October 21, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
A.M., DEFENDANT-APPELLANT. IN THE MATTER OF D.R., N.R., J.M., AND A.H., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-134-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Payne, Reisner and Simonelli.
Defendant A.M., the mother of D.R. (fictitiously Dennis), N.R. (fictitiously Nancy), J.M. (fictitiously Jane), and A.H. (fictitiously Amy),*fn1 appeals from a May 26, 2010 order, following a fact-finding hearing, determining by a preponderance of the evidence that A.M. had abused or neglected Nancy by using excessive corporal punishment on her. It was found that A.M. had, on more than one occasion, hit Nancy with a belt or switch, causing lacerations and bruising to her legs. On appeal, A.M. contends that insufficient evidence was presented to support the judge's finding of abuse or neglect. She also contends that the judge erred in admitting a letter from the principal of Nancy's school, stating that the screening report generated by the Division of Youth and Family Services (DYFS) at the time that the matter was referred to it contained a factual error as to whom Nancy identified as her abuser. We affirm.
The record reflects that allegations of abuse of Nancy, then age five, by her mother were conveyed by Nancy's school to DYFS and Neptune Township's police on November 24, 2009 upon the discovery of a fresh laceration and bruise on the front of Nancy's left thigh. Following a prosecutor's forensic interview of Nancy, at which time she confirmed that her mother had caused her injuries by hitting her with a switch, and an interview of A.M., who could not account for Nancy's injuries, Dennis, Nancy and Jane were removed from A.M.'s residence on the evening of November 24 on an emergency basis, pursuant to N.J.S.A. 9:6-8.29 and -8.33c, and placed in foster care. Prior to the removal, DYFS had attempted to put a safety protection plan in place so as to avoid the removal. However, A.M. was not able to identify anyone who was suitable to participate in such a plan by temporarily living in A.M.'s home so as to provide child supervision, since everyone identified by her had a criminal record.
On November 25, the children were examined at the Jersey Shore University Medical Center by Steven Kairys, M.D., a member of the staff of the Child Protection Center, and the children and A.M. were interviewed by the doctor. In a report dated November 30, 2009, Dr. Kairys described a laceration and various linear bruises on Nancy's legs, and he concluded that the marks were consistent with being hit with a switch.
On November 30, 2009, DYFS filed a verified complaint for custody. At a hearing on that date, the hearing judge, having considered the verified complaint, photographs of Nancy's injuries, verbal representations as to the nature of Dr. Kairys's report, and arguments of counsel, found prima facie evidence of physical abuse to have been presented. He therefore approved the emergency removal and issued an order to show cause and to appoint a law guardian with temporary custody. The order to show cause was made returnable on December 22, 2009.
At the December 22 hearing, it was reported that A.M. was attending parenting classes, anger management classes and domestic violence counseling.*fn2 Despite arguments to the contrary, custody by DYFS was maintained, and the children remained in foster care.
At a hearing conducted on January 29, 2010, DYFS investigator Emel Senman testified. She stated that, in an interview on January 20, 2010 with Dennis, who was then six years of age, he stated that Nancy was hit with a belt by A.M., and that A.M. hit him with a belt as well when he was "really bad at home." It was also disclosed that, on January 21, 2010, A.M. had given birth to her fourth child, Amy, who had not been released to A.M.'s care as the result of the pending charges. However, after hearing argument, the judge ordered the release of the baby to A.M. Reunification of the other three children with their mother occurred on March 10, 2010 after A.M.'s completion of ordered services.
A fact-finding hearing was held before Judge Michael Guadagno on May 10 and 26, 2010, at which time testimony was offered by Monmouth Prosecutor's Office Detective John Maggs, Neptune Township Police Detective Michael McGhee, Investigator Senman, DYFS casework supervisor Beverly Jackson, and Dr. Kairys.
Detective Maggs testified that, following the school's referral, he had conducted a videotaped forensic interview of Nancy at the Monmouth County Child Advocacy Center, which was played in court. During the interview, Nancy disclosed that she had been hit in the leg with a switch by her mother, and she pointed to her injuries, which were photographed.*fn3 She stated that she had been hit before with a switch and a black belt. Additionally, on one occasion, her brother had been hit by her mother, using the brother's belt. Nancy stated initially that Jane had also been hit, but then later denied that fact.
Police Detective McGhee testified, as well, stating that he had conducted a videotaped interview of A.M., which was played in court. In the interview, A.M. stated that Nancy had come to her that morning saying that she had a scratch, which was bleeding, but she was unable to explain how it had occurred.
A.M. treated the scratch with Vaseline and a Band-Aid. When shown photographs of Nancy's legs, A.M. stated that she had not seen the other marks. A.M. also claimed that she did not know the origin of the scratch, but that Nancy was an active child, and had hurt herself previously when climbing on the family's entertainment system. A.M. also suggested that Nancy's scratch might have been inflicted by one of the family's cats. She denied ever striking the child, and stated that her punishments were limited to hollering and ordering the children to stand in the corner. A.M. stated, however, that Nancy would have known what a switch was, because one was used in North Carolina by A.M.'s friend to discipline her children.
Senman testified that, in a referral by Nancy's school to DYFS on November 24, 2009, a report was made by the school's principal that Nancy's father hit her with a switch on the preceding night. However, when Senman consulted with the principal, he stated that it was the mother who had hit the child. That fact was confirmed in a letter dated December 9, 2009 from the principal, which was admitted into evidence over objection that the document was not a business record admissible pursuant to N.J.S.A. 9:6-8.46a(3), and that the principal was not present for purposes of cross-examination. The judge ruled that the document was admissible, not for the truth of its statement that the mother was the abuser, but "to clarify a discrepancy in the Division's documents, which is being explained by the caseworker." The judge continued:
There is a discrepancy here. Without this document the discrepancy is unexplained, but for this caseworker's testimony. I'll accept it, but not for the proof, not to corroborate any statement of the principal that this is what was told. Merely to clarify or to explain the discrepancy from everything we've heard here, including the child herself.
Further, the judge did not preclude counsel for A.M. from calling the principal as a witness.
Senman testified additionally that, following Nancy's interview by Detective Maggs at the Monmouth County Child Advocacy Center, she had observed a long mark along Nancy's left thigh and some markings on the back of her legs as well. During her investigation on November 24, Senman had gone to A.M.'s residence, where Nancy had told her both outside and in her mother's presence that A.M. had hit her with a switch on her legs because she was bad. However, A.M., when questioned, stated that Nancy had pointed out the mark on her leg, but had been unable to articulate what had happened, stating only that she had hurt herself. A.M. confirmed that Nancy had in fact been bad, having stolen something from school, but as a result, A.M. stated that she had merely counseled the child not to steal. A.M. claimed that the only discipline she employed was to yell at her children or have them stand in the corner. Neither of Nancy's siblings confirmed Nancy's account or stated that A.M. used corporal punishment. Senman testified on cross-examination that her investigation of the residence on November 24 disclosed no concerns except those related to A.M.'s methods of punishment. She did not find a switch at the home, and she did not search the closets for belts.
Senman also testified regarding Dennis's January 20, 2010 disclosure that A.M., in the presence of her boyfriend, would pull his pants down and beat him on the lower part of his legs with a gold belt when he was really bad. Upon further investigation, Senman said that Nancy confirmed that she and her siblings were hit by A.M. with a belt as well as a switch. Jane also said that when she was really bad, her mother would hit her on her legs with a black or orange belt. However, A.M. denied the allegations.
Testimony was also offered by casework supervisor Jackson, who spoke to the children at the DYFS office after they had been removed on an emergency basis from A.M.'s residence. Jackson testified that Nancy had told her, when questioned, that her mother had hit her with a belt because she had stolen something from her teacher. Dennis then stated that neither he nor Jane got "whoopings" because they were not bad, but because Nancy was bad, she did. Dennis said, and Jane agreed, that their only punishment was to stand in the corner.
Additional testimony was provided by Dr. Kairys. The doctor testified that, on November 25, 2009, he had first interviewed Nancy, who acknowledged that she was in his office because of the marks on her legs. She then stated that because she was being bad, her mother had hit her on her legs with a switch which was "brown and ha[d] 'bongies' on it."*fn4 He then testified that when asked if this had happened before, Nancy stated that "my dad hit me with the switch." After that, Nancy stopped talking.
A.M. was then brought into the room and questioned by the doctor regarding Nancy's injuries. She stated that she was not really sure what had occurred, but that they had a lot of cats in the house, and she speculated that the cats were partly responsible. She also said that Nancy was very active and got bruises all the time, recounting a time when she had been climbing on the entertainment center and had fallen, causing an injury that had left a scar. A.M. stated that she did not use physical discipline on the children.
On physical examination, Dr. Kairys found Nancy to be well groomed and well cared for. The examination, he said, was unremarkable except for the following: a thin, linear bruise on the back of the right thigh that was four inches in length and one directly below it that was about three inches long; a one and one-half inch linear mark on the back of the left thigh; and linear bruises and a scabbed area in the front of the thigh that was perpendicular to the bruise marks. Additionally, Nancy had a lot of bruises on her shins. A nurse photographed the bruises, and her pictures were introduced into evidence at the hearing. In describing the bruises, the doctor stated:
I thought that the, most of the marks were of the same age, relatively recent. . . .
[T]hey were bruises, not lacerations except for one area of laceration. There were multiple, they were parts of the body that a child would not injure[e] herself accidentally along the back of the thighs and the medial aspects of the back of the leg.
And they conform to a pattern bruise, a kind of bruise you would get by being hit by a stick or a switch or a thin belt of the sort that would be likely to cause these injuries. So in my mind they were very, very consistent with inflicted injuries.
When asked whether any of the injuries could have been inflicted by a cat, the doctor responded that there was one area where there was a true laceration that could have been caused by a cat. However, he did not think so, "because the laceration was fairly broad at the base. Usually cat scratches are fairly thin and symmetrical." The remainder were bruises that a cat would not produce.
The doctor's examination of Dennis and Jane was unremarkable, except that Jane had three small linear bruises along the thigh area. However, he stated: "There was no history about that at all . . . . [P]erhaps they could have occurred by running into furniture, but they could have also have been caused by, been inflicted by a belt or a switch."
At the conclusion of the hearing, Judge Guadagno placed on the record his lengthy and detailed findings of fact, determining that Nancy's explanation of what had occurred was consistent and essentially unvaried, and that A.M. was responsible for the injuries. He then turned to whether A.M.'s conduct constituted excessive corporal punishment that he would consider to be abuse or neglect. While recognizing that the law did not prohibit "moderate correction that is reasonable under the circumstances," the judge concluded that the "intentionally inflicted injuries" were "not consistent with minor corrective corporal punishment," but rather constituted excessive corporal punishment amounting to abuse or neglect that was prohibited by Title 9. See N.J.S.A. 9:6-8.21 to -8.97. An order declaring that A.M. abused or neglected Nancy by inflicting excessive corporal punishment was entered on May 26, 2010. The Title 9 litigation was terminated by order dated September 13, 2010.
On appeal, A.M. relies on our decision in Division of Youth and Family Services v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), in arguing that there was insufficient evidential support for Judge Guadagno's conclusion that A.M. had violated Title 9. We disagree.
N.J.S.A. 9:6-8.21c(4) defines an "abused or neglected child" as 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) 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
See also N.J.A.C. 10:129-1.3 (elaborating on the definition of "abused or neglected child" and declaring that allegations of "[c]uts, bruises, welts or oral injuries" may be abuse or neglect). A finding of abuse or neglect must be based upon a preponderance of the competent, material and relevant evidence. N.J.S.A. 9:6-8.46b; Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). "[P]revious statements made by the child relating to any allegations of abuse or neglect [are] admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46a(4).
The standards that govern our review of this matter were set forth by the Court in New Jersey Division of Youth and Family Services v. M.C. III, 201 N.J. 328 (2010) 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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotations marks omitted). 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." Cesare v. Cesare, 154 N.J. 394, 413 (1998). [M.C.III, supra, 201 N.J. at 342-43.]
Thus, "if there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding. Id. at 227 (quoting Div. of Youth & Family Servs. v. E.P. 196 N.J. 88, 104 (2008) (citation and internal quotation marks omitted)). We owe no deference to the trial court's legal conclusions, which we review anew. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
In K.A., upon which A.M. relies, we reversed a final determination of DYFS's Director that a mother, K.A., had committed abuse or neglect when she struck her eight-year-old daughter on the shoulder with a closed fist four or five times, causing a round bruise with several smaller dotted bruises above it. K.A., supra, 413 N.J. Super. at 506, 513. However, in that case, the incident lasted only four to five seconds, id. at 506, and the skin was not lacerated, id. at 512. Additionally, we took into account in evaluating the matter the reasons for K.A.'s actions, the isolation of the incident, and the trying circumstances that K.A. was undergoing as a result of A.A.'s attention deficit disorder. Id. at 512. We observed:
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.]
Because certification has been granted in K.A., we cannot presently determine the precedential value of our decision. However, even if we assume our legal analysis and conclusions to have been correct, the case bears few factual similarities to the present one. Here, there was no evidence of "trying circumstances" similar to those present in K.A. Moreover, the abuse occurred on more than one occasion, and evidence suggested that it was administered to more than one child. Additionally, not only bruising, but also a laceration to Nancy's skin sufficient to cause bleeding was found to exist, and that laceration was causally related by Dr. Kairys to A.M.'s abuse.
We similarly distinguish the circumstances of this case from those in P.W.R., supra, 205 N.J. 17. In that case, the Court held that a step-mother's occasional slaps to the face of her sixteen-year-old step-daughter, while "hardly admirable," did not constitute abuse or neglect. Id. at 35. The Court stated:
A slap of the face of a teenager as a form of discipline - with no resulting bruising or marks - does not constitute "excessive corporal punishment" within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). That is not to suggest approval of such behavior. But, by qualifying the prohibition with the term "excessive," the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. Limiting state involvement only to interference with excessive corporal punishment requires the exercise of judgment by reviewing courts before a finding of physical abuse is entered against a parent. In this matter, where DYFS labeled the physical abuse "unfounded," the trial court abused its discretion by utilizing slaps as a basis for a finding of physical abuse. [Id. at 36.]
In contrast to P.W.R., the present case involves a five-year-old child, not a teenager, the corporal punishment left lacerations and considerable visible bruising, and the abuse was substantiated by DYFS.
We find this matter to more closely resemble the facts in Division of Youth and Family Services v. C.H., 414 N.J. Super. 472 (App. Div.), adhered to on reconsideration, 416 N.J. Super. 472 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011), a case in which we found abuse or neglect arising from excessive corporal punishment to have been proven. In C.H. the five-year-old child, T.H., was observed by her teacher to have red markings on the right side of her face, scratches that were two inches in length on her right elbow and left cheek and a greenish bruise in the middle of her back. When questioned, T.H. stated that her mother had beaten her on the previous evening with a paddle because she had reported to a neighbor that the home was without electricity.
The mother, C.H., who had "a history of questionable administration of corporal punishment," id. at 479, admitted to having spanked T.H., but she said she did so only on her buttocks while fully clothed. Id. at 476. She, like A.M., claimed to have seen no marks on the child when she left for school, and could not offer a specific explanation as to how the marks had occurred, but she speculated that they might have been caused by the family's cat. Ibid. Although a medical examination of T.H. was delayed for two weeks, and as a result, no marks remained, T.H. told the examining doctor that "mom started beating me" with a paddle. As a result, abuse was substantiated by DYFS. Id. at 477-78. Although an administrative law judge found no abuse, the Director disagreed, and we affirmed the Director's decision. Id. at 478, 483.
Although, in C.H., the mother admitted to administering corporal punishment to T.H. from the age of three, id. at 481, whereas A.M. admitted to no such conduct, the statements of Nancy and Dennis established that a pattern of abuse existed. And although some of the injuries to T.H. were to her face, whereas injuries to Nancy were to her legs, the severity of those injuries was roughly similar. As a result, we find the determination in C.H. that the mother had utilized excessive corporal punishment to provide legal support for a similar conclusion in the present matter. We thus reject A.M.'s position that the judge's conclusions were not adequately supported by evidence in the record.
A.M. argues additionally the Judge Guadagno erred in admitting the letter sent by the school principal to DYFS regarding his report to DYFS of child abuse. The letter stated:
Please be advised this letter is in reference to a November 24, 2009 report of child abuse to DYFS concerning [Nancy] a preschool student at the Neptune Township Early Childhood Center.
Please let this letter serve as proof that [Nancy] stated to all parties that she was abused by her mother [A.M.]. There was some confusion in the initial report to DYFS that [Nancy] was abused by her biological father, [D.R.]. This claim is false. The only person [Nancy] said hit her was her mother [A.M.].
Pursuant to N.J.S.A. 9:6-8.10, Nancy's school had a statutory duty to report immediately to DYFS evidence of child abuse or neglect including any information "that the person believes may be helpful with respect to the child abuse and the identity of the perpetrator." See also Frugis v. Bracigliano, 177 N.J. 250, 271 (2003). That duty was undertaken by the school's principal in accordance with school policy. N.J.S.A. 9:6-8.46a(3) declares as admissible "any writing, record or photograph . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency" if the judge finds it was "made in the regular course of the business" of the institution at the time of the act or within a reasonable time thereafter. Here, the principal's initial disclosure to DYFS appears to have been oral. However, his correction was in writing.
The Law Guardian argues that the letter was properly admitted as a business record pursuant to the evidentiary provisions of Title 9. Although the judge did not expressly rule in that regard, we find the Law Guardian's position to be correct that the document could be admitted pursuant to N.J.S.A. 9:6-8.46a(3). However, even if the judge erred in admitting the document, we find no reversible error. The document was admitted for the limited purpose of correcting the principal's account of what he claimed had been said by Nancy. It was not admitted as evidence that A.M. in fact committed the abuse, or even as evidence of what Nancy had actually said, but merely as evidence of the content of the principal's initial report. Further, the judge stated that he considered the letter only for the purpose that he articulated. In these circumstances, we find any error to have been harmless.