Opinion
DOCKET NO. A-0934-14T3
02-25-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.G., Defendant-Appellant. IN THE MATTER OF C.G. and M.G., Minors.
Victor E. Ramos, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, attorney; Evelyn F. Garcia, Designated Counsel, on the brief). Melvina D. Fennell, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fennell, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-257-12. Victor E. Ramos, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, attorney; Evelyn F. Garcia, Designated Counsel, on the brief). Melvina D. Fennell, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fennell, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief). PER CURIAM
Defendant M.G. (Marvin) appeals the decision by a Family Part judge finding that Marvin abused or neglected his daughter, M.G. (Margie), by the use of excessive corporal punishment. We affirm.
We use fictitious names to protect the identity of the minor children.
Marvin and T.F. (Tina) are the biological parents of Margie and C.G. (Conrad). The family has a history with the Division of Child Protection and Permanency (Division) dating back to 2009, predicated upon its investigation of various allegations of abuse or neglect not related to this appeal.
On June 4, 2012, the Division received a referral from the guidance counselor at Margie's elementary school alleging physical abuse by Marvin. Division caseworker Diane Foster responded to the referral. Foster spoke with the guidance counselor, interviewed the children and parents, and took photographs of the children. Based upon her interview with Margie as well as other witnesses, Foster concluded that allegations of physical abuse were substantiated. The Division immediately noticed Marvin and Tina with a "Dodd Removal," N.J.S.A. 9:6-8.29 and -8.30, and an emergency removal of the children was completed the same day, June 4, 2012.
On June 6, 2012, the Division filed a verified complaint for care, custody, and supervision of Margie and Conrad. On the same date, a Family Part judge entered an order to show cause granting the Division custody, care, and supervision of the children. Thereafter, on June 28, 2012, another Family Part judge continued the Division's custody, care, and supervision of the children.
The complaint details the family's history with the Division dating back to November 14, 2009, including a series of allegations of neglect and physical abuse (including sexual abuse) by the parents and grandparents. The June 6, 2012 Dodd Removal and complaint, however, were based on the referral from Margie's elementary school.
Marvin moved to dismiss the referrals from the complaint, which a third Family Part judge denied on August 24, 2012. Case management review hearings took place on September 21 and December 19, 2012. The Family Part judges collectively ordered, among other things: counseling for the children; anger management, parenting classes, counseling at St. Francis, and psychiatric and psychological evaluations for Marvin; parental visitation with the children pending approval by the law guardian; and investigation of the grandparents.
On March 18, 2013, a fact-finding hearing was conducted before a judge regarding allegations of abuse or neglect by Marvin, specifically by use of excessive corporal punishment. We derive the following facts from the record of the hearing.
Doctor Steven Kairys, M.D., testified for the Division with respect to Margie's injuries. The parties stipulated to his medical expertise in the field of child abuse. Dr. Kairys saw Margie (and Conrad) on June 5, 2012. The doctor took photographs of Margie, and noted injuries he observed on Margie's body including bruising on her arm and scabbing on her back. During the examination, Margie told Dr. Kairys that she incurred the bruises by falling from a chair but also told him that Marvin may have squeezed her arm, causing the bruises. Following the examination, Dr. Kairys authored a report concluding that while some of Margie's bruising could have been caused by accidental falls, the injuries were consistent with those inflicted by physical abuse.
Dr. Kairys also noted in his report that he requested photographs taken by the Division. It is unclear which of the pictures in the record were taken by the Division and which were taken by Dr. Kairys.
Dr. Kairys testified that some of Margie's injuries were not consistent with falling from a chair, and that the nature of the injuries led him to conclude that they were "inflicted" injuries. The doctor opined that while it is possible that multiple injuries could have been sustained accidentally (i.e., by falling down stairs), based upon the pattern and location of the bruises, the bruises appeared to be caused by contact from a right hand. Specifically, the doctor stated, the lateral, linear bruising marks on Margie's face and arm suggested that the injuries were caused in this manner.
On cross-examination, counsel for Marvin questioned whether Margie's bruises could have been caused from multiple falls from a chair, as Margie related to Dr. Kairys. Marvin's counsel also questioned the doctor's reliance upon Margie's version of events. Dr. Kairys stated that Margie's history of recanting stories did not affect his conclusion that the injuries were inflicted in the manner he noted rather than accidentally.
Foster testified consistent with her report, stating that Margie offered several varying stories as to how she incurred the injuries. Foster summarized versions of events provided by Margie that she fell from a chair trying to reach Easter candy; that she dropped an egg she was trying to cook; and that Marvin got mad, broke the children's toys, and threw them at the children. Margie also reported that she ran to hide under the bed because she was scared. Foster testified that Margie was distracted during the interview and also related to her that she did not remember what happened. In fact, Foster was caused to repeat her questions to Margie to ensure Margie was telling the truth. Foster reiterated her report's conclusion that allegations of physical abuse were substantiated.
Foster did not testify that Margie reported any striking or grabbing by Marvin.
Foster was not permitted to testify regarding the statements Conrad or Tina made to her.
Over Marvin's objection, Tina testified that she observed the bruises on Margie's face on the Sunday before the Division referral. Margie first told Tina that "daddy hit her[,]" and then told Tina that she fell from a chair after being admonished by Marvin to tell the truth. Upon further inquiry by Tina, Margie explained that Marvin hit her for making a mess in the house. On cross-examination, Marvin's counsel suggested to Tina that Margie could have fallen from a chair trying to reach candy, and that Margie had a history of making false accusations and a "propensity to lie[.]" Tina did not dispute that Margie had a propensity for lying.
Marvin argued that the hearsay statements disclosed by Tina would be tainted. However, the judge distinguished the matter from State v. Michaels, 136 N.J. 299 (1994), and held that "the level of the questioning and the manipulative nature of the questioning" in Michaels is "easily distinguishable from what occurred in this case." This issue has not been raised on appeal.
The children's paternal grandmother testified to authenticate two pictures entered into evidence, which contradicted statements made by Margie that she attempted to hide underneath the bed when Marvin was angry. The judge also admitted two reports from Margie's therapist, Lori S. Tomaro, stating that Margie never reported or alleged physical discipline by Marvin.
At the conclusion of the hearing, the judge issued an oral decision holding that Marvin abused or neglected Margie by use of excessive corporal punishment. In particular, the judge credited Dr. Kairys's "unrefuted" testimony that certain injuries were inflicted upon her and not accidental, specifically those with lateral, linear bruises. The judge also reasoned that despite Margie's propensity for lying, she did affirmatively state on multiple occasions that she was hit, and the family's dysfunction (as well as Marvin's reprimand of Margie in Tina's presence) was likely a cause for her differing versions of events. Moreover, the judge reasoned that Dr. Kairys's testimony and conclusions corroborated Margie's statements that Marvin hit her, notwithstanding the allegation that she had a propensity for lying.
With respect to Tomaro's reports stating that Margie never disclosed physical abuse by Marvin, the judge noted that Margie's visitation with Tomaro was based upon separate allegations of sexual abuse and, therefore, it was unclear whether Tomaro questioned Margie with respect to the allegations in this matter.
In conclusion, the judge found that Dr. Kairys's uncontradicted testimony outweighed the reliability of Tomaro's reports, and therefore, the Division established by a preponderance of the evidence that Marvin abused and neglected Margie by using excessive corporal punishment. The judge entered a dispositional order continuing the Division's custody, care, and supervision of Margie, and denied without prejudice Margie's grandparents' application for visitation.
Permanency and compliance review hearings took place between May 29, 2013, and May 14, 2014. On September 8, 2014, a final compliance review hearing was held, and a Family Part judge entered an order dismissing the matter, continuing legal custody of the children with both parents, awarding physical custody to Tina, and ordering that the children not be forced to visit Marvin. This appeal followed.
Marvin raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN FINDING ABUSE AND NEGLECT BECAUSE THE PROOFS COULD NOT SUPPORT THE FINDING BY A PREPONDERANCE OF THE EVIDENCE.
POINT A
MARGIE'S INCONSISTENT HEARSAY STATEMENTS COULD NOT SUPPORT A FINDING OF ABUSE AND/OR NEGLECT.
POINT B
DR. STEVEN KAIRYS'S REPORT AND TESTIMONY DID NOT PROVIDE CORROBORATION THAT MARVIN STRUCK MARGIE.
POINT II
THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S APPLICATION TO REDACT OR STRIKE THE HEARSAY WITHIN HEARSAY CONTAINED IN THE DIVISION'S REPORTS.
In reviewing the decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Concomitantly, reviewing courts should defer to the trial court's credibility determinations" as well. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). "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 and Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
To prevent abuse or neglect, the Division may bring an action under N.J.S.A. 9:6-8.21 to -8.73 (Title 9). N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). 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[.]The statute requires a court to consider harm or risk of harm to the child, as opposed to the intent of the abuser, because "[t]he main goal of Title 9 is to protect children 'from acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (quoting State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991)).
Title 9 does "not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002). Title 9 provides several standards by which a child may be shown to have been abused or neglected; relevant here, the "infliction of excessive corporal punishment." N.J.S.A. 9:6-8.21(c)(4). The statute leaves the term "excessive" undefined, and what constitutes excessive corporal punishment is fact sensitive. N.J. Div. of Youth and Family Services v. P.W.R., 205 N.J. 17, 33, 35-36 (2011). However, the term means "going beyond what is proper or reasonable." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011). "'[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." P.W.R., supra, 205 N.J. at 35-36; see also K.A., supra, 413 N.J. Super. at 510-11, (citing to N.J.A.C. 10:129-2.2, which lists examples of abuse or neglect, including "[c]uts, bruises, abrasions, [or] welts").
Marvin challenges the judge's findings of fact, describing them as "flawed" because they were not supported by credible evidence. Specifically, Marvin contends the judge's findings of fact were improperly based upon Margie's statements since she offered several conflicting explanations for her bruising. Marvin also argues that Dr. Kairys's testimony did not corroborate Margie's statements because Dr. Kairys could not state with absolute certainty that the injuries were inflicted rather than accidental. We disagree.
The Division must prove by a preponderance of the evidence that a child was abused or neglected, and must do so through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b). Such evidence includes statements made by the child, as N.J.S.A. 9:6-8.46(a)(4) provides:
In any hearing under this act, including an administrative hearing held in accordance with the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), . . . previous 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."Thus, a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." P.W.R., supra, 205 N.J. at 33.
Although Margie offered "accidental" versions of events regarding the cause of her bruises, she also stated that "daddy hurt [her]," threw a toy truck at her, hit her, and squeezed her arms. The judge reasoned that any inconsistencies in her statement were attributable to the highly dysfunctional family dichotomy, as well as Marvin's reprimand of Margie in front of Tina. We defer to the judge's credibility determinations and "feel of the case." See R.G., supra, 217 N.J. at 552; F.M., supra, 211 N.J. at 448-49; E.P., supra, 196 N.J. at 104.
Moreover, Margie's statements were corroborated by credible testimony from a medical expert in the field of child abuse. To be corroborative, evidence "need only provide support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). The court has described the most effective types of corroborative evidence as eyewitness testimony, a confession, an admission or medical or scientific evidence. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).
Margie's out-of-court statements, particularly those made to her own mother and Dr. Kairys, were corroborated by expert testimony and properly considered by the judge. Dr. Kairys offered a particularized medical explanation for the linear, lateral bruises on Margie's face and arm. He has extensive experience and the parties stipulated to his medical expertise in the field of child abuse. The judge noted that Dr. Kairys's testimony was credible, unrefuted, and corroborated Margie's statements that Marvin hit her.
At the hearing, counsel for Marvin objected to the entry of the Division's screening summary without the stipulation that the summary was being admitted solely for the purpose of showing why the Division became involved. At issue was the guidance counselor's statements documented in the screening summary, which constituted embedded hearsay or "hearsay within hearsay." The judge declined to attach a caveat on the admission of the evidence, stating that the court rules permit the entry of the summary and do not limit the scope of admissibility.
The Division may submit as evidence staff and other reports under the business records hearsay exception as long as they meet the requirements promulgated in N.J.R.E. 803(c)(6) and 801(d). R. 5:12-4(d) (permitting reports by staff personal or professional consultants under N.J.R.E. 803(c)(6) and 801(d), and stating that such reports shall be treated as prima facie evidence subject to rebuttal); see also N.J.S.A. 9:6-8.46(a)(3) (allowing admission into evidence of Division records "of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding . . . [as] proof of that condition, act, transaction, occurrence or event" if it meets the prerequisites of admission of a business record).
Business records offered under N.J.R.E. 803(c)(6) require the proponent of the evidence to "demonstrate that 'the writing [was] made in the regular course of business,' the writing was 'prepared within a short time of the act, condition or event being described,' and 'the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.'" M.C. III, supra, 201 N.J. at 347 (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)). However, any hearsay embedded in the document is barred unless that hearsay also qualifies for an exception. N.J.R.E. 805.
Here, neither the Division nor Margie deny that the screening summary contained embedded hearsay, nor did they oppose Marvin's request to limit the purpose of the report. To be sure, the screening summary contains hearsay statements by the guidance counselor regarding the nature and cause of the bruises, as well as statements made by Conrad, Tina, Margie, and Marvin.
However, the judge did not rely on or make reference to the guidance counselor's statements or Conrad's statements recorded in the screening summary. Further, Foster did not offer any substantive testimony regarding the guidance counselor's statements, or any statements made by Conrad, Tina, or Marvin. Instead, the judge relied on Margie's statements through the testimony of Foster, Tina, and Dr. Kairys, which was corroborated by photographic evidence and the expert medical opinion of Dr. Kairys.
As a result, we conclude that, to the extent the judge's evidentiary ruling was erroneous, it was harmless. An error is not grounds for reversal if it is "harmless," and will be disregarded by the appellate court. State v. Macon, 57 N.J. 325, 337-38 (1971); see also R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]"). From our review of the hearing record, the admission of the screening summary without stipulating as to its purpose did not produce an unjust result. R. 2:10-2.
Having considered the record through the lens of our deferential standard of review and controlling decisions of law, we discern no basis for disturbing the judge's determination of abuse and neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION