Opinion
DOCKET NO. A-2876-12T1
01-16-2015
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. R.W., Defendant-Appellant. IN THE MATTER OF N.J.I. and N.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Shepard Kays, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0453-11. Joseph E. Krakora, Public Defender, attorney for appellant (Shepard Kays, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant R.W. appeals from a September 2, 2011 Family Part order determining that she abused and neglected her daughter by inflicting excessive corporal punishment within the meaning of N.J.S.A. 9:6-8.21c(4)(b). Having reviewed the record, we conclude that the judge's fact-finding decision was supported by substantial credible evidence and is consistent with the applicable law. Therefore, we affirm.
A January 8, 2013 order terminated litigation, making this case ripe for appeal.
I.
Defendant is the mother of N.J.I. ("Nancy"), born in 2001, and N.W. ("Nathan"), born in 2004. On April 11, 2011, the Division of Child Protection and Permanency ("the Division") received an anonymous referral alleging that defendant beat Nancy with a belt, leaving "bruises all over her body, mostly on the arms." A Division caseworker interviewed Nancy that same day, and the child informed the caseworker that defendant hit her with two belts, using one belt at a time, after defendant discovered Nancy was texting a boy. Nancy further disclosed that defendant also disciplined Nathan, using a belt or a hockey stick, and that this discipline occurred two to three times per week. The caseworker also questioned defendant, who admitted that, after discovering her daughter's text messages from an older boy, "Yes, I beat her." On that same day, the Division conducted a Dodd emergency removal of both children.
We use pseudonyms for the children for ease of reference.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citation and internal quotation marks omitted).
A fact-finding hearing was held before the Family Part judge on September 2, 2011. Without objection, the Division moved into evidence two exhibits, a Division screening summary, which contained the interviews of defendant and her children as completed by the caseworker, and a pre-placement assessment, which documented five areas of significant bruising and red marks on Nancy's arm, legs, and head, on the day she was removed from defendant's custody. Defendant did not testify but her counsel argued that the events that lead to the removal of the children was "an isolated incident." The judge rejected this argument and entered an order finding, by a preponderance of the evidence, that defendant abused or neglected Nancy "in that she beat the child, [Nancy] with a belt [and] hockey stick on a regular basis which constitutes excessive corporal punishment." The judge summarized the evidence as follows:
The evidence includes a narrative by the child, [Nancy], who stated that she was beaten by her mother, because [defendant] was unhappy with [Nancy] texting . . . this boy. . . . [B]eing unhappy about something like that does not justify severely beating the child.
The evidence shows that [Nancy] was beaten with two belts, one at a time, however; that her . . . brother is disciplined the same way, by being beaten with a belt; . . . that she is sometimes disciplined in that [manner] two to three times a week; that she is afraid of her mother and told the [Division] worker she [did not] want to go home, because she was fearful of further beatings. [Defendant] never used her hands, but either used a belt or a hockey stick.
While the Division was called for this one . . . incident, I'm satisfied, at least by a preponderance of the evidence, that these beatings occurred previously and on a fairly regular basis. I, therefore, find that the act in question constituted abuse and neglect . . . of a Title 9 nature.
On December 13, 2011, the children were reunited with defendant, under the condition that defendant complete counseling. However, an order to show cause ("OTSC") hearing was held in April 2012 following additional allegations that defendant beat Nathan using a broomstick, a belt, and a spatula. The children initially denied these allegations when questioned by the Division investigator, but explained later that "they were scared to tell."
During this April 2012 hearing, the children's Law Guardian stated to the court that the children "asked to be removed." The Law Guardian was subsequently sworn in as a witness, testifying that all the information she provided the court during the hearing was true. At the conclusion of the OTSC hearing, the judge found the Division had presented sufficient evidence of abuse to warrant removal of the children, and approved of the placement of the children with their grandmother. On July 10, 2012, a fact-finding hearing was held and the judge granted the Division's request to convert the matter from a Title 9 case to Title 30 proceeding, and defendant stipulated to being a family in need of services under Title 30.
Because the Law Guardian had provided testimony during the hearing, counsel for defendant requested the appointment of a new Law Guardian for the children, which was accomplished by the time of the next court hearing, one month later.
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On November 1, 2012, the court entered an order returning legal and physical custody of Nancy and Nathan to defendant and requiring defendant to comply with Division-provided services. On January 8, 2013, the case was dismissed. On February 21, 2013, defendant timely appealed only from the September 2, 2011 fact-finding order.
On appeal, defendant argues that (1) there was insufficient credible evidence to support the trial court's finding that she physically abused her children; (2) the judge denied her the right to cross-examine a Division investigator; and (3) the judge improperly allowed the Law Guardian to testify and admitted the Law Guardian's testimony despite it constituting hearsay.
Based upon our review of the record, we find defendant's arguments are not supported by the evidence, are without merit, and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons stated in the trial judge's oral opinion. We add the following comments.
II.
Our review of the Family Part's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). While we review the trial court's legal conclusions de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we owe a special deference to its fact finding because of its expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Title 9 provides that "abuse or neglect" may occur when a child's "physical, mental, or emotional condition has been impaired . . . as the result of" a parent's failure "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. 9:6-8.21c(4)(b). The statute leaves the term "excessive" undefined, however, we have stated that the term means "going beyond what is proper or reasonable." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011).
Even though "moderate correction" may be reasonable, "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment." Id. at 510-11 (citation and internal quotation marks omitted). 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; see also N.J.A.C. 10:129-2.2(a)9 (listing "[c]uts, bruises, abrasions, welts or oral injuries" as potentially constituting abuse or neglect). The Division must establish allegations of abuse or neglect by a preponderance of the evidence at a fact-finding hearing, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
Here, the judge relied on two Division records when concluding that defendant physically abused Nancy, which reflected that defendant used belts or a hockey stick to beat her at least two or three times per week. Defendant did not object to the admissibility of these records, nor does she raise an objection to these documents on appeal. Moreover, defendant admitted that "Yes, I beat [Nancy]." We conclude the record supports the judge's finding of excessive corporal punishment and that this was more than an isolated incident, as the beatings occurred "on a fairly regular basis." Compare N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011) (finding a stepmother slapping a teenager's face, leaving no marks or bruises, failed to constitute excessive corporal punishment), with Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010) (finding it was "completely unreasonable" for a defendant to hit her child multiple times for telling neighbors that their home had no electricity), certif. denied, 207 N.J. 188 (2011).
Because defendant only appeals from the September 2, 2011 order, we do not consider defendant's arguments pertaining to the Law Guardian, which are related to a subsequent hearing that occurred in April 2012, and have no bearing on the court's September 2, 2011 findings. Similarly, defendant's contention that she was unable to cross-examine a witness is irrelevant to this appeal, as no witnesses were presented at the September 2, 2011 fact-finding hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION