no other signs of physical abuse.
At the fact-finding hearing, defendant explained how the incident happened. She had caught Ken "plundering" her dresser drawer looking for a videogame console she had confiscated as punishment. Defendant verbally chastised him and then tried to calm down by walking the dog. When she returned home, defendant found Ken looking through her dresser drawers again, and "it just got out of hand." Defendant expressed her concerns:
[Ken is] an Afro-American fourteen-year-old young man. He's having problems in school. I don't want him to go down the wrong path. I don't want him to walk in the school door
and walk out the other door because when he struggles with education and learning[,] that's when his behavior acts up and he doesn't want to be there. I don't want to see him on another floor in this building, . . . have him . . . incarcerated.
Stan testified at the hearing and expressed his support for defendant. He claimed that Ken frequently called the Division himself to report allegations of abuse, and, that, on most occasions, after investigation, the referrals were unsubstantiated.
In her oral opinion that followed the hearing, the judge found that defendant intended to hit Ken in the buttocks with the belt, but it was unclear if in fact she ever struck him there. Ken's forearms were never burned but rather were bruised when he attempted to block the blows. The judge noted that "[t]he bruising did not . . . require any medical attention or follow-up," and it was "not clear . . . that the nurse would have [applied cream] if she had realized that there were not in fact any burns." Nevertheless, Ken experienced "soreness and discomfort" that resulted in his trip to the nurse.
The judge also found that defendant and Stan "[had] made substantial efforts over time to . . . control [Ken's] difficult and challenging behavior." She found that Ken stole things without remorse and was doing poorly in school. The judge accepted defendant's testimony that she became frustrated with Ken's behavior on the day in question and left the house to walk the dog and cool off, only to find Ken searching her dresser again. The judge also determined that defendant's use of a belt was "an isolated incident."
Nonetheless, the judge reasoned:
[I]n evaluating . . . the circumstances of the child in relation to his psychological disorder, I find that he is a difficult child to deal with but I find that under the circumstances the use of the belt constituted excessive corporal punishment. I do not find that the use of a belt is, per se, excessive corporal punishment. I don't think that I need to reach that issue. There might be circumstances where it would be, but here I consider the use of a belt to be excessive corporal punishment because the circumstances were not so severe as to have justified such an extreme method of punishment.
I therefore find that the use of the belt . . . did constitute excessive corporal punishment. And in making that finding I believe that [defendant] is overall very well intentioned with regard to [Ken]. But this particular situation did get out of hand and did constitute excessive corporal punishment. I think that it would have been possible to walk away from the situation even when she found him rummaging through her drawer a second time, wait until [Stan] got home that night, and together devise a method of dealing with the situation. I think that under the circumstances striking the child with the belt, which resulted in roughly four-inch long red marks about an inch wide to each of his arms, although she did not hit him on the arm, it was foreseeable that he would try to protect
himself in some way and that's how his arms sustained the bruises.The judge entered the order under review.
II.
It is well recognized that appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it 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. 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)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quotations omitted). And, when the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011). Such is the case here.
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (citations omitted). "The purpose animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" Ibid. (quoting N.J.S.A. 9:6-8.8). "[T]he legislative history of Title 9, precedent and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." M.C. III, supra, 201 N.J. at 344 (second alteration in original) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)). "Title 9's primary concern is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J. at 177.
In pertinent part, Title Nine defines an "'abused' or 'neglected child'" as one under the age of 18 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 . . . 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) (emphasis added). At the fact-finding hearing, the Division was required to prove by a preponderance of the evidence that defendant abused Ken within the statutory definition. A.R., supra, 419 N.J. Super. at 543. "Whether a child is 'abused or neglected' is quite frequently 'fact sensitive.'" Id. at 544 (quoting P.W.R., supra, 205 N.J. at 33).
The statute does not forbid the use of all corporal punishment, only "excessive" corporal punishment. Thus, the Court has held that "occasional discipline does not fit a common sense application of the statutory prohibition against 'excessive' corporal punishment." P.W.R., supra, 205 N.J. at 35. See also N.J. Div. of Youth and Family Servs. v. H.P., 424 N.J. Super. 210, 228 (App. Div. 2011) (holding "corporal punishment" that is not excessive "does not constitute abuse or neglect"). Recently, our courts have wrestled with the meaning of "excessive corporal punishment" in the context of a parent or guardian who disciplines a child with challenging behavioral problems.
Once such decision, upon which defendant relied at trial and cites again before us, is New Jersey Division of Youth and Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011). There, the defendant's eight-year-old daughter, who had a "pervasive development[al] disorder and attention deficit disorder" for which she was medicated, became disobedient, causing the defendant to send her to her room. Id. at 505-06. Defiantly, the child left her room several times. Ibid. The defendant became frustrated and punched the child with a closed fist four or five times on the shoulder before sending her back to her room once again. Id. at 506.
When a classroom aide saw multiple bruises on the child's shoulder, the school contacted the Division. Ibid. When interviewed, the defendant admitted to hitting her daughter and explained that she was "very stressed and overwhelmed in caring for [her daughter]." Ibid. An administrative law judge ("ALJ") determined that the defendant had not abused her daughter. Id. at 507. However, the Division rejected the ALJ's findings, stating "the act of repeatedly hitting a child with a closed fist, with sufficient force to leave bruises still visible more than a day later, does certainly qualify as abuse." Id. at 508.
In the absence of reported decisions, we applied "common usage and understanding" to define "excessive corporal punishment." Id. at 511.
The term "excessive" means going beyond what is proper or reasonable. We agree . . . that a single incident of violence against a child may be sufficient to constitute 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.
In this case, however, the force used did not lacerate the child's skin and did not require any type of medical intervention. Bruises, although visible, never exposed [the child] to any further harm if left untreated. Thus, absent evidence showing that the inflicted injury constitutes per se excessive corporal punishment, we must examine the circumstances facing [the defendant] to determine whether striking [the child] five times on the shoulder with a closed fist amounted to excessive corporal punishment.
[Id. at 511-12 (first and second emphasis is added).]
We reversed the finding of abuse. Id. at 513. We held that in such situations, three factors form "the prism through which [the court] determine[s] whether [the] actions were indeed 'excessive.'" Id. at 512. These included "(1) the reasons underlying [the defendant]'s actions; (2) the isolation of the incident; and (3) the trying circumstances which [the defendant] was undergoing due to [her daughter's] psychological disorder." Ibid. We also noted that since the incident, the defendant had accepted full responsibility for her actions, was contrite and complied with services provided by the Division. Ibid.; see also, N.J. Div. of Child Prot. and Perm. v. M.C., 435 N.J. Super. 405, 419 (App. Div. 2014) (noting the relevancy of improvement in conduct and conditions in the home after the incident to a finding of abuse under Title Nine) (citing K.A., supra, 413 N.J. Super. at 512-13).
Our subsequent decision in New Jersey Division of Youth and Family Services v. C.H., 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), demonstrates the fact-sensitive nature of the inquiry in such cases. There, based upon our holding in K.A., we granted the defendant's motion for reconsideration of our earlier decision, New Jersey Division of Youth and Family Services v. C.H., 414 N.J. Super. 472, 483 (App. Div. 2010), in which we affirmed the administrative finding that the defendant had abused her child. C.H., supra, 416 N.J. Super. at 415-16.
Distinguishing the facts from those presented in K.A., we reaffirmed our earlier decision, finding that the defendant had struck her child "multiple times during the underlying incident" and "in multiple locations, including a vulnerable area." Id. at 416. We also noted that the defendant denied responsibility for any of the injuries observed on the child by a school nurse, that the reason the defendant gave for admittedly spanking the child was "completely unreasonable," and that the defendant had engaged in a "'pattern of corporal punishment on . . . a young child.'" Id. at 416-17.
In this case, the judge focused attention on the fact that, unlike the defendant in K.A., defendant struck Ken with a belt. She stated, "[b]y definition the use of a closed fist is not as painful, is not as potentially injurious, is not as psychologically damaging as the use of a belt." We do not necessarily agree that using a belt to discipline a child across the buttocks is "by definition" more painful, more injurious or more psychologically damaging that striking a child repeatedly in the shoulder and upper arm with a closed fist. More importantly, like the child in K.A., Ken suffered minimal bruising which, the judge noted, probably required no medical attention whatsoever.
The judge properly considered the circumstances that provoked defendant's conduct. K.A., supra, 413 N.J. Super. at 512-13. She concluded that Ken's disobedience was not "behavior that should have provoked a reaction as strong as the one here," and that defendant should have exercised other options. However, in K.A., the child's disobedient behavior, leaving her room repeatedly, was less provocative than Ken's repeatedly rummaging through defendant's dresser drawers. Additionally, defendant did exercise other options. After initially warning Ken, she left the house in an effort to calm down, only to return and find the child repeating the invasive behavior. Lastly, as the testimony amply demonstrated, defendant expressed remorse and displayed an abundance of genuine care and concern for Ken before and after the incident in question.
In short, we conclude that the Division failed to prove by a preponderance of credible evidence that defendant abused Ken through the exercise of excessive corporal punishment. We therefore reverse. Defendant's name shall be removed from the Central Registry. N.J. Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66 (App. Div. 2005).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION