Opinion
DOCKET NO. A-3474-12T4
09-29-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.B., Defendant-Appellant, and A.B. and K.T., SR., Defendants. IN THE MATTER OF K.T., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alexandra B. Oasin, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.T. (Todd S. Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-311-12. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alexandra B. Oasin, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.T. (Todd S. Wilson, Designated Counsel, on the brief). PER CURIAM
L.B. appeals from an order entered by the Family Part on March 19, 2012, which found that she abused or neglected her five-year old child, K.T. We reverse and remand for further proceedings.
The trial court's decision in this matter was apparently based on certain records presented at the fact-finding hearing. We assume those records include the screening and investigative summaries prepared by the Division of Child Protection and Permanency. We discern the following from those records.
Until June 2012, the Division was known as the Division of Youth and Family Services. L. 2012, c. 16, eff. June 29, 2012.
On November 11, 2011, the Division received a referral from G.B., K.T.'s aunt. She advised that K.T. resides with his mother, L.B. and her boyfriend, A.B. The child was five years old. G.B. reported that while she was caring for the child, she bathed him and noticed three burn marks on his buttocks, inner thigh and front of the thigh. She also noticed a bruise on his thigh that was dark and round in shape.
A worker called G.B. later for more details, and G.B. said the child was still with her. The worker told G.B. the child needs to seek medical care, and she arranged an emergency appointment for the child with N.J. Cares Institute. G.B. and S.B., the child's maternal grandmother, took the child to N.J. Cares. The Division's worker interviewed G.B. and S.B. there.
G.B. reported that, the previous night, L.B. asked her to take care of K.T. because she had to work the following day. G.B. picked him up and took him to her house. K.T. reported that he had a sore but did not say anything more about it. Later that evening, K.T. told G.B. to look and he showed her the marks. K.T. said he had been wrestling with A.B.'s son.
G.B.'s husband called L.B. and asked about the marks. L.B. said she did not know how K.T. got them. L.B. stated that she had been working the previous two days, and the child had been with A.B. Thereafter, G.B. and her husband called A.B. and asked about the marks. He said that it did not matter and hung up the phone. G.B. told S.B. about the marks.
S.B. went to L.B.'s residence and knocked on the door but no one answered. S.B. believed someone was home. When S.B. returned to her own home, L.B. called and asked her why she had been banging on her door. S.B. asked what happened to K.T., and L.B. told her she did not know, but the child had been with A.B. the previous two days.
About a month earlier, K.T. told S.B. that A.B. had beaten him. S.B. questioned L.B., who first said she did not know and then admitted that she told A.B. to beat K.T. with a belt. According to S.B., L.B. said that K.T. had been acting out in school. L.B. went to hit K.T. with a belt and he asked her if she was done. L.B. told A.B. to hit the child because that might be more effective.
G.B. said L.B. had been with A.B. since the summer. G.B. noted that K.T. provided different explanations about how he got the marks. She thought K.T. was scared to tell her what had happened. G.B. also said that she did not believe L.B. attended properly to K.T.'s needs. The child has epilepsy and L.B. missed his neurology appointment. L.B. also had taken the child off of his medications the previous July without speaking to the child's doctor. It appears, however, that the child had not had a seizure in the previous year.
While G.B. and S.B. spoke with the Division's caseworker, Dr. Stephanie Lanese examined the child. She thereafter informed the caseworker that the marks on the child were consistent with burns and belt marks. K.T. had four curved burn marks. They were on his front thigh, back thigh, hip area and buttocks.
K.T. told Dr. Lanese that A.B. burned him with a lighter. The doctor indicated that K.T. also had five to ten linear marks on the front and back of his thigh, which were consistent with belt marks. K.T. said L.B. had hit him with a belt.
Dr. Lanese stated that the marks on the child's body were not accidental in nature and could not have been self-inflicted. She noted that K.T. also had marks on the middle of his back and above the left knee, but the child did not know how he received them. The doctor believed K.T. needed to be protected from L.B. and A.B., and it was not safe for the child to return home.
Later that day, the Division removed K.T. from L.B.'s custody on an emergent basis, without a court order, and placed him with G.B. On November 15, 2011, the Division filed a complaint in the Family Part, seeking custody, care and supervision of K.T. The court granted the relief requested, noting on the record that there were positive indications that the "burn marks" had been inflicted. The court found that, under the circumstances, the child's removal was appropriate.
On January 10, 2012, the court entered an order stating that K.T. would remain in the Division's custody, care and supervision. The court required L.B. and A.B. to undergo substance abuse evaluations, required L.B. to attend parenting skills training, and allowed L.B. to have weekly supervised visits with K.T. In addition, A.B. was not permitted to have any contact with K.T.
On March 19, 2012, the court conducted a fact-finding hearing on the Division's allegations of abuse or neglect. The Division presented no oral testimony at the hearing, relying instead upon certain documents. It is unclear from the transcript but it appears the Division relied upon its screening summary and its investigative summary dated November 11, 2011. It appears the Division also relied upon Dr. Lanese's November 17, 2011 report, which detailed the results of her physical examination, K.T.'s statements regarding his injuries, and her conclusion that K.T. had been physically abused by L.B. and A.B. The court offered L.B.'s attorney the opportunity to present additional evidence, but counsel declined the offer.
The court placed its decision on the record. The court stated that it had the opportunity to review the reports, which indicated that the child had been observed with burn marks while he was in L.B.'s and A.B.'s care. According to Dr. Lanese's report, the burn marks were consistent with having been inflicted with a cigarette lighter. The court said that L.B. and A.B. had initially failed to reveal the source of the burns.
The court stated, however, that the child had been interviewed outside of L.B.'s and A.B.'s presence, and "indicated that a lighter had been used as part of discipline." The child also indicated that he had been physically disciplined with a belt. The court noted the child's age. The court also noted that the location of the burns "make[s] it [un]likely that [the burns] were self-inflicted."
The court found that the Division's reports "consistently establish the proofs that the child was intentionally burnt in some type of discipline or punishment thing." The court stated that this was "totally inappropriate" and "certainly a quite brutal punishment [by] inappropriate means."
The court entered an order dated March 19, 2012, which stated that L.B. and A.B. had abused or neglected the child, since L.B. and A.B. burned K.T. "with a lighter causing him injury" and that this constituted abuse or neglect. The order also stated that K.T.'s biological father, K.T. Sr., did not abuse or neglect the child.
We note that at the time, K.T., Sr. was incarcerated in Louisiana. He had been named as a defendant but never appeared in the action.
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On November 15, 2012, the court approved the Division's permanency plan, which called for reunification of the child with L.B., and ordered that it be implemented. The court's order noted that L.B. had complied with the court-ordered services, and the Division had made reasonable efforts to finalize the permanency plan, psychological evaluations and counseling. Those efforts included the provision of substance abuse treatment and parenting time.
On February 4, 2013, the court entered an order terminating the litigation, noting that K.T. had been returned home. The order provided that K.T. shall remain in L.B.'s legal and physical custody. This appeal followed.
L.B. argues that the trial court's order of March 19, 2012 should be reversed because there was insufficient evidence to support a finding of abuse or neglect against her. She says that the Division failed to establish that she burned K.T. She contends the Division's investigative summary and Dr. Lanese's report do not establish that L.B. ever caused or was previously aware of K.T.'s burns.
Cases involving a claim that a child is abused or neglected are governed by Title 9. N.J.S.A. 9:6-8.21 to -8.73. An abused or neglected child is defined in part as 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 ofThe term "parent or guardian" includes "any natural parent, adoptive parent, or any person, who has assumed responsibility for the care, custody or control of a child." N.J.S.A. 9:6-8.21(a).
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 as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . or (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. 9:6-8.21(c)(1), (4).]
In this case, the Division alleged that K.T. was an abused or neglected child because he had four marks that were consistent with burns from a cigarette lighter and marks on the front and back of his thigh that were consistent with belt marks. The Division claimed that the marks were not accidental in nature and could not have been self-inflicted. The child had sustained the marks while in the custody and care of L.B. and her paramour, A.B.
In support of its claim, the Division did not present any testimony and relied entirely on documentary evidence. N.J.S.A. 9:6-8.46(a)(3) states in part that in any abuse or neglect proceeding
any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceedings of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.In addition, N.J.S.A. 9:6-8.46(a)(4) states that a child's prior statements "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 finding of abuse or neglect."
Here, it appears from the transcript of the fact-finding that the Division relied upon its screening and investigative summaries, which apparently were made in the regular course of the Division's business. It also appears that the Division presented the court with a certification from N.J. Cares which stated that the records attached thereto pertaining to K.T. were made in the regular course of the business of that institution. We assume that Dr. Lanese's report was attached to that certification. It appears that L.B.'s counsel did not object to the admission of the documents admitted at the fact-finding hearing.
The Division's investigative summary sets forth what G.B. and S.B. told the Division's worker about the child's burn marks, and what L.B. told G.B. and G.B.'s husband about those burn marks. L.B. purportedly said she did not know what caused the marks. The Division's investigative summary also indicates that K.T. was reluctant to reveal how he got the marks, and initially said he sustained the marks wrestling with A.B.'s son.
In her report, Dr. Lanese recounts her observations of the burn marks. She also sets forth what K.T. told her about how he came to be burned. K.T. first said that he was burned when he and his "brother" were climbing on a television. He then said he was burned by a lighter, which belonged to his "brother" or his "oldest cousin."
K.T. also told Dr. Lanese that he was afraid to reveal the name of the person who burned him. He then said his mother's boyfriend burned him. Dr. Lanese's report goes on to state:
I asked [K.T.], "Who made the burns again?" He gave me no answer. I asked, "How did you feel when that happened?" He said, "It hurt so bad, and when I was bad, I got a
beating." I asked, "Who gave you a beating?" He said, "My Mom." I asked, "What is a beating?" He said, "When someone spanks you with a belt." I asked, "What part of your body do you get spanked on with the belt?" He pointed to the back of his thigh, and he said, "Right here, where my boxers at." I asked, "Who made the burn?" This time he said, "My mom." I asked, "Was it really your mom?" He said, "It really was a lighter." I asked, "Who used the lighter?" He said, "My tiger did." I asked, "What are you afraid is going to happen if you tell me what really happened?" He said, "I'm going to have to stand in the corner." I asked, "But why? Why do you think you're gonna get in trouble? Did someone say something?" He said, "He told me not to tell." I asked, "Did he say what would happen if you told?" He said, "Yeah. He said, 'If you tell, you know what's gonna happen.'" I asked, "Who said that?" He said, "My step-dad, mom's boyfriend, and [name redacted] who works with my mom, and my mom." I asked, "What would you say to mom's boyfriend if you could say something to him?" He said, "Stop burning me, and he would say sorry." I asked, "Who would say that?" and he said, "My mom's boyfriend." I asked, "Do you know why he did that?" He said, "I don't know." I asked, "Did you tell your mom about it?" He said, "I told my mom, because she asked how I got that everywhere, and I said I don't know." I asked, "What did she do?" He said, "She was about to take me to the hospital, but her stomach hurt because she's pregnant . . . ."
The trial court failed to explain the factual basis for its determination that L.B. burned the child. The judge made no findings as to the credibility of the child's many statements concerning the burns. Furthermore, the trial court did not identify the evidence it was relying upon as corroboration for K.T.'s statements.
We note that, in its investigative summary and the brief filed in this appeal, the Division does not assert that L.B. burned the child. Rather, the Division maintained that there is evidence that L.B. knew of the injuries and was unconcerned about the seriousness of them, apparently claiming that L.B. failed to "exercise a minimum degree of care" for the child. N.J.S.A. 9:6-8.21(c)(4). The trial court never made any findings on that issue.
The trial court also did not address the issue of whether L.B. used excessive corporal punishment upon K.T. "The law does not prohibit the use of corporal punishment. The statute prohibits the infliction of excessive corporal punishment." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). "The term 'excessive' means going beyond what is proper or reasonable." Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.) (citing Webster's II New College Dictionary 390 (Margery S. Berube ed., 1995)), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011).
Even "a single incident of violence against a child may be sufficient to constitute excessive corporal punishment." Ibid. "[A] fracture of a limb," "a serious laceration," or "any other event where medical intervention proves to be necessary" is sufficient to sustain a finding of excessive corporal punishment where such injuries are reasonably foreseeable. Ibid. However, where the inflicted injury is not excessive corporal punishment per se, the court examines the totality of the circumstances to determine whether the punishment was excessive. Id. at 512.
In its decision, the court stated that K.T. "was intentionally burnt in some type of discipline or punishment thing." The court also said in its decision it was "a quite brutal punishment by inappropriate means." This may have been a finding of excessive corporal punishment but the court did not explain the factual basis for it. Moreover, the court never addressed the issue of whether L.B. inflicted the other marks, which Dr. Lanese said were consistent with belt marks. The court did not determine whether these marks resulted from excessive corporal punishment.
Accordingly, we reverse the trial court's fact-finding order of March 19, 2012, and remand the matter for further proceedings. The court shall reconsider its determination that L.B. burned the child. The court shall also address the questions of whether the child was abused or neglected because L.B. failed to exercise the minimum degree of care regarding the burns, or subjected the child to excessive corporal punishment by striking him with a belt.
The Division should be afforded an opportunity to present additional documentary evidence in support of its claims. If either of the parties wish to present testimony, or if the court deems oral testimony essential to its decision, the court shall conduct a plenary hearing in the matter. Thereafter, the court shall make appropriate findings of fact and conclusion of law. R. 1:7-4.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION