On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-155-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
The Division of Youth and Family Services (DYFS) filed a complaint alleging that defendant M.P-A. engaged in conduct and caused harm to her son Km.A., which amounted to abuse or neglect as defined in N.J.S.A. 9:6-8.21. Following a trial in the Family Part, Judge Covie-Leese determined that defendant unreasonably inflicted physical harm upon Km.A., and that he was abused or neglected. Defendant appeals from that determination.*fn1
A DYFS worker, Kr.A., who is Km.A.'s older brother, Km.A.'s maternal grandfather, and M.P-A. testified at trial. Km.A. was twelve years old at the time of the incident that led to the filing of this complaint. He got home from school later than his mother had directed, and, as a consequence, he was sent to his room. When M.P-A. went to Km.A.'s room to check on his progress with a school assignment, he became angry, banged the rail of his bed against the wall and cursed at her. She grabbed him by the collar of his shirt and smacked his face. He hit her in the head with his "boom box." They struggled with one another. Kr.A. attempted to separate them. As he pulled his brother's arm away from his mother's neck, she bit Km.A. on the arm. The struggle continued. At a point when M.P-A. was on top of Km.A., she bit his head. Km.A. told M.P-A. he would get a knife and kill her. When he went downstairs, M.P-A. followed and tackled him from behind. She did not call the police or seek other assistance.
Kr.A. called his grandfather, who came to M.P-A.'s home and left with her sons. The grandfather saw the bite mark on Km.A.'s scalp. He confirmed that photographs depicting bruising and swelling below the child's eye, scratches on his face, marks on his neck and a bite on his arm accurately reflected Km.A.'s condition.
N.J.S.A. 9:6-8.21c defines an abused or neglected child to include:
(4) . . . a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . .
Judge Covie-Leese found that there was a physical altercation, which began when M.P-A. grabbed her son's shirt collar and "slapped," "smacked" or "hit" him in the face. The judge found that M.P-A. "re-engaged" the child after the altercation ended and bit, scratched and punched him. The judge further found that M.P-A. acted unreasonably in striking, biting and scratching the child and in re-engaging him rather than controlling the situation by calling for assistance. Based on those factual findings, Judge Covie-Leese concluded that M.P-A.'s conduct fell within N.J.S.A. 9:6-8.21c(4)(b), because she had placed the child in imminent danger of physical impairment "by unreasonably inflicting harm [through] acts of a serious nature."*fn2
Defendant raises the following issues on appeal:
I. THERE DID NOT EXIST SUBSTANTIAL, CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING OF NEGLECT BY A PREPONDERANCE OF EVIDENCE AND THE TRIAL COURT DID NOT ...