Opinion
DOCKET NO. A-4777-13T2
04-12-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.G., Defendant-Appellant, and D.H., Defendant. IN THE MATTER OF K.H., J.H., D.H., AND A.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-109-13. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant P.G. (Peggy) appeals from the January 15, 2013 fact-finding order, memorializing the trial judge's determination that she abused and neglected her child. We conclude from our review of the record that the competent, material and relevant evidence is sufficient to sustain the judge's findings. We affirm.
We use pseudonyms for the purposes of confidentiality and clarity.
Peggy is the mother of four children: J.H. (James), K.H. (Kathy), D.H. (Dan), and A.G. (Anne). Defendant D.H. (Daniel) is the father of James, Kathy, and Dan.
Although the other minor children are named in the complaint, they are not the subject of this appeal as the only allegation of abuse and neglect pertained to James. --------
The testimony at the fact-finding hearing revealed the following pertinent facts. In September 2012, the Division of Child Protection and Permanency (Division) received a referral that James had been physically abused by his mother. A Division worker interviewed James at his school and he told her that Peggy had struck him several times on his body with a tennis racket for making a mess in a closet. An examination revealed bruising on James' body described by the worker as:
bruising, black and white bruising on [James'] left cheek and it was black and yellow in color. There were three bruises that were black in color on [James'] left arm. There were two black bruises on [James'] right arm. There was a small scab on [James'] middle right finger. And then there was a black and yellow bruise with a scab in the middle of [James'] left leg. And then another black bruise on [James'] right leg.The worker took photographs of the injuries and also spoke with the school nurse, who prepared a report describing the bruises.
The worker testified that she interviewed James' sister Kathy who stated that Peggy told her she had hit James with a tennis racket as punishment for his behavior with the closet. Kathy was not present at the time of this incident but she advised the worker that her mother told her she "[t]ried to hit [James] with the racket on his buttock but when [James] moved she hit him on another part of his body."
When questioned by the worker, Peggy denied that there had been any incident. She stated that James had previously sustained injuries when he had fallen off the bed, or as a result of playing outside. She denied using a racket to discipline the children.
The Division filed a verified complaint and order to show cause seeking custody, care, and supervision of the four children. The Division was granted legal and physical custody of James, Kathy and Dan. Peggy retained custody of Anne with care and supervision remaining with the Division.
Following the fact-finding hearing, the trial judge ruled that James' statement was corroborated by the testimony of his sister and the photographs depicting the bruising. She found James, Kathy, and the caseworker to be credible in their testimony. Finally, the judge concluded that, in hitting James with a tennis racket, Peggy had used excessive corporal punishment constituting abuse or neglect under N.J.S.A. 9:6-8.21(c).
On appeal, Peggy argues that: (1) James' out-of-court statements to the Division were not sufficiently corroborated and are therefore not admissible, and (2) her actions did not constitute excessive corporal punishment.
The scope of our review of a trial judge's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Particular deference should be given to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed, even if the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). In using that standard, we find no basis to disturb the trial judge's conclusion that James was abused and neglected, as defined by N.J.S.A. 9:6-8.21(c).
Peggy argues that under N.J.S.A. 9:6-8.46(a)(4), James' statement alone was insufficient to establish the alleged abuse as it was not corroborated by other admissible evidence. N.J.S.A. 9:6-8.46(a)(4) states:
In any hearing under this act . . . 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.
"[A] child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Corroboration may include "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). "In general, corroborative evidence need not be direct so long as it provides some support for the out-of-court statement." N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 67 (App. Div. 2014).
We conclude that the bruises on James' body and the photographs depicting his injuries are sufficient corroboration of James' statement. Both the caseworker and the school nurse noted the bruising in their respective reports. James had stated he had been struck several times and indicated the location on his body. The judge noted that James complained of injuries and the bruising on his body was consistent with his description of where he had been struck. As a result, the judge did not err in her determination that James' statement was sufficiently corroborated.
We also reject Peggy's argument that using a tennis racquet to punish a child does not amount to excessive corporal punishment to support a finding of abuse. We have interpreted "excessive" as "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), certif. dismissed, 208 N.J. 355 (2011). "[W]e evaluate a claim of abuse by looking to the harm suffered by the child, rather than the mental state of the accused abuser." Ibid. In examining the circumstances, James disobeyed his mother when he went into her closet and made a mess. Peggy chose to discipline the child with a hard object, a tennis racquet, and struck him several times leaving visible bruising on several areas of his body. Peggy denied the incident and has not shown remorse. We find the judge did not err when she found striking the child more than one time with a tennis racquet with resulting bruising was done with the "knowledge that injury was likely to or probably [would] result from her actions."
Based on our review of the record and the applicable legal standards, we conclude the evidence presented during the fact-finding hearing is sufficient to support the determination that Peggy abused or neglected her child, and we therefore affirm the trial judge's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION