RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1746-13T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION J.L.G., MAY 17, 2017 Defendant-Appellant. APPELLATE DIVISION ___________________________
IN THE MATTER OF B.G., M.A., and M.G.,
Minors. ____________________________
Submitted January 20, 2015 – Decided July 21, 2015
Before Judges Simonelli, Guadagno and Leone. (Judge Guadagno dissenting).
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-375-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
In this Title 9 matter, defendant J.L.G. appeals from the
finding of the Family Part judge that he abused or neglected a
seven-year-old child, M.A. (Mary),1 within the meaning of
N.J.S.A. 9:6-8.21(c)(4)(b) by failing to provide the child with
proper supervision by unreasonably allowing the infliction of
excessive corporal punishment by her mother, Y.A. (Yvette).2 For
the following reasons, we affirm.
At the fact-finding hearing, plaintiff New Jersey Division
of Child Protection and Permanency (Division) relied on the
testimony of a Division caseworker, a screening summary, and
photographs of injuries Mary sustained as the result of a
beating on March 26, 2012.3 This evidence showed that on March
29, 2012, the Division received a referral from Mary's school
1 The names used in this opinion are fictitious. 2 The judge also determined that Yvette abused or neglected Mary within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by unreasonably inflicting excessive corporal punishment. Yvette has not appealed that determination and defendant does not challenge it in this appeal. 3 Defendant and Yvette did not testify at the fact-finding hearing or present any documentary evidence.
2 A-1746-13T2 that the child returned after a two-day absence with a mark and
bruise on her right cheek below the eye that was covered by
cosmetic make-up. The school also reported that Mary came to
school two weeks prior with a bump on her forehead.
On March 30, 2012, the Division caseworker examined Mary
and saw a linear scratch and a "greenish/yellowish" bruise on
the right side of the child's face. Mary initially said that
she hit her face on the bed while running through the house on
March 26, 2012, and her mother put cocoa butter on the bruise
and kept her home from school so the bruise "could get better."
Although defendant, Yvette and Mary's older brother corroborated
Mary's initial version of how she sustained the bruise, Mary
later said she sustained the bruise when her mother struck her.
In addition to the facial bruise, the caseworker saw
bruises with "small red dots" on Mary's left arm that did not
appear to have been inflicted by a hand, and bruises on Mary's
right arm, which the caseworker described as a "bad" bruise that
was "purple in some areas" and "[t]he purple area felt swollen
and the skin felt hard." Based on what she saw, the caseworker
transported Mary to the hospital, where medical personnel found
additional bruises and "red dots" on the child's stomach, which
were similar to the dots on her left arm, and bruises on Mary's
legs, thighs and back. Mary said that her right arm still "hurt
3 A-1746-13T2 a little," so X-rays were taken to rule out any fractures. A
doctor recommended ice and ointment for the swelling on the
right arm and Motrin for pain.
Mary eventually disclosed that her mother hit her on the
arms and legs, and also hit her on her stomach with "a big
spoon" that "had points." Mary also disclosed that her mother
hit her in the past for eating too slowly.
Yvette admitted that on March 26, 2012, she was upset and
frustrated that Mary was eating too slowly and hit the child on
the arms, legs and thighs with her hand and fist, and on the
stomach with a round metal spatula that had holes for draining.
The "red dots" seen on Mary's left arm and stomach matched the
spatula holes. Yvette disclosed that defendant, her paramour
with whom she and the child were living, saw her hitting Mary
and "commented to her not to hit [Mary] that she will get in
trouble."
Defendant admitted that he was present during the beating
and saw Yvette hit Mary with her hand; however, he denied seeing
Yvette hit the child with a spatula. He explained that he
walked away from the beating because he was holding his infant
son and did not want "to expose the baby to that," and he told
Yvette "not to get upset or hit [Mary] like that because
[Yvette] will have problems." Defendant said it was "not an
4 A-1746-13T2 everyday thing that [Mary got] hit like that." Nonetheless, he
did not report the abuse.
The photographs confirmed that, even three days after the
beating, Mary had visible bruises on her cheek, stomach, arms,
thighs and back. Several of the bruises still showed the
imprint of the perforated metal spatula. Based on the evidence
presented, the trial judge found that Yvette had beaten Mary
severely with her fist and the metal spatula "very, very hard
and certainly more than once." The judge noted that Mary's
bruises were evident several days later. The judge concluded
that Yvette excessively physically abused Mary; defendant was
aware of the abuse and failed to intervene or report it; and
defendant understood the gravity of what was happening because
he walked away to protect his infant and told Yvette that she
could get in trouble. The judge concluded that defendant abused
or neglected Mary pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) in
failing to provide the child with proper supervision by allowing
the infliction of excessive corporal punishment by Yvette.
On appeal, defendant first contends the record lacks
sufficient credible evidence that he witnessed Yvette inflict
excessive corporal punishment on Mary or that he was aware
Yvette hit the child with a spatula. Defendant next contends
for the first time on appeal that the judge impermissibly
5 A-1746-13T2 admitted the caseworker's speculative testimony about what
actions he could have taken to prevent the abuse.
We have considered defendant's second contention in light
of the record and applicable legal principles and conclude it is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). Because defendant elicited the
complained-of testimony on the caseworker's cross-examination,
it was invited error that he cannot challenge on appeal. See
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,
340-41 (2010). Accordingly, we focus on defendant's first
contention.
To prevail in a Title 9 proceeding, the Division must prove
by a preponderance of the competent and material evidence that
the defendant abused or neglected the affected child. N.J.S.A.
9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 32 (2011). The Division need only show that it was
more likely than not that the defendant abused or neglected the
child. See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.
Super. 593, 615 (App. Div. 2010).
Our Supreme Court has established the standard of review in
abuse and neglect cases as follows:
[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses
6 A-1746-13T2 who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.
[M.C. III, supra, 201 N.J. at 342-43 (second alteration in original) (citation and internal quotation marks omitted).]
Therefore, "if 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). The court may make rational
inferences "grounded in a preponderance of probabilities
according to common experience" derived from the credible
evidence presented. N.S., supra, 412 N.J. Super. at 615.
However, "if the trial court's conclusions are 'clearly mistaken
or wide of the mark[,]' [we] must intervene to ensure the
fairness of the proceeding." L.L., supra, 201 N.J. at 227
(first alteration in original) (quoting N.J. Div. of Youth &
Family Servs. v. E.P. 196 N.J. 88, 104 (2008)). We owe no
deference to the trial court's legal conclusions, which we
review de novo. See, e.g., N.J. Div. of Youth & Family Servs.
v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002).
An "abused or neglected child" is defined, in part, as a
child under the age of eighteen
7 A-1746-13T2 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[.]
[N.J.S.A. 9:6-8.21(c)(4)(b)].
Defendant does not dispute, nor can he, that he was a
"guardian" for Mary within the meaning of N.J.S.A. 9:6-8.21(a)
and (c). See also N.J.S.A. 9:6-2 (defining "[t]he person having
the care, custody and control of any child" as "any person who
has assumed the care of a child, or any person with whom a child
is living at the time the offense is committed."). Defendant
was much more than Yvette's "boyfriend" or "paramour," as our
dissenting colleague describes him. Defendant lived in the home
with Yvette and the children, he supported them, Yvette called
him her "husband," and Mary and her brother called him their
"dad." Defendant, thus, assumed responsibility for Mary's care.
N.J.S.A. 9:6-8.21(a).
Under the minimum degree of care standard, "something more
than ordinary negligence is required to hold the actor
liable[,]" such as "conduct that is grossly or wantonly
negligent, but not necessarily intentional." G.S. v. Dep't of
8 A-1746-13T2 Human Servs., 157 N.J. 161, 178 (1999). Such conduct "implies
that a person has acted with reckless disregard for the safety
of others." Id. at 179. A parent or guardian "fail[s] to
exercise a minimum degree of care 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." P.W.R., supra, 205 N.J. at 32 (quoting
G.S., supra, 157 N.J. at 181). Moreover, a parent or guardian
"has the obligation to protect a child from harms that can be
inflicted by another parent." N.J. Div. of Youth & Family
Servs. v. F.M., 211 N.J. 420, 449 (2012) (citing N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007)).
