A Guardian of a Child Who Did Not Intervene to Stop Severe Corporal Punishment by the Child’s Mother is Guilty of Abuse and Neglect

New Jerseey Division of Child Permanency & Protection v. J.L.G., ___ N.J. Super. ___ (App. Div. 2015), aff’d o.b., ___ N.J. ___ (2017). This abuse and neglect case resulted in a 2-1 split in the Appellate Division. Judge Simonelli, joined by Judge Leone, upheld the ruling of the Family Part that defendant abused a seven-year old girl when he “unreasonably allow[ed] the excessive corporal punishment by the child’s mother,” defendant’s girlfriend. The majority applied the very deferential standard of review that has been applied in abuse and neglect cases.

The relevant statute, N.J.S.A. 9:6-8.21(c)(4)(b), defines an “abused or neglected child,” in part, as one who has been impaired (physically, mentally, or emotionally) or placed in imminent danger of impairment “as a result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care ….” Defendant did not dispute that he was the child’s “guardian.” He lived with the girl, her brother, and her mother, he supported them, his girlfriend (the mother) called defendant her “husband,” and the children called him “dad.”

The mother had the constitutional right to raise her child as she saw fit, but that right did not permit her to beat the girl severely, as she did. Defendant knew it was happening and even warned the mother against doing it. But he did nothing further, and at one point walked into another room, where he could hear the “very, very hard blows” being inflicted on the girl. He failed to intervene, and the girl “suffered significant physical injuries that were evident and painful to the child several days later and required medical intervention.” Defendant’s conduct rose to the level that constituted abuse or neglect.

Judge Guadagno dissented. He contended that defendant had exercised the minimum required level of care when he told his girlfriend to stop hitting the girl, that the proofs did not show that he knew that “excessive corporal punishment” was being inflicted, and that the majority’s characterization of the girl’s injuries as “significant [ones that] … required medical intervention” was not accurate. Defendant had only a brief, nine-month relationship with the mother, a fact that the dissent said should have been factored into the analysis.

In light of the dissent, defendant appealed as of right. Today, the Supreme Court affirmed substantially on the basis of the majority opinion. The Supreme Court’s opinion was per curiam, and it stated that the affirmance was based on the “Appellate Division’s per curiam opinion, reported at ___ N.J. Super. ___.” The Appellate Division’s opinions were not approved for publication until today, and presumable the majority opinion came to the Supreme Court as a per curiam decision. As approved, however, the opinion reflects that it was not per curiam, but was signed by Judge Simonelli.