Opinion
DOCKET NO. A-5698-12T2 DOCKET NO. A-5699-12T2
06-25-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.F and S.G., Defendants-Appellants. IN THE MATTER OF J.F., J.F., and J.F., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Marina Ginzburg, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.G. (Gregory S. Heizler, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, J.F., J.F. and J.F. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0529-12. Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Marina Ginzburg, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.G. (Gregory S. Heizler, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, J.F., J.F. and J.F. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In these two appeals, calendared back-to-back and consolidated for the purpose of this opinion, defendants, J.F. (Mother) and S.G. (Father), appeal from an August 7, 2012 Family Part order finding that they abused and neglected their sons due to Mother's non-compliance with mental health treatment, environmental neglect, and the infliction of excessive corporal punishment within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). The Law Guardian joins the Division of Child Protection and Permanency (Division) in urging that we affirm the order finding neglect, but argues the competent evidence in the record is inadequate to establish abuse by the infliction of excessive corporal punishment. For the reasons that follow, we reverse.
I.
We draw the following facts and procedural history from the record on appeal.
Mother and Father resided together with their three sons, seven-year-old Jacob; six-year-old James; and one-year-old Justin. On April 23, 2012, Mother called the Division requesting assistance with food and the Division provided food to the family the same day. On April 30, the Essex County Welfare Department (Welfare Department) referred Mother's request for food stamps to the Division. On the same day, the Division provided emergency financial assistance for food to the family. On May 1, the Division caseworker visited the home and found it to be clean with little clutter, and very few pieces of furniture. The caseworker observed "proper sleeping arrangements."
We refer to the children by fictitious names in order to protect their privacy.
On May 3, the Division received a referral from the Newark Police Department that resulted in the Division filing a verified complaint for custody, care and supervision of the three children based on allegations of abuse and/or neglect by their parents. The court conducted a fact-finding hearing on August 7, at which the Division presented testimony from Newark Police Officers Crystal Corbett and Louis Seguinot, and Division caseworkers Denise Hutchinson and Lady Perez. Neither Mother nor Father testified.
The complaint sets forth that the Division's involvement with the family began in 2006 to the present incident. Importantly, the Division remained actively involved with the family throughout 2011.
According to the testimony of the police officers, on May 3, they received a 9-1-1 call from an anonymous neighbor that Mother could be heard beating the children and threatening to kill them, that one of the children was seen running around in the street, and that the home was "horrible." When Officers Corbett and Seguinot arrived at defendants' home, they found Mother in the home with the children. Mother appeared calm but distracted and disoriented. She told the officers that she was overwhelmed by the children, and that James, the middle child, had climbed out the window.
Corbett stated that the children "looked like they had not been washed up," and noticed that "the middle child had bruises and red marks on his arms." Corbett described the home as:
a little dirty, messy . . . the baby was in a dirty diaper. There was no type of food or anything. As I walked throughout the residence[,] [there] was a queen size matt[ress] and box spring on the floor. It was filthy. And there was a play pen that had no padding and it was filthy.Corbett noted that Father returned home from the convenience store while the children were in the ambulance prepared to go to the hospital.
Seguinot testified there was hardly any furniture in the house and noted there was only "a box spring mattress and a regular mattress in one room and that's about it, and a kitchen table." He reported that the children "looked fairly clean," their "clothing wasn't dirty. They weren't physically dirty." Seguinot testified he saw a small mark on James' neck but he did not ask James where he received the mark. He said neither boy mentioned anything alarming that happened in the home. He also observed "a big sack of rice on the floor" and noticed a can of tomato paste, milk, and a butter container in the refrigerator.
Seguinot stated that Father arrived home from work soon after he and Corbett responded to the home. Father told him that Mother had not been taking her medication regularly. Father also said that he had called for emergency medical services for Mother several times in the past when she had not taken her medication. Seguinot explained to Father that Mother and the children were going to be taken to the University of Medicine and Dentistry of New Jersey (UMDNJ) for evaluation. Father told Seguinot that he would remain at home and gave Sequinot a phone number where he could be reached.
The record is unclear as to Mother's treatment plan and the dosage of medication she was prescribed.
Hutchinson, the Division's Special Response Unit caseworker, conducted the initial investigation at the hospital. She described Jacob and James as having poor hygiene and emitting an "unpleasant [smell], a stench." Their nails were extremely dirty, their clothes were heavily soiled, and Jacob's sneakers were very dirty. The boys told her that they had been hit in the past by both parents with a belt and a broomstick. James told her that he was hit that day because he "jumped out of the window." He showed her the "marks on his neck" and stated that "it doesn't hurt anymore." He told her that Jacob had been hit that day for bringing a stray cat into the home. She did not observe any marks on Jacob. Jacob told her that they had eaten chicken nuggets earlier that afternoon. He also said that he sleeps in the bed with Mother, Father, and the baby, and James sleeps on the floor.
Hutchinson had difficulty following Mother's unfocused stream of thoughts, but was informed by Mother that she had been diagnosed with a mood disorder when she was fifteen years old. Mother showed her a five-milligram Zyprexa pill she had in her purse. Mother also confirmed that she prepared chicken nuggets for the children that day.
Upon learning from the psychiatrists that Mother was being admitted to the hospital, Hutchinson, the police officers, and Mother attempted unsuccessfully to contact Father to arrange for the care of the children. Hutchinson went to the home with the police officers but Father was not there, and he did not respond to any of the voice messages. Because Father could not be located, Hutchinson initiated an emergency removal of the children. See N.J.S.A. 9:6-8.29(a).
Perez, the Division's permanency worker, had been assigned to the family for ten months beginning in October 2011. She testified that earlier that year the Division had received multiple referrals regarding incidents of domestic violence, Mother's mental health issues, Father's alcohol abuse, and medical and environmental neglect of the children. The Division determined that the allegations were unfounded but remained concerned about Mother's mental health. According to Perez, though Mother "mostly" complied with her monthly psychiatric care and medication monitoring, homemaker services were eventually assigned in the afternoons and evenings "to ensure . . . supervision of [Mother's] care of the children as well as her medication intake." The Division did not consider "the children . . . at risk even though there were concerns for [Mother] not taking her medication." Perez stated there were no problems once the homemaker was assigned.
In November 2011, the family moved to Florida then returned in December. Perez stated that in February 2012, the Division learned the family returned, however, homemaker services were not reinstated because there were no safety concerns at that time.
Regarding Father, Perez stated that he was aware that Mother had a mental health illness but he did not know the exact nature of her condition. In December 2011, he called an EMS service because Mother became erratic when she did not take her medication. The children remained with him during that initial hospitalization. When asked on cross examination whether she found Father to be engaged and concerned about Mother's condition, Perez responded that Father was always concerned but he did not spend a lot of time at home because of his work.
The court received into evidence, over defendants' objections, several Division records: the investigative report of the May 2012 referral, which included the statements of the responding police officers; the screening summary, which contained Hutchinson's interviews of Mother and the children; and the pre-placement assessments prepared by a doctor at the hospital. The assessments documented bruises and red marks on James' arm, legs, and neck and bruises on Jacob's knees. The hospital reports revealed that Mother presented to the emergency room that evening in a "manic and grossly disorganized" state. The initial psychiatric evaluation found her to be "tangential on her thought process . . . very disorganized on her speech and very grandiose." The report noted that Mother had been diagnosed as bipolar since age of sixteen and had been prescribed Zyprexa, "but not compliant at this moment." Mother was involuntarily admitted for further psychiatric stabilization. The hospital "restarted" Mother on Zyprexa, administered lithium and Klonopin to calm her agitation and anxiety. Mother remained hospitalized for twelve days and reportedly responded well to the course of treatment. When discharged, Mother agreed to continue her prescribed medications, continue to live with Father at home, and follow up with psychiatric treatment at a local agency.
Following summations, the judge delivered an oral decision and found the evidence of Mother's mental illness credible. The judge credited Corbett's observations of the poor condition of the children and the home, and found sufficient evidence to establish neglect. The judge also accepted the children's allegations that they had been hit with belts by their parents. The judge determined the conduct by defendants was "inappropriate behavior" and constituted abuse. The judge found Father to be as responsible for the condition of the home and the children as Mother because he lived with them, and he was aware of Mother's mental health issues.
In the resulting order, the judge determined that "by a preponderance of the evidence . . . [Mother] and [Father], abused or neglected the child(ren) based on the court's findings of fact and conclusions of law pursuant to N.J.S.A. 9:8-8.21(c)." The order provided that:
the family home, where both parents resided, had minimal food and furniture in it. The parents had been involved with the Division in the past and did not reach out for any assistance regarding these issues. On May 3, 2012, the children were dirty, wearing dirty clothes, and emitted odors. In addition, [James] had fresh bruise marks on him and [James] and [Jacob] stated that both parents hit them with belts. [Mother] has a history of non-compliance with her medication for her mental health issues. [Father] was aware of [Mother]'s non-compliance and that [Mother] was not rational when off her medication, but left the children in her care. On May 3, 2012, [Mother] was held overnight by UMDNJ for a psychiatric evaluation and [Father] could not be located by the Division, despite knowing that the children had been taken to the hospital with [Mother].
Following the fact-finding hearing, the court conducted a dispositional hearing and ordered Mother and Father to attend psychological evaluations, parenting classes, domestic violence and couples counseling, and mental health treatment. One year later, in May 2013, the court accepted the Division's permanency plan for the termination of parental rights to the three boys followed by adoption. On June 13, 2013, the litigation was terminated because a complaint for termination of parental rights had been filed. This appeal followed.
II.
On appeal, Mother raises the following issues:
I. THE TRIAL COURT'S FINDING OF ABUSE/NEGLECT MUST BE REVERSED BECAUSE IT WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE AS THE TRIAL COURT ADMITTED HEARSAY TESTIMONY OVER TRIAL COUNSEL'S OBJECTION.
II. THE DIVISION FAILED TO PROVE BY THE PREPONDER[A]NCE OF THE EVIDENCE THAT [MOTHER] WAS NOT TAKING HER MEDICATION AND THAT IMPACTED HER ABILITY TO CARRY OUT HER PARENTAL RESPONSIBILITIES.
a. [Mother] Was Not Suffering A Mental Episode On May [3], 2012[,] And Was Compliant With Her Medication.
b. Even If [Mother] Was Not Compliant With Her Medication, The Division Did Not Prove By The Preponder[a]nce Of The Evidence That Her Actions Put The Children At Substantial Risk Of Being Harmed.
III. THE DIVISION FAILED TO PROVE BY THE PROPONDER[A]NCE OF EVIDENCE THAT [MOTHER] DID NOT EXERCISE A MINIMUM DEGREE OF CARE BY UNREASONABLY INFLICTING EXCESSIVE CORPORAL PUNISHMENT UPON HER SONS.
In his appeal, Father argues that the record does not support the trial court's findings that he failed to exercise a minimum degree of care for his children, or that he committed excessive corporal punishment against the children.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Services v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (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)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
B.
An abused or neglected child is one who is less than eighteen years of age and
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)(4).]
"[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
Without "proof of the 'probability of present or future harm' . . . an essential element in the definition of abuse or neglect[]" is missing. N.J.S.A. 9:6.8-21(c)(4)(b). Although expert testimony is not required to show harm, there still needs to be "an adequate presentation of actual harm or imminent danger" to the child. N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 29 (2013).
The necessary inquiry into whether an act or omission is grossly negligent or reckless can be difficult to make at times and is extremely fact sensitive. G.S., supra, 157 N.J. at 178. "Each case requires careful, individual scrutiny" as "[m]any cases are idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances in making its findings. Id. at 33-34 (citing M.C. III, supra, 201 N.J. at 345).
Although a court need not wait for a child "to actually be irreparably impaired" by a parent, D.M.H., supra, 161 N.J. at 383, in the absence of actual harm, "the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)); see also N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (holding the Division only needs to show that it was more likely than not that the defendant abused or neglected the child.)
Explaining the requirements for abuse and neglect where the Division has not proven an actual impairment, the court in New Jersey Division of Child Protection & Permanency v. M.C, expounded that N.J.S.A. 9:6-8.21(c)(4) requires a child to be "in imminent danger of becoming impaired." 435 N.J. Super. 405, 420 (App. Div. 2014). Specifically, the statutory language requires present danger. In that respect, "prior parental conduct posing a risk of harm in the past that did not materialize is pertinent to the imminent danger only to the extent that it is probative of current danger." Id. at 418.
C.
With those principles in mind, we are convinced that the record does not support the court's conclusion that Mother's non-compliance with medication for her mental health condition resulted in neglect under N.J.S.A. 9:6-8.21(c)(4)(b). There is no question that untreated mental illness can pose a substantial risk of harm to a child. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012) (noting that while mental illness alone does not disqualify a parent from raising a child, refusal to treat the illness can pose a real threat to a child). Where a direct causal link exists between a parent's mental illness and neglect of her children, a failure to exercise the requisite degree of minimum care may be found. N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 202 (Cty. Ct. 1981).
The narrow question in the present case is whether the facts support the court's conclusion that Mother's failure to comply with medication, as it manifested during this period, caused her to fail to exercise a minimum degree of care by recklessly creating "harm, or [the] substantial risk thereof," N.J.S.A. 9:6-8.21(c)(4)(b), or, alternatively, whether Mother's past episode of non-compliance posed a risk of harm such that it is "probative of current danger." M.C., supra, 435 N.J. Super. at 418.
In this case, defendants' failure to meet a minimum standard of care, as found by the court, was due to their failure to provide adequate food and furnishings in the home, the dirty condition of the children, coupled with Mother's failure to comply with the medication that had been prescribed to her to address her mental health condition. The court found Father to be as responsible for the home as Mother because he lived there with Mother and the children.
The Division failed to present any evidence or expert testimony to establish that Mother's mental health condition posed a risk of harm to the children. The 9-1-1 caller reported hearing Mother yelling threats to kill the children and seeing a child running in the street. Yet, when the officers arrived, they found Mother with the children inside the home. They said Mother was calm, coherent, and cooperative. The police officers did not report that the children appeared fearful or upset, as if they had just been threatened. Mother admitted being overwhelmed by the children, stating that James gets upset and jumps out the window to leave the home. These circumstances, however, were not shown to be causally linked to Mother's mental illness. Indeed, it is not unusual for a parent to become exasperated with an unruly child, which may have been the case here.
Nor did the Division present evidence of the circumstances surrounding the prior hospitalization or evidence to show that the children were put at risk during Mother's prior episode of non-compliance. To the contrary, the record reveals that the children were cared for by Father during Mother's prior hospitalization. Indeed, it is likely the same result would have occurred had Father been home on this occasion.
We also disagree with the trial court's conclusion that defendants created a substantial risk of harm to the children based upon the lack of adequate food and furnishings, and the unsanitary condition of the children. We have held that although substandard, dirty, and inadequate sleeping conditions are unfortunate incidents of poverty, they do not, by themselves, establish child abuse or neglect. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd sub nom., Doe v. Downey, 74 N.J. 196 (1977). To support such a finding, the conditions must place a child in imminent danger of impairing the child's physical or mental health. N.J.S.A. 9:6-8.21(c)(4).
The judge's finding that "the parents did not reach out for any assistance" is belied by the evidence that Mother sought assistance from government agencies for food and food stamps, just days before the referral. She contacted the Division and the Welfare Department out of concern that the family needed food. On April 23, the Division brought the family food from the local food pantry and on April 30, the Division provided Mother a check for one hundred dollars for emergency food assistance.
In New Jersey Division of Child Protection and Permanency v. L.W., 435 N.J. Super. 189, 196 (App. Div. 2014), we reversed a finding that a mother neglected her two children upon our finding that the mother properly, though unsuccessfully, sought housing and employment assistance through government agencies and the Division. The panel noted "[i]t is important that impoverished, homeless parents feel free to call on the Division in times of need, without fear of being found neglectful for "poor planning." Ibid. The same can be said for Mother in this matter, who like the mother in L.W., did what she thought best by seeking assistance for her family.
Undoubtedly, the lack of food and sparse furnishings in this home bespeaks an impoverished household. Yet, on the day of the referral, the record indicates that the two older children ate breakfast and lunch at school, and had chicken nuggets earlier that day. Moreover, the officers observed some food in the home. This case is one where the lack of food is more the result of poverty, than the result of parents who do not care about their children. The evidence does not demonstrate that defendants were indifferent to the lack of food in the home. Thus, we find insufficient evidence in the record to support the judge's findings of neglect based on the lack of adequate food.
Nor can we find neglect based on the condition of the home. The Division's inspection of the home on May 1, did not raise any concerns with the cleanliness of the home or the insufficiency of the furnishings. The complaint denotes that the Division found the home "to be clean with little clutter" and the caseworker observed "a table in the kitchen with [] chairs and proper sleeping arrangements." Yet, two days later, when the Division received the referral that the home was "horrible," Officer Corbett described the home only as "a little dirty, messy." Aside from that characterization of the home, there was no other evidence to suggest that the home was "horrible," or inhabitable. Moreover, the trial court did not find any present harm or potential of harm to the child based on the conditions in the home.
D.
Finally, Mother, Father, and the Law Guardian assert that there was insufficient evidence to support a finding of abuse based upon the infliction of excessive corporal punishment on the children. We agree.
As previously stated, Title Nine provides that an abused or neglected child is one "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of . . . the infliction of excessive corporal punishment." N.J.S.A. 9:6-8.21(c)(4). The statute does not, however, define the term "excessive corporal punishment."
In P.W.R., supra, 205 N.J. at 36, the Court noted that,
by qualifying the prohibition [of corporal punishment] with the term, "excessive," the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. Limiting state involvement only to interference with excessive corporal punishment requires the exercise of judgment by reviewing courts before a finding of physical abuse is entered against a parent.
In addressing the issue of "excessive corporal punishment" in the context of a parent slapping her teenage daughter in the face, the P.W.R. Court found the practice to be "hardly admirable." Id. at 20-21, 35. Nevertheless, the Court refused to credit the Family Part's finding of physical abuse because "[t]here was no evidence developed in [the] record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [the parent's] actions." Id. at 35-36.
In Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 512 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), we found no excessive corporal punishment in a case in which the parent struck the child "five times on the shoulder with a closed fist," but "the force used did not lacerate the child's skin and did not require any type of medical intervention," and "[b]ruises, although visible, never exposed [the child] to any further harm if left untreated." We noted that the Administrative Code lends assistance in identifying excessive corporal punishment by listing types of injuries, including bruises, which may constitute abuse. Id. at 510-11 (citing N.J.A.C. 10:129-2.2).
Thus, as we have interpreted the statute, not all corporal punishment is forbidden, only "excessive" corporal punishment. The "occasional discipline does not fit a common sense application of the statutory prohibition against 'excessive' corporal punishment." P.W.R., supra, 205 N.J. at 35; see also N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 228 (App. Div. 2011) (holding "corporal punishment" that is not excessive "does not constitute abuse or neglect.").
Here, the children were dirty and smelly, and had bruises and red marks on their bodies. However, there is a marked absence of evidence regarding the circumstances surrounding defendants' infliction of any punishment on the boys. The trial court concluded that defendants inflicted excessive corporal punishment based upon James' uncorroborated statement to Hutchinson and to the physician who conducted the pre-placement assessments that his parents beat him and his brother with belts and broomsticks.
"[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). Thus, only a child's corroborated statements, even if hearsay, shall be admissible. Though Mother's statement that one of the boys climbed out of the window corroborated James's statement of the same, the record does not indicate any investigation into whether defendants disciplined the boys for that conduct, or for any other conduct, or the manner in which defendants discipline the children. Moreover, there is no corroborating evidence linking the mark on the children's bodies to a strike from a belt.
Even if defendants did use a belt to discipline the children, that punishment alone does not necessarily rise to the level of the statutory prohibition against "excessive corporal punishment." At the time of the removal, none of the children displayed any significant physical signs of abuse according to the children's pre-placement assessments. Nothing in the record indicated that the children suffered any permanent harm or required medical treatment as a result of any such punishment. Thus, the record lacks sufficient credible evidence, as required by K.A., to demonstrate that the parents inflicted excessive corporal punishment on the children. See K.A., supra, 413 N.J. Super. at 511-12 (detailing harms that might evidence corporal punishment). Because we conclude the State has failed to prove by a preponderance of the evidence that either defendant inflicted excessive corporal punishment upon the children, we reverse the finding of abuse.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION