Opinion
DOCKET NO. A-0621-14T2
02-24-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.H., Defendant-Appellant, and K.S., Defendant. IN THE MATTER OF D.H., O.H., M.H. and E.H., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H., O.H. and E.H. (David Valentin, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.H. (Phyllis G. Warren, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-434-14. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H., O.H. and E.H. (David Valentin, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.H. (Phyllis G. Warren, Designated Counsel, on the brief). PER CURIAM
Defendant S.H. appeals from the Family Part's April 22, 2014 order finding that he abused or neglected his sixteen-year-old son, E.H., when he punched him in the eye with a closed fist. We affirm.
Initials are used to protect the privacy of the minor child. --------
The fact-finding hearing was entered after what can be described as a "trial on the papers." That is, the court decided the case based on various documents offered into evidence by the Division of Child Protection and Permanency (Division), and oral argument. The defense did not object to the Division's evidence or offer any proofs at the hearing.
The facts are undisputed. Defendant had residential custody of E.H. and three younger children following his September 2013 divorce from K.S. All four children are adopted and have special needs. K.S. had liberal visitation with the children after the parties' divorce.
On December 30, 2013, defendant and E.H. were involved in an argument during which E.H. became disrespectful and used profanity. Defendant admitted to a Division worker that he "lost it" and punched E.H. in the eye. Defendant appeared "very remorseful and stated that he never meant to hit [E.H.] that hard." E.H. reported that his father "punched him straight in the eye." He described it as a very hard punch that hurt him badly. Defendant then began to wrestle with E.H. until one of the younger siblings separated them.
Defendant called K.S. and informed her what occurred. K.S. picked up E.H. and brought him to her home. There, E.H. began to display symptoms of a concussion. He was vomiting violently, and complained of dizziness and a headache. K.S. took E.H. to the hospital, where he was treated for his injuries and released. The hospital records were not produced at the fact-finding hearing.
Defendant told an investigating Haddon Township police officer that E.H. was using profanity and being disrespectful. Defendant then struck his son with a closed fist, in order to "get his attention." Defendant was charged with aggravated assault, N.J.S.A. 2C:12-1b(7), and cruelty and neglect, N.J.S.A. 9:6-3, as a result of the incident.
At the Division's request, E.H. was examined by Stephanie V. Lanese, M.D., an assistant professor of pediatrics at the CARES Institute at Rowan University. Dr. Lanese diagnosed E.H. with a subconjunctival hemorrhage of the left eye. Dr. Lanese noted that, two weeks after the incident, E.H. still had swelling on the left side of his face and bruises on his upper and lower left eyelids. Photographs taken at CARES, along with photos previously taken by the Division depicting E.H.'s injuries, were introduced in evidence at the hearing.
In her report, dated January 14, 2014, Dr. Lanese opined that, "[a]t this time, the primary impact of [E.H.'s] experience is psychological, and he should be seen by a mental health clinician to assess the impact and develop a treatment plan." She "recommend[ed] trauma-focused cognitive behavioral therapy . . . for the physical abuse [E.H.] incurred at the hands of his father." Noting that E.H. sustained a concussion as a result of the assault, Dr. Lanese prescribed that he be allowed extra time to complete his tests and school assignments.
In an oral opinion placed on the record at the end of the fact-finding hearing, Judge Kathleen M. Delaney reviewed the photographs and reports and found that they supported a finding of abuse and neglect. The judge found that defendant "punched [E.H.] with such force that [his] eye was nearly swollen shut and two weeks later, there are still remnants of being punched in the eye." Consequently, the judge concluded that defendant inflicted excessive corporal punishment that caused actual harm as well as the risk of protracted impairment to E.H.'s eye.
Judge Delaney distinguished New Jersey Division of Youth and Family Services v. P.W.R., 205 N.J. 17, 36 (2011), because in that case the mother slapped a teenager in the face once with an open hand, without leaving any marks or bruises. The Court in P.W.R. noted that the child suffered no marks or bruising and concluded it was not excessive corporal punishment. Ibid. In contrast, in this case, the judge found that defendant punched E.H. directly in the eye. Additionally, two weeks after the incident, the child still exhibited signs of injury, including a "severely swollen and black and blue eye."
