Opinion
DOCKET NO. A-3234-13T1
01-21-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.M., Defendant-Appellant. IN THE MATTER OF Q.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James J. Gross, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-246-14. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James J. Gross, Designated Counsel, on the brief).
The opinion of the court was delivered by ROTHSTADT, J.A.D.
In this Title Nine "abuse and neglect" action, see N.J.S.A. 9:6-8.21 to -8.73, filed by plaintiff New Jersey Division of Child Protection and Permanency (Division), defendant A.M. (Anna) appeals from the Family Part's fact-finding order, which stated that she abused her child, seventeen-year-old Q.M. (Quira), by striking her with a broomstick and causing injury. On appeal, Anna argues "there was insufficient evidence before the court to prove that [she] abused or neglected her daughter." She further contends the court's "finding of abuse and neglect against [her] was improper because [she] presented no imminent risk of harm to" Quira. The Division disagrees and asserts the court's decision was amply supported by evidence of "excessive corporal punishment." The child's Law Guardian agrees with the Division, arguing that the court's decision was "supported by substantial and credible evidence . . . that [Anna's] use of excessive corporal punishment caused excessive injury to" Quira.
We employ fictitious names to protect the family's privacy.
We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.
The salient facts giving rise to this action indicate that on September 19, 2013, the Division responded to a referral from a hospital where Quira was receiving treatment for bruises and welts on her upper arm and thigh. Quira reported to the Division's representative and police that her mother beat her with a broomstick and pipe after becoming angry with her over a missing cell phone or iPad.
Anna admitted to hitting Quira with a broom, but denied using a pipe. According to Anna, Quira had a propensity to steal, and was misbehaving in school, which the school confirmed. In fact, at the time of the incident, Quira was suspended for bullying.
The police arrested Anna and the Division filed a complaint for care, custody, and supervision of Quira and her sibling. The court awarded the Division custody and care of Quira and her sibling, although it returned custody of the sibling to Anna shortly thereafter. Quira remained in the Division's custody until December 2013, when custody was returned to Anna after she completed various services offered by the Division. However, Quira remained under the care and supervision of the Division until she turned eighteen and had been living at home with her mother without any additional incident.
The Family Part held a fact-finding hearing on January 15, 2014. Prior to the hearing, but after Quira was returned to her mother's custody, the court conducted an in camera interview of Quira about the events surrounding her injuries and the Division's commencement of the action. During her discussion with the judge, Quira changed her version of events, stating that she sustained her injuries at the hands of her boyfriend rather than her mother. In addition, she claimed she hurt herself while running out of her house to avoid Anna's questions regarding an iPad that Quira admittedly had taken without permission. Quira also stated she did not want her mother to get into trouble for anything that happened.
The court is required to conduct a fact-finding hearing, at which the Division must prove by a preponderance of the evidence that the subject child is being abused or neglected. See N.J.S.A. 9:6-8.44. --------
At the hearing, the Division relied on documentary evidence, admitted without objection, consisting of Division reports and police records concerning the incident that occurred between Anna and her daughter. Additionally, photographs of Quira were presented that depicted the injuries she sustained.
Based on the court's assessment of the documents and the child's in camera testimony, it concluded that Anna abused and neglected Quira because Anna indisputably caused injury to Quira by striking her with a broomstick after confronting her about a missing cell phone or iPad. The judge found that despite the child recanting her earlier account of the events in order to protect her mother, both she and Anna initially confirmed to the police and the Division that Anna struck Quira with a broomstick. After determining that Quira was "absolutely lying" during the in camera interview, the judge found the consistencies in their original statements supported a finding that Anna used a broomstick to hit Quira. As the judge stated: "Clearly, the Mother attacked this child with a weapon, and intended on injuring the child. And the child was indeed injured."
Accordingly, the court entered an order finding Anna abused and neglected Quira. This appeal followed.
Applying our limited scope of review of the Family Part's decisions, and the deference to which its factual determinations are entitled based on its expertise in these matters, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we conclude Anna's arguments are without merit. The court determined that Quira was an abused and neglected child, N.J.S.A. 9.6-8.21(c), and its finding was supported by adequate, substantial, and credible evidence in the record, see Cesare, supra, 154 N.J. at 411-12, primarily through Anna's admissions and the photographs of Quira's injuries. The evidence established that, in the context of an argument over a missing electronic device, Anna employed impermissible, excessive corporal punishment.
A child is considered abused and neglected when "a parent or guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and . . . recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). Failure to exercise a minimum degree of care includes "the infliction of excessive corporal punishment." N.J.S.A. 9:6-8.21(c)(4). "Corporal punishment" is not prohibited, but Title Nine does prohibit "excessive corporal punishment," which is not defined by the statute. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011).
Our case law has come to define "excessive" as "beyond what is proper or reasonable." Id. at 511. Punishment will be considered excessive where a parent's intentional act exposes a child to the substantial probability that injury would result from the parent's conduct. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010).
As we recently observed:
[E]xcessive corporal punishment was found where a mother used a belt to hit her six-
year-old son and left visible welts. N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 340 [(App. Div.), certif. denied, 192 N.J. 296 (2007)]. Similarly, a mother inflicted excessive corporal punishment by beating her daughter with a paddle in the face, arms, and legs. N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 476 [(App. Div. 2010), certif. denied, 207 N.J. 188 (2011)]. In both B.H. and C.H., our conclusions were based on the 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. See B.H., supra, 391 N.J. Super. at 338-40; C.H., supra, 414 N.J. Super. at 481.See also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011) (finding that "[a] slap of the face of a teenager as a form of discipline — with no resulting bruising or marks — does not constitute excessive corporal punishment" (internal quotation marks omitted)).
[N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 146-47 (App. Div.), certif. denied, 222 N.J. 16 (2015).]
Applying these principles, we concur with the Family Part judge that striking a child with a broomstick, pipe, or similar weapon — even once — causing bruises or welts, in response to a verbal altercation over a missing electronic device or any similar prompting, is excessive corporal punishment supporting a finding of abuse and neglect. Any arguments to the contrary by Anna are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION