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New Jersey Division of Youth and Family Services v. R.S

April 10, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.S., DEFENDANT-APPELLANT, AND
M.S., DEFENDANT. IN THE MATTER OF S.S., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-75-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2011

Before Judges Messano and Espinosa.

R.S. appeals from an order that reflected the court's determination that he abused his thirteen-year-old daughter, S.S., by administering excessive corporal punishment. We affirm.

The facts are largely undisputed.

On October 28, 2009, S.S. disclosed to her guidance counselor that, on the previous evening, she had a fight with her parents, M.S.*fn1 and R.S. She expressed fear of her parents and stated she could not go home. S.S. reported that her mother had struck her with a hair brush on her back and shoulder blade and pounded her head with an open hand, and her father, R.S., used a belt to beat her on her legs. S.S. had red bruises on her back and welts on both her legs.

When interviewed by an investigator from the Division of Youth and Family Services (DYFS), S.S. said that she had been subjected to physical abuse from both her parents since she was five years old. Her mother had hit her with brooms, a wooden spoon and brushes; her father hit her with a belt on several occasions; and both of them had left marks or bruises on prior occasions.

S.S., a special education student, has been diagnosed with ADHD and Tourette's syndrome and has a long history of oppositional behavior at home and at school. On the evening of the fight, her mother had erroneously accused her of taking her cell phone. When that accusation was proven false, S.S. made a remark her parents found disrespectful.

R.S. took off his belt and struck S.S. on her legs and then pulled her to a couch where M.S. began hitting her with an open hand. S.S. attempted to run to a bathroom while M.S. struck her in the back with a wooden brush. S.S. closed the door of the bathroom. M.S. yelled at her to remove gauges she had in her ears. S.S. opened the door. The argument regarding the gauges continued, with M.S. holding a knife six inches from S.S.'s face and threatening to cut the gauges out of her ears. R.S. approached the bathroom and threatened her as well, stating that if she did not remove the gauges, "he was going to rip them out[.]"*fn2 The fight ended when S.S. removed the gauges and went to her bedroom.

Both M.S. and R.S. were called to S.S.'s school when the referral was made to DYFS. M.S. was angry and confrontational. When asked how S.S. got the marks on her, R.S. stated he had hit her with a belt and would do it again. After consulting with her supervisor, the DYFS investigator attempted to discuss a safety protection plan, in which services would be provided to the family to avoid a removal, with both parents. R.S. became very upset and stated, "you can f****n' have her" and walked out of the school. Because M.S. had stated she wanted to beat S.S., the investigator advised M.S. that such a plan would be necessary. She also "stormed out of the school[,]" although she later returned. At first, she was calm, but then she started screaming at S.S., telling her it was all her fault, she had done this and was an orphan. The investigator was unable to discuss the protection plan further because M.S. left the school again.

As noted, R.S. does not deny striking his daughter or the other pertinent facts. He argues that the trial court erred in finding abuse because the corporal punishment was not "excessive."

In reviewing a decision of a family court, we recognize the "'family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to ...


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