Opinion
DOCKET NO. A-3714-14T2
10-03-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.H., Defendant-Appellant. IN THE MATTER OF A.H., G.M. AND L.T., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor G.M. (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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-609-14. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor G.M. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant A.H. appeals from an August 1, 2014 order of the Family Part, now final, finding that she abused and neglected her six-year-old daughter G.M. (Gabby) by excessive corporal punishment in violation of N.J.S.A. 9:6-8.21c. Because we agree with the Division of Child Protection and Permanency and the Law Guardian that substantial credible evidence in the record supports the trial judge's finding of abuse and neglect, we affirm.
We refer to the child by a fictitious name in order to protect her privacy.
We glean the facts from the Division's investigation summary and the police incident report, which, along with photographs of Gabby's injuries, were admitted over objection at the fact-finding hearing. No testimony was taken.
Defendant's counsel objected to the documents based on her assertion that there was "nothing that links specific marks on this child to any actions by mom." The court determined statements by Gabby that she received the injuries depicted in the photographs when her mother hit her with a backscratcher provided the "link," and thus overruled the objection, finding it went to the weight of the evidence and not its admissibility. Although noting she objected to the documents at trial, defendant has not offered a basis for their exclusion under our evidence rules. Accordingly, we do not consider the issue further. --------
Gabby's teacher noticed bruising on her arm one day at school and asked her what had happened. After first saying the bruises had happened while she was asleep, Gabby eventually told her teacher that her mother had hit her with a backscratcher. The school immediately reported the matter to the Division and the Camden police.
A Division worker responded to the school and interviewed Gabby and her thirteen-year-old brother separately. Gabby told the worker that her mother hit her with a backscratcher after Gabby had written her name on her stepfather's new hat. Her brother confirmed Gabby had gotten into trouble for writing her name on the new hat. He said he had not seen Gabby get hit but he heard it from another room. Both children claimed their mother had hit them before. While the boy said he felt safe, Gabby admitted she was "a little bit afraid of being home." The worker photographed the bruises she saw on Gabby's left arm "from her wrist to her shoulder."
When defendant arrived at the school, the worker described her as "extremely upset." She admitted hitting Gabby with a backscratcher, for "a long list of things," including being "disrespectful," "and bad in school." Defendant also admitted hitting Gabby previously with a belt on her "butt or the legs." Defendant did not believe she had hurt Gabby, but stated she was allowed to hit her daughter and demonstrated to the worker how she had hit the little girl on her wrist. Camden police photographed Gabby and charged defendant with fourth-degree aggravated assault and fourth-degree abuse of a child. The family had no prior history with the Division.
After reviewing the documents in evidence and hearing the argument of counsel, Judge Delaney concluded the Division had carried its burden of proving abuse and neglect. The judge found defendant's admission that she had hit Gabby with a backscratcher corroborated the reports by both children of the beating. Describing the bruising "all up and down the left arm of the child," as yellow, purple, red and "raw," with impressions consistent with "being hit with a backscratcher," the judge found it confirmed the child had suffered actual harm under N.J.S.A. 9:6-8.21c(1) in the form of "clearly excessive corporal punishment." Based on the extent of the injuries, the children's report, confirmed by defendant, that she had hit Gabby previously and the child having expressed fear of going home, the judge further found the Division proved defendant had put Gabby's emotional health at risk as well.
The Title 9 action was closed six months later after "conditions [had] been remediated" and the children returned home. On appeal, defendant argues "the court misapplied the evidence to the law in determining that [she] had committed an act of excessive corporal punishment." We disagree.
Our review of the trial court's factual findings in a Title 9 abuse and neglect proceeding is limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Title 9 defines an "abused or neglected child" as including
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, as herein defined, to exercise a minimum degree of care . . . (b) 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 . . . .
[N.J.S.A. 9:6-8.21c(4)(b).]
Although "excessive corporal punishment" is not defined, the Supreme Court has noted that " by qualifying the prohibition 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." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011). Determining when corporal punishment has become "excessive" requires the exercise of the judgment reposed in the judges of the Family Part. While "[a] slap of the face of a teenager as a form of discipline — with no resulting bruising or marks — does not constitute 'excessive corporal punishment' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)," ibid., "there is absolutely nothing reasonable about inflicting harm, in the form of paddling, upon a five-year-old child because the child told a neighbor that their home was without electricity." Dep't of Children & Families v. C.H., 414 N.J. Super. 472, 481 (App. Div.), adhered to on reconsideration, 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).
Having reviewed the record, we are convinced that, as in C.H., defendant's hitting her six-year-old daughter with a backscratcher with enough force to leave an imprint and bruising on the child's arm from shoulder to wrist, constituted excessive corporal punishment within the meaning of N.J.S.A. 9:6-8.21c(4)(b). As defendant admitted having hit the child with a belt in the past, the evidence supported the judge's finding that this was not an isolated instance. Instead, it was conduct that put her child in fear and her mental or emotional condition in imminent danger of becoming impaired as the result of the defendant's failure to exercise a minimum degree of care.
Defendant's remaining argument, that the court erred in finding that Gabby was abused or neglected without considering that she and her siblings were shortly reunified with defendant and any risk remediated, is misplaced. The Supreme Court was unequivocal in New Jersey Division of Child Protection & Permanency v. E.D.-O., 223 N.J. 166, 189 (2015), that measuring a parent's conduct at the time of fact-finding "is out of step with both the legislative purpose of the statute and this Court's interpretation of the statute, specifically N.J.S.A. 9:6-8.21(c)(4)(b)," and "contravenes the legislative determination that child protective services and a court may intervene before a child experiences actual harm."
Defendant's contrition for the incident and her assessment of the experience as "[a] lesson learned," was appropriately considered at the dispositional hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION