On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FN-02-55-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2011
Before Judges Payne and Reisner.
Defendant, K.M., the mother of a thirteen-year-old daughter, T.C., appeals from a May 3, 2010 fact-finding order determining by a preponderance of the evidence that K.M. abused T.C. by inflicting excessive corporal punishment on her and by causing protracted impairment of the child's emotional health. On appeal, K.M. argues that the court erred in its evaluation of the underlying facts and their applicability to the statutory standard for excessive corporal punishment set forth in N.J.S.A. 9:6-8.21c. She contends that any punishment inflicted was not sufficiently severe to constitute excessive corporal punishment, and that T.C. exaggerated what had occurred because she feared that she would be required to move with her mother to Georgia when she wished to remain with her father in New Jersey. We reject K.M.'s arguments and affirm.
The record reflects evidence that T.C. was subjected to repeated
episodes of corporal punishment during the July 4, 2009 weekend,
consisting of lashings with a belt, slaps and punches. On July 6,
2009, T.C.'s father, F.C., who had ceased his relationship with K.M.
upon T.C.'s birth, but remained in town,
reported the abuse to the Division of Youth and Family Services
(DYFS). On July 7, 2009, following an investigation of the referral,
DYFS assumed emergent custody of T.C., transferring physical custody
to F.C. K.M. was charged by the police with aggravated assault and
second-degree endangering the welfare of
A pre-placement medical examination of T.C., conducted at the
Hackensack University Medical Center by pediatrician Usha Avva, M.D.,
disclosed bruises to T.C.'s left arm and upper left leg that were
deemed consistent with belt marks of greater than forty-eight hours in
On July 9, 2009, DYFS filed a verified complaint for custody of T.C. An order to show cause was issued by the court that day that maintained joint legal custody of T.C. by her parents but transferred physical custody to T.C.'s father, F.C., under the care and supervision of DYFS, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. At the time, F.C. was a married police officer with two minor children. The parties were directed to appear on August 13, 2009 and to show cause at that time why custody should not be continued as preliminarily ordered.
Following a hearing on the order to show cause and two case management conferences, a fact-finding hearing was conducted on December 16, 2009, January 27, 2010, March 15, 2010, and April 1, 2010. The judge issued a written decision on May 3, 2010 finding abuse by K.M. Thereafter, on June 10, 2010, a dispositional hearing took place, following which K.M. was ordered to undergo a psychological examination and attend anger management classes and psychotherapy. Supervised visitation by K.M. was permitted at the discretion of T.C. K.M. declined to undergo the psychological evaluation at the advice of counsel as the result of the pendency of the criminal matter. At a compliance review hearing conducted on September 9, 2010, K.M. again refused to undergo a psychological evaluation for the reason previously stated. On October 28, 2010, the litigation was terminated upon K.M.'s consent that T.C. remain in the physical custody of her father. This appeal followed.
Our review of the record satisfies us that sufficient competent evidence was presented to the court to permit it to conclude that T.C. was physically and emotionally abused by her mother. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). Recorded testimony was given by T.C. in camera in the presence of her law guardian. In response to the court's questions, she stated that on July 4, 2009, she and a friend planned to go to the beach with the friend's mother on July 5, but changed their minds, receiving permission from the friend's mother to go the following week. However, when T.C. told K.M. of the change in plans, T.C. attributed the change to a decision by the friend's mother. When K.M. learned that T.C. had not told her the truth, K.M. grabbed T.C. by the collar of her shirt, yelling at her about her lying. T.C. resisted, and in response, K.M. made T.C.'s friend return to her home on foot, despite the fact that it was midnight and the street was dangerous. Following a confrontation over whether T.C. could call her father, during which K.M. badmouthed T.C.'s father, provoking a response by T.C. that K.M. was "stupid," K.M. dragged T.C. into T.C.'s room by the arm and started hitting her with a studded belt on the left side of the body. After ten to fifteen blows, K.M. pushed T.C. onto her bed and commenced using a leather belt, with which she hit T.C. between two and five times. The two then fell to the floor where the struggle continued, with T.C. kicking K.M. in an attempt to get her off her body.
At this point, K.M. called out to T.C.'s twenty-year-old male cousin, who had been in the adjoining room, stating to him: "[Y]ou're gonna be my defendant (sic) in court." Although T.C. stated that the cousin had heard what was occurring and witnessed part of it, the cousin denied it at the fact-finding hearing, stating that he was called into the bedroom by K.M. as a witness to events, but at the time, K.M. was attempting to restrain T.C. who was "on the ground, like, doing a bicycle kick" and yelling that K.M. was not going to get full custody of her. However, he admitted that K.M. had previously threatened that she was going to give T.C. a beating, and K.M. had "grabbed" a belt from him before entering T.C.'s bedroom. The cousin testified that he guessed that K.M. was going to use the belt to hit T.C.
T.C. stated that the assault left marks and bruises on her left arm near the shoulder area, on her rear end, and on the left thigh. T.C. did not call anyone regarding the incident, because K.M. took her cell phone.
The next day, T.C. was awakened when K.M. pulled the comforter on which she had been sleeping out from under her.*fn2
She was then ordered to clean all the cabinets to rid them of bugs. Thereafter, T.C. was ordered to clean out the refrigerator and then to clean the oven, but when she was unable to render it clean, K.M. slapped T.C. in the face five times, leaving a small line.
After being dropped off at her father's house on July 5, T.C. told him what had taken place during the past two days. However, F.C. did not inform either DYFS or the police, and he returned T.C. to her mother that evening. Upon her return, ...