RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. Submitted December 16, 2015 Decided

Transcription

1 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, v. S.P., and R.D., RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Plaintiff-Respondent, Defendant-Appellant, Defendant. IN THE MATTER OF N.P. and T.P., minors. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted December 16, 2015 Decided February 3, 2016 Before Judges Alvarez and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. DiDonato, Deputy Attorney General, on the brief).

2 PER CURIAM Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). Defendant mother S.P. appeals from an August 1, 2013 Family Part order, following a fact-finding hearing, determining that plaintiff New Jersey Division of Child Protection and Permanency (Division) established by a preponderance of the evidence that her twin sons, N.P. and T.P., who were then six, were abused children within the meaning of Title 9, N.J.S.A. 9: to The judge found that S.P. had struck both boys with a belt, constituting excessive corporal punishment. He further found that the incident was not isolated. We affirm. At the hearing, a Division worker testified that prior referrals had been received regarding the family, and although abuse and neglect was unsubstantiated, the case was left open to provide the family with services. The boys struggle with significant behavioral and possible mental health and psychiatric issues. S.P. in turn has difficulties with substance abuse, and had been referred to in-patient treatment, which she successfully completed, and out-patient programs, which she did not complete. 1 Defendant R.D., the children's biological father, did not participate in the trial proceedings as his whereabouts are unknown. 2

3 As a result of a referral received on March 27, 2013, the worker contacted S.P. S.P. told the worker that one of the boys had set fire to curtains in the living room of their apartment the day before, resulting in the family being forced to temporarily vacate the premises. The worker also met with the children and confirmed that one of them had used a lighter to set a curtain on fire. S.P. and another adult extinguished the flames, but afterwards, that child claimed she hit him with a broomstick, which broke, resulting in not only bruising but a swelling the approximate size of a golf ball on his left arm. His arm still hurt. The child reported that their mother also hit his brother, and hit them all the time. He was afraid of her, although he loved her. The worker saw several old scars on the child's back, arms, and legs. The child denied, however, contrary to the initial referral, that he had been struck by any man. The other twin confirmed that S.P. struck him with a belt, and insisted she used only a belt to hit them, not a broomstick. The worker observed several red bruises on the child's left arm, which he said hurt. He had a scratch next to his left eye as well as old scars on his back, arms, and legs. He too denied that any man had hit them, denied being afraid of his mother, and said he felt safe with her. 3

4 S.P. admitted that she struck the children with the leather part of a belt after the incident. She claimed after she extinguished the blaze, she "lost it" and hit the children then. She denied ever having beaten the children to that extent before and expressed remorse. Hospital records from a March 28 examination confirmed that one child had a contusion and pain in his left arm, as well as a four centimeter abrasion to the dorsal aspect of his left forearm, a one centimeter laceration above his left wrist, and a contusion with mild swelling on his left forearm. The doctor also noted in the record a one and a half centimeter healed scar on the child's forehead. The other child was found to have a one-inch healed scar on his chest, a four and a half centimeter contusion on his left forearm, a contusion on his left wrist, and an oval-shaped contusion on his left elbow. There were additional contusions on his forearm. At trial, photographs of the bruises were admitted as were the medical records from the hospital visit. 2 In his oral decision, the judge said that these were "reasonably serious injuries" and that they were not "isolated[.]" In his opinion, the proofs the Division presented met the standard as 2 The copies of the photographs included in the appendix were too unclear to be helpful. 4

5 articulated in New Jersey Division of Youth & Family Services v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), certif. improvidently granted, 208 N.J. 355 (2011). That S.P. used excessive force was established by the documented lacerations, welts, and contusions. He also believed that the children's statements that they had been struck in the past was corroborated by their scarring. On appeal, S.P. argues that the trial judge's decision must be reversed because he "incorrectly applied the law regarding corporal punishment and there was insufficient evidence to support the legal [conclusion] that the punishment used was excessive under the circumstances." Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to "the family courts' special jurisdiction and expertise[.]" Id. at 413. Unless the judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of 5

6 N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). "It is not our place to secondguess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, (2012). Through the admission of "competent, material and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as: 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... 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; or by any other acts of a similarly serious nature requiring the aid of the court[.] "'[E]xcessive' corporal punishment" entails physical punishment that results in "bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [a parent's] actions." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, (2011); see also K.A., supra, 413 6

7 N.J. Super. at (citing to N.J.A.C. 10: , which lists examples of abuse or neglect, including "[c]uts, bruises, abrasions, [or] welts"). Courts focus on "the harm suffered by the child, rather than the mental state of the accused abuser," and a single occurrence of corporal punishment may be deemed excessive. K.A., supra, 413 N.J. Super. at 511. For example, in New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, (2010), the defendant chased down his two teenage children, caught and grabbed them, and all three fell to the floor. Both children were injured. Id. at 335. One child sustained a bruised and swollen hand, while the other had rib tenderness and an abrasion behind the ear. Ibid. The Supreme Court held that, although the defendant "may not have intended to harm his children, his actions were deliberate" and constituted abuse because he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct." Id. at 345. In this case, the two six-year-olds were struck by their mother with an object, inflicting bruises, swelling, and cuts. The children said that they have been struck by her as punishment in the past. These were very young children with particular vulnerabilities. 7

8 The focus of our inquiry is on the harm done to the children, not the mother's reasons for inflicting the harm. Even if we consider this to be a single occurrence, the injuries sufficed to establish excessive corporal punishment. See K.A., supra, 413 N.J. Super. at 511. S.P.'s use of a belt while hitting her six-year-old sons resulted in documented bruising and cuts to the twins. See P.W.R., supra, 205 N.J. at We discern no basis for disturbing the judge's determination. It was supported by substantial credible evidence in the record and was consistent with applicable law. Abuse and neglect cases involving corporal punishment are "generally fact sensitive" and "idiosyncratic." P.W.R., supra, 205 N.J. at 33. Each case "requires careful, individual scrutiny." Ibid. Even though the event that triggered S.P. striking her children was serious and no doubt frightening to her, the injuries that they suffered readily met the statutory standard. Affirmed. 8