Judge Delaney also distinguished Department of Children & Families v. K.A., 413 N.J. Super. 504 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). In K.A., a mother hit her eight-year-old daughter four or five times on the shoulder with a closed fist, causing several bruises. Id. at 506. The child suffered from autism. Ibid. We found no excessive corporal punishment, noting, among other things, that the mother did not lacerate the child's skin, the child did not need medical intervention, and the visible bruises did not expose the child to further harm if left untreated. Id. at 511-12. In the present case, E.H. required medical attention at a hospital following the assault. The judge found a marked difference between "a couple of punches to the shoulder" and "a punch directly to the eye that causes this type of injury that is still obvious two weeks later as shown [in the CARES photograph]."
Defendant appeals and argues the Division failed to prove abuse or neglect by a preponderance of the competent and material evidence. In particular, defendant argues the corporal punishment was an isolated incident; no medical evidence was presented to show that E.H.'s injuries were permanent; and no evidence was offered that E.H. suffered psychological harm as a result of the incident.
In reviewing these arguments, we are bound to accept Judge Delaney's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). While we review a trial judge's legal conclusions de novo, we owe particular deference to the judge's expertise in family-related issues. Id. at 448; Cesare v. Cesare, 154 N.J. 394, 413 (1998); In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). Based on our review of the record, including the color photographs of the child's injuries, Dr. Lanese's report, and the various documentary evidence, we find no basis to disturb Judge Delaney's well-reasoned decision.
Title 9 defines child abuse as including a parent who inflicts physical injury upon a child "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 . . . ." N.J.S.A. 9:6-8.21(c)(1). Child abuse also includes a parent "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)(4)(b). The Division's regulations define "the types of injuries or risk or harm that may be abuse or neglect" as including "bruises, abrasions, [and] welts," as well as "mental or emotional impairment." N.J.A.C. 10:129-2.2(a)(9), (12).
"Abuse and neglect cases are generally fact sensitive" and require "careful, individual scrutiny." P.W.R., supra, 205 N.J. at 33. Factors the court may consider include the child's age, whether the parent intentionally inflicted the punishment, the physical effect on the child such as the presence of bruises or other signs of injury, and whether the parent "disregarded the substantial probability" that the child would be injured by the parent's conduct. Id. at 33-34 (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010)); K.A., supra, 413 N.J. Super. at 510-11. At a fact finding hearing, the Division must prove its allegations by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
It is unclear from the judge's decision and order whether the finding of abuse arose under N.J.S.A. 9:6-8.21(c)(1), N.J.S.A. 9:6-8.21(c)(4)(b), or both. In any event, we agree with Judge Delaney that punching a teenage child squarely in the eye with such severity as to cause the injuries depicted in the photographs and noted in Dr. Lanese's report, constitutes excessive corporal punishment. N.J.S.A. 9:6-8.21(c)(4)(b). It also clearly created a substantial risk of serious disfigurement or protracted impairment to E.H.'s eye. N.J.S.A. 9:6-8.21(c)(1).
We further find that, even if defendant believed that corporal punishment was appropriate given E.H.'s unruly behavior, he should have known that the punishment he was imposing was excessive. Moreover, there need not be proof that the parent or guardian intended to harm the child. "So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of [his] conduct is irrelevant. Knowledge will be imputed to the actor." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citation omitted).
Defendant relies on P.W.R. and K.A. in arguing that the punishment did not constitute child abuse. We cannot agree. As Judge Delaney noted, P.W.R. is distinguishable, because it involved one isolated instance when a parent lost her temper and slapped her teenage daughter with an open hand, leaving no marks or bruises. P.W.R., supra, 205 N.J. at 35-36. Here, defendant punched E.H. with a closed fist, causing swelling and severe bruising that was still readily apparent two weeks after the incident.
Although there are some facts common to the present case and K.A., we agree with Judge Delaney that K.A. is also distinguishable. As in the present case, K.A. involved a situation in which a harried parent, dealing alone with extraordinary stress, momentarily lost control and struck the child. K.A., supra, 413 N.J. Super. at 512-13. The incident was "aberrational" and not part of a pattern of abuse. Ibid. We considered those extenuating circumstances, and the fact that the mother did not lacerate the child's skin and the child did not require medical intervention, in finding no excessive corporal punishment. By contrast, here E.H. was severely harmed, and required medical attention for his injuries. Nor is the fact that this may have been an isolated incident controlling. Rather, in K.A. we observed that a single act of violence against a child can be deemed excessive corporal punishment. Id. at 511.
Finally, defendant argues that the Division failed to present a medical expert or medical evidence to establish the severity of E.H.'s physical injury or that his mental or emotional condition was impaired or in danger of being impaired. We find this argument both erroneous and disingenuous.
We recognize that the documents admitted into evidence contained embedded hearsay subject to objection, notwithstanding the admissibility of Division records. N.J.S.A. 9:6-8.46(a)(3) allows 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. See also R. 5:12-4(d) (stating that documents prepared by Division staff are admissible if they satisfy the requirements of the business records exception to the hearsay rule, N.J.R.E. 803(c)(6) and 801(d)).
However, hearsay embedded in such records must satisfy a separate hearsay exception. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 466-67 (App. Div. 2014) (noting that notwithstanding admissibility of Division records that meet the business records exception, hearsay embedded therein must meet other hearsay exceptions in order to be admitted). See also N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173-74 (App. Div. 2012) (stating that trial court should have excluded expert opinion, although contained in otherwise admissible business records, absent specific findings regarding trustworthiness).
In this case, the Division was unable to produce the hospital records. Accordingly, Judge Delaney properly did not consider any embedded hearsay in the Division reports that referenced E.H.'s diagnosis or treatment at the hospital.
However, a different result ensues with respect to Dr. Lanese's expert report, which was admitted in evidence without objection. Here, the Division relied on defense counsel's consent to the admission into evidence of the documents, including Dr. Lanese's report. Had defendant taken a contrary position, the Division could have attempted to call Dr. Lanese or other hearsay declarants as witnesses at the hearing. See M.C. III, supra, 201 N.J. at 340-41 (applying invited error doctrine and holding that defendant's failure to object "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling").
Even if the invited error doctrine does not dispose of defendant's argument, we apply the principle that hearsay that is subject to a well-founded objection is generally evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 224 n. 1 (1981) (Schreiber, J., concurring). See also Morris v. United States, 813 F.2d 343, 348 (11th Cir. 1987) (stating that "if evidence of this kind [that is, hearsay] is admitted without objection, it is to be considered, and accorded its natural probative effect, as if it were in law admissible") (emphasis omitted) (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co., 253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920)); Newsom v. United States, 335 F.2d 237, 238-39 (5th Cir. 1964); In re Petagno, 24 N.J. Misc. 279, 283-84 (Ch. 1946); J.A. Bock, Annotation, Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890 (2014) (stating that "overwhelming weight of authority" supports the rule that inadmissible hearsay may be considered evidential when it enters the record without objection, and it "should be given its natural and logical probative effect"); 1 McCormick on Evidence § 245 at 181 (Broun ed., 7th ed. 2013) ("If otherwise inadmissible hearsay evidence is received without objection, it typically may be considered and, if apparently reliable, is sufficient to sustain a verdict or finding of fact."); id. § 54 at 381.
Dr. Lanese examined E.H. two weeks after the assault. She diagnosed E.H. with a subconjunctival hemorrhage of his left eye. She observed that E.H. still had numbness and tingling on the left side of his face, and swelling and bruising around his left eye. Importantly, also, Dr. Lanese noted the psychological impact of this experience on E.H., and recommended that he receive "trauma-focused cognitive behavioral therapy . . . for the physical abuse he incurred at the hands of his father." Admitted without objection, Dr. Lanese's report established the physical and emotional harm E.H. suffered as a result of the assault.
In sum, we appreciate that this was a "one-time event" as in K.A., supra, 413 N.J. Super. at 512, that defendant had the stressful responsibility of serving as primary caretaker for his four young special-needs children, and that E.H. was being openly disrespectful and defiant. Nonetheless, we discern sufficient credible evidence in the record to support the trial court's finding that defendant abused or neglected E.H. by inflicting excessive corporal punishment that caused both actual injury and the risk of protracted impairment to his eye.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION