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New Jersey Division of Youth and Family Services v. D.G

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.G., DEFENDANT-APPELLANT. IN THE MATTER OF J.T. AND M.G., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-120-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2012

Before Judges A. A. Rodriguez and Sabatino.

After a fact-finding hearing, the trial court determined that defendant D.G. had committed several acts of abuse and neglect of a child, J.T. ("Jerry")*fn1 contrary to N.J.S.A. 9:6-8.21. Defendant now appeals that determination. We affirm the court's finding of abuse and neglect, at least with respect to defendant's infliction of excessive corporal punishment upon Jerry and his failure to provide the boy with adequate medical care, specifically by depriving prescribed epilepsy medication to Jerry.

These are the pertinent facts. On March 4, 2010, defendant attended a hearing in the Family Part concerning his infant biological daughter, M.G. The daughter had been removed from the care of her mother, A.D.,*fn2 by the Division of Youth and Family Services ("DYFS" or "the Division") shortly after her birth in February 2010. The Division had removed the daughter after an investigation had revealed that A.D. and defendant were suffering from mental health issues, that A.D. and defendant's home was in an unkempt condition and lacking in necessities for an infant, and that there were concerns whether A.D. and defendant could properly care for M.G.

Defendant brought Jerry, who was then four years old, to the March 2010 hearing. Defendant identified Jerry as his "son," although Jerry's biological father was another individual. At the time, Jerry's biological mother, R.M., resided in Baltimore. According to R.M., in December 2009, she had sent Jerry to live in New Jersey with her then boyfriend, defendant, as her residence was being repaired.

A DYFS worker who attended the March 4, 2010 hearing noticed that Jerry had a mark on his cheek indicative of potential physical abuse. The worker and her supervisor went to the home a few days later and were informed that Jerry was then staying temporarily with S.M., a friend of defendant and A.D. Later that same day, the worker and the supervisor went to S.M.'s home, where they interviewed S.M. and also saw Jerry. The worker observed that Jerry still had a bruise on his left cheek about "the size of a quarter," and it appeared to be larger and darker in color. The worker asked Jerry what had happened to his cheek. The boy responded that "Daddy," referring to defendant, had caused it. The DYFS supervisor also learned from S.M. that S.M. had witnessed defendant punch Jerry in the stomach several times with a closed fist and smack him across the face.

The record also shows that on or about March 11, 2010, Jerry had been taken to a hospital emergency room due to an epileptic seizure. Defendant and A.D. admitted that Jerry had not received his epilepsy medication that week. Although defendant claimed that they had been unable to refill the prescription, the medication bottle indicated that the prescription still had two free refills.

The record further indicates that on March 12, 2010, the DYFS worker brought Jerry to a physician*fn3 for a physical examination. The physician observed a "red and blue horizontal mark on [Jerry's] left upper thigh which appeared to be [a] belt mark. It was 3 x 5 inches and appeared to be a new injury." Additionally, the physician found marks on Jerry's "waistline, a linear mark on his wrist, and some scabbing to his ears[.]" The doctor also observed "a big area on [Jerry's] lower back that appeared to be [a] healing bruise[.]" Photographs were taken of these marks.

On March 16, 2010, the trial court authorized DYFS, which had already taken custody of the infant daughter, to take custody of Jerry. Jerry was placed in foster care.

Around that same time, Jerry was examined by Dr. Stephanie

V. Lanese, M.D. of the Child Abuse Research Education & Service Institute. Dr. Lanese also reviewed photographs that had recently been taken of Jerry. The photographs showed bruising on Jerry's left cheek, discoloration around his left eye, purple bruising of his left ear, and bruising on his right forearm. There were also marks on Jerry's left thigh, left hip, and lower back. In addition, Jerry's right wrist had been broken and placed in a cast.

The trial court considered these matters at a fact-finding hearing in the fall of 2010, when testimony was taken from a DYFS worker and S.M. After considering those proofs, the court concluded that defendant had abused and neglected Jerry in three respects: (1) unreasonably inflicting excessive corporal punishment, including striking Jerry in the stomach with a closed fist; (2) depriving Jerry of adequate medical care by not refilling his epilepsy medication; and (3) failing to provide adequate shelter by allowing trash and clothing to be strewn about the residence.

In his appeal, defendant maintains that the trial court's three discrete findings of abuse and neglect were all against the weight of the evidence. The Division opposes these contentions. The Law Guardian joins the Division as to the court's findings of excessive corporal punishment and as to the deprivation of adequate medical care, but does not support affirmance of the court's third finding as to the unkempt residence.

An "abused or neglected child" is defined in subsection

(c)(4) of N.J.S.A. 9:6-8.21 to include: a child 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,*fn4 as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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; or by any other acts of a similarly serious nature requiring the aid of the court[.] [Emphasis added.]

The court only needs to find that the child has been abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).

In reviewing findings of abuse and neglect by the trial court, we apply a limited scope of review. As a general principle, in recognition of "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that logically flow from the family court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We therefore accord substantial deference to the Family Part's expertise in matters that involve domestic relations and the welfare of children. Id. at 411-13. Applying that deference here, we sustain the trial court's findings of abuse and neglect as to defendant's infliction of excessive corporal punishment and as to his failure to provide the child with adequate medical care.

We recognize that Title 9 does not specifically define the term "excessive corporal punishment." Dep't of Children and Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). The Supreme Court has 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." P.W.R., supra, 205 N.J. at 36.

Even so, the record contains more than ample proofs that defendant inflicted corporal punishment upon this four-year-old child in an "excessive" manner. S.M. provided detailed testimony at the hearing describing her first-hand observations of defendant punching Jerry in the stomach and slapping him in the face. The trial judge specifically found S.M.'s testimony to be "consistent with" and "corroborative of" what was reflected in the reports of the DYFS worker. The DYFS worker also provided credible testimony about the mark she observed on Jerry's face at the March 4, 2010 hearing, and the injuries that she thereafter saw on Jerry at S.M.'s home. Additionally, the DYFS worker related Jerry's statement that "[d]addy did it."

Moreover, the medical proofs considered by the trial judge further substantiate defendant's infliction of excessive corporal punishment. See N.J.A.C. 10:129-2.2 (listing, among other things, injuries including burns, wounds, cuts, bruises, abrasions, and welts that can be indicative of abuse or neglect); see also K.A., supra, 413 N.J. Super. at 510-11 (referencing these administrative regulations as further guidance in determining whether an injury constituted abuse or neglect). We reject defendant's argument that the trial court imposed upon him a burden of disproving that he had caused Jerry's bruises and injuries. The fact that the record does not clearly establish the cause of Jerry's broken wrist is of no moment, because the other harms inflicted are more than sufficient to support the trial court's finding of abuse.

The court's finding regarding the withholding of adequate medical care likewise should be upheld. There is substantial credible evidence that defendant put Jerry "in imminent danger of becoming impaired as the result of [defendant's] failure . . . to exercise a minimum degree of care [] in supplying [Jerry] with adequate . . . medical . . . care though financially able to do so[.]" N.J.S.A. 9:6-8.21(c)(4). Defendant admitted that he failed to refill Jerry's prescription medication for epilepsy for approximately a week, despite the fact that the label on the bottle authorized two free refills. There is sufficient circumstantial proof that defendant's inaction placed Jerry at serious risk of harm, resulting in Jerry having a seizure that sent him to the emergency room.

We do not adopt the trial court's third discrete finding that the unkempt condition of the residence comprised an independent act of abuse or neglect. The record suggests that the residence was in disarray only temporarily while defendant and A.D. were at the hospital for their infant daughter's birth, and the DYFS worker acknowledged that the home's condition had improved in subsequent visits.

We consequently affirm the trial court's determination of abuse and neglect.

Affirmed.


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