New Jersey Division of Child Protection & Permanency v. J.L.G.

160 A.3d 112, 450 N.J. Super. 113
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 21, 2015
StatusPublished
Cited by11 cases

This text of 160 A.3d 112 (New Jersey Division of Child Protection & Permanency v. J.L.G.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Jersey Division of Child Protection & Permanency v. J.L.G., 160 A.3d 112, 450 N.J. Super. 113 (N.J. Ct. App. 2015).

Opinions

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 that the child [117]*117returned 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 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 [118]*118she 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 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 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 [119]*119without 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, 990 A.2d 1097 (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., 206 N.J. 17, 32, 11 A.3d 844 (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, 992 A.2d 20 (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 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 [bjecause 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, 990 A.2d 1097 (second alteration in original) (citation and internal quotation marks omitted).]

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New Jersey Division of Child Protection & Permanency v. J.L.G.
159 A.3d 1281 (Supreme Court of New Jersey, 2017)

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160 A.3d 112, 450 N.J. Super. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-jersey-division-of-child-protection-permanency-v-jlg-njsuperctappdiv-2015.