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Department of Children and Families, Division of Youth and Family v. E.P


April 10, 2012


On appeal from the Department of Children And Families, Division of Youth and Family Services, Docket No. AHU 08-382.

Per curiam.



Submitted March 19, 2012 -

Before Judges Ashrafi and Fasciale.

E.P. appeals from a March 9, 2011 final agency decision of the Director of the Division of Youth and Family Services (DYFS or the Division) finding that E.P. had abused her eight-year-old son, M.U. On appeal, we consider whether the mother's single slap of M.U.'s face leaving a red mark and minor bruising constitutes "excessive corporal punishment" pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.

At 8 p.m. on January 14, 2008, a Sunday, E.P. and F.U., M.U.'s father,*fn1 were downstairs watching television, and M.U. and his five-year-old sister had just gone upstairs. For several days, M.U. had been misbehaving. On Friday, he had been sent to the school principal's office for being disrespectful. Additionally, F.U. had promised to take M.U. to a car show that weekend, but did not because of inclement weather and a difficult overnight shift at the hospital where F.U. worked as a nurse. F.U. testified at the hearing that for "the whole weekend . . . [M.U.] wasn't listening and [was] just constantly fighting with his sister."

While watching television, the parents heard their daughter begin crying. When F.U. went upstairs, he discovered that M.U. had kicked his sister in the groin. F.U. yelled at M.U. and returned downstairs. E.P., who was nine-months pregnant with the couple's third child, then went upstairs and found M.U. lying on his bed facing the wall. E.P. turned M.U. toward her and asked him why he had kicked his sister. M.U. "shrugged his shoulders, 'as if he didn't care,'" and then said that he had kicked her because he "felt like it," at which point E.P. slapped M.U.'s left cheek.

In the morning, E.P. applied a cold washcloth to M.U.'s face, and F.U. took M.U. to school. Although bruising was not yet apparent, school officials observed a red mark on M.U.'s face and reported the incident to DYFS. Sasha Scuderi, a DYFS caseworker, interviewed M.U. and photographed his face. The Division later substantiated a finding of child abuse against E.P., who then appealed that finding to the Office of Administrative Law.

On January 10, 2011, an administrative law judge (ALJ) conducted a hearing, viewed the photographs, and heard testimony from both parents, Scuderi, and Elizabeth Phlaum, a parenting coach who counseled E.P. and F.U.*fn2 On January 28, 2011, the ALJ issued an eight-page initial decision, recommending that the finding of child abuse be reversed and marked as unsubstantiated, and that E.P.'s name not appear on the child abuse registry.*fn3

The ALJ found that "the slap in this case was not intended as a form of corporal punishment like the strike with [a] paddle." He concluded that the Division had "simply failed to prove" that E.P. "acted with the knowledge that injury was likely to, or probably would, result," that E.P. "acted with reckless disregard for [M.U.'s] safety," or that "the slap [a]rises to . . . wanton-and-willful negligence." The ALJ then filed his initial decision with the Division for consideration.*fn4

On March 9, 2011, the Division issued a seven-page final agency decision, rejecting the ALJ's recommendation and affirming the substantiation of abuse. The Division found that the ALJ's conclusions were "inconsistent with the evidence in the record." The Division found that E.P., in her testimony, had "admitted [to] slapping" M.U, and that "[t]he evidence [showed] that M.U. sustained a physical injury to his face, beneath his eye[,] which is documented in photographs that were presented as evidence during the hearing and admitted by all parties." The Division described the injury:

The photographs show vividly the impact that E.P.'s slapping left on M.U.'s face in the form of redness, marks and bruising and the dangerous proximity of the blows to the child's eye. Moreover, these photos were taken more than twelve hours after the incident occurred, and after E.P. had M.U. apply a cold washcloth to his face to alleviate the redness and bruising. The pictures and documentary evidence in the record clearly suffice to establish the impairment of M.U.'s physical consition.

The Division found that "the bruise on the left side of M.U.'s face, with red and white colored marking that resembled three fingerprints and an area that appeared black and blue observed by school [personnel], and [Scuderi], is an injury which resulted from E.P.'s administration of corporal punishment." The Division then concluded:

E.P. failed to exercise a minimum degree of care . . . when she slapped her son in the face with sufficient force to leave the imprint of her fingers and a bruise. This was a willful and wanton act from which the child fortuitously evaded serious injury, but which nevertheless inflicted harm and exposed the child to a substantial risk of even greater harm.

