On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-497-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
D.J., the father of M.J., appeals from an order of a judge of the Family Part holding that he abused and neglected his four-year-old son by intentionally burning the child with an iron, an act that the judge found constituted excessive corporal punishment. See N.J.S.A. 9:6-8.9d(2). On appeal, the father raises the following arguments:
I. THE FACT FINDING PROCEEDING BELOW DID NOT RELY UPON COMPETENT, CREDIBLE, ADMISSIBLE EVIDENCE
A. The Trial Court Erred In Relying Upon Inadmissible Hearsay To Corroborate A Child's Out-Of-Court Statement. (Not Raised Below.)
B. The Trial Court's Decision Must Be Reversed Because There Was Insufficient Evidence To Support The Trial Court's Finding That D.J. Inflicted Excessive Corporal Punishment On M.J. (Not Raised Below.)
The record discloses the following facts. On May 25, 2007, a daycare facility, Three Stages Learning Center, located in East Orange, informed a representative of the Division of Youth and Family Services (DYFS) that a four-year-old boy in Three Stages' care complained of pain in his arm. On examination, the child was found to have two parallel red marks on his left forearm. The child stated that his father had burned him with an iron.
DYFS sent an investigator, Shurah Llanos, and her supervisor, Lorraine Peters, to the school. Their investigation was set forth in a Referral Response Report written by Llanos that was marked in evidence at a hearing conducted on May 30, 2007 at which Peters was the only witness. The report noted that the father was employed as a transportation aide at the University of Medicine and Dentistry of New Jersey (UMDNJ). The biological mother was not currently employed.
The mother was previously known to DYFS as a result of a report, on January 28, 1997, that the mother had given birth to a baby in a toilet. The mother was taken to the hospital by an emergency response team, but did not disclose the presence of the baby. When the child was found in the toilet, she was "asphyxiated and brain injured." The mother was charged with attempted murder and aggravated assault, serious bodily injury. However the charges were dismissed, and she was found guilty of endangering the welfare of a child, receiving a three-year probationary sentence. The child remains under the care of her maternal grandmother and is severely handicapped.
With respect to the present incident, Llanos and Peters were informed by a school employee that the child "showed her his arm and stated that his father . . . had burned his arm in the morning." The school employee stated that the child "has never come in with any marks on him before."
Llanos then asked to interview the child in the social worker's office. The child confirmed that his father works at UMDNJ and stated that his mother "goes to school and work." However he was unsure of the location of either. The child then showed Llanos his left arm and told Llanos "that his father burned his arm with the iron," "plac[ing] the iron on his arm until it turned red." When asked why his father would do this, the child said that "his father does things like that all the time." He "stated that his father hurts him and his mother all the time." The child went on to say that "his father yells and hits his mother all the time." When asked how his father disciplined him, the child did not understand. However, when showed a set of keys, told to pretend they were his father's, and asked what he would do if told by his father not to touch them, the child said he did not touch his father's stuff. The child stated that, if he were yelled at by his father, he would hide, and that he was afraid of his father.
The child stated that his mother was present when he was burned and instructed the father: "Don't do that to [the child]." The father then went to work, and the mother took him to school.
The police were summoned to the school. Upon their arrival, they took statements from Llanos, the reporting school employee and the child. According to Llanos, the child "reiterated that his father placed the iron on his arm and burned him."
The mother arrived at the school at about 5:15 p.m. While Llanos was summoning the police back to the school, she overheard the mother questioning the boy as to why DYFS wanted to talk with her. The boy responded "that it was because of what daddy did to my arm." On hearing his statement, the mother "yelled," "[h]e did not do that stop saying that." The child was then removed from the room, and the mother was questioned as to what had happened. She responded: "to be honest, I can't even tell you." When Llanos told the mother that the child had blamed his father, the mother stated that "his father didn't do it because he leaves at 5 am every morning."
The mother stated that she had used the iron on the morning in question to iron clothes. When she was finished, she unplugged the iron, wrapped the cord up, and "placed the iron back on the crate." However, in a home visit later that day, Llanos viewed the crate and was of the opinion that the iron was placed out of the child's reach, and "there was no way that [the child] could have accidentally brushed by the iron." Llanos noted that the mother continued to deny that the child had been burned by the father, stating that the mark on his arm could be an allergic reaction. ...