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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5119-17T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.B.,
Defendant-Appellant,
and
C.W. and T.B.,
Defendants. _________________________
IN THE MATTER OF X.W., XY.W., and N.B.,
Minors. __________________________
Submitted April 27, 2020 – Decided June 4, 2020
Before Judges Ostrer and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0322-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Laura M. Kalik, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Melissa Young, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.B. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant T.B. (Teri) 1 appeals from a Family Part order finding she
abused or neglected her four-year-old daughter N.B. (Nina) by causing Nina's
physical condition to become impaired as a result of an unreasonable infliction
of excessive corporal punishment. Having considered Teri's arguments and the
1 We use initials and pseudonyms to refer to the parties, children, and their friends for ease of reference and to prevent disclosure of information and records excluded from public access under Rule 1:38-3(d)(12).
A-5119-17T1 2 record, we dismiss the appeal because it was not timely filed in accordance with
Rule 2:4-2(a).
I.
In our discussion of the pertinent facts, we describe the evidence related
to the Division's claim Teri abused or neglected Nina, and we detail the
somewhat complicated procedural history of the proceedings involving Teri and
the fathers of her four children, and the court's actions addressing the abuse or
neglect, Title Nine, and guardianship issues presented. The procedural history
provides context for the Division's and Nina's Law Guardian's claim the appeal
should be dismissed as untimely filed. We summarize the evidence concerning
the allegation Teri abused or neglected Nina in March 2016 because, although
we dismiss the appeal as untimely, we also address the merits of Teri's challenge
to the court's fact-finding order from which her appeal is taken.
The New Jersey Division of Child Protection and Permanency (the
Division) received eight referrals alleging neglect and physical abuse of Nina
during the two years following her birth in 2011. In October 2013, the Division
substantiated an allegation Teri physically abused Nina; and the Division
A-5119-17T1 3 conducted a Dodd removal of Nina,2 granted the Division care, custody, and
supervision of the child, and continued to monitor Teri and Nina in a Title Nine
proceeding under Docket No. FN-04-322-14 ("the Title Nine proceeding" or
"the original Title Nine proceeding").
Three months later, Teri gave birth to a son, X.W. (Xander). The Division
conducted a Dodd removal of Xander based on Teri's history of physically
abusing Nina, and Xander's father, C.W.'s (Carl) criminal history. On February
14, 2014, the court entered an order in the Title Nine proceeding awarding the
Division care, custody, and supervision of Xander.
Following a fact-finding hearing, the court entered a February 19, 2014
order finding Teri abused or neglected Nina "by allow[ing] the child . . . to be
inflicted with numerous non-accidental injuries and plac[ing] the child at
significant risk of harm." Teri pleaded guilty to third-degree endangering the
welfare of a child, Nina, and she was sentenced to serve 364 days as a condition
of a five-year probationary term.
2 A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29, a provision included within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
A-5119-17T1 4 In January 2015, Teri and Carl had a second child, Xy.W. (Xena). The
Division filed a third amended complaint in the Title Nine proceeding, and the
court entered an order granting the Division care, custody, and supervision of
Xena.
By October 2014, T.B. (Tom) was identified as Nina's father, and he was
added as a party to the Title Nine proceeding. In January 2015, the court granted
Tom custody of Nina in a separate non-dissolution proceeding, and it allowed
Teri supervised parenting time with Nina. As a result, Tom and Nina were
dismissed from the Title Nine proceeding on January 26, 2015, and the case
continued as to only Teri, Carl, Xander, and Xena. In June or July, 2015,
however, the Division removed Nina from Tom's custody, and the court granted
the Division care, custody, and supervision of Nina in a new Title Nine case.
The following month, the court consolidated the new Title Nine case with the
original Title Nine proceeding. 3
3 The parties agree that in June or July of 2015, Nina was removed from Tom's custody, and the court awarded the Division care, custody, and supervision of Nina. The record on appeal does not include the orders terminating Tom's custody and awarding custody to the Division. The Division states the order removing Nina from Tom's custody and awarding custody to the Division was entered under Docket No. FN-04-155-16. As noted, in an August 25, 2015 order, the court consolidated the action under Docket No. FN-04-155-16 with the Title Nine proceeding under Docket No. FN-04-322-14. A-5119-17T1 5 In November 2015, the court ordered Teri's reunification with her three
children, and, by January 2016, Teri had physical and legal custody of the
children. The court entered a January 26, 2016 order continuing the children in
the Division's care and supervision; continuing their legal and physical custody
with Teri; directing that Teri and Carl comply with services; and allowing Carl
and Tom visitation with their respective children.
The March 1, 2016 Referral and Subsequent Fact-Finding Hearing
On March 1, 2016, the Division received a referral from the Mommy and
Me program where Teri resided with the children. The referral alleged Nina had
scratch-marks on her face. Three days later, in its sixth amended complaint in
the Title Nine proceeding, the Division alleged Teri abused or neglected Nina
by causing physical injury and harm through excessive corporal punishment.
At the hearing on the abuse or neglect allegation, Division intake worker
Lashonda Rodriguez testified about the Division's receipt, on Tuesday, March
1, 2016, of a referral that Nina "had some deep scratch[-]marks on her face."
The next day, police located Teri and Nina at Teri's friend Emma's home.
Rodriguez observed two curved linear marks down the center of Nina's nose that
extended to each side of her nose. Rodriguez also saw similar curved marks
near each of Nina's eyes and bruising under her eyes.
A-5119-17T1 6 Teri told Rodriguez she left the Mommy and Me shelter on Sunday,
February 28, 2016, with Nina and her younger siblings, Xander and Xena, and
they went to Emma's home. Teri said she left Nina and Xander at Emma's home,
and she departed with Xena because she had an appointment at noon the
following day. Teri reported she and Xena "stayed somewhere" on Sunday
evening and, at about 8:00 p.m. on Tuesday, March 1, they returned to Emma's
home. According to Teri, it was not until she returned to Emma's home that she
first saw the injuries to Nina's face.
Teri reported Emma said the marks on Nina's face were inflicted on
February 28, 2016, when Emma took the children to Chuck E. Cheese. 4 Teri
told Rodriguez that Emma said, "a kid scratched [Nina] at Chuck E. Cheese."
Teri told Rodriguez that after Emma offered the explanation, she decided to
leave "it alone."
Rodriguez also spoke to Emma, who offered a different version of what
occurred. Emma said Teri brought the children to her home on either Sunday or
Monday, but they did not stay overnight with her. She reported she saw the
4 Chuck E. Cheese is a children's entertainment venue that, according to its advertisements, includes a "video arcade with interactive games," "a kids menu including . . . pizza and an all-you-can-eat salad bar," and "performances by . . . Chuck E." https://www.chuckecheese.com/ (last visited May 15, 2020). A-5119-17T1 7 marks on Nina's face after the children were playing in another room in her home
before the children were taken to Chuck E. Cheese.
Kevin Riley, a Division Intake worker, interviewed Nina on March 1,
2016, at Emma's home. He observed what he described as "long fresh curl shape
scratches on the bridge of her nose," similar marks near her eyes, and bruises
under both her eyes. Photos he took of Nina's injuries were admitted in
evidence.
Nina first told Riley the injuries to her face were caused by a boy hitting
her with a toy truck. Riley testified Nina could not name the boy, and she
appeared anxious and teary-eyed when he asked her to do so. Nina would not
demonstrate how the boy hit her with the truck, and she denied she was injured
at either Chuck E. Cheese or Emma's home.
Following Rodriguez's and Riley's testimony, Teri consented to an
identified surrender of her parental rights of Nina to Nina's resource parent. The
court accepted the identified surrender, and the parties stipulated to the
admission into evidence of a redacted version of Dr. Monique Higginbotham's
report, limited to her summary of the statements made by Nina concerning the
injuries to her face and the manner in which they were inflicted.
A-5119-17T1 8 The report shows Nina told Dr. Higginbotham she had "boo-boos" on her
nose and each of her eyes. Nina first said a boy hit her, but after Dr.
Higginbotham explained it was important to tell doctors the truth about "boo-
boos" so "doctor[s] could help kids get better and help kids stay safe," Nina said,
"I think my [m]ommy [did] this to my nose." When Dr. Higginbotham asked
"how [m]ommy did that to her nose," Nina explained Teri "hit [her nose] with
the, like a circle thing," and "a circle thing, for my mom hit my nose with it."
Nina described the "circle thing" as a "black thing" that was used "for hitting."
Dr. Higginbotham asked Nina to draw a picture of the "circle thing," and
Nina drew "an oval shape on the paper" and said, "Mommy hit me with it." Nina
also demonstrated how her mother held the circle thing when she hit Nina with
it, making a fist with one of her hands and bringing "her partially clenched hand
to her face." Nina said her mother hit her "[be]cause [she] was mad at me."
The court found the Division established by a preponderance of the
evidence that Teri caused the marks and bruises on Nina's face by inflicting
excessive corporal punishment. The court recognized the conflicting version of
events reported by Teri, Emma, and Nina, but it credited Nina's statements to
Dr. Higginbotham about Teri. The court also found Nina's statements to Dr.
Higginbotham were corroborated by the testimony and evidence, including
A-5119-17T1 9 Riley's photos showing Nina's injuries, which are consistent with Nina's drawing
and description of the implement, "the circle thing," she said Teri used to hit her
face.
The June 6, 2016 Fact-Finding and Dispositional Orders
The court entered a June 6, 2016 order finding Teri abused or neglected
Nina by causing her physical condition to be impaired by unreasonably inflicting
excessive corporal punishment. The court also held a dispositional hearing on
June 6, 2016, and it entered an order continuing the care, custody, and
supervision of Nina, Xander, and Xena with the Division. The court ordered
Teri and Carl to continue to comply with services, and it allowed Teri and Carl
visitation with Xander and Xena.
The order also accepted Teri's voluntary identified surrender of parental
rights to Nina "with the understanding that if the named person [to whom the
surrender was made] does not adopt, the surrender is void." The order directed
the Division to keep Teri "informed, on at least a quarterly basis until the
adoption is finalized, as to the status of the planned adoption."
Proceedings Following Entry of the June 6, 2016 Dispositional Order
On October 4, 2016, the Division requested the court bifurcate the claims
involving Teri and Carl, and their children Xander and Xena, from the claims
A-5119-17T1 10 involving Teri and Tom, and their child, Nina. More particularly, the Division
requested the claims involving Teri, Tom, and Nina remain in the original Title
Nine proceeding, and the claims involving Teri and Carl and their children
proceed separately in a guardianship proceeding. With the consent of all parties,
the court granted the Division's request.
The Court's Order Terminating the Title Nine Proceeding As to Teri
The court entered an October 4, 2016 order dismissing the claims
involving Xander and Xena from the Title Nine proceeding. The order directed
the claims would be addressed in a separate guardianship proceeding. The order
also dismissed the Title Nine proceeding against Teri because she had
surrendered her parental rights to Nina. The order, however, continued the Title
Nine proceeding against Tom. 5
Two months later, on January 24, 2017, the court terminated the Title Nine
proceeding as to the only remaining defendant, Tom. The court entered an order
5 Nina was not adopted until February 2018. Thus, the October 4, 2016 order dismissing the Title Nine proceeding because Teri surrendered her parental rights to Nina appears inconsistent with the court's June 6, 2016 order providing Teri's identified surrender of her parental rights is void if Nina was not adopted by the person to whom Nina made the surrender. Nonetheless, the October 4, 2016 order terminated the Title Nine proceeding against Teri, at least with regard to the disposition of the abuse or neglect finding and Teri's parental responsibilities for Nina. Teri does not appeal from the October 4, 2016 order. A-5119-17T1 11 terminating the litigation because the Division filed a guardianship complaint
seeking termination of Tom's parental rights to Nina. Proceedings involving
Tom and Nina next ensued before the court in a separate guardianship matter
the following month. As a result, the January 24, 2017 order terminated the
original Title Nine proceeding as to all parties and all claims.
The Subsequent Proceedings
A few weeks later, Teri had her fourth child, J.B. (Jon). The Division also
withdrew its guardianship complaint for Xander and Xena, and it allowed Jon to
remain in Teri's custody under a Safety Protection Plan. After some discussion
about the appropriate docket number that should be used for the provision of
services under Title Nine for Teri, Carl, Xander, and Xena, the court dismissed
the guardianship proceeding and opted to reopen, and utilize the docket number
in, the original Title Nine proceeding that had been dismissed by the court's
January 24, 2017 order.
The Division conducted a Dodd removal of Jon from Teri's custody based
on a referral Teri abused or neglected Jon by throwing him to the floor. The
Division filed a new Title Nine case under a different docket number against
Teri concerning the alleged abuse or neglect of Jon. Separate litigation
A-5119-17T1 12 concerning Xander and Xena continued against Teri and Carl under the
reinstated original Title Nine proceeding docket number.
In a separate guardianship proceeding, on June 1, 2017, Tom surrendered
his parental rights to Nina. More than eight months later, in February 2018,
Nina was adopted.
On May 31, 2018, following Teri's reunification with Xander, Xena, and
Jon, the court terminated the litigation involving Xander and Xena that had been
reinstated in February 2017 under the docket number from the original Title
Nine proceeding.6 Less than forty-five days later, on July 11, 2018, Teri filed
the pending appeal from the court's June 6, 2016 order finding she abused or
neglected Nina.
On appeal, Teri presents the following arguments for our consideration:
THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT [TERI] ABUSED OR NEGLECTED [NINA][.]
A. The Division Failed to Prove by a Preponderance of the Evidence that [Teri] Inflicted Excessive Corporal Punishment on [Nina][.]
6 The record is unclear as to the court's disposition of the separate Title Nine proceeding involving Jon. That disposition, however, is not relevant to the disposition of this appeal. A-5119-17T1 13 B. The Trial Court Improperly Shifted the Burden of Proof to [Teri][.]
C. The Trial Court Improperly Relied Upon Incompetent Hearsay Testimony and Uncorroborated Out-of-Court Statements[.]
II.
During the pendency of this appeal, the Division moved for dismissal,
claiming the appeal was not filed within forty-five days of the court's final order
as required under Rule 2:4-1(a). We granted the Division's motion but later, on
Teri's motion for reconsideration, reinstated the appeal with the caveat the
Division could renew its argument before the merits panel.
The Division, now joined by Nina's Law Guardian, renews its claim the
appeal should be dismissed because it was not timely filed. More particularly,
the Division and Law Guardian claim that the June 6, 2016 dispositional order
was a final order from which Teri had a right to appeal pursuant to N.J.S.A. 9:6-
8.70, and that she failed to timely file her appeal within forty-five days of that
order's entry. In the alternative, they claim the October 4, 2016 order dismissing
Teri from the Title Nine proceeding involving Nina and bifurcating the claims
involving Nina from those involving Xander and Xena constituted a final order
in the Title Nine proceeding. Last, they contend, again in the alternative, that
Tom's June 1, 2017 voluntary surrender of his parental rights to Nina in the
A-5119-17T1 14 guardianship proceeding effectively ended all of the litigation related to Nina
and thereby triggered the Rule 2:4-1(a) forty-five-day deadline for the filing of
Teri's appeal. They argue Teri did not file her appeal until July 11, 2018, more
than twenty-three months after entry of the June 6, 2016 dispositional order, and
more than a year after the June 1, 2017 guardianship order, and, therefore, the
appeal is untimely.
Teri asserts her appeal is timely filed. She contends the June 6, 2016
dispositional order is an interlocutory order because it did not resolve all issues
as to all parties. She asserts that the Title Nine proceeding continued long after
entry of the dispositional order, the October 4, 2016 order, and Tom's June 1,
2017 voluntary surrender of his parental rights, and that a final order terminating
the Title Nine proceeding as to all parties and all issues was not entered until
May 31, 2018. She contends her appeal, which was filed on July 11, 2018, is
therefore timely filed within Rule 2:4-1(a)'s forty-five-day deadline.
Parties may appeal as of right "from final judgments" in the Family Part.
R. 2:2-3(a). On the other hand, an appeal from a trial court's interlocutory order
abides the Appellate Division's grant of leave to appeal in accordance with Rule
2:2-4. Our Supreme Court has observed that "[w]hether a trial court order is
final or interlocutory has bedeviled courts and attorneys for decades," Silviera-
A-5119-17T1 15 Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 136 (2016), but
"[g]enerally, an order is considered final if it disposes of all issues as to all
parties," ibid. For example, "in a multi-party, multi-issue case, an order granting
summary judgment, dismissing all claims against one of several defendants, is
not a final order subject to appeal as of right until all claims against the
remaining defendants have been resolved by motion or entry of a judgment
following a trial." Ibid. (citing McGlynn v. State, 434 N.J. Super. 23, 29 (App.
Div. 2014)); see also N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super.
155, 164 (App. Div. 2003).
N.J.S.A. 9:6-8.70 provides for appeals as of right from two types of "final"
orders in Title Nine cases. The statute authorizes appeals as of right from "any
final order of disposition," as well as from "any other final order made pursuant
to" Title Nine. N.J.S.A. 9:6-8.70. Thus, the Legislature distinguished "final
order[s]of disposition" from all "other final order[s]" in Title Nine cases, and it
expressly authorized a right to appeal from both. We must give effect to this
distinction or we will run afoul of the fundamental principle that a statute should
not be interpreted in a manner that renders "any part of [it] inoperative,
superfluous, or meaningless." Burgos v. State, 222 N.J. 175, 203 (2015)
(quoting Innes v. Innes, 117 N.J. 496, 509 (1990)).
A-5119-17T1 16 Teri's claim she did not have a right to appeal the June 6, 2016
dispositional order because it did not resolve all claims as to all parties in the
Title Nine proceeding ignores N.J.S.A. 9:6-8.70's distinction between final
orders of disposition following abuse or neglect findings and other final orders
in Title Nine cases. If, as Teri contends, a litigant in a Title Nine case must
await entry of a final order disposing of all claims as to all parties before having
a right to challenge a dispositional order entered after a finding of abuse or
neglect, then N.J.S.A. 9:6-8.70's separate grant of a right to appeal from a final
dispositional order would be meaningless and superfluous. See ibid. Stated
differently, if the Legislature intended that dispositional orders entered based on
findings of abuse or neglect could be appealed as of right only after final
resolution of the remaining issues as to all remaining parties, then it would not
have expressly provided for a direct right of appeal from final dispositional
orders entered following findings of abuse or neglect.
Teri relies on L.A., where we considered an appeal from an order finding
abuse or neglect, and we noted some courts had incorrectly assumed a fact-
finding order constitutes a final order. 357 N.J. Super. at 164-65. We found the
erroneous assumption "may emanate from an appreciation of the impact such a
finding may have on a family and permanency planning proposed by" the
A-5119-17T1 17 Division and from a recognition "dispositional hearings do not proceed as close
in time to the fact-finding hearing as prescribed by the Legislature." Id. at 165.
We held "an order finding that a child has been abused or neglected [was] an
interlocutory order" because it provided for further disposition proceedings. Id.
at 164, 166; accord N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super.
593, 618 (App. Div. 2010).
In L.A. the defendant did not appeal from a dispositional order entered
following an abuse or neglect finding. Instead, the defendant appealed solely
from the abuse or neglect finding. 357 N.J. Super. at 163-64. N.J.S.A. 9:6-8.70
does not provide for a direct appeal from an order finding abuse or neglect, and
we have determined an abuse or neglect finding does not otherwise constitute a
"final order" under N.J.S.A. 9:6-8.70. Id. at 164. We interpreted the term "final
order" in N.J.S.A. 9:6-8.70 "in its ordinary meaning as an order which disposes
of 'all issues as to all parties.'" Ibid. (quoting Hudson v. Hudson, 36 N.J. 549,
553 (1962)). In L.A., however, we were not required to address or consider a
defendants' right to appeal from "final order[s] of disposition" as authorized by
N.J.S.A. 9:6-8.70. See ibid.; see also N.J. Div. of Youth & Family Servs. v.
L.W., 435 N.J. Super. 189, 194 (App. Div. 2014) (relying on L.A. and
concluding, without consideration of the distinction between the two types of
A-5119-17T1 18 final orders from which appeals of right may be taken pursuant to N.J.S.A. 9:6 -
8.70, that a "final dispositional order" entered after an abuse or neglect finding
was not a "final order" because "the Title Nine action remained open, further
services were ordered and the children were not returned to" the defendant).
For each of the foregoing reasons, we are convinced N.J.S.A. 9:6-8.70
authorizes a direct appeal from "final order[s] of disposition" in Title Nine abuse
or neglect cases even where the final order of disposition does not resolve all
issues as to all parties in the litigation. We therefore reject Teri's argument she
first had a right to appeal from the June 6, 2016 order finding she abused and
neglected Nina, and the June 6, 2016 dispositional order based on the abuse or
neglect finding, when, twenty-three months later, the court finally terminated
the Title Nine proceeding by dismissing all claims related to Nina, Carl, Xander
and Xena. Her argument is erroneously based on that portion of N.J.S.A. 9:6-
8.70 permitting direct appeals from "final orders." Her right to appeal accrued
based on the court's entry of a "final order of disposition." N.J.S.A. 9:6-8.70.