The Legislature made no distinction between the duties of a
"parent or guardian." N.J.S.A. 9:6-8.21(a), (c). We recognize
that parents have a constitutional right to raise their
children, but they have no constitutional right to inflict
excessive corporal punishment. See F.M., supra, 211 N.J. at
447. Thus, it is neither unconstitutional nor unreasonable for
the statute to prohibit a guardian from "unreasonably . . .
allowing to be inflicted . . . excessive corporal punishment" by
a parent. N.J.S.A. 9:6-8.21(c)(4)(b). Here, it was undisputed
that Yvette abused or neglected Mary by inflicting excessive
corporal punishment and that Mary was properly removed from her
9 A-1746-13T2 custody as a result. As Yvette had no right to beat Mary so
severely, Yvette's constitutional rights do not absolve
defendant of his responsibilities as Mary's guardian to protect
her from excessive corporal punishment.
When determining whether a child is abused or neglected,
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. G.S., supra, 157
N.J. at 182. A guardian fails to exercise a minimum degree of
care when he or she is aware of the dangers inherent in a
situation and fails adequately to supervise a child or
recklessly creates a risk of serious injury to that child. Id.
at 181.
We find it irrelevant that defendant denied seeing Yvette
hit Mary with a spatula, as the evidence was sufficient to
support a reasonable inference that he became aware of the
growing severity of the beating. Defendant was present when
Yvette beat Mary with her hand and did not intercede to stop
Yvette. What beating defendant saw was sufficiently severe for
him to walk away into the next room to keep his own child from
seeing the beating continue and cause him to warn Yvette to stop
hitting Mary "like that" because she would get in trouble. Even
assuming Yvette had not yet begun beating Mary with her fist and
10 A-1746-13T2 the metal spatula, it is reasonable to infer that defendant in
the next room could still hear those "very, very hard" blows and
Mary's reactions. This evidence supported the judge's finding
that defendant knew Yvette "was excessively physically abusing"
Mary despite his warning to stop.
The evidence also showed that defendant had an opportunity
to stop the vicious beating once his warning was ineffective.
Because there were at least five or six blows with the fist and
metal spatula hard enough to leave bruises and the imprints of
the spatula on Mary's body three days later, it is a reasonable
inference that the beating continued for a sufficient time for
defendant to set down his baby and intervene. Rather than
unreasonably allowing Yvette to inflict this excessive corporal
punishment, it was also reasonable to infer that defendant could
have shielded Mary, separated her from her mother, grabbed the
spatula, or restrained Yvette's hands. Defendant presented no
evidence that he was physically incapable of doing anything to
protect Mary from Yvette. In any event, given that Mary's
beating was so severe to cause Yvette to keep her out of school
for two days, defendant had ample reason and opportunity to call
a doctor, the Division, or the police.
We are satisfied that the record amply supports a finding
that defendant abused or neglected Mary within the meaning of
11 A-1746-13T2 N.J.S.A. 9:6-8.21(c)(4)(b) when he saw Yvette beating Mary,
understood the severity of what he witnessed, and did nothing to
protect the child or report the abuse. This is not a case where
a stepparent occasionally slapped a teenager in the face as a
form of discipline with no resulting bruising or marks. See
P.W.R., supra, 205 N.J. at 35-36. It is a case where a mother
severely beat her seven-year-old child with her hand, fist, and
a metal spatula, inflicting significant physical injuries that
were evident and painful to the child several days later and
required medical intervention. See M.C. III, supra, 201 N.J. at
333-36. The abuse occurred in the presence of a guardian whose
lack of intervention contributed to those injuries. Defendant
was obligated to protect Mary from the excessive corporal
punishment inflicted by her mother, F.M., supra, 211 N.J. at
449, and report the abuse, N.J.S.A. 9:6-8.10. He did neither.
Affirmed.
12 A-1746-13T2 _______________________________________ GUADAGNO, J.A.D., dissenting.
This appeal presents the novel issue of whether a boyfriend
who tells his girlfriend to stop hitting her daughter can be
found complicit in the mother's abuse because he did not do more
to stop her. Because I believe defendant exercised the minimum
degree of care required by N.J.S.A. 9:6-8.21(c)(4)(b), in
telling the mother to stop, and because the proof was
insufficient to establish his knowledge that the mother was
inflicting excessive corporal punishment, I respectfully dissent
from my colleagues' decision to affirm the trial court's finding
that defendant abused or neglected his girlfriend's child.
Some additional facts, not mentioned in the majority
opinion, inform my decision. The Division was first notified by
Mary's school on Thursday, March 29, 2012, that the child had a
bruise on her lower eye that was covered with makeup.
Caseworker Indhira Reyes went to defendant's home the following
day to investigate. Reyes observed the facial bruise and
additional bruising on Mary's arms. Mary, her older brother,
and her mother, Yvette, initially advised Reyes that the facial
bruise was sustained accidentally when Mary fell while running.
When Yvette later admitted to inflicting the arm bruises, Reyes
contacted the prosecutor's office and her Division supervisor,
1 A-1746-13T2 Natalie Orbe. Orbe told Reyes to take the child to a hospital
to be examined.
When defendant learned that a caseworker was at his home,
he immediately returned from work. Reyes asked him about Mary's
bruises and defendant told her the incident occurred on Monday,
March 26, 2012. He said that Yvette hit Mary with her hand and
he did not like it. He was holding his six-month-old son at the
time and walked away so as to not expose the infant.
Reyes then took Mary to the hospital where she was
examined, and her arm was x-rayed. The x-rays were negative and
she was discharged with a recommendation that ice and liniment
be applied for any swelling and Motrin taken for any pain.
Reyes next took Mary to the prosecutor's office, where she
and Yvette were interviewed by Detective Grace Garces. Yvette
advised Detective Garces that defendant had told her to leave
Mary alone because she could get in trouble for hitting Mary.
Yvette also said that when she hit Mary, she was in the bedroom
and defendant was in the living room.
After the interview, Garces informed caseworker Reyes that
they would not be arresting Yvette. Reyes relayed this
information to Orbe and they agreed to place services in the
home and not remove Mary. Reyes then informed Yvette that the
2 A-1746-13T2 Division considered her discipline of Mary abuse and would be
opening a case for services.
Later that evening, Reyes interviewed defendant a second
time, pressing him on precisely what he observed and what he
said to Yvette. He again stated that he told the mother "not to
get upset or hit like that because she will have problems." The
caseworker specifically asked defendant if he saw the mother use
something to hit Mary. He replied that he did not see Yvette
use anything to hit the child.
On Monday, April 2, 2012, one week after the incident and
three days after supervisor Orbe had determined that it was not
necessary to remove the children, a different Division
supervisor, Lillian Valentin, reviewed the case with Reyes and
called Garces to inquire why Yvette had not been charged
criminally. One hour later, Garces called back and said that a
warrant would be issued for Yvette's arrest. Valentin also
overruled the decision not to remove the children, and later
that day, with their mother in custody, Mary and her ten-year-
old brother were removed from the home. Defendant was initially
allowed to maintain custody of his infant son.
Later that evening, a different caseworker, Melissa Idrovo,
questioned Mary about the bruise on her face and, for the first
time, she said that defendant had hit her. After conferring
3 A-1746-13T2 with Valentin, Idrovo then added defendant's six-month-old son1
to the removal, and all three children were placed in foster
care.
I repeat these facts as they bear on the severity of Mary's
injuries and illustrate that the Division initially did not
perceive them as serious enough to warrant removal of the child.
Although Mary was taken to a hospital as a precaution, she was
examined and released ninety minutes later when her x-rays were
negative. Mary was discharged with instructions to ice the
bruises and take over-the-counter ibuprofen. As such, I
disagree with the majority's conclusion that Mary suffered
"significant physical injuries that . . . required medical
intervention." Ante at ___ (slip op. at l2). But for the
second-guessing of a different Division supervisor, it appears
that Yvette would not have been charged criminally, the children
would certainly not have been removed from the home, and
defendant would not have even been named in this litigation.
By the time the fact-finding hearing was conducted on June
20, 2012, the Division had abandoned the allegation that
defendant had struck Mary and proceeded strictly on a gross
1 There is no indication in the record that any consideration was given to the fact that Yvette was breastfeeding the infant when he was removed from the home.
4 A-1746-13T2 negligence, lack-of-supervision theory. As the deputy attorney
general stated,
[T]he case here today is one of physical abuse by the mother and a failure to protect by the father. . . . . [I]t's the Division's theory that [defendant] failed to take appropriate steps to protect the child as he knew this was going on and did not make efforts to stop it.
Before a finding of abuse or neglect can be entered, there
must be proof that the defendant was a "parent or guardian."
N.J.S.A. 9:6-8.21(a) does not distinguish between parent or
guardian, but defines them collectively as "any natural parent,
adoptive parent, resource family parent, stepparent, 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."
Defendant was living with Yvette at the time the offense
was committed; he had one child with her, and provided support
for her children. Although he may be a considered a guardian of
Mary, that designation does not alone define the scope of
defendant's duty to protect Mary.
Defendant came to the United States from Mexico twenty-two
years ago. He met Yvette in 2010 and began living with her that
year. Mary came to this country from El Salvador in May 2011
and had been living with defendant for just nine months when
5 A-1746-13T2 this incident occurred. The trial judge found that defendant
was a "father figure . . . or at least a responsible adult."
Neither finding, standing alone, is sufficient to establish
defendant's status as Mary's guardian. However, even if
defendant assumed responsibility to care for Mary, a guardian
does not necessarily carry the same responsibility to care for
and protect a child as a biological parent.
The right of a biological parent "to raise one's children"
has been deemed an "essential . . . basic civil right[] of
man . . . ." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal quotation
marks omitted). "[T]he custody, care and nurture of the child
reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply
nor hinder." Id. at 651, 92 S. Ct. at 1212-13, 31 L. Ed. 2d at
558-59 (internal quotation marks omitted). New Jersey has
recognized that parents play the primary role in rearing their
children. In re D.C., 203 N.J. 545, 568 (2010); Watkins v.
Nelson, 163 N.J. 235, 245 (2000); In re Guardianship of K.H.O.,
161 N.J. 337, 346-47 (1999).
While the rights and obligations of a parent attach at
birth by operation of law, the obligations of a guardian are
statutory and therefore subject to a fact-sensitive inquiry. A
6 A-1746-13T2 person engaged in a long-term relationship who has supported and
nurtured a paramour's child for many years will have a different
relationship with, and I submit, a different obligation to, a
child of a paramour with whom he has recently begun to
cohabitate. The majority's "one size fits all" analysis of
defendant's status as a guardian ignores this concept.
Defendant's relatively brief, nine-month relationship with
Mary was not weighed by the trial judge or considered by the
majority. The length and nature of defendant's relationship as
Mary's guardian must be evaluated under the "minimum degree of
care" standard in determining whether defendant's conduct was
willful or wanton and constituted gross negligence. G.S., ante,
157 N.J. at 178. "Conduct is considered willful or wanton if
done with the knowledge that injury is likely to, or probably
will, result." Ibid. "Essentially, the concept of willful and
wanton misconduct implies that a person has acted with reckless
disregard for the safety of others." Id. at 179. Whether a
caregiver has failed to exercise the minimum degree of care is
decided on a case-by-case basis. Id. at 182. Given the limited
nature of his relationship with Mary, defendant's attempt to
curtail the abuse by telling Yvette to stop or she would get in
trouble was reasonable.
7 A-1746-13T2 More importantly, there was insufficient proof that
defendant was aware that Yvette was inflicting excessive
corporal punishment. If Yvette's actions constituted excessive
corporal punishment, it was likely because she employed an
instrumentality, a spatula,2 to hit the child. Compare P.W.R.,
ante, 205 N.J. at 36 (holding that mother's slap to the face of
her teenager as corporal punishment was not excessive and not
abuse) with N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J.
Super. 472, 483 (App. Div.) (holding that mother's use of a
paddle to discipline five-year-old was excessive corporal
punishment and abuse), aff'd on reconsideration, 416 N.J. Super.
