Opinion
DOCKET NO. A-2529-14T2
02-18-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.G., Defendant-Appellant, and G.F., Defendant. IN THE MATTER OF J.G. AND T.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-192-14. Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant G.G. appeals from a Family Part order, entered following a fact-finding hearing, which determined he had abused or neglected his child, age five, in that he "failed to exercise a minimum degree of care by subjecting the minor child to excessive corporal punishment." In the three points he presents on appeal, defendant argues: the evidence was insufficient to support the accusation he subjected his child to excessive corporal punishment; the trial court relied on an insufficiently corroborated hearsay statement; and there was insufficient evidence to support the court's finding that defendant was willful and wanton in his treatment of the child, or failed to exercise a minimum degree of care for the child. Having considered the record in light of defendant's arguments, we conclude the trial court's determination the Division of Child Protection and Permanency (the Division) proved by a preponderance of competent, credible evidence defendant had subjected his child to excessive corporal punishment is supported by the evidence presented at the hearing. Accordingly, we affirm.
This action's procedural history began on October 23, 2013, when police went to defendant's residence in response to a 911 call. The younger of defendant's two children was transported to the hospital for treatment. A police officer notified the Division, and special response unit workers were dispatched to investigate. During the course of the investigation, defendant and his wife signed parenting plans in which defendant agreed to remain out of the home until he attended anger management and parenting skills services provided by the Division.
Two weeks later, on November 8, 2013, the Division filed a verified complaint and order to show cause seeking the care and supervision of defendant's two children. The parties consented to the Division's care and supervision of the children. The court ordered defendant to undergo a psychological evaluation, anger management, and parenting skills training. The court also ordered the children to participate in services provided by the Division. The court entered an order that included visitation between defendant and his children, but also required defendant to remain away from the house.
On the return date of the order to show cause, the court continued its order in effect. Following an interim case management conference in February, on May 9 and May 16, 2014, the court conducted a fact-finding hearing concerning the allegations defendant had abused or neglected his younger child. The court delivered its oral opinion from the bench on May 30, 2014, and thereafter filed the confirming order from which defendant appeals.
Following the court's fact-finding decision, the court conducted a compliance review hearing and later, on December 10, 2014, terminated the litigation. --------
During the fact-finding hearing, the Division presented the testimony of two law enforcement officers, two Division employees, and a medical expert. The Division also introduced into evidence nine documentary exhibits, including photographs of the younger child and his medical records. We discern the following facts from the Division's evidence.
On October 3, 2013, a patrol officer in the municipality where defendant lived responded to a 6:00 p.m. 911 call from defendant's residence. The caller said they needed help then hung up. When the responding officer arrived, no one answered the door, but the lights were on; the mother eventually answered the door, "appear[ing] nervous . . . [and] sweating." She denied anyone had called 911 and said there was no problem in her household. The officer asked if anybody else was home, and the mother said defendant was. The officer spoke to defendant and observed defendant "was also sweating . . . [and] was breathing heavy." Other officers arrived. The mother requested the first officer speak to her in another location because her younger son, was in the closet. The officer opened the closet to see the child "sitting in the back of the closet, and, he was crying."
The child was five years old. The child "appeared to have urinated in his pants" and was "complain[ing] of . . . pain in his . . . face, his neck, his chest, and, pretty much all over his body, entire body." The child told the responding officer "that his father had hit him, all over." The officer requested an ambulance come to the residence. Upon its arrival, the emergency medical technicians (EMTs) requested the child be taken to the hospital, but his parents refused treatment. The officer "eventually . . . made [the child] go to the hospital."
Because the child had visible injuries inflicted by his father, a detective was called to the residence. The detective asked whether the mother had called the police; she denied doing so. She also denied knowing what had occurred in the residence, telling the detective "when she arrived home, her husband was upset, and, her children were crying." When the detective asked the child what happened, he "said he was bad in school, and, that his father punched him. And, punched him in the stomach, and, hit him all over his body." The detective observed "injuries to the right side of [the child's] face, around the eye and check area. And, he also had a red mark to his — the right side of his neck."
Defendant told the detective the child
had been getting in trouble in school. . . . He said, he sat him down to try to talk to him. To try and talk some sense into him. It didn't appear as though [the child] was listening to him, or, willing to listen to what he was saying. So, he became angry. He denied striking him, at all, in the face. He did say that he did strike him, but, not at all in the face.
Due to the inconsistencies between the child's injuries and defendants' statements, the police arrested defendant and charged him with endangering the welfare of a minor and simple assault. The detective also contacted the Division. At the police station, defendant told the detective that while he was yelling at the child, the child fell down "and may have hit his face."
Division Special Response Unit (SPRU) workers Adrian Zayas and Marcia Gould responded to the hospital where the child was being treated. He was sleeping when they arrived and Zayas "immediately noticed that [the child] had bruising, and, . . . it appeared to be busted blood vessels on his right side of his face, neck area, and, shoulder area." The child was transferred to a second hospital for observation overnight.
Zayas interviewed the mother, who said the child was "acting up in school" and "getting into a lot of trouble." They switched the child's school to the school attended by the child's older brother, but the child continued to get into trouble. The family was getting the child evaluated. The mother also told Zayas the child was scared when he learned the school would call his parents. On the day of the incident, the mother recalled the child was "sitting on the edge of the bed" and defendant was "sitting in front of him." The child "was trying to get away [and] was crying, he was trying to squirm away. And, [defendant] was trying to hold him down by his shoulders to keep him in place." The mother did not see defendant hit the child and "denied that they used corporal punishment."
Zayas also interviewed defendant, who "pretty much had a similar story" as the mother, that is, "he was just trying to hold [the child] down, so he could talk to him, eye to eye." Zayas testified defendant initially "completely denied that he hit [the child] at any time. But towards the end of our interview, [defendant] said, 'You know what? I could have swiped at him, but, I know I didn't hit him on the face.'" Zayas found defendant to be "very remorseful."
Tara Canon, a Division intake worker, was assigned to the case. She began her investigation by speaking to the detective and family members. The mother's version of the events mirrored that which she told Zayas. The mother added that "her forms of discipline were to take privileges away like television or their electronics." The mother's "opinion was that [defendant] disciplined the children appropriately."
Canon observed the child in the hospital, noting that "[h]e had a bruise underneath his right eye. And he also had marks to both of his cheeks. And also some bruising to his shoulder, and also some scratches to the back of his right shoulder." She spoke with the child, who said "his parents yell at him and sometimes they hit him . . . [a]ll over his body." The child recounted that on the day of the incident, defendant picked him up from school for misbehaving and upon returning home, yelled at him and he cried. He "indicated that his father did hold him down. That he was hit — you know, from time to time and so was his brother." His brother told Canon their parents "take things away from him like his [Nintendo] DS or his electronics."
Canon interviewed defendant who stated
his son did get in trouble the day before for not listening. He told him that he wanted his child to look into his eyes, and that he held him down to make him look into his eyes. And that the child kept falling
on the floor, multiple -- times to try to get away from him.Defendant also told Canon that the child's injuries "may have happened from him holding, specifically on his shoulders, from him holding him down."
Canon then conferred with her supervisor who instructed her to do "a safety protection plan" requiring defendant "to complete both parenting skills and individual counselling" and ultimately to provide reports deeming it appropriate for defendant to return home. The parents both agreed. Relying on a report provided by the Division's expert, Dr. Gladibel Medina, as well as hospital records requiring the child's overnight hospital stay due to non-accidental injuries, the Division substantiated defendant for abuse and neglect.
Dr. Medina, an expert in child abuse, evaluated the child in October 2013 at the Division's request. Initially, she met with the mother to gather medical information. The mother told Dr. Medina,
when she got home the child was with dad, in the room, that was disciplining him because of his behavior, but he was mostly talking firmly to him, and maybe screaming at him. And because [the child] wanted to move away from him, he was holding him by the shoulders to make him sit still.Dr. Medina then spoke with the child, asking him why he thought he was at the hospital, and
[h]e pointed to his bruises, he said his neck was hurting, his shoulders were hurting. I asked what happened? And he said that his father had hit him on the stomach, on the shoulders and his face, with the hand because "I was in trouble at school." He said that his mom tried to intervene, but dad pushed mom and then the police came in and took his dad away. That was his perception of what happened.Next, the doctor conducted a physical examination:
[The child] was very alert. He was sitting -- laying on the bed watching cartoons. He allowed me to take a look at his skin. And he helped find some of the boo boos, which I also -- just -- through the physical examination, encountered. So what he had on physical examination was petechial -- I would call petechial bruising, which is basically injury to very tiny blood vessels and then the blood comes out of them into the subcutaneous tissues, just -- just -- skin tissues, and it looks like a pin -- pinpoint dot.
That's non-blanching because that's just actually blood underneath -- those -- that's what petechial bruising is. Then ecchymosis are just a little bit larger areas of blood collection under the skin, that might look purplish greenish, purple bluish red, but they're non-blanching. Over time they resolve because it's just blood, but they reflect injury to blood vessels.
So he had both the forehead on the . . . orbital areas, which is around the eyes, and the temple areas of the head. The cheeks they -- he had ecchymosis and petechial bruising more on the right side of his face. He also had two linear bruises on the right upper eyelid, with an area of bluish bruise right under the right eyebrow. In addition to the face, both on the front left and
right sides of the face he had petechial bruising with some -- a little bit larger bruising than that -- involving the pinna, which is basically your external ear, on both sides, the anterior surface, which is the front surface of the ear, and also behind the ear.
He had, on the shoulders, an area of five centimeter bruise, on the right shoulder, and an eight centimeter bruise on the left shoulder. What we call and ecchymosis area, . . . -- with an abrasion that was not actively bleeding, but it was -- fresh, on the right lateral side of the neck. So on the right side of the neck.
In addition to that he had two areas of bruising on the right side of the back.
When Dr. Medina followed up with the mother, she said the dots on the child's face were because he was crying, and "the injury around his eye was because he was trying, actually, to run away from dad. And actually hit an edge of the table and so he got the injury to the eye."
Dr. Medina also considered the child's creatine kinase test, explaining "elevations of that would reflect damage to the subcutaneous tissues and muscles." The doctor further explained that the normal range was 55 to 170 and the child's was 878.
Dr. Medina opined that the child's injuries were consistent with child abuse:
So the medical history and the medical evaluation ruled out the possibility of an underlying disorder, given that he never had any history of anything like this
presentation before. The history that the child gave is consistent with the findings . . . that I saw on his body. There were multiple areas and planes of impact. It's not just one area that got impacted. So we have the right, left, front and back sides of the body, consistent with what he said happened. Which would indicate discipline and corporal -- corporal discipline excessive, because of the findings of bruising, which would be considered abusive in nature.
Now, certainly, crying can give you petechial presentation, because crying in some children you can have broken vessels just from crying hysterical and an injury against an edge of a table can certainly injure your eye. However, those two independent mechanisms will not account for all of the injuries that he had. Especially, petechial, when is from crying does involve the ears -- part of your body.
So, -- in context, his bruises, which were all acute in nature, meaning fresh, new, from the history gathered by mom of the day prior, is consistent with being hit as described by the use of a hand, the night prior.
The trial court found the witnesses credible and determined the Division had proved by a preponderance of the evidence defendant had failed to exercise a minimum degree of care by inflicting excessive corporal punishment. The court determined the child had sustained injuries that impaired his physical condition. The court found defendant's statements to police, the Division workers, and the doctor to lack credibility. The court determined defendant:
intentionally hit the child all over his body, numerous times. He disregarded the substantial probability that injury would result from his conduct. So therefore he failed to exercise a minimum degree of care by inflicting this excessive corporal punishment. And how does [t]he [c]ourt find that there was excessive corporal punishment? One only has to look to Dr. Medina's evaluation, where I went through each of the injuries which were consistent with what the child had disclosed.
The court had "no question in [its] mind" that the child suffered from physical impairment based on excessive corporal punishment, and that defendant had intentionally inflicted the corporal punishment, causing excessive bruising and the need for medical attention. The court found that in doing so, defendant "totally disregarded the probability that injury would, and in this case, did result from his conduct. He failed to exercise that minimum degree of care and as a result the physical condition of the child was impaired."
Following the fact-finding hearing, the court entered an order requiring the parties to participate in additional services provided by the Division. On December 10, 2014, the court terminated the litigation, believing "the abuse or neglect aspect of the case services have been accomplished." Recognizing this child still had "some issues," the court was satisfied defendant and the mother would continue to work with the school and a behavioral therapist to address those issues.
The court terminated the litigation over the Division's objection. The Division has not appealed. Defendant appealed from the order memorializing the court's abuse and neglect finding.
We affirm, substantially for the reasons given by the trial judge, Barbara C. Stolte, in her sound and thorough oral opinion. We add only the following comments.
A court must decide at the fact-finding hearing "whether the child is an abused or neglected child[.]" N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). "[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).
The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence "need only provide support for the out-of-court statements."
[N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).]
The relevant statute, 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, 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)].
When we review an order finding abuse or neglect, our review is deferential. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). We will uphold the decision of a Family Part judge if the decision is supported by sufficient evidence in the record. See Id. at 345.
Here, defendant asserts his attempt to hold his child down by the shoulders and swipe him in the stomach was not an unreasonable parental response to the child's disobedience; and his conduct did not result in harm or imminent danger of harm. These arguments are based on defendant's own account of the events leading to the child's hospitalization, an account undermined by the Division's photographic evidence, eyewitness accounts of the child's injuries, and expert testimony. Moreover, defendant's arguments completely overlook the court's credibility determinations.
Similarly, defendant's contention his child's out-of-court statements were not corroborated is based largely on his own account of events. The Division's proofs "provide[] support for the out-of-court statements" upon which the court determined defendant had abused or neglected his child. L.A., supra, 357 N.J. Super. at 166.
In short, these and defendant's remaining arguments 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