DCPP VS. J.H., S.M., M.W., AND J.M., IN THE MATTER OF J.W., B.M., MAL.W., M.W., III, AND MAK.W. (FN-09-0223-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 7, 2020
• Docket: A-4772-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4772-18T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.H.,

Defendant-Appellant,

and

S.M., M.W. AND J.M.,

Defendants. _________________________

IN THE MATTER OF J.W., B.M., MAL.W., M.W., III, and MAK.W., minors. __________________________

Argued November 5, 2020 – Decided December 7, 2020

Before Judges Ostrer, Accurso and Enright. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0223-18.

Robert H. McGuigan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; Robert H. McGuigan, on the briefs).

Amanda D. Barba, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Sookie Bae, Assistant Attorney General, of counsel; Amanda D. Barba, on the brief).

Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Rachel E. Seidman, of counsel and on the brief).

PER CURIAM

Defendant J.H.1 (Janice) appeals from a May 11, 2018 order finding she

abused and neglected J.W. (Jerilyn) by failing to protect her from excessive

corporal punishment inflicted by Jerilyn's father, defendant M.W. (Mel). We

affirm, substantially for the reasons set forth in Judge Anthony V. D'Elia's

thoughtful oral decision.

1 We use initials and pseudonyms to refer to the parties to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38-3(d)(12). A-4772-18T4 2 Janice is Mel's paramour. She and Mel have three children together,

namely Mal.W. (Mark), M.W. III (Mel, III) and Mak.W. (Mike). Janice also

has a daughter, B.M. (Bonnie) from a prior relationship with J.M. (Jim). Jerilyn

was born in 2003 to Mel and S.M. (Sue). Janice is the only defendant involved

in this appeal.

Prior to the instant litigation, Janice and Mel dated on and off for seven

years. Mel and Jerilyn moved to Janice's apartment approximately one week

before plaintiff New Jersey Division of Child Protection and Permanency

(Division) received a referral about Jerilyn. Specifically, on January 8, 2018,

Jerilyn's school nurse contacted the Division and informed the Division that

Jerilyn had marks on her arms consistent with being hit with a belt or an

extension cord. That evening, Division workers went to the address provided in

the referral, but no one was home.

The following day, a Division caseworker went to Jerilyn's school and

interviewed her. When the caseworker questioned Jerilyn about the marks on

her body, Jerilyn admitted that on January 5, 2018, Mel hit her with an electrical

cord on her arms, legs, and back. The teenager further confirmed the site of

some of her injuries still bled.

A-4772-18T4 3 Jerilyn explained the beating occurred after she told Mel she allowed her

girlfriend to visit Janice's apartment to retrieve a cellphone. Mel deemed this

visit to be a violation of the "house rule" that no guests were permitted inside

the home without adult supervision. He decided to "discipline" Jerilyn by hitting

her with an extension cord multiple times on her arms, legs, and back. She tried

unsuccessfully to defend herself.

According to Jerilyn, Janice and Bonnie were in the kitchen, adjacent to

the area where the beating occurred, but Janice made no attempt to stop Mel.

Jerilyn told the caseworker Mel previously used a belt to discipline her and hit

her with a belt buckle once, injuring her right finger. Jerilyn stated, "I'm not

afraid of my father, I'm used to getting disciplined by my father this way when

I do something wrong. I never thought that this time it was going to be this bad,

but I'm ok now."

Jerilyn advised the caseworker that the day after the incident, Mel tried to

treat her wounds by rubbing alcohol on them. He stopped when Jerilyn yelled

the alcohol burned her. Neither Mel nor Janice took further action to treat

Jerilyn's injuries or obtain medical treatment for her.

The caseworker observed Jerilyn had "six bruises on her right arm, seven

on her left arm, five on her back, two on her left leg and two on her right leg, all

A-4772-18T4 4 in different stages of healing." Additionally, the caseworker noted Jerilyn wore

a bandage on her right upper arm.

The Division contacted the Hudson County Prosecutor's Office, Special

Victim's Unit (SVU). During a videotaped interview with a detective, Jerilyn

provided statements consistent with her disclosures to the Division caseworker.

When asked by the detective whether anyone saw Mel beat her with an extension

cord, Jerilyn responded that only her dad and Janice witnessed the incident, but

Janice did not intervene. Jerilyn stated, "it got to the point where I'm hurting,

and sometimes, like when my dad beats me too much [Janice] will jump in and

say, okay that's enough. But this time she didn't say anything. She was just

sitting there staring."

The detective also interviewed Mel, who confessed he hit Jerilyn with an

extension cord and inflicted bodily injury. He stated he took this ac tion to

discipline his daughter because she was "out of control." Mel further admitted

he previously hit Jerilyn with a belt, but claimed he never left a mark or bruise.

When Bonnie was interviewed by the SVU, she denied being hit by Mel

or Janice. However, she admitted that during the incident, she was in the kitchen

with Janice and heard Jerilyn yelling at Mel to stop hitting her. She knew Jerilyn

was beaten because she heard Jerilyn screaming and crying. Bonnie added,

A-4772-18T4 5 "Jerilyn normally does not start crying." Bonnie also remarked that after the

incident, Mel left for work and Jerilyn showed her a mark on her arm. Jerilyn

told Bonnie her father caused this mark.

Defendants' three younger children were not interviewed, due to their age.

However, the Division caseworker confirmed she did not observe any visible

marks or bruises on these children.

Mel was arrested for aggravated assault, N.J.S.A. 2C:12-1(b)(1) and

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Janice declined to be

interviewed but she, too, was arrested for endangering the welfare of a child,

due to her failure to assist Jerilyn during the incident or subsequently inform the

authorities about what occurred. The Division executed a Dodd 2 removal for

defendants' five children.

Following the Dodd removal, the Division took Jerilyn and her half-

siblings to a local emergency room for pre-placement physicals. The emergency

room pediatrician, Dr. Nileshwai Patel, observed Jerilyn suffered from moderate

swelling and multiple abrasions on her arms, legs, and back. He found some of

her abrasions were surrounded by bruises and hyper-fragmented lesions.

2 A "Dodd" removal refers to the emergency removal of a child from a home without a court order, pursuant to The Dodd Act. N.J.S.A. 9:6-8.21 to -8.82. A-4772-18T4 6 Moreover, Dr. Patel noted Jerilyn complained of pain when she moved her arm.

He prescribed Bacitracin for her wounds and Motrin for her pain.

On January 12, 2018, Janice agreed to be interviewed by a Division

caseworker. During her discussion with the caseworker, Janice denied Mel lived

with her. Additionally, Janice told the caseworker she was a victim of domestic

violence, and had filed for a restraining order, but withdrew her request for

restraints when she learned Mel would be notified of her application. Janice

asked the caseworker not to reveal this disclosure to Mel. Janice denied her

children witnessed her being abused, but then equivocated, stating the "'the little

ones' may have seen him choking her."

Janice also denied seeing Mel beat Jerilyn on January 5, 2018, but

admitted she heard Jerilyn screaming during the incident. Janice maintained she

did not see any marks or bruises on Jerilyn after the beating. Further, she told

the caseworker Jerilyn acted "regular" and they were "laughing and joking"

throughout the following weekend.

On May 11, 2018, Judge D'Elia conducted a fact-finding hearing. At the

outset of the trial, Mel's counsel objected to the introduction of the Division's

case report on Janice, wherein she indicated she was a victim of domestic

violence. Janice's counsel acquiesced to the exclusion of this evidence.

A-4772-18T4 7 The two caseworkers assigned to this matter, Francisco Monterrosa and

Schryka Massey, testified on behalf of the Division about their investigation of

the incident. The Division also produced the SVU videotaped interviews of

Janice, Mel and Jerilyn, and photos showing Jerilyn's marks and bruises days

after the incident. Moreover, the judge admitted Jerilyn's medical records, the

Division's records regarding the January 8, 2018 referral, and an investigation

summary from a 2016 referral regarding Mel purportedly hitting Jerilyn with a

belt and a closed fist. Neither Mel nor Janice testified nor presented witnesses

in their defense.

During the closing remarks of Janice's counsel, she stated, in part:

Now, in this particular instance there was no way for [Janice] to know the difference that something more severe was happening this time versus any other time that [Mel] would have disciplined the child. And Jerilyn did not follow up in any way with [Janice]. She didn’t come to her and say, I am injured, I am in pain, I am hurt. She spent the entire weekend with [Janice]. And it wasn’t until she was -- well, whether she was at the hospital, whether she was at the school, but certainly it wasn’t until Monday that she said anything about being in pain.

....

Which is just not something not strong enough to really say that [Janice] had frankly done anything wrong . . . . She was not responsible for this. She was not the person who was involved in the disciplining. And the

A-4772-18T4 8 child didn’t report it to [Janice], who . . . was the adult in the home immediately after it happened, or certainly within the three days after it happened.

At the conclusion of the trial, Judge D'Elia found the Division proved by

a preponderance of evidence that pursuant to N.J.S.A. 9:6-8.21(c), Mel abused

Jerilyn when he "used excessive corporal punishment . . . by hitting [Jerilyn]

several times with an electrical cord on her arms, back [and] leg, leaving marks

[and] bruising." In his oral decision, the judge concluded "[t]his was a whip ping

with an electrical cord that went on for a good period of time, that caused bad,

bad bruises, that caused [Jerilyn] to scream and to cry and to yell[.]"

Additionally, Judge D'Elia credited Jerilyn's statements, concluding everything

she "told the investigator was true. She seemed relaxed, she seemed open. She

explained freely why she never really told anybody about the prior incidents,

because she didn't want it to be blown up bigger than it was. And she didn't

want anybody to get in trouble."

Regarding Janice, the judge stated:

She’s in the kitchen, she heard everything, she knew what was going on. She knew how bad it was. She could hear the screams. This was not just one whip, or even two whips. This was multiples. So, it was going on for a while.

A-4772-18T4 9 I do find that she’s the paramour of the parent, so she does have a responsibility to step in under the law . . . . [T]he State legislature . . . wants girlfriends and boyfriends of parents, who otherwise care for minors when they’re around, to get involved, or they could be charged with abuse and neglect. Why? Because the overriding concern of the law is not to protect the relationship with the girlfriend or boyfriend with the parent, but to make sure that the kid is best protected . . . . I believe [Jerilyn] that [Janice's] done it in the past. That she stopped [Jerilyn] from getting beat by the father when he thought that he was applying the proper punishment. But, this time she dropped the ball. I’m finding that she did commit abuse and neglect by not getting involved in light of the severe injuries that occurred, the extensive whipping that was ongoing right . . . in the next room. And that for that reason I’m finding that the Division has proven its case against her by a preponderance of the evidence as well.

Judge D'Elia's May 11, 2018 fact-finding order reflected that pursuant to

N.J.S.A. 9:6-8.21(c), Janice's "failure to intervene constituted gross negligence

[and] a failure to exercise a minimum degree of care to prevent the child from

suffering significant injuries physically [and] emotionally as a result of the

excessive corporal punishment."

On appeal, Janice argues this order should be vacated because it was not

based on adequate and substantial evidence in the record. In support of this

contention, she argues she is a victim of domestic violence, and "would likely

have been in the grip of fear" during the incident and that "the entire

A-4772-18T4 10 psychological dynamic likely effectively inhibited her from acting, at least

temporarily." (Emphasis added).

The pertinent legal standards under Title Nine are well established. An

abused or neglected child under Title Nine is one 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, as herein defined, 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.

[N.J.S.A. 9:6-8.21(c)(4).]

The Supreme Court established that the phrase "minimum degree of care"

under the statute "refers to conduct that is grossly or wantonly negligent, but not

necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178

(1999). A parent or guardian falls short of the "minimum degree of care"

standard "when he or she is aware of the dangers inherent in a situation and fails

adequately to supervise the child or recklessly creates a risk of serious injury to

that child." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369

(2017) (quoting G.S., 157 N.J. at 181).

A-4772-18T4 11 N.J.S.A. 9:6-8.21(a) defines a parent or guardian as "any natural parent,

. . . paramour of a parent, or any person, who has assumed responsibility for the

care, custody, or control of a child or upon whom there is a legal duty for such

care."

Whether a parent, guardian, or a paramour of a parent has engaged in acts

of abuse or neglect involves a totality of the circumstances analysis. N.J. Div.

of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).

Specifically, "the focus is on the harm to the child and whether that harm should

have been prevented had the guardian performed some act to remedy the

situation or remove the danger." N.J. Div. of Child Prot. & Permanency v.

J.L.G., 450 N.J. Super. 113, 121 (2015).

Our scope of review of a Family Part judge's fact-finding determination

of abuse or neglect is limited. We must defer to the factual findings of the

Family Part if they are sustained by "adequate, substantial, and credible

evidence" in the record. N.J. Div. of Child Prot. & Permanency v. N.B., 452

N.J. Super. 513, 521 (App. Div. 2017) (citation omitted). That deference is

justified because of the Family Part's "special jurisdiction and expertise in

family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

343 (2010) (citation omitted). The reviewing court grants particular deference

A-4772-18T4 12 to the trial court's credibility determinations, and only overturns its

determinations regarding the underlying facts and their implications when the

"findings went so wide of the mark that a mistake must have been made." N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal

quotation omitted). That said, an appellate court does not give special deference

to the trial court's interpretation of the law, which it reviews de novo. D.W. v.

R.W., 212 N.J. 232, 245-46 (2012).

Applying these well-settled principles, we are satisfied Judge D'Elia did

not abuse his discretion in finding Janice was grossly negligent by failing to

protect Jerilyn from the excessive corporal punishment Mel inflicted on Jerilyn

on January 5, 2018. Indeed, Janice does not deny she did not assist Jerilyn

during the "extensive whipping" incident, even though she was present in an

adjacent room. Moreover, she does not dispute she intervened on Jerilyn's

behalf on prior occasions when she believed Mel's corporal punishment had

become excessive.

Although there is some evidence in the record to support Janice's claim

that she also was a victim of Mel's domestic violence, it is insufficient to allow

us to consider whether Janice's fear of Mel impeded her from intervening when

he beat Jerilyn with an electrical cord or coming to the child's aid afterward, and

A-4772-18T4 13 from testifying to her fears at the fact-finding hearing. If Janice believes she

could marshal sufficient evidence to demonstrate she failed to act because she

was under duress, her remedy is through a motion for relief from the judgment

under Rule 4:50-1. We express no opinion about the likelihood of success of

such an application.

Affirmed.

A-4772-18T4 14