414 (2010), certif. denied, 207 N.J. 188 (2011). Yet the trial
judge never determined that defendant saw Yvette hit Mary with a
spatula, and defendant's denials that he observed any
instrumentality are uncontroverted, even after caseworker Reyes
questioned him repeatedly on that issue. The majority dismisses
this failure of proof as "irrelevant" and suggests that we
should "infer" that defendant was aware that Yvette was
administering excessive corporal punishment from the sounds of
the very hard blows. Ante at __ (slip op. at 10-11). I
disagree.
2 The caseworker and the majority refer to the object as a spatula but photographs actually depict a slotted spoon.
8 A-1746-13T2 It is not contested that defendant was in another room when
Yvette hit Mary, and that he told her to stop. On cross-
examination, caseworker Reyes conceded that defendant told her
that he only observed Yvette hit Mary with her hand and did not
see her with a spatula. The trial judge made no finding, and
there is nothing in the record to support the majority's
conclusion that defendant was aware that Yvette's corporal
punishment was excessive.
The majority agrees with the trial court that defendant
could have "physically restrained" Yvette when he heard her
hitting Mary. I find no precedential or statutory support for
this concept, nor will I speculate whether the majority's
suggestion that defendant had an obligation to "set down his
baby and intervene" would be made if the genders were reversed
and a female defendant holding her six-month-old infant would be
required to physically stop her boyfriend from disciplining his
biological child. Even assuming that defendant was aware that
Yvette was employing excessive corporal punishment, he had only
to make reasonable efforts to stop the abuse. G.S., ante, 157
N.J. at 182.
Relying on New Jersey Division of Youth & Family Services
v. F.M., 211 N.J. 420 (2012), the majority concludes that
defendant was obligated to protect Mary and report the abuse.
9 A-1746-13T2 Ante at ___ (slip op. at 9). I find F.M. distinguishable. In
F.M., the mother allowed her daughter's drug-addicted and
mentally ill father, who had assaulted the mother in the past,
to have access to the child in express violation of court orders
and consent agreements. F.M., ante, 211 N.J. at 428. The court
found that the mother was incapable and unwilling to protect her
child from the dangerous father. Id. at 451-52. The degree of
the abuse in F.M. was not contested, as it is here, and the
mother made no effort to protect the child, as defendant did
here.
I also disagree with the majority's conclusion that the
record does not support defendant's claim that Yvette stopped
hitting Mary after he spoke to her. Ante at ___ (slip op. at
11). Licensed clinical social worker Rocio Bottero Day noted in
his post-interview report that defendant claimed Yvette stopped
hitting Mary after he told her to stop:
[Defendant] has been charged with negligence because he did not stop [Yvette] when she hit [Mary], however, he disputes this allegation and says that he did tell her to stop hitting the child and that [Yvette] did stop.
Conversely, there is nothing in the record to support the
majority's inference that Yvette continued to hit Mary after
defendant told her to stop. Without clear proof that Yvette
continued to hit Mary after defendant warned her to stop, we are
10 A-1746-13T2 left with defendant's unchallenged statement that his warning
was effective in stopping Yvette, and the abuse finding against
him cannot stand.
Finally, N.J.S.A. 9:6-8.21(c)(4)(b) prohibits "unreasonably
inflicting or allowing to be inflicted harm, or substantial risk
thereof, including the infliction of excessive corporal
punishment[.]" (Emphasis supplied). Thus, to be found culpable
in the mother's abuse, defendant would have had to allow the
excessive corporal punishment. Yet, it is undisputed that
defendant did not allow the abuse, but intervened by telling the
mother to stop hitting the child.
Absent proof that defendant was aware that Yvette was
inflicting excessive corporal punishment upon Mary and that the
abuse continued after his warnings, I am not willing to conclude
that he "allowed" the abuse within the meaning of N.J.S.A. 9:6-
8.21(c)(4)(b). I also believe that defendant's attempt to stop
the mother's abuse was reasonable and did not amount to grossly
or wantonly negligent conduct.
For these reasons, I respectfully dissent.
11 A-1746-13T2