NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
J.L.G., Defendant-Appellant. IN THE MATTER OF B.G., M.A., and M.G., Minors.
April 24, 2017
appeal from the Superior Court, Appellate Division.
Gary Mitchell, Deputy Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public Defender Parental
Representation, attorney; T. Gary Mitchell, of counsel and on
M. Gregory, Deputy Attorney General, argued the cause for
respondent New Jersey Division of Child Protection and
Permanency (Christopher S. Porrino, Attorney General of New
Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney
General, of counsel and Sara M. Gregory, on the brief).
Belfatto Crisp, Assistant Deputy Public Defender, argued the
cause for minor M.A. (Joseph E. Krakora, Public Defender Law
Guardian, attorney; Olivia Belfatto Crisp, on the brief).
issue in this appeal is whether defendant abused or neglected
seven-year-old girl, "Mary, " within the meaning of
N.J.S.A. 9:6-8.21(c)(4), by failing to provide the child with
proper supervision and unreasonably allowing the infliction
of excessive punishment by her mother, "Yvette."
The Family Part judge found that defendant violated the
statute. The Appellate Division affirmed.
March 29, 2012, the New Jersey Division of Child Protection
and Permanency received a referral from Mary's school
that Mary had returned after a two-day absence with a bruise
on her right cheek below the eye that was covered by make-up.
The caseworker transported Mary to the hospital, where
medical personnel found bruises and "red dots" on
her stomach similar and bruises on her legs, thighs and back.
Mary eventually disclosed that her mother hit her on the arms
and legs, and also hit her on her stomach with "a big
spoon" that "had points."
admitted that she had hit Mary on the arms, legs and thighs
with her hand and fist, and on the stomach with a round metal
spatula that had holes for draining, because Mary was eating
too slowly. The "red dots" on Mary's left arm
and stomach matched the spatula holes. Yvette disclosed that
defendant, her paramour with whom she lived, saw her hitting
Mary and "commented to her not to hit [Mary] that she
will get in trouble." Defendant admitted that he saw
Yvette hit Mary with her hand, but denied seeing her hit Mary
with a spatula. He explained that he walked away because he
was holding his infant son and did not want "to expose
the baby to that, " and that he told Yvette "not to
get upset or hit [Mary] like that because [Yvette] will have
Family Part judge found that Yvette had beaten Mary severely
with her fist and the metal spatula. The judge concluded that
Yvette excessively physically abused Mary. The judge further
found that defendant was aware of the abuse and failed to
intervene or report it, and that defendant understood the
gravity of what was happening because he walked away to
protect his infant and warned Yvette that she could get in
trouble. The judge concluded that defendant abused or
neglected Mary pursuant to N.J.S.A.
9:6-8.21(c)(4)(b) by failing to provide the child with
proper supervision and allowing Yvette to inflict excessive
appealed. The majority of the Appellate Division panel
determined, as a threshold matter, that defendant was a
"guardian" for Mary within the meaning of N.J.S.A.
9:6-8.21(a) and (c). The panel concluded that, as Mary's
guardian, defendant had an obligation to protect her from the
harm inflicted by Yvette. The panel determined that defendant
failed to exercise the minimum degree of care because he
could have intervened by shielding Mary from her mother's
physical abuse, but chose not to. The panel further
determined that it did not matter whether defendant actually
saw Yvette hit Mary with the spatula; that there was
sufficient evidence supporting the judge's finding that
defendant knew Yvette "was excessively physically
Appellate Division found that defendant's
explanation-that he was concerned for his own infant
child-was insufficient to absolve him, in particular since
the physical beating of Mary continued for a period of time,
giving defendant sufficient time to intervene. The panel
determined that by witnessing the abuse and doing nothing
about it, defendant abused or neglected Mary within the
meaning of N.J.S.A. 9:6-8.21(c)(4). The panel further
concluded that defendant violated N.J.S.A. 9:6-8.21(c)(4)(b)
by failing to report the abuse. The Hon. Michael A. Guadagno,
J.A.D., dissented, and J.L.G. appealed as of right.
The judgment of the Appellate Division is AFFIRMED
substantially for the reasons expressed in the Appellate
Division's per curiam opinion.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.