RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0080-13T3
NEW JERSEY DIVISION OF APPROVED FOR PUBLICATION YOUTH AND FAMILY SERVICES,1 January 23, 2015 Plaintiff-Appellant, APPELLATE DIVISION
v.
S.H. and M.H.,
Defendants-Respondents. ___________________________________________
IN THE MATTER OF S.H., a minor. ___________________________________________
Submitted December 15, 2014 – Decided January 23, 2015
Before Judges Sabatino, Guadagno, and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-80-13.
John J. Hoffman, Acting Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary C. Zec, Deputy Attorney General, on the brief).
1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. (hereinafter the Division). Joseph E. Krakora, Public Defender, attorney for respondent S.H. (Deric Wu, Assistant Deputy Public Defender, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent M.H. (Catherine Reid, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.H. (Lisa M. Black, Designated Counsel, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D.
We are asked again to determine when a parent's use of
corporal punishment exceeds the boundaries of acceptable
discipline and enters the proscribed area of child abuse. This
perplexing issue is further complicated when the parents are
confronted with a child who suffers from behavioral issues. The
strain of dealing with an oppositional child can exact a toll on
parents and occasionally lead to a reaction where the child is
harmed. This case presents such a scenario.
In response to a profanity-laced outburst by her then
fifteen-year-old son, S.H. (Scott),2 defendant S.H. (Susan)
initiated a physical altercation with Scott which began with
throwing a shoe at him and progressed to hitting him with her
hands, striking him with a golf club, and biting him on his
2 We employ pseudonyms to protect the privacy of the minors and for ease of reference.
2 A-0080-13T3 shoulder. The Division intervened and sought a finding of child
abuse against Susan and her husband, M.H. (Mark).
After a fact-finding hearing, the Family Part found that
the parents did not abuse or neglect Scott. Rather, the judge
found that Scott had provoked his mother and that her actions in
striking and injuring him were therefore justified.
The Division appeals the decision as to Susan only and
argues that the judge erred in concluding that she did not abuse
her son. The Law Guardian agrees with the Division that Susan
abused Scott by inflicting excessive corporal punishment. For
the reasons that follow, we reverse.
I.
Scott is the youngest of three children born to Susan and
Mark. In 2012, Scott lived at home with his parents3 and two
older sisters, Sa.H. (Sara), then age twenty-one, and So.H.
(Sophie), then age nineteen. On Monday, December 10, 2012,
Scott was at home sitting on a couch watching television when
Sara noticed that several personal items were missing from her
room, including a watch, sunglasses, a necklace, two gold rings,
and two gold chains. Sara told Susan about the missing items,
and Susan confronted Scott.
3 Mark also resides in Delaware but returns to the New Jersey home when his work permits.
3 A-0080-13T3 Scott got up from the couch and angrily responded to Susan,
"Why the fuck you always blaming me for something?" Susan then
threw a shoe with a heel at Scott. When Susan threw a second
shoe at him, Scott deflected it. Scott tried to walk away, but
Susan grabbed him and began to hit him with her hands. When
Scott again attempted to leave, Susan held him back.
Eventually, Susan grabbed a golf club and began hitting Scott's
legs with it. During the confrontation, Susan yelled, "I told
you to stop disrespecting me." Scott yelled back, "Get the fuck
off of me." When Scott took the first golf club away from
Susan, she grabbed another, which Scott also took. During the
struggle, Susan bit Scott at least three times on the back.4
Mark entered the room and attempted to intervene. He later
called the police. Before Scott left the home, he kicked
several windows, breaking two of them.
Later that day, Susan put Scott's bed, his clothing, and
some of his possessions outside of the home. Scott did not
return to the home for two days. During this time he did not
4 Scott stated to a Division caseworker that Mark bit him and tried to hit him, and that Susan bit him while he was struggling with Mark. Sara testified that Mark did not become involved physically, and that Susan bit Scott. The trial court credited Sara's version of these events, under which Mark was not involved in the assault, and Susan was the only person biting Scott. As the doctor found three separate bite marks on Scott, the court's finding leads to the conclusion that Susan bit Scott three times.
4 A-0080-13T3 eat or sleep, and, with no place to stay, he "walked the
streets."
When Scott returned home on December 12, 2012, a police
officer was there. After Scott spoke with the officer, she left
without taking any action. Scott slept on the couch that night
and on Thursday, December 13, 2012, he returned to his high
school. Before leaving the home that morning, Mark gave Scott
money to buy lunch.
Scott had been diagnosed with attention deficit/
hyperactivity disorder (ADHD) and was enrolled as a special
education student in his high school's Behavior Disability
Program. Scott's high school developed an individualized
education program (IEP)5 for him, and the school's behaviorist,
Alece Dickerson, was assigned as his case manager.
On December 13, 2012, one of Scott's teachers informed
Dickerson that Scott had bruises, scratches, and bite marks.
Dickerson spoke with Scott and observed three large bite marks
on his left shoulder and contusions and swelling on his left
5 An IEP is a comprehensive written plan developed by a team consisting of the student's parents, teachers, and representatives of the local educational agency. 20 U.S.C.A. § 1414(d). The IEP's ultimate purpose is to tailor the educational services in order to meet the special needs resulting from the student's disability and to ensure that the student receives the benefits of free appropriate public education. 20 U.S.C.A. §§ 1412(a)(1), (4).
5 A-0080-13T3 shin and knee. After consulting with the school nurse,
Dickerson called the Division and reported the incident.
Caseworker Sharece Mitchell responded to the high school
that afternoon. She observed and photographed Scott's injuries
and conducted an extensive interview. In addition to describing
the events of December 10, 2012, Scott informed Mitchell that he
had been disciplined "with belts and other items around the
home" since the age of eight, but the corporal punishment had
ended approximately two years before, once he was big enough to
fight back. Scott explained that currently, he is disciplined
by his parents by being put out of the house.
Mitchell then contacted Susan, who refused to come to the
high school to discuss the matter. Mitchell drove Scott home
and, upon seeing the caseworker, Susan raised her hands in the
air and stated, "[T]ake me to jail."
Mitchell attempted to discuss a family plan to address the
problems with Scott, but Susan simply stated that she "is done
with [Scott]." Mitchell told Susan that Scott's injuries
required medical attention, but Susan replied that Scott is
grown and if he needs medical attention, he can take himself to
the hospital. Despite Mitchell's urging, Susan refused to
engage in any discussion of the December 10, 2012 incident,
6 A-0080-13T3 Scott's injuries, appropriate Division services, or a plan
moving forward.
When Mitchell stepped outside to consult with her
supervisor, Scott overheard a conversation between Susan and one
of his sisters. The sister told Susan, "[H]e called DYFS on
us." Susan replied, "I should've broke his leg." Scott relayed
the conversation to Mitchell and said he had to get out of the
home.
When Mitchell attempted to reengage Susan about seeking
medical attention for Scott's injuries, Susan said that both
Mitchell and Scott had to leave the home. As the caseworker
left with Scott, Susan told Mark, "I told [Mitchell] to take
him. I'll go to court. They think they can do better, let them
take him and see."
Mitchell took Scott to a hospital, where he was diagnosed
with human bites, lower leg contusions, and swelling on his
shin. He was prescribed antibiotics for the bite wounds, and
was placed in a shelter that night.
On December 14, 2012, Mitchell again attempted to discuss a
plan for the family with Susan to no avail. Susan stated that
she had "slept like a baby" the night before, and was no longer
"doing anything for" or "worrying about" Scott.
7 A-0080-13T3 On December 17, 2012, the Division filed a complaint and
was granted custody of Scott. On December 31, 2012, Mitchell
contacted Susan to attempt to schedule a meeting to discuss
services and a reunification plan. Susan again refused,
repeating several times that she "is not doing anything" for
Scott. Susan did state that Scott could return home if he
wanted to, but Scott initially refused and remained in a foster
placement. He later reconsidered and was permitted to return
home in May 2013.
