Opinion
DOCKET NO. A-4131-14T4
01-27-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.L., Defendant-Appellant. IN THE MATTER OF S.L., D.L. and A.L., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia K. Werner, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria Kryzsiak, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-286-12. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia K. Werner, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria Kryzsiak, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant B.L. appeals from a July 16, 2013 Family Part order determining that he abused or neglected his fifteen-year-old son S.L. ("Sam") by striking him at least twice and causing contusions after the child changed the station on defendant's radio. We affirm.
We use initials and fictitious names to protect the privacy of the family.
This order became appealable as of right after the trial court entered a final order terminating litigation on March 30, 2015.
We derive the following facts from the record developed at the fact-finding hearing. Defendant and Sam previously lived with Sam's mother in Jamaica. When Sam was eleven years old, defendant brought him to the United States, where they lived with defendant's second wife, T.L., and her and defendant's other children.
In August 2009, the Division of Child Protection and Permanency ("the Division") received a referral indicating that defendant's adult son had sexually abused one of defendant's step- daughters. Based on this referral, the Division began providing services to defendant and his family.
Defendant's son was subsequently convicted of this offense and incarcerated for three years.
Sometime thereafter, defendant and T.L. separated. When defendant's adult son was released from prison in December 2011, he returned to defendant's home. At that time, Sam began living with T.L. In April 2012, defendant arranged for Sam to live with family friends.
During this period, the Division continued to provide counseling services to Sam. However, defendant did not bring Sam to all of his scheduled sessions.
On September 4, 2012, Sam returned to defendant's home after he caused a disruption in the home of the family friends. When the Division learned of this change in residence on September 25, 2012, the Division permanency worker assigned to the family, Sheila Medina, met with defendant and Sam the next day. Medina referred Sam for an assessment of services through a community-based agency.
Medina also gave defendant a referral to the same agency so he could receive counseling to assist him in handling any future behavioral problems on Sam's part. Although Medina continued to advise defendant to call for these services at "nearly every visit" she had with the family, defendant refused to do so.
On October 19, 2012, Sam's therapist contacted the Division to report that defendant had struck Sam because the child changed the station on defendant's radio. Medina went to defendant's home. Sam told Medina that, on October 15, 2012, defendant became "upset about him changing the station" and "just started punching him." The child stated that defendant hit him "with a closed fist" on his ribs, torso, and back and that he was still "very tender and sore." Sam told Medina that defendant hit him so hard that he tripped and fell on the floor. While Sam was on the floor, defendant continued to hit him. Sam also reported that defendant had struck him in the past and that he was afraid of defendant.
Although Medina did not see "any discoloration at that point" on the visible parts of Sam's body, she took him to the hospital emergency room, where a physician's assistant examined him. The emergency room report was admitted in evidence. On one page, the report stated there was "no visible injury" on Sam's abdomen and "[n]o tenderness" reported concerning his neck and back. However, the next page of the report stated there were "[c]ontusions to the [child's] chest and back."
Based upon the allegations of physical abuse and Sam's fear of defendant, the Division effectuated an emergency Dodd removal of the child from defendant's care on October 19, 2012. On October 22, 2012, Medina took Sam to his pediatrician for a follow-up examination. The pediatrician's report noted that Sam had contusions on his ribs and back, which were "slowly improving," and was still complaining of pain.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). --------
Medina spoke to defendant on the day of the incident. Defendant stated that "he came out of the bathroom and noticed the radio station was changed and he was very upset because [Sam] at that time . . . [was] not listening, not understanding what [defendant] was telling him to do." Defendant told Medina that "he smacked [Sam] twice with his back hand . . . on his torso and on his ribs." Defendant claimed that he used the back of his "open hand," rather than his closed fist, to strike the child. Defendant also told Medina that "he is allowed to hit [Sam] with open hands as long as he doesn't [leave] a mark or bruise and that if he does, it is not abuse."
Medina was the only witness who testified at the fact-finding hearing. Defendant did not testify and called no witnesses on his own behalf. Sam's Law Guardian supported the Division's request that the trial judge find that defendant abused or neglected the child based on the October 15, 2012 incident.
On July 16, 2013, the trial judge rendered a thorough oral opinion, finding by a preponderance of the evidence that defendant used excessive corporal punishment by striking Sam on his ribs, torso, and back, bruising the child, and causing him pain which required medical intervention. The judge found that Sam's account of the incident was corroborated by defendant's admissions, as well as by the complete emergency room record and Sam's pediatrician's report.
The trial judge observed that defendant expressed no remorse for his conduct. The judge also noted that the Division had referred defendant for services that would assist him in parenting Sam, but defendant refused to "avail himself of those services." Under these circumstances, the judge concluded that defendant's excessive "response to the changing of the radio station was inappropriate" and, therefore, she found that defendant abused or neglected Sam.
With defendant's consent, the Division continued to maintain custody of Sam, who lived in a treatment home where he received therapeutic services. Over the course of the next twenty months, the trial judge conducted several compliance review hearings. On March 30, 2015, the judge entered an order terminating the litigation because Sam was now eighteen years old and wanted to live independently while receiving Division services. This appeal followed.
On appeal, defendant argues that "the evidence in the record was insufficient and inadequate to support the trial court's finding of abuse [or neglect] against" defendant. We disagree.
Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise[.]" Id. at 413. Unless the judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
Through the admission of "competent, material and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as:
a child 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; or by any other acts of a similarly serious nature requiring the aid of the court[.]
"'[E]xcessive' corporal punishment" entails physical punishment that results in "bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [a parent's] actions." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 35-36 (2011); see also Dep't of Children & Families v. K.A., 413 N.J. Super. 504, 510-11 (App. Div.) (citing to N.J.A.C. 10:129-2.2, which lists examples of abuse or neglect, including "[c]uts, bruises, abrasions, [or] welts"), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011).
Courts focus on "the harm suffered by the child, rather than the mental state of the accused abuser," and a single occurrence of corporal punishment may be deemed excessive. K.A., supra, 413 N.J. Super. at 511. For example, in New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 333-35 (2010), the defendant chased down his two teenage children, caught and grabbed them, and all three ended up on the floor. Both children were injured. Id. at 335. One child sustained a bruised and swollen hand, while the other had rib tenderness and an abrasion behind the ear. Ibid. The Supreme Court held that, although the defendant "may not have intended to harm his children, his actions were deliberate" and constituted abuse because he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct." Id. at 345.
Similarly, in Department of Children & Families, Division of Youth & Family Services. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we found that a mother who struck her five-year old child for telling a neighbor the family did not have electricity in their home had inflicted excessive corporal punishment. The mother admitted to using corporal punishment since the child was three years old, and she struck the child once or twice a month "as her way to ensure that [the child] would not 'end up on the streets or doing drugs.'" Id. at 417. In the incident which led to the Division's involvement, the child sustained three- to four-inch red marks on the right side of her face, two-inch dark red scratches on her elbow and left cheek, and a greenish mark on her back. Id. at 416. The mother also "exhibited no remorse for her conduct and was not receptive to any counseling recommendations." Id. at 417.
On the other hand, in P.W.R., supra, 205 N.J. at 36, the Supreme Court concluded 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[.]'" Because abuse and neglect cases involving corporal punishment are "generally fact sensitive" and "idiosyncratic[,]" the Court held each case "requires careful, individual scrutiny." Id. at 33.
Here, there was ample evidence to support the judge's conclusion that defendant abused or neglected Sam by striking him at least twice and causing the child to suffer contusions which required medical attention. Defendant admitted "smack[ing]" the child on his torso and ribs, which was consistent with the contusions reported in Sam's medical records. See N.J. Div. of Child. Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 547 (App. Div. 2014) (noting that a child's out-of-court statements may be corroborated by a defendant's admission or by medical or scientific evidence) (citing N.J.S.A. 9:6-8.46(a)(4)). Thus, as in M.C. III, supra, the injuries Sam received were both deliberate and foreseeable.
Like the defendant in C.H., supra, defendant expressed no remorse for his actions. Sam told Medina that defendant hit him in the past, and defendant admitted that he felt he was allowed to strike the child as long as he did not cause "a mark or bruise." As previously noted, even "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment[,]" K.A., supra, 413 N.J. Super. at 511, particularly where, as here, it results in physical injuries such as bruises. P.W.R., supra, 205 N.J. at 35-36. Under these circumstances, we discern no basis for disturbing the judge's determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION