DCPP VS. L.S. AND R.S. IN THE MATTER OF L.S. (FN-09-0431-15, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 1, 2017
• Docket: A-4843-15T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4843-15T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.S., Defendant-Appellant,

and

R.S.,1

Defendant. _____________________________________

IN THE MATTER OF L.S.,

Minor. _____________________________________

Submitted September 26, 2017 – Decided November 1, 2017

Before Judges Fasciale and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0431-15.

1 R.S., the father of the minor child L.S., was only a defendant for purposes of service. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan Villa, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Cory H. Cassar, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals from a December 1, 2015 fact finding order

entered by Judge Bernadette N. DeCastro that defendant abused and

neglected her daughter L.S. (the child), born August 2012, by

inflicting excessive corporal punishment in disciplining the

child.2 Defendant argues that her conduct did not constitute

excessive corporal punishment because her momentary lapse of

judgment did not result in actual physical injury or imminent harm

to her child. She also contends that absent testimony from any

witness with knowledge of the child's medical conditions, the

judge should not have taken judicial notice that the child's

medical disorders might have rendered her more fragile than the

average child. We find insufficient merit in these arguments to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We

2 A June 3, 2016 order terminated litigation, making this case ripe for appeal.

2 A-4843-15T2 affirm substantially for the reasons stated by Judge DeCastro in

her thorough, well-reasoned written opinion issued at the close

of the fact finding hearing on the same date. We add the following.

The Division of Child Protection and Permanency (Division)

presented the testimony of Bayonne police officer Nick Lawson and

its caseworker Sharice Kennedy. Lawson stated he was on patrol

in Bayonne Park when he heard a woman yelling and screaming at a

child in a stroller. He then observed the woman, later identified

as defendant, smack the child on her "lower torso, upper thigh

area," with a white rag and then with an open hand. Defendant

then picked the child up from her stroller and threw her to the

ground, where she landed on her back. Lawson demonstrated to the

judge the amount of force defendant used to discipline the child.

According to Lawson, after confronting defendant, she apologized

to him for throwing her child to the ground. He also recalled

defendant telling her child, "you see you got your way." He also

mentioned that an examination by an EMT revealed the child was not

hurt.

Kennedy testified the incident was reported to the Division,

and she met with defendant the day of the incident. Kennedy stated

defendant justified her actions by claiming she was disciplining

her child because she had a temper tantrum and kept falling out

of her stroller and onto the ground. Defendant also told the

3 A-4843-15T2 caseworker she did not strike or throw her child to the ground,

but that her child was not giving her "any slack" and "this is

what her [child] wanted [her] to do."

Kennedy also met with the child, describing her as happy and

somewhat nonverbal. The child did not have any visible marks and

bruises on her body but had a small mark on her forehead. Based

upon her conversation with defendant and a review of the child's

pediatrician records, Kennedy revealed that since the child's

premature birth, she has had ventricular issues and a shunt placed

in her head and a tube that runs from her head to her stomach,

which drains fluid from her brain.

Defendant did not testify or present any evidence at the fact

finding hearing.

In her written decision, Judge DeCastro recognized that our

court concluded in Div. of Youth & Family Servs. v. K.A., 413 N.J.

Super. 504, 511 (App. Div. 2010), appeal dismissed as improvidently

granted, 208 N.J. 355 (2011), that abuse and neglect of a child

through excessive corporal punishment is not defined in N.J.S.A.

9:6-8.21(c). Guided by her review of several decisions involving

allegations of excessive corporal punishment, including but not

limited to, K.A., N.J. Div. of Youth & Family Servs. v. P.W.R.,

205 N.J. 17, 36 (2011), and N.J. Div. of Youth & Family Servs. v.

S.H., 439 N.J. Super. 137, 145 (App. Div. 2015), certif. denied,

4 A-4843-15T2 222 N.J. 16 (2015), she found that defendant's treatment of her

child constituted abuse and neglect. The judge determined:

Here[,] the underlying circumstances of a [two-and-a-half] year old non-verbal child having a tantrum described by crying and possibly dragging her feet did not justify the mother['s] reaction of grabbing the [two-and- a-half] year old child out of her stroller and forcefully throwing her feet to the ground. The fact that she was not seriously injured is fortunate in light of the fact that [she] has cardiac issues and a shunt that goes from her head to her stomach. Clearly, the Division proved by preponderance of the evidence that defendant's actions constituted willful or wanton negligence and showed that she acted with reckless disregard for the safety of her daughter.

Based upon our review of the record, we conclude that Judge

DeCastro's decision is supported by substantial credible evidence,

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49

(2012), and is consistent with the law cited in her decision. See

N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538,

542-43 (App. Div. 2011). Although the child was not injured,

defendant's conduct constitutes excessive corporal punishment

because it placed the child in significant risk of harm, especially

given her significant medical problems.

Affirmed.

5 A-4843-15T2