The Division sought findings of abuse or neglect against
both parents. A fact-finding hearing was conducted over three
days in April and May 2013. The Division called caseworker
Mitchell and Alece Dickerson. Susan called her daughters Sara
and Sophie.
The judge issued an oral decision concluding that neither
parent had abused or neglected Scott, and that Susan's actions
did not rise to the level of abuse. The court found that
Scott's use of profanity "provoked" Susan's acts, which were
therefore justified:
I think a mother being cursed at with the F word when she approaches [her] son who is lying on the couch continuing behavior that has been problematic to her otherwise stable and happy family and is confronted with the F word spoken to her face has a right to be angry, or has a — understandably can be angry at that. And that just might be a
8 A-0080-13T3 trigger that could set someone off, that would set her to throw something like a shoe.
She — I look [at] that provocation and I look at what she was clearly dealing with with [Scott's] behavior, him not coming home, with him being constantly disrespectful to her, to him cutting school, to causing all kinds of problems. Apparently . . . this was something she was unaccustomed to . . . because her daughters, at minimum, finished high school without causing any trouble. And so she was provoked.
The judge concluded that Dickerson's referral of Scott's
injuries and the subsequent response by the Division was a
"second provocation" of Susan by Scott. The court dismissed
Susan's comment that she should have broken Scott's legs as
"someone speaking in anger and speaking in frustration . . . ."
Although Susan did not testify, the judge appeared to
excuse her refusal to cooperate with the Division by finding
that she "was annoyed, upset, and embarrassed for a couple of
weeks" over the incident. The judge found that at the time of
the fact-finding, Susan was "extremely remorseful" and
"desperate to engage in services now."
II.
Our review of a trial court's fact-finding function is
limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). These
findings are binding on appeal when supported by adequate,
9 A-0080-13T3 substantial, and credible evidence. Id. at 411-12 (quoting Rova
Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484
(1974)). That said, our review is less constricted when the
"focus is not on credibility but alleged error in the trial
judge's evaluation of the underlying facts and the implications
to be drawn therefrom." N.J. Div. of Youth & Family Servs. v.
C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180
N.J. 456 (2004). Likewise, the trial court's interpretation of
the law is not entitled to deference on appeal. N.J. Div. of
Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
A Title Nine inquiry should focus on harm to the child,
rather than on the intent of the caregiver. G.S. v. Dep't of
Human Servs., 157 N.J. 161, 180 (1999). Indeed, a parent is
liable for both the intended and unintended harms that result
from his or her intentional acts. Id. at 178. "Child abuse"
thus covers "situations ranging from slight inadvertence to
malicious purpose to inflict injury." Ibid.
"Excessive corporal punishment" is not defined by statute,
but is determined on a case-by-case basis. N.J. Div. of Youth &
Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div.
2010), appeal dismissed as improvidently granted, 208 N.J. 355
10 A-0080-13T3 (2011). As the trial court relied on K.A., we discuss that case
in detail.
In K.A., a mother who was helping her daughter with her
homework admitted to striking the child four or five times with
a closed fist on her shoulder when the child would not obey her
instructions to complete the homework, and then refused to stay
in her room when she was sent there for a time-out. Id. at 505-
06. At the time of the incident, the child was eight years old
and had been diagnosed with pervasive development disorder and
attention deficient disorder. Id. at 506. The child suffered
four small bruises and one slightly larger bruise that caused a
mild discoloration of the skin. Ibid. The mother admitted to
striking the child, and explained that "she was very stressed
and overwhelmed in caring for [the child] because [her] father
worked until approximately nine o'clock in the evening and then
took work calls . . . until midnight every night." Id. at 506-
07.
The Division sought a finding of abuse or neglect against
the mother. An administrative law judge found that the Division
had not met its burden of proving that the mother used excessive
corporal punishment. Id. at 508. The Director rejected those
findings, concluding that the act of repeatedly hitting the
11 A-0080-13T3 child with a closed fist, with sufficient force to leave
bruises, qualified as abuse. Ibid.
The panel reversed, noting that "the force used did not
lacerate the child's skin and did not require any type of
medical intervention." Id. at 512-13. Because there was no
proof of "per se excessive corporal punishment," the panel
"examine[d] the circumstances facing K.A. to determine whether
striking [the child] five times on the shoulder with a closed
fist amounted to excessive corporal punishment." Id. at 512.
The panel found that
K.A. was confronted with a psychologically disruptive child, unable or unwilling to follow verbal instructions or adhere to passive means of discipline such as a time- out. K.A. 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.]
The panel also noted that the mother "accepted full
responsibility for her actions, was contrite, and complied with
Division-sponsored counseling." Ibid.
12 A-0080-13T3 We find that K.A. is readily distinguishable from the facts
herein, primarily due to the nature and extent of the injuries
to Scott and the instrumentalities used to inflict them. In
N.J. Div. of Youth & Family Servs. v. P.W.R., the Court held
that a stepmother's occasional slaps to her sixteen-year-old's
face did not constitute excessive corporal punishment as a
matter of law because they did not leave any bruises or marks.
205 N.J. 17, 36 (2011). In contrast, excessive corporal
punishment was found where a mother used a belt to hit her six-
year-old son and left visible welts. N.J. Div. of Youth &
Family Servs. v. B.H., 391 N.J. Super. 322, 340 (App. Div.
2007). Similarly, a mother inflicted excessive corporal
punishment by beating her daughter with a paddle in the face,
arms, and legs. N.J. Div. of Youth & Family Servs. v. C.H., 414
N.J. Super. 472, 476 (App. Div. 2010). In both B.H. and C.H.,
our conclusions were based on the use of an instrument to hit
the child with such force that visible marks were left, the
unreasonable and disproportionate parental response, and the
fact that the incidents were not isolated but part of a pattern
of physical punishment. See B.H., supra, 391 N.J. Super. at
338-40; C.H., supra, 414 N.J. Super. at 481.
Similarly, Susan's undisputed use of golf clubs and her
teeth in causing Scott's injuries, along with the resulting
13 A-0080-13T3 trauma, distinguishes this case from the "occasional slap"
discipline in P.W.R. In addition, Scott's use of profanity did
not justify Susan's unreasonable and disproportionate response.
We also reject the judge's conclusion that Scott's injuries
did not manifest excessive corporal punishment because the
Division "did not find that the injuries required immediate
attention . . . ." The Division did not learn of Scott's
injuries for three days. After viewing the bite marks on
Scott's back and the bruising to his leg, caseworker Mitchell
informed Susan that Scott had "sustained injuries" and asked her
if she would be willing to take him to the hospital "to be seen
by a doctor." When Susan refused, Mitchell took Scott to the
emergency room at Muhlenberg Hospital. When Mitchell learned
that Muhlenberg was too crowded, she took Scott to the emergency
room at Robert Wood Johnson University Hospital. There he was
seen by Dr. Michael Bernstein, who ordered x-rays of Scott's
left shoulder, tibia, and fibula.
Dr. Bernstein diagnosed Scott with a contusion of the lower
extremity and human bites. While no fractures were detected,
Dr. Bernstein prescribed Augmentin, an antibiotic, and a follow-
up visit with a primary care physician within two to three days.
The court's conclusion that the Division did not find that
Scott's injuries required immediate attention and that the trip
14 A-0080-13T3 to the emergency room was part of a routine pre-placement
physical is contradicted by these facts.
We also reject the court's conclusion that Susan's actions
were provoked by Scott. Neither Susan nor Scott testified at
the fact-finding hearing and the Family Part judge was left to
determine the facts through statements they made to third
parties, Mitchell and Dickerson, and the observations of Sara
and Sophie. Based on this record, several facts are undisputed:
Scott was sitting on a couch watching television when Susan
accused him of stealing items from his sister's room. Scott
angrily denied the allegations and employed the "f-word"
expletive. The use of this profanity apparently prompted Susan
to throw two shoes at Scott, strike him in the legs with a golf
club, and bite him several times on the shoulder. It is also
undisputed that Scott attempted to leave the room but was
prevented from doing so by Susan, who grabbed him and attempted
to hold him back.
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 Scott's denial of his mother's
accusation, which included a passing expletive, was intended to
provoke Susan's actions. Indeed, as the conflict escalated with
Susan throwing a shoe at Scott, he attempted to defuse it by
15 A-0080-13T3 leaving the room. It was Susan who fueled the escalation by
grabbing Scott in an attempt to keep him in the room. The
assault with the golf club and the biting followed.
The court's conclusion that Scott's "bringing the Division
to [Susan's] home" constituted a "second provocation" is
unsupported by any facts in the record and inapposite to
controlling law. First, it was not Scott who reported the
incident to the Division. Dickerson testified that she called
the Division after one of Scott's teachers told her of his
injuries. Moreover, Dickerson was statutorily obligated to
report the injuries to the Division, N.J.S.A. 9:6-8.10, and the
Division, in turn, was obligated to investigate the incident.
N.J.S.A. 9:6-8.18. The court's suggestion that Scott was
responsible for the referral and did so to provoke his mother
finds no support in the record.
We also note the incongruity in the court's conclusion that
the utterance of a single profanity by Scott justified Susan's
assault, while her own statement that she should have broken
Scott's legs was dismissed as "someone speaking in anger and
speaking in frustration . . . ."
Nor do we find evidence to support the court's conclusion
that Susan was remorseful. The record shows the opposite.
Susan refused to take Scott to the hospital after being told
16 A-0080-13T3 that Scott's injuries required medical attention; she initially
refused to participate in services including counseling; and
refused to even meet with the caseworker to discuss
reunification. We are especially doubtful as to the court's
conclusion that when Susan raised her hands and told the
caseworker to "take me to jail," she was somehow expressing
remorse.
While Susan ultimately agreed to participate in services
and permitted Scott to move back into the house, this did not
occur until almost six months after Scott's removal, during
which time he lived in a shelter over Christmas and then a
foster home. We find little if any evidence to support the
court's conclusion that Susan ever expressed remorse or
contrition for her actions.
Finally, given the judge's reliance on K.A., we take this
opportunity to clarify our understanding of comments made by the
K.A. panel regarding the consideration that must be extended to
a parent confronted with misbehavior by a child with behavioral
disorders.
The panel held that "the trying circumstances which [the
mother] was undergoing due to [her child's] psychological
disorder" was a factor to be considered in determining whether
17 A-0080-13T3 the defendant used excessive corporal punishment. K.A., supra,
413 N.J. Super. at 512.
Similarly, Scott was enrolled in special education classes
and by his own admission suffered from ADHD. As the judge
remarked:
He does appear to me to be a slightly out-of-control kid. Maybe not even slightly. He appears to me to be out of control and presenting challenges that the mother is — and father are having difficulty dealing with and clearly are in need of the services of the Division[.]
We do not read K.A. to suggest that the test for
determining excessive corporal punishment should be any
different when the child has a disability. While these children
may be more difficult to control, present additional challenges
to a family, and be unresponsive to traditional forms of
discipline, they are entitled to the same protection under Title
Nine as non-disabled children. We read K.A. to hold only that
the underlying behavior of a child, with or without a
disability, can be a relevant factor among the totality of
circumstances in assessing the reasonableness of the parent's
response to the child's outburst. The panel in K.A. found that
the child's repeated defiance despite her mother's oral
instructions created a trying situation that was relevant in
determining the reasonableness of the mother's response. Here,
18 A-0080-13T3 Scott's use of profanity did not justify Susan's violent
response.
As noted earlier, we defer to the trial judge's finding of
the facts, but we owe no deference to the legal conclusion drawn
by the judge from those facts. It is here that we part company
with the trial judge's decision and conclude that the injuries
inflicted on Scott by Susan are sufficient to support a finding
of abuse or neglect. Given this finding, we need not consider
the Division's contention that Susan abandoned Scott by refusing
to have him medically evaluated, and demanding that the Division
remove him from the family home.
Reversed and remanded for the entry of an order finding
that Susan abused or neglected Scott.
19 A-0080-13T3