This appeal followed.

On appeal, E.P. argues that there is "no evidence of corporal punishment to support the [Division's] conclusion of child abuse." She contends that the Division's rejection of the ALJ's decision was "unreasonable, arbitrary, and capricious and not based upon competent evidence submitted." She also argues that the Division's rejection of the ALJ's conclusions and findings "is not supported by the credible evidence in the record." We disagree.

Pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The agency is the "primary factfinder," and has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining relationship between ALJ's initial decision and the agency's final decision).

"Once the agency has issued its final decision, '[our] initial review of that decision is a limited one.'" In re Taylor, 158 N.J. at 656 (quoting Clowes, supra, 109 N.J. at 587). We "defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587), and uphold the decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we owe no deference if "'an agency's statutory interpretation is contrary to the statutory language, or . . . undermines the Legislature's intent.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008)).

DYFS is the State agency responsible for the "care, custody, guardianship, maintenance and protection of children." N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must show by "a preponderance of the evidence" that the child has been abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).

Here, DYFS substantiated*fn5 a finding of child abuse against E.P. pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), which, in relevant part, defines an "[a]bused or neglected child" as a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . harm . . ., including the infliction of excessive corporal punishment . . . .

Our Supreme Court has articulated the appropriate standard for determining whether an alleged abusive or neglectful action rises to the level of a "failure . . . to exercise a minimum degree of care" required by N.J.S.A. 9:6-8.21(c)(4)(b). In G.S. v. Department of Human Services, 157 N.J. 161, 178 (1999), the Court held that "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." The Court explained:

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful.

So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor.

[T]he difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use. The label turns on an evaluation of the seriousness of the actor's misconduct.

Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from slight inadvertence to malicious purpose to inflict injury. [Id. at 178 (citations and internal quotation marks omitted).]

Recently, the Court further explicated its holding in G.S. In Department of Children and Families, Division of Youth and Family Services v. T.B., supra, 207 N.J. at 306, the Court stated that "[o]bviously there was some imprecision in our expression of the standard in G.S. (e.g., 'wanton and willful negligence')[;] however, the leitmotif that shines through the opinion is that, 'failure . . . to exercise a minimum degree of care' at least requires grossly negligent or reckless conduct." Ibid. The Court recognized that "the question of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." Id. at 309. The Court explained that "[t]here exists a continuum between actions that are grossly negligent and those that are merely negligent." Ibid. As such, a "parent's conduct must be evaluated in context based on the risks posed by the situation." Ibid. (citing G.S., supra, 157 N.J. at 181-82). "The cases are fact-sensitive." Ibid.

The statutory definition of an "[a]bused or neglected child," N.J.S.A. 9:6-8.21(c)(4)(b), also provides that "the failure . . . to exercise a minimum degree of care . . . includ[es] the infliction of excessive corporal punishment," the meaning of which we recently considered as an issue of first impression. Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355, (2011). In K.A., in an isolated episode that lasted only seconds, K.A. struck her eight-year-old daughter four or five times on the shoulder with a closed fist leaving bruising, which, although visible, did not require medical attention. Id. at 512. Because the incident did not constitute per se excessive corporal punishment,*fn6 we examined "the circumstances facing K.A. to determine whether striking A.A. five times on the shoulder with a closed fist amounted to excessive corporal punishment." Ibid. (emphasis in original). We considered: "(1) the reasons underlying K.A.'s actions; (2) the isolation of the incident; and (3) the trying circumstances which K.A. was undergoing due to A.A.'s psychological disorder." Those factors formed "the prism through which we determine[d] whether K.A.'s actions were indeed 'excessive.'" Ibid.

We held that "[t]he term 'excessive' means going beyond what is proper or reasonable." Id. at 511 (citing Webster's II New College Dictionary 390 (Margery S. Berube ed. 1995)). We stated:

[A] single incident of violence against a child may be sufficient to constitute excessive corporal punishment. A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary, may be sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted. [Ibid.]

In our analysis, we observed that "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," and that "K.A. was alone, without support from either her spouse/co-parent or from other members of her extended family." Id. at 512. Further, we noted that the incident "appear[ed] to be aberrational to this family." As such, we reversed the Division's finding of abuse. Id. at 513.

Here, the Division considered the applicable standards of N.J.S.A. 9:6-8.21(c)(4)(b) and G.S. in its final agency decision. The Division then distinguished K.A.:

Unlike K.A., E.P. struck M.U. in the face. The location of the blow that E.P. landed upon her eight-year-old son was particularly vulnerable; striking M.U. in the face intensified the potential for harm, as this is a risky area due to the presence of many sensitive organs located nearby. The risks associated with such blows are numerous and serious and could include bone damage, tooth damage, eye injuries, jaw injuries or worse. The location of this strike does not show the type of measured corporal punishment that is designed to minimize substantial harm or the risk thereof.

The Division further stated:

Slapping [M.U.] in the face with sufficient force to leave the imprint of three fingers and cause bruising is not "proper and reasonable" as identified by the court in K.A.[;] exposed [M.U.] to harm and the significant risk of greater harm as identified by statute[;] and was an action willfully and wantonly taken by E.P. as identified by the Court in G.S. Moreover, K.A. resorted to corporal punishment only after attempting a more passive form of discipline of putting her child in time-out. . . . Immediately resorting to striking a child in the face is not "proper or reasonable" in these circumstances where a less risky means of punishment was never attempted.

We begin our analysis by recognizing the obvious similarities between K.A. and the present case. As in K.A., the incident here was clearly an aberration to this family, and there is no credible evidence to suggest any pattern or other incidents of either parent's use of corporal punishment as a regular form of discipline. However, we agree with the Division's analysis of the important differences between K.A. and this case. Whereas the child in K.A. was struck on the shoulder, M.U. was struck in the face, in close proximity to his left eye and other vulnerable facial parts, placing him at greater risk of harm than the child in K.A. and than necessary under the circumstances. Further, nothing indicates that the difficulty caused by M.U.'s behavior is comparable to the psychological disorder requiring medication that troubled the mother and child in K.A. We also note that unlike K.A. who was alone and without family support or assistance in raising her daughter, E.P.'s husband, the father, was readily available downstairs and had only moments before chastised M.U. for kicking his sister.

We also distinguish New Jersey Division of Youth and Family Services. v. P.W.R., 205 N.J. 17, 36 (2011), where the Court determined that "[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)." There, the Court implicitly recognized that a single slap to the face of a teenager resulting in bruising and marks could constitute "excessive corporal punishment." Here, there is no dispute that redness and bruising appeared on M.U.'s face; the injury was documented in photographs, witnessed by school officials and a DYFS caseworker, and described in the parents' testimony. Moreover, injury resulting from a slap that would constitute "excessive corporal punishment" to a sixteen-year-old child would certainly constitute "excessive corporal punishment" to a child half that age, whose less-developed features are undoubtedly more vulnerable to the risks of such a blow.

We reject E.P.'s argument that there is "no proof of present or future harm to M.U." Again, it is undisputed that E.P. administered the slap, and that she did not attempt a less severe means of discipline prior thereto. Taken together with the photographs in the record, which depict the red and white imprint of E.P.'s fingers and the bruising on M.U.'s face, we conclude that the Division presented sufficient proof, by a preponderance of the evidence, to establish that the slap constituted "excessive" corporal punishment. Slapping the face of an eight-year-old child with sufficient force to leave a hand imprint and cause bruising goes "beyond what is proper and reasonable." K.A., supra, 413 N.J. Super. at 511. The physical harm here is readily apparent, and sufficient to sustain the Division's substantiation of abuse.

Further, we cannot accept E.P.'s argument that the slap was "not intended as corporal punishment," and that there was no proof that E.P. "acted knowingly that injury would result."*fn7

"[W]hether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor." G.S., supra, 157 N.J. at 178 (citation omitted). The proper focus of the factfinder, as the Division recognized in its final decision, is on "the circumstances leading up to the injury and on the harm to the child, and not on the [parent's] intent." Id. at 176; see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343-45 (2010) (stating that "[e]ven though defendant may not have intended to harm his children, his actions were deliberate," where he "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct"). Thus, regardless of E.P.'s intent and knowledge, we conclude that E.P. failed to exercise a minimum degree of care when she deliberately slapped M.U. in the face with sufficient force to leave the imprint of her fingers and a bruise.


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