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New Jersey Division of Youth and Family Services v. T.T


May 3, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-77-10.

Per curiam.



Submitted March 21, 2012

Before Judges Lihotz and St. John.

In this appeal, we consider whether the trial court correctly found that defendant T.T.'s conduct with regard to her daughter, C.T., constituted abuse and neglect under Title Nine, N.J.S.A. 9:6-8.21 to -8.73.*fn1 The Division of Youth and Family Services (the Division) commenced this action, claiming C.T. was an abused or neglected child within the meaning of N.J.S.A. 9:6-8.21(c), when subjected to corporal punishment while residing at defendant's home. In early 2008, when the events in question occurred, C.T. was sixteen years old. At the conclusion of a factfinding hearing, the Family Part judge found C.T. was abused and neglected. We conclude that the court's findings are supported by substantial credible evidence in the record and affirm.

Defendant T.T. is the mother of ten children, and at the time of the events giving rise to this appeal, T.T. was living with eight of them. None of the children's fathers reside with T.T. On January 11, 2010, the Division received a referral from C.T.'s father, E.Q., who alleged that T.T. had physically abused their daughter earlier that day. Soon after the Division received the referral, it sent two investigators to the home of T.T.'s relative, where several of the children were available for questioning.

Division caseworkers first interviewed M.H., then ten years old. M.H. stated that morning she saw C.T. pull T.T.'s hair and hit her with a soda can. T.T. responded by fighting with C.T., hitting her and pulling her hair. C.T.'s sister, fourteen-year-old Tina,*fn2 also started fighting with C.T. and then Tina went to the kitchen and grabbed a knife. At that point, T.T. separated the two girls and the fight ended.

Tina was interviewed. She stated that she and her siblings were late for school and T.T. asked C.T. to help her locate the phone number of the school. When C.T. was "taking too long" to find the number, T.T. smacked C.T. on the arm. In response, C.T. hit her mother on the head with a soda can. T.T. slapped C.T. in the face, and then Tina admitted she started hitting C.T. as well, and then went to get a knife from the kitchen. Once Tina did, T.T. jumped between her two daughters.

An interview with M.T., age seven, resulted in a similar recounting of the events, but she added that C.T. initially pulled T.T.'s hair and that T.T. responded by pulling C.T.'s hair as well. The last child interviewed was five-year-old T.L., who stated that T.T. was "stomping on [C.T.'s] head" and pulling her hair after C.T. hit T.T. on the head with a can.

T.T. was interviewed and stated that after a screaming match erupted between her and C.T., she pushed C.T. against the wall "to try to quiet her down." Afterwards, she smacked C.T. on the arm and "yanked her head really hard." She stated that it was C.T. who went into the kitchen to get a knife in order to stab Tina. At that point, Tina tried to hit C.T. with a vacuum cleaner. C.T. then called the police, however, they never responded to the house. After the fighting ended, T.T. stated that in an effort to calm C.T. down, she drove C.T. to her maternal grandmother's house. On the way, C.T. said she was going to take anti-depression pills but T.T. stuck her fingers down C.T.'s throat to make sure she did not swallow any. When they arrived at the grandmother's house, she was not at home, so they waited in the car. When C.T.'s grandmother and great-grandmother arrived, the parties went into the house. A physical altercation then erupted between T.T. and the great-grandmother. During the melee, C.T.'s head was pushed against the wall. At that point, T.T. stated that she and C.T. left the house.

T.T. said she is enrolled in a mental health program at Great Trenton Behavioral Health and that she attends counseling once a week for her bi-polar disorder. T.T. also reported that she does not take her anti-depression medication everyday. When asked how she felt, T.T. stated that she felt depressed and sad because she was pregnant again and was being evicted.

After the interviews, the caseworkers noted their observations about the conditions of T.T.'s house. They noted that there was adequate food in the house and that the sleeping arrangements were also sufficient. However, the toddlers were observed to not be well groomed, their hair had not been combed, their clothes were dirty, and they had runny noses and coughs.

The caseworkers then went to the police station to meet C.T. and her father, who sought to press charges against T.T.

C.T. stated that during the previous night, her mother smacked her in the face because C.T. was not using the bathroom fast enough. When she awoke the next morning, C.T. stated the house was in "chaos" and that T.T. was yelling at her because Tina had told T.T. "lies" that C.T. had been calling her father's new girlfriend, "mom." C.T. stated that T.T. smacked her in the face, grabbed her by the hair and pulled her to the floor, and then kicked her in the head and face. C.T. stated that Tina pulled a knife on her, and then T.T. broke up the fight, at which point C.T. called the police. When T.T. started driving C.T. to her grandmother's house, C.T. tried calling her father, but T.T. started "smothering her" and tried to bang her head against the car window. C.T. stated that when she threatened to swallow the anti-depression pills, T.T. started choking her to prevent her from ingesting them. C.T. told the workers that she too suffered from bi-polar disorder and depression. Following the interview, C.T. went to her father's house, where she has since resided.

The caseworkers observed the following marks on C.T.'s body: a scratch above her left eye which appeared red; several scratches on her right eye; a swollen right eye; a scratch on her right forearm; bruises on her knuckles and a bruise on her wrist.

The Division executed an emergency removal of six of T.T.'s children at 10:30 p.m. on the evening of January 11, 2010. The Division filed its verified complaint and order to show cause on January 13, alleging abuse and neglect stemming from the incident on January 11, and from T.T.'s attempted suicide reported on December 5, 2009. The complaint named T.T. and three men who fathered several of the children removed from T.T.'s custody.

On March 26, 2010, Judge William Anklowitz held a factfinding hearing on the charges of abuse and neglect. The Division called Ms. Latia Williams, one of the caseworkers who responded to the referral and interviewed T.T. and her children. She stated that T.T. indicated that she was depressed and sad because she was pregnant and losing her home. Ms. Williams further testified that T.T. had admitted getting into a "screaming match" with C.T. and that "she pushed [C.T.] against a wall and also smacked her on the arm and banged her, kind of like pulled her head really hard, yanked her head really hard." She also noted C.T. stated that T.T. smacked her in the arm and face and that "she dragged her and she was kicking her and then [Tina] also began to hit her." Additionally, C.T. conveyed to Ms. Williams that both T.T. and Tina were fighting with C.T. simultaneously.

Ms. Williams also noted in her report what the other children stated: (1) that T.L. stated his mother "stomped" on C.T.; (2) that Tina stated C.T. hit her mother in the head with a soda can; and (3) that Tina stated her mother stepped in to break up the fight once Tina pulled a knife on C.T.

On cross-examination, Ms. Williams testified that the Division recommended removing the children because of the most recent incident and in light of a prior referral from December 2009 when T.T. attempted suicide by burning herself and the children. However, the children were not removed following that incident. She further stated that during the time she was interviewing the children, T.T. appeared to be "lackadaisical" and that her mental state did not appear to be stable, especially because she provided no reason for not regularly taking her medication.

T.T. also testified at the hearing. When asked if there was a physical altercation on the night before January 11, T.T. responded in the negative, which contradicted C.T.'s statement in the Division's report, that T.T. smacked C.T. in the face. T.T. denied yelling at C.T. for not being able to find the telephone number T.T. requested on the morning of January 11. She testified that C.T. instigated the yelling, and at that point, T.T. "backed her against the wall" before C.T. "took the can of soda and . . . hit [T.T.] in the head with [it]." Then, she stated that Tina started hitting C.T. T.T. also testified she had C.T.'s back against the wall with [her] hand and [she] put her arm like just against [C.T.'s] chest. At that point in time [C.T.'s] pushing me, and I'm pushing her back. While she starts pushing me, then she grabbed a chunk of my hair out the front of my head and starts pulling it.

She then stated that C.T. hit her, so she "hit her back hard." Afterwards, T.T. exclaimed "I'm sorry, I did not mean to hit you. I'm sorry, I'm sorry." She described C.T.'s being "balled up on the floor for a second" while screaming, "Don't touch me," as being "crazy stuff."

T.T. then stated that after she picked C.T. up from the floor, Tina started hitting and punching C.T. while T.T. held her against the wall. Tina then went to the kitchen and pulled out a knife against C.T. C.T. responded by doing the same.

T.T. stated that she then took the knives from both girls, followed by Tina trying to hit C.T. with a vacuum cleaner.

After the fight, T.T. testified that she drove C.T. forty miles to her grandmother's house. During the drive, C.T. allegedly tried to eat a whole bottle of Seroquel, which is her medication. T.T. was able to remove all of the pills from C.T.'s mouth. Once they arrived, they waited for approximately four hours for T.T.'s mother to return home before T.T. drove back to Trenton, where she was interviewed by the Division caseworkers. During cross-examination, T.T. expressed that she was under a great deal of stress at the time of the incident because of her impending eviction and the fact that her children were running late for school, which was compounded by C.T.'s yelling.

Tina also testified at the factfinding hearing. She stated she has an "anger management problem" and on the morning of January 11, when C.T. "wouldn't shut up," Tina scratched her on the forehead, punched her in the eye, and kicked her. She stated her mother "got in the fight, got in between the fight" and was trying to hold back C.T.

When asked about how T.T. reprimands her children when they misbehave, the following exchange occurred:

Q. There have been allegations that your mother periodically disciplines you by hitting you. Does she?

A. No. She sends me to my room . . . .

Q. Does she hit the other children?

A. No.

Q. How does she discipline them?

A. Basically if they do something bad, they get sen[t] up to their room. They eat, they go to the bathroom, but as a punishment they get sent to their room. No fun. No nothing. No TV because you're punished, you're in your room.

Q. You deny saying that your mother slaps you?

A. Yeah.

Tina also disavowed the detailed statement she made to the caseworkers on the day of the incident. After discussing Tina's demeanor during her testimony, the judge stated, "I can't afford any credibility to what she said."

The judge then made the following findings with regard to abuse and neglect. Based on the mutually corroborating statements from M.H., M.T., and T.L., the judge stated: "I find that the credible testimony is that [T.T.] got hit in the head with a can by [C.T.], and that a fight thereafter ensued." He further found that T.T. had not taken her medication, she was worried about losing her home, there was yelling and screaming, and that there was "a verbal altercation between [C.T.] and [T.T.] before the physical part started[,] . . . so that increase[d] stress." He also found it was reasonable to believe that after C.T. hit T.T. in the head with the can, "that started into a fight and that [T.T.] went too far and caused injuries to [C.T.]" However, he noted that "as a mother, as a parent in this situation, there's a responsibility to step up more."

The judge remained adamant that "there are any number of ways to be able to go through this statute that the facts of this case would fit within an abused or neglected child." He concluded his findings by stating:

Getting into the fight, causing injuries, bruises, scrapes. The injuries themselves were certainly not that serious. I didn't have any evidence that there was blood or a broken bone, not even a broken fingernail. I'm not even aware that a band-aid was needed. But bruises and punching and everything, the way [the Division's counsel] put it, [T.T] lost it, was the abuse in this case.

Accordingly, I find that [the Division] has established abuse and neglect by a preponderance of the evidence.

All of the children, except for C.T., have since been returned to T.T.'s care. On January 11, 2011, the Division recommended terminating the abuse and neglect litigation case against T.T. The court entered an order terminating the litigation on January 13, 2011.

This appeal ensued. T.T. contends the trial court erred in finding that she abused or neglected her teenage daughter C.T. because the finding of abuse/neglect was not legally supported by the evidence.

Specifically, T.T. argues that during the factfinding hearing, the trial judge did not have the benefit of considering Department of Children and Families v. K.A., 413 N.J. Super. 504, 512 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), in which we determined that the defendant mother did not engage in "excessive corporal punishment" as defined by Title Nine labeling her as a child abuser, when she struck her child with a closed fist but without the force necessary to "lacerate the child's skin and did not require any type of medical intervention." T.T. further asserts that her actions toward C.T. were "defensive, not deliberate, and she attempted to stop the altercation." Therefore, like the mother in K.A., T.T. requests that we reverse the Family Part's finding that she abused and neglected C.T. on January 11, 2010. We disagree.

Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). The Supreme Court has stated that:

The purpose animating Title Nine "is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them." N.J.S.A. 9:6-8.8; see G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999) ("Title 9's primary concern is the protection of children, not the culpability of parental conduct." (citation omitted)); cf. Statement to S., No. 1217, 196th Leg. (N.J. 1974) (declaring that children have "the right of protection from physical abuse and neglect" and that purpose of Title Nine is to ensure children's "rights will be adequately protected by the appropriate courts and social service agencies"). [N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011).]

With respect to the quantum of proof required in a factfinding hearing brought under N.J.S.A. 9:6-8.44, the Division must prove that the child is "abused or neglected" by a preponderance of the evidence, and only through the admission of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).

"The Division is permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." P.W.R., supra, 205 N.J. at 32. Pursuant to Rule 5:12-4(d), "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." In addition, "previous 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. 9:6-8.46(a)(4). Thus, a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect. P.W.R., supra, 205 N.J. at 33.

In this appeal of a non-jury case, we must determine "whether the findings made [by the trial court] could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). We will "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) (internal quotation marks and citation omitted). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.").

The Supreme Court explained in G.S. v. Department of Human Services, 157 N.J. 161, 176 (1999), that "[t]he legislative history of Title 9, precedent, and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the [parent or] guardian's intent." The Court emphasized that "whether the [parent or] guardian intended to harm the child is irrelevant[,]" and that when "a parent or guardian commits an intentional act that has unintended consequences, that action is considered 'other than accidental' within the meaning of Title 9." Ibid.

The real issue in this case is whether the conduct at issue rose to the level of abuse. The contention of the defense is that it did not.

Title Nine provides that an abused or neglected child is one 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 . . . 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[.] [N.J.S.A. 9:6-8.21(c)(4).]

It does not, however, define the term "excessive corporal punishment."

In P.W.R., supra, 205 N.J. at 36, the Supreme Court noted that, 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.

The Court also observed that "[a]buse and neglect cases are generally fact sensitive" and that "[e]ach case requires careful, individual scrutiny." Id. at 33.

In addressing the issue of "excessive corporal punishment" in the context of a parent slapping her teenage daughter in the face, the Court found the practice to be "hardly admirable," but nevertheless rejected the Family Part's finding of physical abuse because "[t]here was no evidence developed in th[e] record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [the parent's] actions." Id. at 35-36.

In K.A., supra, 413 N.J. Super. at 512, we found no excessive corporal punishment in a case in which the parent struck the child "five times on the shoulder with a closed fist," noting "the force used did not lacerate the child's skin and did not require any type of medical intervention," and "[b]ruises, although visible, never exposed [the child] to any further harm if left untreated."

In the present case, the Division worker who viewed C.T. at the police station observed a scratch above C.T.'s left eye, several scratches on her right eye, a swollen right eye, a scratch on her right forearm, bruises on her knuckles, and a bruise on her wrist. The record also reflects that T.T.'s actions created a risk of significant injury to C.T.'s right eye. Had there been direct contact with the eyeball itself, the result could have been devastating. As with any Title Nine case, our primary concern is to protect the child, so our primary focus is on the actual or potential harm to the child. See Dep't of Children & Families v. C.H., 416 N.J. Super. 414, 416 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011). The facts in the record demonstrated that C.T.'s "physical . . . condition . . . [was] in imminent danger of becoming impaired as the result of the failure of [T.T.] . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . excessive corporal punishment" upon C.T. N.J.S.A. 9:6-8.21(c).

Even when viewed through the "prism" of the parent's reasons for discipline, K.A., supra, 413 N.J. Super. at 512, the discipline imposed by T.T. was an excessive response. The fact that the Division was able to resolve the situation through the provision of services, without taking physical custody of T.T.'s other children, does not warrant a different result.

In sum, we conclude that the trial court's finding of abuse and neglect against T.T. is supported by sufficient credible evidence. Following a factfinding hearing, the Family Part determined that T.T.'s conduct in repeatedly striking her daughter, particularly in the face, amounted to excessive corporal punishment under the circumstances. We see no reason to disturb the result.


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