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New Jersey Division of Youth and Family Services v. A.M

October 21, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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. ...


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