Opinion
DOCKET NO. A-0913-14T4
06-24-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. I.P., Defendant-Appellant, and R.P. and C.P., Defendants. IN THE MATTER OF E.P., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Erin L. Pinder, Designated Counsel, and Susan P. Gifis, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.P. (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-25-13. Joseph E. Krakora, Public Defender, attorney for appellant (Erin L. Pinder, Designated Counsel, and Susan P. Gifis, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.P. (Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant I.P. is the biological father of E.P. (Edward), a boy born in January 1999. After conducting a fact-finding hearing pursuant to N.J.S.A. 9:6-8.44, Judge Daniel R. Lindermann found defendant had abused or neglected Edward within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), "by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment." In this appeal, defendant argues Judge Lindermann misapplied the relevant cases that have examined what constitutes "excessive corporal punishment" under the statute. Independent of this argument, defendant claims the evidence presented was not sufficient to support the Family Part's findings.
After reviewing the record developed before the Family Part and mindful of our standard of review, we reject defendant's arguments and affirm substantially for the reasons expressed by Judge Lindermann in his well-reasoned memorandum opinion.
On August 10, 2012, the Division of Child Protection and Permanency (Division) received a referral from the City of Elizabeth Police Department that thirteen-year-old Edward had been reported "missing" by his father and stepmother. At approximately 5:00 p.m. that same day, Edward walked into an Elizabeth Police Station to report his father had physically abused him the previous day by ordering him to kneel down in front of him and then striking him with a child's toy chair. Edward told the officers the blows caused an abrasion to his head.
Cathy Cho, a Special Response Unit (SRU) Division caseworker responded to the referral. She interviewed Edward, defendant, and his wife R.P., who is also Edward's stepmother. In addition to Edward, defendant and R.P. have two children of their own who at the time were five and two years old. The incident that caused Edward to seek refuge in the police station on August 10, 2012, began two days earlier, prompted by Edward's alleged act of disobedience to his stepmother's instructions. According to R.P., she had previously told Edward not to watch inappropriately violent programs on television when his five-year-old brother is present. On August 8, 2012, Edward claimed his stepmother became very angry when she believed he was watching an inappropriate program on television with his younger brother. She took his younger brother to another room while yelling "psycho and crazy" at Edward.
Edward's biological parents are divorced. His biological mother lives in Nigeria.
Defendant was not home when this incident occurred between his wife and Edward. When his stepmother told him what had happened the previous day, defendant summoned Edward and ordered him to kneel down in front of him. Edward told Cho that defendant struck him with his younger brother's chair approximately six times, while Edward remained on his knees in front of defendant. When Cho physically examined Edward, she detected a bruise or "bump" on the right side of his head; the bruise was approximately the size of a quarter. Cho also visited defendant's home to see the chair for herself. At the fact-finding hearing, Cho described it as a plastic chair, sturdy enough to support the weight of a toddler.
Both defendant and his wife admitted that Edward was told to kneel down for two minutes for "talking back," especially to his stepmother. However, defendant denied hitting Edward with the chair. Both defendant and his wife also denied using corporal punishment as a means of disciplining their children. However, when Cho interviewed defendant's five-year-old son outside the presence of his parents, the boy told her that defendant "hit [Edward] the 'other day' with the Thomas the train chair." The child also said that both his mother and father "hit [Edward] a lot with their hands."
Based on these facts, on August 10, 2012, Cho decided to remove Edward from the care and custody of defendant and his wife through an emergency Dodd removal. According to Cho, defendant agreed not to contest the emergent removal of Edward from his home. However, defendant objected to Edward being placed with his twenty-four-year-old sister. Defendant disapproves of his daughter's "lifestyle" because she lives with her boyfriend without being married to him. Cho explained to defendant he could not dictate the conditions of Edward's placement.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2, (App. Div. 2010).
Cho accompanied Edward to Overlook Medical Center for a pre-placement examination. The medical staff found and documented Edward had a contusion in his forehead and another contusion or bruise on his right thigh. The latter bruise was "tender," indicating it occurred more recently. Edward was discharged with instructions to take Motrin for pain and to place ice on the areas that were sore. Despite defendant's objections, the Division placed Edward that evening with his older sister. The Division confirmed the suitability of this arrangement before placing Edward. He remained with his sister throughout these proceedings.
On August 14, 2012, the Division filed an Order to Show Cause and Verified Compliant seeking custody of Edward and charging defendant with child abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b). The court granted the Division's application and the matter proceeded until the fact-finding hearing that began a year later on August 14, 2013. The Division called three witnesses: Cho; Edward; and N.P., Edward's older sister and legal custodian.
Edward was fourteen years old when he testified at the hearing about the event that caused him to seek refuge at the Elizabeth Police Station. On the day at issue, his stepmother told him he should not play with his younger brother because he was "psycho" and "crazy." When he asked her why she was saying these things about him to his siblings, his stepmother said: "[I]f I don't shut up she's going to punch me in the eye." According to Edward, the following day defendant did not feed him as part of the punishment for disrespecting his wife. Edward described what occurred next:
My dad told me to come . . . in the living room and get on my knees. And then I got on my knees. And he asked me why was [I] disrespecting his wife. And I said I wasn't disrespecting her, I wasn't disrespecting her. She told . . . her kids that I was psycho [indiscernible) and he told me to shut up and started hitting me with the chair. And then the . . . little kid's chair [broke]. And he went to get a belt. And he started hitting me. And he was trying to get another belt. So I went to the next street . . . . I was waiting for him outside. I was hungry that day. I didn't eat throughout the day. I only ate Coke and peanuts that day. I was waiting for him outside. He didn't come. . . . And then I found a police officer and I ask him . . . where the police station is. And then . . . he direct[ed] [me] to the police station.
In her testimony, Edward's older sister N.P. explained she came to the United States from Africa in 2010 with her older brother and Edward. They initially lived together with defendant and his wife. According to N.P., defendant's wife displayed an antipathy toward Edward, often "holler[ing] at him" without reason. N.P. moved out of defendant's house in 2011 because defendant was abusive toward her.
Defendant testified in his own defense. He denied hitting Edward or causing the bruise on his head. He acknowledged he did not want his younger children watching violent things on television. However, he testified he saw Edward watching pornographic channels in the bedroom.
At the conclusion of the fact-finding hearing, Judge Lindermann found the Division proved by a preponderance of the evidence that defendant abused or neglected Edward "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)(4)(b). On August 6 2014, the court adopted the Division's permanency plan to proceed with kinship legal guardianship (KLG) of Edward with his sister N.P. Defendant consented to the KLG in open court and while represented by counsel. The Family Part terminated the litigation on August 27, 2014.
The Supreme Court has recognized KLG as a proper course of action when it is in the child's best interests. Div. of Youth and Family Services v. R.G., 217 N.J. 527, 558 (2014); see also N.J.S.A. 3B:12A-6(d)(4). --------
Judge Lindermann memorialized and explained his factual findings and conclusions of law in a written opinion. In reaching his conclusion, Judge Lindermann carefully reviewed and distinguished our Supreme Court's decision in Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2011), and this court's decision in Dept. of Children & Families v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40, (2010), certif. dismissed, 208 N.J. 355 (2011).
Defendant argues the court's factual findings are not supported by competent evidence. Defendant's argument lacks merit. The record developed by the Division at the fact-finding hearing amply supports the court's findings.
Our standard of review is well-settled. We are bound to defer to credibility determinations made by a trial judge because the judge "hears the case, sees and observes the witnesses, [and] hears them testify." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Thus, our scope of review is limited to determining whether the trial judge's findings are "supported by adequate, substantial, credible evidence." N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). However, we apply a de novo standard when reviewing a trial court's "interpretation of the law and the legal consequences that flow from established facts." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 177 (2014) (quoting Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
Here, we are satisfied to accept Judge Lindermann's comprehensive factual findings because they are well-supported by the evidence in the record. We are equally convinced of the correctness of Judge Lindermann's legal analysis as reflected in his memorandum opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION