DCPP v. A.H., J.K., AND F.A., IN THE MATTER OF K.H. AND A.A. (FN-12-0110-19, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 29, 2022
• Docket: A-3702-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3702-19

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.H. and J.K.,

Defendants,

and

F.A.,

Defendant-Appellant. _______________________

IN THE MATTER OF K.H. and A.A., minors. _______________________

Submitted October 25, 2021 – Decided July 29, 2022

Before Judges Accurso and Enright. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0110-19.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan W. Saidel, Designated Counsel, on the briefs).

Andrew J. Bruck, Acting Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Louise M. Cho, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant F.A. (Felix) appeals from a December 10, 2018 fact-finding

order, now final, that he abused or neglected K.H. (Kip), the nine-year-old son

of his ex-girlfriend, by inflicting excessive corporal punishment in violation of

N.J.S.A. 9:6-8.21(c)(4)(b).1 Because we agree with the Division of Child

Protection and Permanency, as well as the law guardian, that there is

substantial credible evidence in the record to support that conclusion, we

affirm — substantially for the reasons expressed in Judge Kaplan's cogent

1 These names are fictitious. We employ them to protect the child victim's privacy. See N.J.S.A. 2A:82-46(a); R. 1:38-3(d)(11).

A-3702-19 2 opinion. See N.J. Div. of Child Prot. & Permanency v. J.L.G., 450 N.J. Super.

113, 119 (App. Div. 2015).

The facts and procedural history are meticulously set forth in the trial

court's forty-one-page opinion, and we have no need to repeat them here.

Suffice it to say, a counselor at Kip's summer day camp was alerted to a bruise

on his thigh by another child. The counselor reported to the Division that the

reddish-brown linear bruise looked swollen and irritated, and when she asked

Kip how he'd gotten it, he told her his mother had beaten him with a metal

wire but asked the counselor not to tell.2

The Division worker assigned the case testified at the fact-finding

hearing that she interviewed Kip that same day, August 9, 2018. The worker

testified to the marks she saw on the child's body, and Kip's report that his

mother and Felix had "whooped" him with a phone charging cable the night

before. Although Kip's five-year-old sister A.A. (Ashley) denied ever seeing

2 Judge Kaplan found Kip's mother A.H. (Audrey) also abused or neglected the nine-year-old by excessive corporal punishment in violation of N.J.S.A. 9:6-8.21(c)(4)(b). She has not appealed. Kip now lives with his father out-of- state.

A-3702-19 3 her parents hit Kip, the worker overheard her telling him on the way back from

the hospital, "It's ok, [Kip], you're not going to get whooped no more." 3

Both children told the worker they'd recently lived with their great-

grandmother but had been living for the last few weeks with their mother and

Felix. Kip reported the family was staying at the home of Felix's brother in

Elizabeth, where he'd been beaten with the charging cable. Both told the

caseworker their mother and Felix were at home the previous night.

The children's mother and Felix were interviewed separately by the

Union County Prosecutor's Office a few weeks later. Both reported they'd

broken up some months before. Felix told the detective he was living between

his parents' house and his girlfriend's place. He claimed he was not with the

family the night Kip said he was beaten. According to Felix, he was at his

girlfriend's, and Audrey was staying with the children at his house — Audrey

and Kip in the basement and Ashley upstairs in her room — because Audrey

had gotten into a fight with her grandmother. He claimed he and Audrey had

stayed there with both children before. Felix claimed he hadn't been at his

brother's house in Elizabeth since the first or second week of July.

3 Ashley is Kip's half-sister; Felix is her biological father. A-3702-19 4 Audrey told the detective she was living at her grandmother's house, and

that Felix would occasionally keep Ashley at his parents' house, but that Kip

never went there. She also reported, however, that she and the children slept at

Felix's house when he wasn't there. She denied ever staying at Felix's brother's

house in Elizabeth.

The worker testified Felix admitted dropping the children off at day

camp the day Kip reported the beating but denied seeing any marks on the boy.

Audrey likewise claimed not to have noticed the marks, telling the worker she

had no idea where they'd come from and speculated he may have inflicted

them himself. Both admitted they had physically punished Kip in the past but

didn't do so now. Felix claimed he'd practically raised the boy but stopped

disciplining him in 2014 after prior Division involvement, and because

Audrey's family did not like him doing so. Both claimed Kip had been known

to lie.

The only other witness at the hearing was Gladibel Medina, M.D., the

medical director at the Dorothy B. Hersch Regional Child Protection Center,

who testified as an acknowledged expert in pediatrics and child abuse. Dr.

Medina testified she examined Kip on August 10, the day after he reported

being hit with the charging cord. Dr. Medina testified she found twenty-two

A-3702-19 5 abrasions on the boy's face, neck, back, arms, legs and buttocks, most "looped

and linear" pattern marks, consistent with Kip's account of being beaten with a

phone cord charger. Dr. Medina testified that although it was possible for Kip

to have inflicted those injuries himself, it would be "[v]ery rare, unusual for

someone to hit himself all those times like that." Asked about her conclusions,

Dr. Medina testified "[t]he diagnosis was child physical abuse." 4

Felix did not appear at the hearing. Neither the law guardian nor

defendants called witnesses or offered any evidence.

Judge Kaplan issued his carefully reasoned opinion ten days after the

hearing. He found both the Division worker and Dr. Medina reliable witnesses

who testified in a clear and forthright manner. The judge discussed the

witnesses' testimony at length, including their responses to questions posed on

cross-examination, and made detailed findings as to why he found each

"thoroughly credible." He also analyzed the statute and the controlling case

law, particularly as it relates to admission of the Division's records in

4 Dr. Medina also testified to what Kip reported to her in response to questions she'd put to him. Kip told her the beating was very painful, that his mother and Felix had beaten him many times before, and he was afraid to go home. Kip told her he didn't think they loved him anymore. She also related that Kip had considered running away and various means of killing himself, including "jumping backwards to give himself a concussion . . . grabbing a glass bottle and breaking it in his head," and "[t]aking a knife and stabbing his heart." A-3702-19 6 evidence, see N.J.S.A. 9:6-8.46(a); R. 5:12-4(d); N.J. Div. of Child Prot. &

Permanency v. N.T., 445 N.J. Super. 478, 487 (App. Div. 2016), and what

constitutes corroboration of a child's prior statement sufficient to make a

finding of abuse or neglect on the statement alone, see N.J. Div. of Youth &

Fam. Servs. v. L.A., 357 N.J. Super. 155, 166-67 (App. Div. 2003).

Judge Kaplan found Kip's statements about the abuse he suffered at

Felix's hands were corroborated by the observations of the Division worker

who testified to the marks she saw on his legs, neck and back, his reported

pain, "that medical treatment was needed and immediately obtained" and by

Dr. Medina's conclusions that the more than twenty "linear and looped" marks

and scabbing she observed on the boy the following day were consistent with

Kip's account of being hit multiple times with a phone charging cable within

the time frame he alleged.

The judge also explained why he rejected Felix's and Audrey's

contention that the discrepancies in Kip's various accounts of the beating

meant his statements were untrustworthy. Specifically, the judge found it not

unusual this nine-year-old child would not "relay the events down to the

minute details," in response to "vague and open-ended questions, . . .

especially given the emotional toll of the incident." Judge Kaplan found the

A-3702-19 7 critical parts of Kip's account of what he endured "remained consistent through

no less than three interviews." He thus rejected "the invitation of defense

counsel to conclude that these minor inconsistencies should cause this court to

find that [Kip] is lying," given the number of "observable fresh markings

across [Kip's] entire body, the presence of which is not in dispute."

The judge also rejected defendants' claims that Felix was not present

when the beating took place, calling their statements on the point "self-serving

and not believable." Instead, based on Kip's statements, which the judge found

"both credible and corroborated," the judge found Kip was with his mother,

Felix and Ashley, which was what Ashley reported as well. The judge noted

Felix told investigators exactly where everyone slept that night, albeit leaving

himself out, and admitted dropping both children at their day camp in the

morning. Judge Kaplan found "ample evidence in the record," beyond the

children's statements, to support a finding that Felix was with the family that

night. The Division's failure to independently establish the abuse took place in

Elizabeth at the home of Felix's brother as Kip claimed did not shake the

judge's conviction the boy's account was truthful, noting Felix admitted his

brother had a home in Elizabeth.

A-3702-19 8 Weighing the evidence in light of the applicable law, the judge found the

Division carried its burden to prove by the preponderance of the evidence that

Felix and Audrey abused and neglected Kip "when they struck him with a

phone charging cable multiple times causing articulated and observable pain

and looped and linear marks and bruises on [Kip's] legs, back, and neck which

required medical intervention." He found defendants' actions were intentional

and deliberate and meant to inflict pain on this nine-year-old child. Judge

Kaplan found the beating constituted excessive corporal punishment in

accordance with N.J.S.A. 9:6-8.21(c)(4)(b), consistent with N.J. Div. of Youth

& Fam. Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Further, he found

defendants' "use of an instrumentality, here a charging cable, with enough

force to leave marks on [Kip] which caused him pain was a disproportionate

response to [Kip's] staying awake past his bedtime."

Felix appeals, arguing Kip's allegations of abuse were "inconsistent and

not trustworthy" as well as uncorroborated, and the court erred by improperly

basing its decision on those incompetent statements, ignoring contrary

evidence and "improperly filling in gaps in the evidence of its own accord."

Our review of the record convinces us that none of those arguments is of

A-3702-19 9 sufficient merit to warrant extended discussion in a written opinion. See R.

2:11-3(e)(1)(E).

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 Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 397 (App.

Div. 2015). If the findings have such support in the record, as Judge Kaplan's

do, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v.

Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Felix's main argument is that Kip's prior statements about the beating

were "not sufficiently corroborated as to the essential issue of who was

responsible for the alleged abuse." As Judge Kaplan made clear, however, the

law is well settled that corroboration need not be offender-specific. N.J. Div.

of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div. 2002).

We have several times held that corroborative evidence simply need not be so

direct to provide sufficient support for a child's out-of-court statements under

N.J.S.A. 9:6-8.46(a). See N.J. Div. of Child Prot. & Permanency v. J.A., 436

N.J. Super. 61, 67 (App. Div. 2014); N.J. Div. of Child Prot. & Permanency v.

M.C., 435 N.J. Super. 405, 424 (App. Div. 2014), superseded on other grounds

A-3702-19 10 N.J. Div. of Child Prot. & Permanency v. M.C., No. A-2398-12, (App. Div.

Aug. 4, 2016); L.A., 357 N.J. Super. at 166; Z.P.R., 351 N.J. Super. at 435.

As Judge Weissbard noted in Z.P.R., "[i]t would be a rare case where evidence

could be produced that would directly corroborate the specific allegation of

abuse between the child and the perpetrator." Ibid.

Accordingly, the rule is that "[c]orroborative evidence 'need only

provide support for the out-of-court statements.'" N.J. Div. of Child Prot. &

Permanency v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting L.A.,

357 N.J. Super. at 166). Medical testimony documenting the abuse of the sort

Dr. Medina provided here, is one of the "most effective types of corroboration"

in a child abuse case. Z.P.R., 351 N.J. Super. at 436 (quoting State v. Swan,

790 P.2d 610, 615-16 (1990)). Thus, there can be no question but that Kip's

statements that Felix and his mother beat him on the night of August 8, 2018

with a phone charging cord were corroborated by the marks on his body and

Dr. Medina's testimony that those marks were consistent with the boy being

struck repeatedly with a cord or cable of that type.

Felix is also wrong to imply Kip's statements were the only basis for the

decision rendered here. Although Kip's statements were certainly critical,

Judge Kaplan plainly considered the totality of the proofs as our Supreme

A-3702-19 11 Court has directed trial judges do in such cases "because the evidence can be

synergistically related." P.W.R., 205 N.J. at 39. Here, both children claimed

to be with their parents on the night Kip was beaten. Felix admitted having

physically disciplined the boy before, but claimed he stopped doing so in 2014,

after prior Division involvement and because Audrey's family disapproved.

Felix also was very specific about where the family members, except him,

were sleeping the night he claimed not to be with them and admitted dropping

both kids at day camp the following morning. Moreover, the judge did not, as

Felix argues, "ignore" the statements Felix and Audrey made that Felix was

not with the family on the night Kip was beaten; he rejected them as "self-

serving and not believable."

Although a child's uncorroborated hearsay statement "may not be the

sole basis for a finding of abuse or neglect," P.W.R., 205 N.J. at 33, Kip's

statement was corroborated and the Division only needed to show it was more

likely than not that Felix participated in beating Kip with the charging cable to

establish abuse and neglect here, see N.J. Div. of Youth & Fam. Servs. v. N.S.,

412 N.J. Super. 593, 615 (App. Div. 2015) (noting "'[t]he evidence must

demonstrate that the offered hypothesis is a rational inference, that it permits

the trier[] of fact to arrive at a conclusion grounded in a preponderance of

A-3702-19 12 probabilities according to common experience'" (quoting In re Est. of

Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006))). Because we are

satisfied there is substantial credible evidence in the totality of the record to

support Judge Kaplan's conclusion that Felix, more likely than not, engaged in

excessive corporal punishment of Kip by hitting him repeatedly with the

charging cable, we affirm — substantially for the reasons expressed in Judge

Kaplan's thorough and thoughtful opinion of December 10, 2018.

Affirmed.

A-3702-19 13