We are not persuaded, however, the June 6, 2016 dispositional order
constituted a "final order of disposition" under N.J.S.A. 9:6-8.70. The June 6,
2016 order included a contingency. The order reflected the court's acceptance
of Teri's voluntary identified surrender of her parental rights to Nina as its
A-5119-17T1 19 disposition of its abuse or neglect finding, but the order also provided that Teri's
voluntary surrender was void if the individual to whom she surrendered her
parental rights later decided not to adopt Nina. Additionally, the dispositional
order required Teri be advised of the progress in the adoption proceedings,
presumably to permit her to take appropriate action concerning the disposition
in the event the anticipated adoption did not take place. Under these
circumstances, we cannot conclude the June 6, 2016 order was a "final order of
disposition," N.J.S.A. 9:6-8.70, and therefore Teri was not required to file her
appeal challenging the June 6, 2016 fact-finding order within forty-five days of
the dispositional order entered the same day. See, e.g. Winterberg v. Lupo, 300
N.J. Super. 125, 132-33 (App. Div. 1997) (finding it error for the trial judge to
view as final a portion of a child support order when the determination of the
amount of child support was contingent pending the outcome of the underlying
custody issue).
In contrast, although not labeled a dispositional order, the court's October
4, 2016 order finally disposed of the abuse or neglect finding and all other Title
Nine proceedings concerning Teri and Nina. Apparently no longer concerned
about whether Teri's voluntary identified surrender might become void, the
October 4, 2016 order "dismissed" Teri from the Title Nine proceeding "as she
A-5119-17T1 20 surrendered her parental rights to" Nina. The October 4, 2016 order could not
have constituted a more final disposition of the court's finding Teri abused or
neglected Nina—the court dismissed Teri from the Title Nine proceeding. 7 The
Title Nine proceeding continued only as to Tom, but any later disposition
concerning Tom could not constitute a final order of disposition based on the
June 6, 2016 abuse or neglect finding because the Division had not alleged, and
the court never found, Tom abused or neglected Nina in the Title Nine
proceeding.
Teri had a direct right of appeal from the October 4, 2016 order, N.J.S.A.
9:6-8.70, but she did not file her appeal within forty-five days as required by
Rule 2:4-1(a).8 The deadline for the filing of her appeal was November 29,
7 As previously noted, the October 4, 2016 order dismissed the Title Nine proceeding as to Teri's other children at that time, Xander and Xena. The orde r dismissed the proceeding as to those children because there was a pending guardianship case concerning them. 8 We also observe the court entered a January 24, 2017 order, terminating the litigation in the original Title Nine proceeding as to the sole remaining defendant, Tom. The order ended the proceeding as to all issues and all parties, but Teri did not file her appeal until almost eighteen months later. Thus, even accepting Teri's argument she could not appeal from the June 6, 2016 fact - finding order until the Title Nine proceeding was ended as to all parties and all issues, she failed to file her appeal within forty-five days of the entry of the January 24, 2017 order. Teri offers no legal support for the proposition that the court's subsequent decision to use the docket number assigned to the original
A-5119-17T1 21 2016, but she did not file her appeal until July 11, 2018, almost twenty months
late.
Teri failed to file the appeal within the deadline imposed by Rule 2:4-1(a).
Rule 2:4-4(a) permits a maximum thirty-day extension of time, but only if the
appellant actually files the notice of appeal "within the time as extended."
Lombardi v. Masso, 207 N.J. 517, 540-41 (2011). That is not the case here.
Where the appeal is untimely, we lack jurisdiction to decide the merits of the
appeal. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97 n.4 (App.
Div. 2014) (quoting In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990)). We
are therefore constrained to dismiss Teri's appeal as untimely. 9
Title Nine proceeding for the Title Nine case that followed the termination of Xander's and Xena's guardianship proceeding reinstated the original Title Nine proceeding as to Teri, Tom, and Nina. 9 Our conclusion Teri's appeal must be dismissed as untimely renders it unnecessary to engage in an extensive discussion of the Division's and Law Guardian's argument the appeal should be dismissed as moot because in 2014 the court made a prior finding Teri abused or neglected Nina. Given the serious consequences attendant to any abuse or neglect finding, see N.S., 412 N.J. Super. at 619-20 (explaining the numerous serious consequences that befall a parent from an abuse or neglect finding), Teri may "still suffer[] from the adverse consequences" from the court's June 6, 2016 fact-finding order, and, therefore, her appeal from the order "is not moot," N.J. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 51 (App. Div. 2008). A-5119-17T1 22 III.
Although we dismiss the appeal because it is untimely, we also note we
would otherwise affirm the court's order finding Teri abused or neglected Nina.
The court's findings are supported by substantial credible evidence, and the
Division established by a preponderance of the evidence Teri abused or
neglected Nina by causing the four-year-old-child's physical condition to
become impaired by unreasonably inflicting excessive corporal punishment.
Teri claims the court erred because there was insufficient evidence
supporting a finding she abused or neglected Nina. She asserts the court
incorrectly relied on hearsay testimony to support its fact findings. Teri also
argues the court improperly shifted the burden of proof to her to rebut a
presumption she inflicted harm on Nina.
"We have a strictly limited standard of review from the fact-findings of
the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 577 (App. Div. 2010); N.J. Div. of Child Prot. & Permanency v.
N.T., 445 N.J. Super. 478, 505 (App. Div. 2016). We defer to the factual
findings of a family court "because it has the opportunity to make first -hand
credibility judgments about the witnesses who appear on the stand," "it has a
feel of the case that can never be realized by a review of the cold record," and it
A-5119-17T1 23 has "special jurisdiction and expertise in family matters." N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (internal citations
omitted).
Accordingly, we will "not disturb a family court's abuse or neglect
findings as long as they are 'supported by adequate, substantial, and credible
evidence in the record.'" N.T., 445 N.J. Super. at 505 (quoting N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Family court
decisions will be upheld, "unless the trial court's 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) (quoting C.B. Snyder Realty, Inc. v. BMW
of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). However, no
deference is owed to the trial court's "interpretation of the law and the legal
consequences that flow from established facts." Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Division bears the burden of proving by a preponderance of the
evidence that the defendant committed abuse or neglect. N.J. Div. of Child Prot.
& Permanency v. Y.N., 220 N.J. 165, 178-79 (2014) (citing N.J.S.A. 9:6-
8.46(b)). A child may be abused or neglected by inflicting excessive corporal
A-5119-17T1 24 punishment. See N.J.S.A. 9:6-8.21(c)(4)(b). The statute defines an abused or
neglected child, in relevant part, as:
a child less than 18 years of age 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 . . . (b) 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 . . . .
[N.J.S.A. 9:6-8.21(c) (emphasis added).]
The phrase "excessive corporal punishment" is not defined by statute. N.J.
Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J.
Super. 504, 511 (App. Div. 2010). Although "a parent may inflict moderate
correction such as is reasonable under the circumstances of a case," id. at 510
(quoting State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002)), punishment
is excessive when it exceeds "what is proper or reasonable," id. at 511. The
court's determination must focus on the harm caused to the child, not on the
parent's intent. M.C. III, 201 N.J. at 344; K.A., 413 N.J. Super. at 511.
Some injuries to a child are sufficiently egregious to warrant a per se
finding of excessive corporal punishment. See K.A., 413 N.J. Super. at 511-12.
These injuries typically require "medical intervention," such as "a fracture of a
A-5119-17T1 25 limb, or a serious laceration." Id. at 511. Where, as here, a per se injury is not
present, the court must scrutinize the surrounding circumstances. See N.J. Div.
of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Consideration
must be given to the "nature and extent of the injuries" and the "instrumentalities
used to inflict them." N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J.
Super. 137, 146 (App. Div. 2015). Additionally, courts should consider factors
such as "(1) the reasons underlying [the defendant's] actions; (2) the isolation of
the incident; and (3) the trying circumstances which [the defendant] was
undergoing . . . ." K.A., 413 N.J. Super. at 512. The age of the child is also an
important factor. "[F]or example, one ought not assume that what may be
'excessive' corporal punishment for a younger child must also constitute
unreasonable infliction of harm, or excessive corporal punishment in another
setting involving an older child." P.W.R., 205 N.J. at 33.
Here, the testimony and evidence, including Riley's photos of Nina's face,
reveal injuries supporting the court's finding they were inflicted by excessive
corporal punishment. Nina had bruising under her eyes, and the distinctive
curved lines on Nina's nose and near her eyes revealed breaks of the skin and
scabbing. Moreover, and more importantly, the lines and their shapes are
consistent with the use of an implement—the "circle thing"—to inflict the
A-5119-17T1 26 injuries. In other words, the injuries amply support the court's finding four-year-
old Nina was struck in the face and around her eyes with an implement.
Moreover, Nina's statements to Dr. Higginbotham, which the court found
credible, support a finding Teri held the implement in a clenched fist and struck
Nina with it because Teri was "mad" at Nina.
Teri claims the court erred by assuming Nina's injuries were the product
of excessive corporal punishment, but Nina's statements provide direct evidence
they were. Striking a four-year-old child in the face with an implement, and
causing the bruises and marks Nina suffered, simply because a parent is "mad"
represents a paradigm of abuse or neglect through the infliction of excessive
corporal punishment. See, e.g., M.C. III, 201 N.J. at 334, 345 (finding abuse or
neglect where a father grabbed, choked, and punched the children, disregarding
the substantial probability injury would result); S.H., 439 N.J. Super. at 147-50
(finding a mother's use of a golf club and her teeth, causing a contusion and bite
marks, was excessive corporal punishment); N.J. Div. of Youth & Family Servs.
v. B.H., 391 N.J. Super. 322, 340 (App. Div. 2007) (finding a mother's use of a
belt to hit the child in the face, injuring his eye, was excessive corporal
punishment).
A-5119-17T1 27 Teri does not dispute the nature or extent of Nina's injuries. Instead, she
argues the evidence was insufficient to support the court's determination she
inflicted them. She argues there was conflicting evidence as to when the injuries
were inflicted; Nina reported different versions of what occurred; there was no
evidence the injuries were intentionally inflicted; and the court ignored evidence
that revealed periods of time Nina was not in Teri's care when the injuries could
have been inflicted. We reject those arguments because they ignore the record.
The trial court noted the conflicting evidence concerning the circumstances
under which the injuries were inflicted, but it sifted through the evidence, found
Rodriguez and Riley credible, and determined Nina's statements to Dr.
Higginbotham relayed the most credible version of what occurred. We defer to
the court's credibility determinations and findings of fact because they are
supported by substantial credible record evidence. See N.T., 445 N.J. Super. at
505.
The trial court did not err by relying on Nina's statements because they
were corroborated, and therefore admissible, and they constitute substantive
evidence supporting the court's findings. Under Title Nine, a child's hearsay
out-of-court statements relating to abuse or neglect allegations shall be
admissible "provided, however, that no such statement, if uncorroborated, shall
A-5119-17T1 28 be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).
"The corroborative evidence need not relate directly to the alleged abuser, it
need only provide support for the out-of-court statements." N.J. Div. of Youth
& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). Physical
evidence of assault is certainly corroborative, see ibid., and Rodriguez's and
Riley's observations of Nina's injuries, and the photographs of the bruises and
distinctive curved marks on Nina's face, sufficiently corroborate her statements
that her mother struck her with "the circle thing."
Teri's claim the court improperly shifted the burden of proof to her is also
not supported by the record. We discern no action or finding by the trial court
showing it shifted any burden to Teri. This was not a case where the court found
the burden shifted to Teri to "provide evidence to establish [her] non-
culpability" because the young victim could not "inculpate the abuser" or it was
"difficult to marshal direct evidence of parental abuse [or] neglect because of
the closed environment in which the abuse" occurred. N.J. Div. of Youth &
Family Servs., v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994); see also In re
D.T., 229 N.J. Super. 509, 517 (App. Div. 1988).
Here, the court found the Division sustained its burden of proving Teri
abused or neglected Nina based on the evidence of Nina's injuries and Nina's
A-5119-17T1 29 statements that Teri, in anger, struck her in the face with an implement and
caused her injuries. Where "there is substantial credible evidence in the record
to support the trial court's findings, we will not disturb those findings." N.J.
Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). Moreover,
the court made rational inferences "grounded in a preponderance of probabilities
according to common experience" derived from the credible evidence. N.S.,
412 N.J. Super. at 615. Because the court's findings are supported by substantial
credible evidence, we discern no basis to reverse the court's findings and
conclusions.
Any argument asserted by Teri we have not directly addressed is without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5119-17T1 30