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N.J. Dep't of Children & Families v. T.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 9, 2016
DOCKET NO. A-4127-13T3 (App. Div. Dec. 9, 2016)

Opinion

DOCKET NO. A-4127-13T3

12-09-2016

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. T.K., Respondent-Appellant.

The Abraham Law Firm, LLC, attorneys for appellant (Markis M. Abraham, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino, Haas and Currier. On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU 12-0015. The Abraham Law Firm, LLC, attorneys for appellant (Markis M. Abraham, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief). PER CURIAM

T.K. appeals from the February 11, 2014 final agency decision issued by the Director of the Division of Child Protection and Permanency ("the Division"). The Director concluded that appellant had engaged in child abuse by inflicting excessive corporal punishment upon her stepson, Q.K. ("Quinton"). We affirm.

To protect the privacy of the minor, we use abbreviations and fictitious names in this opinion.

I.

The record developed at a hearing before an administrative law judge ("ALJ") reveals the following relevant facts. Quinton was born in May 2002. At the time of the pertinent events in October 2011, Quinton was nine years old. Pursuant to an informal custody arrangement, Quinton spent weekends with his mother K.K. ("Kathy"), and stayed the rest of the time at the home of his father C.K. ("Carl"), appellant, and his two sisters, M.K. ("Megan") and Ka.K. ("Kim").

On Friday, October 14, 2011, Carl dropped Quinton off at Kathy's house. When Kathy returned home that night, she noticed several bruises on the back of Quinton's thighs. She asked Quinton where the marks came from, and he responded that appellant had hit him with a belt.

Kathy contacted the police, who suggested that she talk to Quinton's father about the subject and then call back. When Kathy spoke with Carl the following day, he claimed that the marks were not on Quinton's legs when Quinton was dropped off at Kathy's house. Kathy again contacted the police on October 16. Upon receiving the allegations of abuse, the police contacted the after-hours office of the Hudson Special Response Unit ("SPRU"), affiliated with the Division.

Two SPRU caseworkers, Monica Garcia and Kelly Haack-Ortiz, followed up on the allegations. They first interviewed Kathy and Quinton at the Hudson County Prosecutor's Office. Garcia thereafter interviewed Megan, then age seven, and Haack-Ortiz interviewed Kim, then age four, about the events of October 14. A detective from the Hudson County Prosecutor's Office also conducted interviews with Quinton, Carl, and appellant.

A Division caseworker, Charysse Kennedy, conducted interviews with the members of Kathy's household, including her grandmother, aunt, and uncle. She also conducted interviews with members of Carl's household. Kennedy observed the bruising on Quinton's legs, and compared it to what was shown in the photographs taken by Kathy and the police department.

Based on the results of the investigation, the Division notified appellant by letter that it had substantiated the finding of abuse related to the October 14, 2011 incident. Appellant contested that finding and requested a hearing in the Office of Administrative Law ("OAL").

The one-day OAL hearing took place before the ALJ in October 2013. Appellant was represented by private counsel in defending against the allegations of abuse. The Division called three witnesses: Quinton's mother Kathy, SPRU worker Haack-Ortiz, and Division caseworker Kennedy.

Kathy testified that she first observed the bruises on the back of Quinton's thighs when she arrived home on the evening of October 14, 2011. When she asked him what happened, Quinton stated that appellant had hit him because he would not do his homework.

Kathy testified that she photographed the bruises when she first noticed them. Additional photos of the bruises and marks were taken at the Hudson County Prosecutor's Office two days later.

Kathy testified that Quinton stayed with her instead of going home with his father that Sunday night. Kathy further testified that she herself did not hit Quinton, and that the bruises could not have come from any activities at her house that weekend. According to Kathy, she instead used "time outs" as her typical form of discipline.

As the result of this incident, the Family Part transferred primary residential custody of Quinton to Kathy. --------

Kathy also noted that Quinton has autism and can be difficult to manage, although he does not receive any home services from the school district. She was asked on cross-examination about certain scars on Quinton's arms, which she explained were from mosquito bites. Kathy testified that she told Carl about the mosquito bites, and took Quinton to a doctor to get a note confirming that the marks were from mosquito bites.

Haack-Ortiz testified that she also observed the bruises on Quinton's legs when she responded to the report of potential abuse. According to Haack-Ortiz, the bruises were "linear marks, and they were red in color, and they were consistent with a belt mark. There [were] a couple of marks that look like he may have been hit with the actual loop of the belt where you would fasten it . . . ." Given the color, Haack-Ortiz could tell that the bruises were recent, within one day or "possibly" two.

