DCPP VS. R.A., O.R., AND J.T., IN THE MATTER OF H.A., Z.R., AND A.A.-T. (FN-09-0144-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 14, 2020
• Docket: A-5543-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5543-18T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.A.1,

Defendant-Appellant,

and

O.R. and J.T.,

Defendants. ________________________

IN THE MATTER OF H.A., Z.R., and A.A.-T.,

Minors. ________________________

1 We use initials and pseudonyms to refer to the parties and children to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38- 3(d)(12). Argued telephonically 2 May 28, 2020 – Decided July 14, 2020

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0144-17.

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

Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Sara M. Gregory, on the brief).

James J. Gross, Designated Counsel, argued the cause for minor H.A. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; James J. Gross, on the brief).

Noel Christian Devlin, Assistant Deputy Public Defender, argued the cause for minors M.R., Z.R., and A.A.-T. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel Christian Devlin, on the brief).

2 As ordered by the Supreme Court, all oral arguments heard by the Appellate Division during the Covid-19 public health emergency were conducted telephonically. https://www.njcourts.gov/notices/2020/n200315a.pdf

A-5543-18T1 2 PER CURIAM

The Chancery Division, Family Part found defendant R.A. abused and

neglected her then twelve-year-old biological son H.A. (Harry), when she struck

him multiple times on the head, face and body with "a miniature bat"

approximately twelve inches in length, causing multiple bruises in different

areas of the child's body and a laceration on his head that required medical

intervention in the form of two surgical staples to his scalp. In this appeal,

defendant argues her actions were merely a form of parental discipline through

corporal punishment, which were not unreasonable, excessive, or legally

abusive.

After considering the evidence presented by the Division of Child

Protection and Permanency (Division) at a fact-finding hearing conducted

pursuant to N.J.S.A. 9:6-8.44, and mindful of our standard of review, we reject

defendant's arguments and affirm substantially for the reasons expressed by

Judge Bernadette N. DeCastro in her memorandum of opinion dated January 6,

2017.

I

In addition to Harry, defendant has three biological daughters. All but

two of the children have different biological fathers. S.C. is Harry's biological

A-5543-18T1 3 father; J.T. is thirteen-year-old A.A.-T.'s (Amy's) biological father; and O.R. is

the biological father of eleven-year-old M.R. (Michelle) and eight-year-old Z.R.

(Zoey). These men were not named as parties in the complaint filed by the

Division and are not part of this appeal.

On September 9, 2016, the Division received a referral from the Jersey

City Medical Center (JCMC) after Harry was treated in the emergency room for

multiple bruises and a laceration on his scalp. The Division dispatched two

caseworkers to investigate. The Screening Summary documented that Harry

lived with defendant and his three younger sisters. The incident that caused

Harry's injuries occurred the previous day, on September 8, 2016. Defendant

overheard her three daughters talking about an alleged incident involving

inappropriate sexual acts by Harry with Amy and Zoey. Defendant became

enraged when she learned of these allegations and "hit [Harry] with a bat on the

leg, back, wrist, arm and head."

The JCMC medical staff treated Harry for blunt force trauma and

contusions to his face, arms, and legs. Diagnostic procedures, such as x-rays of

his forearm and wrist and a CT Scan of his cranium, did not reveal any internal

injuries. Harry received two surgical sutures to close the laceration on top of

A-5543-18T1 4 his head. The hospital discharged Harry, gave him Motrin for pain, and

suggested he follow-up with his pediatrician.

Division caseworkers Melissa Stark and Jennifer Wisely interviewed

Harry's sisters, O.R., and defendant. Stark and Wisely were also present when

the children, O.R., and defendant were interrogated by detectives from the

Hudson County Prosecutor's Office (HCPO). At Wisely's request, Michelle

described the living arrangement at her home and defendant's strict disciplinary

rules. Michelle said defendant did not allow "jumping, screaming or yelling

. . . [and] no fighting, arguments or hitting each other." If she broke any of these

rules, defendant hits her "with a belt."

Wisely did not prepare a verbatim account of her interview with Michelle.

However, the following statement is taken directly from the report Wisely filed

with the Division. Michelle told Wisely that she saw her mother "hit her brother

with a bat" because she told her mother that Harry "made her sister[s,] [Amy]

and [Zoey] suck his penis while [defendant] was at work. [Michelle] said that

[Zoey] did it more than one time and [Amy] did it one time. [Michelle] stated

that she has never sucked [Harry's] penis." Division records indicate that

Michelle witnessed defendant strike Harry on the head with the wooden bat on

his wrist, knee, arm, and face.

A-5543-18T1 5 Michelle saw Harry's blood on the floor of the kitchen, bathroom, and

inside the bathroom sink. She also saw Harry go to the bathroom to attend to

his injuries. She claimed that at Harry's request, she told defendant that his head

was still bleeding. According to Michelle, defendant merely responded: "okay."

Before her daughters left the house to attend school the next day, defendant

instructed them not to tell anyone about the incident. Michelle told Wisely that

Harry did not go to school the next day "because his head was split open and

because his face and wrists were swollen from being hit with the bat. "

After completing this preliminary investigation, the Division executed an

emergent removal of the children from defendant's custody and care without

judicial authorization pursuant to N.J.S.A. 9:6-8.29. On that same day, the

Division filed an Order to Show Cause (OTSC) and verified complaint against

defendant predicated on allegations of physical abuse and neglect by inflicting

excessive corporal punishment. The Family Part granted the Division's OTSC

and scheduled the return date on September 13, 2016.

The Division's specific allegations against defendant were briefly

summarized by the Deputy Attorney General (DAG), who appeared before

Judge DeCastro on the return date of the OTSC. The DAG informed Judge

DeCastro that the HCPO had arrested defendant based on the children's account

A-5543-18T1 6 of defendant's use of excessive, physically abusive corporal punishment as a

form of parental discipline. The charge of abuse and neglect was also predicated

on defendant's failure to seek prompt medical attention for the injuries she

inflicted on her twelve-year-old son when she struck him repeatedly with a small

wooden bat. These injuries included a laceration to the boy's head that caused

him to bleed profusely.

Division caseworker Melissa Stark testified at the OTSC hearing and

described her personal observations of the injuries defendant inflicted upon

Harry: "He had received a scalp laceration and he received two staples to his

head. And there were contusions to his face, his arm, and I believe his leg. But

there were no fractures and the CT Scan was negative." Stark also corroborated

the girls' account of the events that caused their mother to strike Harry with the

wooden bat. Stark also interviewed defendant and was present when Special

Victims Unit detectives from the HCPO interrogated defendant.

Stark also testified that after his mother struck him with a bat, Harry

stayed home the next day to conceal his injuries from his peers and his teachers.

At some point that day, defendant called O.R. and asked him to pick up Harry

and the girls. When O.R. saw Harry's injuries, he immediately drove him to the

JCMC. Division intake-worker Jennifer Wisely also testified at the OTSC

A-5543-18T1 7 hearing. She corroborated Stark's account of the events and also confirmed that

Michelle told her that defendant hits her and her siblings with a belt when they

misbehave.

Based on the record developed at the OTSC hearing, Judge DeCastro

found the Division properly took immediate action to remove defendant's four

children from her care and custody pursuant to N.J.S.A. 9:6-8.29. Judge

DeCastro made the following findings in support of her ruling:

Based on the representations of the complaint and the appendix . . . I do find the Dodd [3] was appropriate since at the time of the removal the mother had -- took a baseball bat and beat her son with the baseball bat causing serious injuries including a concussion and lacerations. She also hit him with a belt. At the time the mother was then arrested.

....

As far as contrary to the welfare, I find it's contrary to the welfare of the children to be returned to the mother, since she physically abused her son as well as all the children. There are also concerns that there was sexual abuse going on between the children while in the mother's care.

3 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.29. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). A-5543-18T1 8 On January 4, 2017, Judge DeCastro conducted a fact-finding hearing to

determine whether the Division could prove, by a preponderance of the

evidence, that defendant abused and/or neglected Harry on September 8, 2016,

by using excessive corporal punishment. The Division again relied on the

testimony of caseworkers Stark and Wisely. Defendant did not call any fact

witnesses4 nor testify in her own defense. Stark and Wisely reiterated the

testimony they provided at the OTSC hearing and elaborated on the facts that

formed the basis for this complaint against defendant.

After considering the arguments of counsel, Judge DeCastro reserved

decision and thereafter entered an order dated January 6, 2017, supported by a

memorandum of opinion, in which she found the Division proved by a

preponderance of the evidence that defendant abused and neglected Harry in the

form of excessive corporal punishment, in violation of N.J.S.A. 9:6-8.21c(4)(b).

After reviewing the cases from the Supreme Court and this court that have

addressed this issue, Judge DeCastro held:

Here, the Division has presented competent, material and relevant evidence that shows that [defendant's] act of striking her son in the head with a wooden baseball bat placed the child at a substantial risk of harm and

4 Without objection from the Division or the Law Guardian, Judge DeCastro granted defense counsel's request to allow defendant's maternal cousin to briefly address the court as a character witness. N.J.R.E. 608(a). A-5543-18T1 9 caused serious injury requiring medical treatment, for which she neglected to seek treatment for him. Moreover, this was not an aberrational response as alleged by defendant. The statements of all four children corroborated that she often would beat them with a belt. Her extreme reaction to her daughters' surprising claim of sexual abuse at the instigation of their brother cannot be condoned by this [c]ourt. Furthermore, she showed absolutely no remorse. Knowing that her son was bleeding, she failed to get him medical treatment. Moreover, when one of the girls' father finally took him to the hospital she did not even care enough to accompany him and only arrived at the hospital at the request of the Division.

Judge DeCastro concluded that defendant "failed to exercise a minimum

degree of care" and "willfully" struck her twelve-year-old son with the

functional equivalent of a club. She found defendant's actions were legally

unjustifiable and caused her minor son to suffer a significant physical injury.

The judge also found that defendant failed to seek prompt medical attention

despite being aware of her son's injuries. Judge DeCastro held these material

acts and omissions by defendant constituted excessive corporal punishment and

parental neglect.

II

Defendant argues the Family Part erred when it found she inflicted

excessive corporal punishment against Harry within the meaning of N.J.S.A.

9:6-8.21c(4)(b). She claims her reaction to use a twelve-inch long wooden bat

A-5543-18T1 10 to discipline Harry after learning he sexually abused his two younger sisters was

not an unreasonable or disproportionate form of corporal punishment.

Defendant argues that this court's reasoning in N.J. Div. of Youth & Family

Servs. v. K.A., 413 N.J. Super. 504 (App. Div. 2010) supports her position and

should be applied in this appeal. Alternatively, defendant argues the Division

did not prove, by a preponderance of the evidence, that Harry's injuries were

serious or protracted under N.J.S.A. 9:6-8.21c(1).

The Division and the Law Guardian urge us to uphold Judge DeCastro 's

findings because they are supported by substantial credible evidence in the

record. The Division in particular argues the facts here are completely

distinguishable from the facts that supported this court's holding in K.A. The

Law Guardian concurs with the Division's position and emphasizes that in sharp

contrast to the salient facts in K.A., the facts here revealed defendant's use of

excessive physical violence as a form of discipline is a core principle of her

parenting philosophy.

The criteria for sustaining or dismissing a complaint of abuse or neglect

are delineated in N.J.S.A. 9:6-8.50. "The fact-finding hearing is a critical

element of the abuse and neglect process. The judge, as the fact-finder, is there

'to determine whether the child is an abused or neglected child[.]'" N.J. Div. of

A-5543-18T1 11 Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002); see

also N.J.S.A. 9:6-8.44. Our scope of review from a fact-finding hearing

conducted by the Family Part is narrow and deferential. "[F]indings by the trial

judge are considered binding on appeal when supported by adequate, substantial

and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v.

Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We give particular deference to a Family Part judge's fact-findings

"[b]ecause of the Family Part's special jurisdiction and expertise in family

matters[.]" N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453,

463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus,

unless the Family Part's factual findings are "so wide of the mark that a mistake

must have been made[,]" they should not be disturbed. N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

Parental rights include the right to take reasonable measures in

disciplining a child, including corporal punishment. K.A., 413 N.J. Super. at

510 (citing State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002)).

However, certain types of discipline, such as excessive corporal punishment,

A-5543-18T1 12 can constitute abuse and neglect. N.J.S.A. 9:6-8.21c(4)(b) defines an abused

and 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, 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[.]

[(Emphasis added).]

"A determination of abuse must be shown by a preponderance of the evidence

in a fact-finding hearing." K.A., 413 N.J. Super. at 510.

"'Excessive corporal punishment' is not defined by statute, but is

determined on a case-by-case basis." New Jersey Div. of Youth & Family Servs.

v. S.H., 439 N.J. Super. 137, 145 (App. Div. 2015) (quoting K.A., 413 N.J.

Super. at 510). Corporal punishment will be considered excessive when it is

"beyond what is proper or reasonable." K.A., 413 N.J. Super. at 511. Further,

"a single incident of violence against a child may be sufficient to constitute

excessive corporal punishment." Ibid. The court in K.A. noted that certain types

A-5543-18T1 13 of injuries inflicted by a parent may be considered per se excessive corporal

punishment:

A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary, may be sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.

[Id. at 511-12 (emphasis added).]

A finding of abuse requires "looking to the harm suffered by the child,

rather than the mental state of the accused abuser, because '[t]he main goal of

Title 9 is to protect children[.]'" K.A., 413 N.J. Super. at 511 (alterations in

original) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)); see

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010)

(finding that although the defendant "may not have intended to harm his

children, his actions were deliberate" because he "intentionally grabbed the

children and disregarded the substantial probability that injury would result from

his conduct").

In K.A., this court held that the defendant mother, who punched her eight-

-year-old autistic child approximately four to five times in the shoulder after the

child failed to follow directions, had not inflicted excessive corporal

A-5543-18T1 14 punishment. 413 N.J. Super. at 513. We particularly noted that the defendant's

actions were isolated and occurred during "the trying circumstances which [the

defendant] was undergoing due to [the child's] psychological disorder." Id. at

512. Finally, the defendant showed remorse and took responsibility for her

actions. Ibid. We also emphasized that

[the defendant] was alone, without support from either her spouse/co-parent or from other members of her extended family, such as an experienced mother or aunt. Out of sheer frustration, or through an ill-advised impulse, she struck her child five times. These blows, though undoubtedly painful, did not cause the child any permanent harm, did not require medical intervention of any kind, and were not part of a pattern of abuse.

[Ibid. (emphasis added).]

In N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011),

the Supreme Court held that "[a] slap of the face of a teenager as a form of

discipline—with no resulting bruising or marks—does not constitute 'excessive

corporal punishment' within the meaning of N.J.S.A. 9:6-8.21c(4)(b)." In

reaching this decision, the Court noted that "by qualifying the prohibition with

the term, 'excessive,' the statutory language plainly recognizes the need for some

parental autonomy in the child-rearing dynamic that, of necessity, may involve

the need for punishment." Ibid.

A-5543-18T1 15 However, in Dep't of Children & Families, Div. of Youth and Family

Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), we upheld a

finding of abuse and neglect against a defendant who struck her five-year-old

child with a paddle as a means of punishing the child for making a harmless

comment to a neighbor. Furthermore, the Division found the child had visible

facial bruises and red marks approximately three to four inches in length, two-

inch dark red scratches on her elbow and cheek, and a greenish mark on her

back. Id. at 416. We also noted that the defendant did not appreciate the

seriousness of these injuries nor exhibit any remorse for her conduct. Id. at 417.

We applied these same principles in New Jersey Div. of Youth & Family

Servs. v. S.H., 439 N.J. Super. 137, 140 (App. Div. 2015), to reverse the Family

Part's judgment finding that the defendant parent had not abused her fifteen-

year-old son when she was involved in a physical altercation with the child. The

altercation "began with [her] throwing a shoe at him and progressed to hitting

him with her hands, striking him with a golf club, and biting him on his

shoulder." Id. at 140.

The Family Part found that the defendant's actions did not rise to the level

of abuse because the parent's actions were reasonably triggered by her son's use

of disrespectful, vulgar language. Id. at 143. We explained:

A-5543-18T1 16 While we do not condone the use of coarse or vulgar language by a child when directed at a parent, we find no evidence in the record that [the child's] denial of his mother's accusation, which included a passing expletive, was intended to provoke [the defendant's] actions. Indeed, as the conflict escalated with [the defendant] throwing a shoe at [the child] he attempted to defuse it by leaving the room. It was [the defendant] who fueled the escalation by grabbing [the child] in an attempt to keep him in the room. The assault with the golf club and the biting followed.

[Id. at 148]

We thus held that the defendant's actions were unreasonable and

disproportionate to the child's conduct and constituted a form of excessive

corporal punishment. Id. at 147-50. In reaching this conclusion we expressly

distinguished the defendant's conduct from the "occasional slap" in P.W.R. and

the comparatively minor injuries in K.A. Ibid.

Here, the facts are also distinguishable from K.A. and P.W.R. The extent

of the injuries Harry sustained and the instrumentality used to cause these

injuries differ greatly from K.A. and P.W.R. Harry's injuries required prompt

medical attention for the laceration to his head and swelling on other areas of

his body. The use of the wooden bat to strike a twelve-year-old child on the

head with sufficient force to lacerate the scalp can have profound cognitive

and/or neurological negative consequences. As we noted in K.A., a serious

A-5543-18T1 17 injury requiring medical intervention is the type of parental discipline that is

considered per se excessive corporal punishment. Finally, similar to the

defendant in C.H., defendant here failed to show any remorse for her actions.

In this light, we affirm substantially for the reasons expressed by Judge

DeCastro in her well-reasoned memorandum of opinion dated January 6, 2017.

Affirmed.

A-5543-18T1 18