Opinion
DOCKET NO. A-0386-16T2
01-16-2018
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.H., Defendant-Appellant. IN THE MATTER OF A.W., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Sarah M. Dingivan, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Roman Guzik, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fuentes and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0469-15. Joseph E. Krakora, Public Defender, attorney for appellant (Sarah M. Dingivan, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Roman Guzik, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant P.H. (Paula) appeals the October 1, 2015 order of the Family Part entered following a trial that found she abused or neglected her child, A.W. (Alice), contrary to N.J.S.A. 9:6-8.21(c)(4)(b), by inflicting excessive corporal punishment. We affirm the trial court's order, which was supported by substantial credible evidence in the record.
We have used fictitious names and initials to maintain the confidentiality of the parties. See R. 1:38-3(d)(12).
This appeal was filed after the underlying litigation was terminated by order dated August 17, 2016. Paula challenges only the October 1, 2015 order.
I
In May 2015, the Division of Child Protection and Permanency (Division) filed an order to show cause and verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-12, alleging abuse or neglect and seeking care and supervision of Alice. Paula was named as a defendant as well as Alice's father, O.W. (Otto).
Although O.W. did not reside with Paula, he shared joint legal custody of Alice.
At the fact-finding hearing on October 1, 2015, the Division caseworker testified that in March 2015, when Alice was sixteen, Paula saw a sexually explicit text on Alice's phone. A physical altercation ensued when Alice refused to give the cellphone to Paula, prompting other residents of the household to call the police. The police officers who responded contacted the Division.
Because of Paula's lack of cooperation, the Division caseworker could not immediately interview Alice. When she did, Alice told the caseworker that Paula physically disciplined her with a belt and that sometimes it left a mark or bruise; Alice did not have any visible bruises at the time. At other times, her mother disciplined her by taking away things. Alice said she was not afraid of her mother.
Paula admitted she disciplined Alice using a belt and that being hit with a belt was going to leave marks and bruises. She used corporal punishment to discipline Alice when she did not behave in school or was not doing her homework. Paula would not agree to refrain from this form of discipline, maintaining that she would discipline Alice as she chose. After this incident, Paula did not arrange mentoring, counseling, or other services for Alice that were recommended by the Division.
The Division had previous contact with Paula and Alice. The verified complaint alleged that in 2010, the Division investigated an allegation of physical abuse and alcohol use by Paula, but the Division closed its case, concluding the allegation was unfounded.
In 2011, the Division investigated another referral about physical abuse. Alice told the caseworker that Paula struck her with a belt once a week for not completing her chores at the house. Her mother hit her with a belt just a few days earlier for making breakfast to eat after school instead of lunch. The caseworker did not find any visible bruises or abrasions. Paula admitted using a belt to discipline Alice and hitting her on her legs or arms; she also claimed to use other forms of discipline that did not involve corporal punishment, such as taking things away from Alice or not letting her watch television. The Division caseworker urged Paula to consider using other more appropriate means of discipline. Ultimately, the Division concluded the allegation of abuse was unfounded.
In 2012, Alice called the Division herself, asking to be removed from the home; Paula joined on the call. Paula told the Division she just had struck her daughter with a belt because she did not want Alice to go out of the house when she was not there. Paula admitted to striking Alice with a belt, while the child was dressed only in her underwear. Although Paula claimed she intended to hit Alice only on the buttocks, she hit other areas of the child's body and may have left welts. Paula called back later saying that all of this was a mistake to scare her daughter. The Division's investigation found no bruises or marks, and Paula denied any current physical discipline. The Division again concluded that the allegations were unfounded.
The present complaint was filed in 2015. At the conclusion of the October 1, 2015 fact-finding hearing, the Family Part judge found the Division's caseworker's testimony "extremely credible." Based on her unrebutted testimony, the court found the Division had proven Paula used "physical abuse and excessive corporal punishment" by a preponderance of the evidence. Referring to Paula, the court found "there are admissions by the parties saying that she did it and that she wasn't gonna change, that she was gonna continue to do it." The court thus decided there was a "substantial risk of harm," finding that "there's a parent who has used excessive corporal punishment and intends to continue using it based on her own admission."
On appeal, Paula contends that the trial court's findings were not supported by substantial credible evidence in the record. Paula claims the court did not consider the circumstances of the situation nor was there any evidence of excessive corporal punishment. According to Paula, the trial court considered any use of a belt for discipline to be excessive per se. Paula claims the judge was biased against her and should have recused himself. In addition, she argues it was error to order that she could not use any corporal punishment. She asserts there was no evidence to support a finding of neglect. The Division and the Law Guardian ask that we affirm the decision of the trial court that found abuse and neglect.
At the trial, the Law Guardian asserted Alice's position, which was that she did not want a finding of abuse and neglect against her mother. On appeal, the Law Guardian for Alice contends that the finding of abuse and neglect should be sustained. Paula has not argued that the Law Guardian should be judicially estopped from taking this position on appeal. See Ali v. Rutgers, 166 N.J. 280, 287-88 (2000). --------
II
"[W]e accord great deference to discretionary decisions of Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), 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)). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We defer to credibility assessments made by a trial court unless they are manifestly unsupported by the record because the trial court had the critical ability to observe the parties' conduct and demeanor during the trial. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "[W]e review the judge's legal conclusions de novo." N.J. Div. of Child Prot. & Permanency v. A.B., ___N.J.___, ___ (2017) (slip op. at 19) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The focus of Title [Nine] is not the culpability of parental conduct but rather the protection of the children." A.B., ___ N.J. ___ (2017) (slip op. at 18) (citations omitted). "The paramount concern of Title [Nine] is to ensure the safety of the children, so that the lives of innocent children are immediately safeguarded from further injury and possible death." Ibid. (citations omitted).
Under Title Nine, an "abused or neglected child" means a child under the age of eighteen,
whose parent or guardian . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired [by a parent's failure] to exercise a minimum degree of care . . . (b) . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . .
[N. J.S.A. 9:6-8.21(c) (emphasis added).]
Whether a parent has committed abuse or neglect "must be 'analyzed in light of the dangers and risks associated with the situation.'" N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)). Claims of abuse and neglect are evaluated "by looking to the harm suffered by the child, rather than the mental state of the accused abuser." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010). The cases are fact sensitive.
"'Excessive corporal punishment' is not specifically defined in Title Nine." Id. at 510. Although "a parent may inflict moderate correction such as is reasonable under the circumstances of a case," that which is excessive goes "beyond what is proper or reasonable." Id. at 510-11. The circumstances of the case need to be examined. See id. at 512.
In M.C. III, 201 N.J. at 345, where the father of two children hit and choked them, the Court concluded that the finding of abuse and neglect was supported because the father's actions "disregarded the substantial probability that injury would result from his conduct." Whether harm to the children was intended was not relevant. See ibid.
In N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322 (App. Div. 2007), we found no error in the trial court's decision that the corporal punishment was contrary to Title Nine where a parent hit her six-year-old son with a belt, resulting in a welt under his eye, because his report card said he was disrespectful of others.
In N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), we agreed with the Division that it was not reasonable to hit a five-year-old child with a paddle in the face, arms, and legs because the child told a neighbor that his home had no electricity. We found that child was in "imminent danger" of becoming impaired "because of the unreasonable infliction of corporal punishment . . . established by [the parent's] admitted use of corporal punishment regularly . . . as a form of punishment and her belief that no one could tell her how to discipline her own child." Ibid.
In N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137 (App. Div. 2015), we found the corporal punishment was excessive where a parent caused injuries by hitting her fifteen-year-old with her fist and a golf club and biting him when he showed her oppositional behavior.
This was in contrast to K.A., 413 N.J. Super. at 511, where we reversed a finding of abuse or neglect against a parent who hit her child on the shoulder with her fist and caused bruising. In that case, there was no injury or pattern of abuse, the child was psychologically disruptive, and lesser forms of discipline had not worked.
Similarly in N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011), the Court did not find excessive corporal punishment where the parent occasionally slapped a teenager in the face and did not leave bruises or marks.
Here, we agree that the trial court's decision was supported by the record and consistent with the case law. The Division's caseworker was found to be extremely credible. She testified Paula admitted hitting Alice with a belt for discipline, which was not limited to one part of her body. Although there was no documented evidence of bruises and welts, Paula admitted that bruises and welts occurred in the past. Paula's indiscriminate use of a belt to discipline Alice disregarded the substantial probability that she could be injured, similar to M.C. III, because she hit the child as punishment for years, did not restrict what body part she struck, and refused to curtail that or accept counseling. Although the child showed oppositional behavior, Paula's response was not an isolated incident as in K.A. In addition, Paula did not express remorse for hitting Alice and refused counseling for herself and her daughter, in sharp contrast to the parent's disposition in K.A. As we noted, "K.A. accepted full responsibility for her actions, was contrite, and complied with Division-sponsored counseling." 413 N.J. Super. at 512.
The facts in this case are more akin to the salient facts in C.H. Here, Paula regularly disciplined Alice by hitting her with a belt and steadfastly refused to accept counseling to explore other reasonable alternatives. Paula's defiance and her unwillingness to recognize the abusive aspect of her disciplinary methods formed the basis for the Family Part's conclusion that she posed a substantial risk of harm to Alice within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). We are satisfied the record had sufficient evidence to support the court's conclusion that Paula abused or neglected Alice within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by repeatedly hitting her with a belt over minor issues and refusing to stop or accept counseling.
For the first time on appeal, Paula raises the issue that the trial judge should have recused himself prior to trial because of bias. "Generally, an appellate court will not consider issues . . . which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). We thus decline to consider this argument. The trial judge should have had the opportunity to address the issue directly. Even if the issue had been properly raised, our review of the record shows no basis for recusal.
After carefully reviewing the record and the applicable legal principles, we conclude that Paula's remaining arguments are without sufficient merit to warrant 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