Haack-Ortiz recounted that she and Garcia went to Carl's house to bring him and appellant to the prosecutor's office for interviews. While Garcia interviewed Carl and appellant, Haack-Ortiz interviewed Quinton's half-sister Kim about the incident. During that interview, Kim denied ever being hit by one of her parents. However, when asked about the incident, Kim stated that "Q[uinton] got a crazy beating" with a black belt because "[h]e didn't do his homework." Haack-Ortiz perceived that Kim was not afraid of Carl or appellant.

Lastly, the Division presented testimony from Kennedy. She testified she first spoke with Quinton as part of her investigation. The child repeated his claim that appellant hit him with a belt because he was not doing his homework. Kennedy observed the bruises on Quinton's legs, describing them as "linear like loop marks[.]"

During the course of Kennedy's investigation, she interviewed appellant, Carl and their two daughters. Both appellant and Carl asserted to Kennedy that physical discipline was "the last thing they do" to deal with their children's behavior. Even so, appellant admitted to Kennedy that "she did give [Quinton] a beating" with a belt earlier in the week in question, but not on the day of October 14. Appellant told Kennedy she had hit Quinton that week because he was not doing his homework.

Appellant and Carl did not attempt to attribute the marks on Quinton to anyone else. However, they accused Kathy of making an issue of the situation because she wanted to regain primary custody of the child.

Kennedy further testified that Kim had told her that appellant sometimes does "pow-pow with the belt," and then demonstrated a hitting gesture. Kim's older sister, Megan, however, did not recall or divulge any such physical discipline occurring.

Appellant testified in her own defense. She stated that she disciplines Quinton and her two daughters by spanking them or giving them "time outs." She claimed that she "sometimes" uses a belt to spank the children "once or twice[,]" and never with their clothes off.

Appellant testified that she did not spank Quinton on Friday, October 14, although she admitted to spanking him the previous Tuesday because he was not doing his homework. She explained that she resorted to spanking Quinton on that night because she could not get in touch with Carl, who would usually be the one to discipline Quinton. According to appellant, Quinton did not cry during the spanking.

Appellant testified that, on the afternoon of October 14, she picked Quinton up from the school bus. She took him, her daughters, and her niece to a store. She then "went to [her] mother-in-law's house . . . dropped [her] niece back home . . . went to [her] husband's job to get his bank card . . . went to get the kids something to eat, and then . . . came back home" after 9:00 p.m.

According to appellant, she first learned about the marks on Quinton's legs after Kathy called Carl. She denied spanking him and causing the bruises, instead believing the bruises had been caused at Kathy's house.

Carl likewise denied that Quinton had been bruised while at his residence. According to Carl's testimony, on the day in question, October 14, appellant had stopped at his workplace to get his credit card to pay for dinner. When Carl arrived home, he took Quinton to Kathy's house, per their custody arrangement. He stated that he arrived at Kathy's house around 11:00 p.m., and Kathy's brother let Quinton in the house.

According to Carl, when he bathed Quinton on Thursday and Friday morning of the week in question, he did not see any bruises on the boy's legs. He recalled that Quinton behaved normally that week and did not say that appellant had spanked him.

In her written decision issued on November 12, 2013, the ALJ declined to find that appellant had not struck Quinton in the legs. However, the ALJ concluded that appellant's conduct, while it might have demonstrated "a lack of judgment," did not rise to the level of child abuse within the meaning of Title Nine. The ALJ identified several "mitigating factors" that weighed against the Division, including what she regarded as "the isolated nature" of the incident, the fact that Quinton's injuries were "not life threatening or permanent[,]" and the fact that appellant had agreed to alter her methods of discipline and attend parenting and anger management classes.

The Division's Director rejected the ALJ's conclusion that appellant's conduct did not amount to substantiated child abuse. In her ten-page written decision, the Director noted that appellant's statements about the incident had inconsistencies and discrepancies, and that appellant was minimizing her actions.

The Director also disagreed with the ALJ's assessment that the corporal punishment appellant inflicted upon Quinton was inconsequential. The Director found that the record did not fairly support the ALJ's finding that this was an isolated incident, concluding that the evidence instead showed that hitting children with a belt was "part of [appellant's] disciplinary practice." The Director noted the documented bruises on Quinton's legs, which were so significant that he "was in pain hours after the incident." The Director also discounted the ALJ's observation that the injuries were not life-threatening, pointing out that the applicable statute, N.J.S.A. 9:6-8.21(c), only requires proof that a child's "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired[.]"

II.

On appeal, T.K. argues that the Director's decision is "arbitrary, capricious and unreasonable," and that it is "not supported" by credible evidence in the record. We disagree.

Under N.J.S.A. 9:6-8.21(c)(4), a child is considered "abused or neglected" when his

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, as herein defined, 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; or by any other acts of a similarly serious nature requiring the aid of the court[.]

[N.J.S.A. 9:6-8.21(c)(4), in part (emphasis added).]
The Supreme Court has interpreted this definition to include "an intentional act that has unintended consequences[.]" G.S. v. Dep't of Human Servs., 157 N.J. 161, 175-76 (1999) (finding that Title Nine focuses on the circumstances surrounding the injury and the harm caused to the child, rather than on the parent or guardian's intent).

The Division's pertinent regulation concerning excessive corporal punishment, N.J.A.C. 10:129-2.2, lists the types of injuries which may be deemed abuse or neglect. Such injuries specifically include "[c]uts, bruises, abrasions, welts, or oral injuries[.]" N.J.A.C. 10:129-2.2(a)(9). See also N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010). The documented bruises and marks on Quinton's legs are therefore sufficient in degree to support a finding of abuse.

Appellant's admission that she had hit Quinton with a belt - albeit allegedly on a different day earlier in the week before his visitation with his mother - supports an inference that appellant was the source of his injuries. Moreover, the Director reasonably concluded that appellant's claimed justification for hitting Quinton with a belt, i.e., because he had not done his homework, did not exonerate her clearly-inappropriate conduct. There is no evidence that Quinton was behaving in a violent or aggressive manner, or threatening to hurt appellant or anyone else in the household.

We are mindful that the ALJ was the fact-finder at the hearing and thereby had the ability to assess witness credibility. Even so, the Director acted within the agency's regulatory prerogative in rejecting the legal conclusions that the ALJ drew from the evidence. See N.J.S.A. 52:14B-10(c) (authorizing agency heads to reject or modify an ALJ's findings of facts and conclusions of law if they are arbitrary or not adequately supported by the evidence in the record). We generally defer greatly to the expertise of the agency in rendering such final decisions within its area of responsibility. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

Appellant contends that the factual situation here is analogous to that in K.A., supra, in which a finding of abuse and neglect for excessive corporal punishment was set aside. As the Director reasonably found, K.A. is distinguishable in numerous respects, including the involvement there of a "psychologically disruptive child," a caregiver who had no support from others in raising her, and the infliction of abuse in an "isolated event[.]" Id., 413 N.J. Super. at 512. Equivalent mitigating factors are not present here.

This case is more analogous to N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472 (App. Div. 2010), cited in the Director's final agency decision. In C.H., a parent beat her child with a paddle as punishment after the child had divulged to a neighbor that she lacked electricity in her home. Id. at 476. A teacher reported the abuse after observing red marks on the child's face, elbow, and back. Ibid. Like appellant here, the defendant in C.H. acknowledged that she would spank the child sometimes, but denied that she had caused the marks found by others. Ibid. The Director rejected an ALJ's conclusion in C.H. that the conduct did not comprise abuse or neglect, and we upheld the Director's final agency decision. Id. at 483. The same outcome is warranted here.

We are mindful that appellant had taken the recommended parenting courses and may have altered her disciplinary approach as a result. Nevertheless, a caregiver's post-incident improvement does not excuse past abuse or neglect, and case law now requires us to look only at the risk of harm as of the time of the abuse and not at the time of the hearing. See Dept. of Children & Families, Div. of Child Protection & Permanency v. E.D.-O., 223 N.J. 166, 189 (2015). Although we are mindful of the negative consequences to appellant of being placed on the Child Abuse Registry, we are unable to conclude that the Director's decision to do so on this record is arbitrary, capricious, or lacking in evidentiary and legal support.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

N.J. Dep't of Children & Families v. T.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 9, 2016
DOCKET NO. A-4127-13T3 (App. Div. Dec. 9, 2016)
Case details for

N.J. Dep't of Children & Families v. T.K.

Case Details

Full title:NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 9, 2016

Citations

DOCKET NO. A-4127-13T3 (App. Div. Dec. 9, 2016)