Opinion
DOCKET NO. A-3002-12T4
05-01-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.A., Defendant-Appellant. IN THE MATTER OF M.E., Ja.E., Je.E., and S.O., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kelly Levy, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, M.E., Ja.E., Je.E., and S.O. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-476-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kelly Levy, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, M.E., Ja.E., Je.E., and S.O. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
In this Title 9 case, defendant N.A. appeals from a June 25, 2012 order finding that she abused her three—year-old son Jason. Having reviewed the record, we conclude that Judge Stephen J. Bernstein's decision was supported by sufficient credible evidence, and we affirm.
The case became ripe for appeal when the court entered a final order terminating the litigation on January 16, 2013.
We use pseudonyms for the children.
I
This is the most pertinent evidence. The case arose on March 20, 2012, when Jason's daycare center (center) reported to the Division of Child Protection and Permanency (Division) that Jason arrived at daycare with bruises and a mark on his cheek. The center reported that Jason stated that his mother "hit" him.
Judge Bernstein found that the Division had not proven certain other allegations. We will only discuss the evidence relevant to the incident as to which he found that N.A. abused Jason.
Dr. Monica Weiner, a doctor specializing in child abuse, examined Jason on March 22, 2012, and found what she described as a "loop shaped bruise" on his left cheek. She testified that such a mark would have been "caused by impact with a loop shaped object," and that such a mark was "consistent with being hit with a belt or an extension cord or anything that could be looped." She testified that the mark could not be a rash or "an allergic reaction to his medications" because, if so, it would have appeared when he started taking the medication rather than "weeks later" and the marks would have been all over his body rather than just on one cheek. Dr. Weiner viewed photographs of the child's cheek, taken on March 20, and opined that the mark "had already started to heal up a little bit" when she saw him on March 22.
The State recalled Dr. Weiner to clarify that Jason started taking one of the medications a week before she examined him. However, that did not change her opinion that the mark was a bruise and not an allergic reaction.
Dr. Weiner also examined Jason's twin brother, Jack, who told her that he received "whippings" with "mommy's belt." However, Jack would not tell her who hit him with "mommy's belt." In her June 13, 2012 supplemental report, which was admitted in evidence, Dr. Weiner stated that when she examined Jack, he told her that "mommy" told him not to talk about what happened to Jason.
Darlene H., a teacher from the daycare center, explained that the center's standard practice was to make a contemporaneous written record any time a staff member noticed a bruise or mark on a child. It was her role to examine the children and make the record. On March 20, a staff member brought Jason to Ms. H., who observed that he had "swollen, red, dark markings" under and around his eye. Jason told Ms. H. that "his mom" did that to him. She identified photographs of the child, showing a "scratch on the side of his face" and bruising on his lip. She testified that the photographs depicted what she saw when she examined the child.
One of the child's classroom teachers, Celeste E., testified that on March 20, 2012, she noticed that Jason's "face was swollen on the left side and his eye was . . . purple blue like it was bruised." The child told Ms. E. that "his mother [was] the one [who] did it."
Patricia Reynolds, a Division case worker, testified that she was called to the daycare center on March 20 and saw that Jason had "what appeared to be a welt on his face." She photographed his face to document the mark. According to the case worker, when she asked N.A. about the mark, N.A. stated she had not seen it that morning and had not hit the child that morning. N.A. did admit to Reynolds that on occasion she used corporal punishment, stating that if the children "need to be popped, they get popped."
Defendant presented testimony from the children's pediatrician, who stated that he had never seen any signs of child abuse. But he did not examine Jason in connection with the mark on his face.
In an oral opinion placed on the record immediately after the hearing ended on June 25, 2012, Judge Bernstein found that the "looped injury" to Jason's cheek was "caused by some type of device or item." He also considered Jason's statement to his teachers that "the mother did it." The judge found that "physical abuse has been used in disciplining the child," and that it was "not appropriate to use any type of rope, cord or other device, a loop or belt . . . on someone's face. It's just inappropriate and it's certainly excessive corporal punishment." The judge further found "that the pictures, the testimony, the child's statements, and the mother's statements all confirm the same incident."
II
In reviewing Judge Bernstein's decision, we do not write on a clean slate. We are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We owe particular deference to a trial judge's credibility determinations and to the expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Having reviewed the record, we find no basis to disturb Judge Bernstein's decision that N.A. abused her son Jason.
On this appeal, N.A. raises the following points for our consideration:
POINT I-
DCPP DID NOT PROVE BY A PREPONDERANCE OF THE EVIDENCE AT THE FACT-FINDIDNG HEARING THAT THE RED MARKS FOUND ON [JASON'S] FACE ON MARCH 20 WERE THE RESULT OF EXCESS[IVE] CORPORAL PUNISHMENT, AND THEREFORE THE JUDGMENT FINDING ABUSE OR NEGLECT BY N.A. SHOULD BE REVERSED, WITH N.A.'S NAME REMOVED FROM THE CHILD ABUSE REGISTRY.
POINT II-
THE JUDGMENT OF THE COURT AT THE FACT-FINDING HEARING THAT N.A. HAD BEEN RESPONSIBLE FOR THE ABUSE OR NEGLECT OF [JASON] SHOULD BE REVERSED AS THE ONLY PROOF OF N.A.'S RESPONSIBILITY FOR THE INJURIES TO [JASON] CAME FROM HIS UNCORROBORATED CLAIMS THAT HIS MOTHER HAD STRUCK HIM.
POINT III-
ASSUMING THAT N.A. CAUSED THE BRUISES ON [JASON'S] FACE, THE INJURY WAS ABERRATIONAL TO THE FAMILY, AND LABELING N.A. A CHILD ABUSER IS FACTUALLY UNWARRANTED AND LEGALLY UNSUSTAINABLE.
POINT IV-
THE FAILURE OF JUDGE BERNSTEIN TO BE IMPARTIAL REQUIRES REVERSAL OF HIS ORDER AT THE FACT-FINDING HEARING THAT N.A. HAD ABUSED OR NEGLECTED [JASON].
These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
First, the record does not support defendant's claim that the judge was biased. The judge's comment, which defendant cites in support of that argument, is taken out of context. Our review of the entire trial transcript convinces us that the judge conducted the proceedings in a fair and even-handed manner.
We also find there was ample evidence to support the finding of abuse. A child's uncorroborated statement is insufficient to support a finding of abuse or neglect, N.J.S.A. 9:6-8.46(a), but in this case there was adequate corroboration. There were pictures of the wound on Jason's face. There was testimony from Dr. Weiner that the mark, which was still healing two days after the incident, was caused by a belt or cord and was not an allergic rash. N.A. admitted to the Division case worker that she used corporal punishment on the children. We agree with Judge Bernstein that hitting a child across the face with a belt or cord, leaving a mark that remains on the child's face days later, constitutes excessive corporal punishment. See N.J.S.A. 9:6-8.21(c)(4)(b). Further, there was no mitigating explanation, as there was in Department of Children and Families v. K.A., 413 N.J. Super. 504 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011). N.A. denied striking the child when she was interviewed by the Division, and she chose not to testify at the fact finding hearing.
The copies of the photos in defendant's appendix are not of the best quality, but we observed the mark in some of the pictures, and it definitely appeared to be a welt and not a rash.
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In summary, we find no basis to disturb Judge Bernstein's finding of child abuse.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION