New Jersey Division of Child Protection & Permanency v. J.L.G.

The opinion of the court was delivered by SIMONELLI, J.A.D. In this Title 9 matter, defendant J.L.G. appeals from the finding of the Family Part judge that he abused or neglected a seven-year-old child, M.A. (Mary),1 within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by failing to provide the child with proper supervision by unreasonably allowing the infliction of excessive corporal punishment by her mother, Y.A. (Yvette).2 For the following reasons, we affirm. At the fact-finding hearing, plaintiff New Jersey Division of Child Protection and Permanency (Division) relied on the testimony of a Division caseworker, a screening summary, and photographs of injuries Mary sustained as the result of a beating on March 26, 2012.3 This evidence showed that on March 29, 2012, the Division received a referral from Mary’s school that the child — 117 — returned after a two-day absence with a mark and bruise on her right cheek below the eye that was covered by cosmetic make-up. The school also reported that Mary came to school two weeks prior with a bump on her forehead. On March 30, 2012, the Division caseworker examined Mary and saw a linear scratch and a “greenish/yellowish” bruise on the right side of the child’s face. Mary initially said that she hit her face on the bed while running through the house on March 26, 2012, and her mother put cocoa butter on the bruise and kept her home from school so the bruise “could get better.” Although defendant, Yvette and Mary’s older brother corroborated Mary’s initial version of how she sustained the bruise, Mary later said she sustained the bruise when her mother struck her. In addition to the facial bruise, the caseworker saw bruises with “small red dots” on Mary’s left arm that did not appear to have been inflicted by a hand, and bruises on Mary’s right arm, which the caseworker described as a “bad” bruise that was “purple in some areas” and “[t]he purple area felt swollen and the skin felt hard.” Based on what she saw, the caseworker transported Mary to the hospital, where medical personnel found additional bruises and “red dots” on the child’s stomach, which were similar to the dots on her left arm, and bruises on Mary’s legs, thighs and back. Mary said that her right arm still “hurt a little,” so X-rays were taken to rule out any fractures. A doctor recommended ice and ointment for the swelling on the right arm and Motrin for pain. 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.” Mary also disclosed that her mother hit her in the past for eating too slowly. Yvette admitted that on March 26, 2012, she was upset and frustrated that Mary was eating too slowly and hit the child 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. The “red dots” seen on Mary’s left arm and stomach matched the spatula holes. Yvette disclosed that defendant, her paramour with whom — 118 — she and the child were living, saw her hitting Mary and “commented to her not to hit [Mary] that she will get in trouble.” Defendant admitted that he was present during the beating and saw Yvette hit Mary with her hand; however, he denied seeing Yvette hit the child with a spatula. He explained that he walked away from the beating because he was holding his infant son and did not want “to expose the baby to that,” and he told Yvette “not to get upset or hit [Mary] like that because [Yvette] will have problems.” Defendant said it was “not an everyday thing that [Mary got] hit like that.” Nonetheless, he did not report the abuse. The photographs confirmed that, even three days after the beating, Mary had visible bruises on her cheek, stomach, arms, thighs and back. Several of the bruises still showed the imprint of the perforated metal spatula. Based on the evidence presented, the trial judge found that Yvette had beaten Mary severely with her fist and the metal spatula “very, very hard and certainly more than once.” The judge noted that Mary’s bruises were evident several days later. The judge concluded that Yvette excessively physically abused Mary; defendant was aware of the abuse and failed to intervene or report it; and defendant understood the gravity of what was happening because he walked away to protect his infant and told 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) in failing to provide the child with proper supervision by allowing the infliction of excessive corporal punishment by Yvette. On appeal, defendant first contends the record lacks sufficient credible evidence that he witnessed Yvette inflict excessive corporal punishment on Mary or that he was aware Yvette hit the child with a spatula. Defendant next contends for the first time on appeal that the judge impermissibly admitted the caseworker’s speculative testimony about what actions he could have taken to prevent the abuse. We have considered defendant’s second contention in light of the record and applicable legal principles and conclude it is — 119 — without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Because defendant elicited the complained-of testimony on the caseworker’s cross-examination, it was invited error that he cannot challenge on appeal. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41, 990 A.2d 1097 (2010). Accordingly, we focus on defendant’s first contention. To prevail in a Title 9 proceeding, the Division must prove by a preponderance of the competent and material evidence that the defendant abused or neglected the affected child. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 206 N.J. 17, 32, 11 A.3d 844 (2011). The Division need only show that it was more likely than not that the defendant abused or neglected the child. See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615, 992 A.2d 20 (App. Div. 2010). Our Supreme Court has established the standard of review in abuse and neglect cases as follows: [A]ppellate courts 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. Indeed, we recognize that [bjecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding. [M.C. III, supra, 201 N.J. at 342-43, 990 A.2d 1097 (second alteration in original) (citation and internal quotation marks omitted).] Therefore, “if there is substantial credible evidence in the record to support the trial court’s findings, we will not disturb those findings.” N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226, 989 A.2d 829 (2010). The court may make rational inferences “grounded in a preponderance of probabilities according to common experience” derived from the credible evidence presented. N.S., supra, 412 N.J.Super. at 615, 992 A.2d 20. However, “if the trial court’s conclusions are ‘clearly mistaken or wide of the mark[,]’ [we] must intervene to ensure the fairness of the proceeding.” L.L., supra, 201 N.J. at 227, 989 A.2d 829 (first alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P. 196 N.J. 88, 104, 952 A.2d 436 (2008)). We owe no — 120 — deference to the trial court’s legal conclusions, which we review de novo. See, e.g., N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433, 798 A.2d 673 (App. Div. 2002). An “abused or neglected child” is defined, in part, as a child under the age of eighteen 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)(b).] Defendant does not dispute, nor can he, that he was a “guardian” for Mary within the meaning of N.J.S.A. 9:6-8.21(a) and (c). See also N.J.S.A. 9:6-2 (defining “[t]he person having the care, custody and control of any child” as “any person who has assumed the care of a child, or any person with whom a child is living at the time the offense is committed.”). Defendant was much more than Yvette’s “boyfriend” or “paramour,” as our dissenting colleague describes him. Defendant lived in the home with Yvette and the children, he supported them, Yvette called him her “husband,” and Mary and her brother called him their “dad.” Defendant, thus, assumed responsibility for Mary’s care. N.J.S.A. 9:6-8.21 (a). Under the minimum degree of care standard, “something more than ordinary negligence is required to hold the actor liable[,]” such as “conduct that is grossly or wantonly negligent, but not necessarily intentional.” G.S. v. Dep’t of Human Servs., 157 N.J. 161, 178, 723 A.2d 612 (1999). Such conduct “implies that a person has acted with reckless disregard for the safety of others.” Id. at 179, 723 A.2d 612. A parent or guardian “fail[s] to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child.” P.W.R., supra, 205 N.J. at 32, 11 A.3d 844 (quoting G.S., supra, 157 N.J. at 181, 723 A.2d 612). Moreover, a parent or — 121 — guardian “has the obligation to protect a child from harms that can be inflicted by another parent.” N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449, 48 A.3d 1075 (2012) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89, 914 A.2d 1265 (2007)). The Legislature made no distinction between the duties of a “parent or guardian.” N.J.S.A. 9:6-8.21(a), (e). We recognize that parents have a constitutional right to raise their children, but they have no constitutional right to inflict excessive corporal punishment. See F.M., supra, 211 N.J. at 447, 48 A.3d 1075. Thus, it is neither unconstitutional nor unreasonable for the statute to prohibit a guardian from “unreasonably ... allowing to be inflicted ... excessive corporal punishment” by a parent. N.J.S.A. 9:6-8.21(c)(4)(b). Here, it was undisputed that Yvette abused or neglected Mary by inflicting excessive corporal punishment and that Mary was properly removed from her custody as a result. As Yvette had no right to beat Mary so severely, Yvette’s constitutional rights do not absolve defendant of his responsibilities as Mary’s guardian to protect her from excessive corporal punishment. When determining whether a child is abused or neglected, the focus is on the harm to the child and whether that harm should have been prevented had the guardian performed some act to remedy the situation or remove the danger. G.S., supra, 157 N.J. at 182, 723 A.2d 612. A guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise a child or recklessly creates a risk of serious injury to that child. Id. at 181, 723 A.2d 612. We find it irrelevant that defendant denied seeing Yvette hit Mary with a spatula, as the evidence was sufficient to support a reasonable inference that he became aware of the growing severity of the beating. Defendant was present when Yvette beat Mary with her hand and did not intercede to stop Yvette. What beating defendant saw was sufficiently severe for him to walk away into — 122 — the next room to keep his own child from seeing the beating continue and cause him to warn Yvette to stop hitting Mary “like that” because she would get in trouble. Even assuming Yvette had not yet begun beating Mary with her fist and the metal spatula, it is reasonable to infer that defendant in the next room could still hear those “very, very hard” blows and Mary’s reactions. This evidence supported the judge’s finding that defendant knew Yvette “was excessively physically abusing” Mary despite his warning to stop. The evidence also showed that defendant had an opportunity to stop the vicious beating once his warning was ineffective. Because there were at least five or six blows with the fist and metal spatula hard enough to leave bruises and the imprints of the spatula on Mary’s body three days later, it is a reasonable inference that the beating continued for a sufficient time for defendant to set down his baby and intervene. Rather than unreasonably allowing Yvette to inflict this excessive corporal punishment, it was also reasonable to infer that defendant could have shielded Mary, separated her from her mother, grabbed the spatula, or restrained Yvette’s hands. Defendant presented no evidence that he was physically incapable of doing anything to protect Mary from Yvette. In any event, given that Mary’s beating was so severe to cause Yvette to keep her out of school for two days, defendant had ample reason and opportunity to call a doctor, the Division, or the police. We are satisfied that the record amply supports a finding that defendant abused or neglected Mary within the meaning of N.J.S.A. 9:6—8.21(c)(4)(b) when he saw Yvette beating Mary, understood the severity of what he witnessed, and did nothing to protect the child or report the abuse. This is not a case where a stepparent occasionally slapped a teenager in the face as a form of discipline with no resulting bruising or marks. See P.W.R., supra, 205 N.J. at 35-36, 11 A.3d 844. It is a case where a mother severely beat her seven-year-old child with her hand, fist, and a metal spatula, inflicting significant physical injuries that were evident and painful to the child several days later and required — 123 — medical intervention. See M.C. III, supra, 201 N.J. at 333-36, 990 A.2d 1097. The abuse occurred in the presence of a guardian whose lack of intervention contributed to those injuries. Defendant was obligated to protect Mary from the excessive corporal punishment inflicted by her mother, F.M., supra, 211 N.J. at 449, 48 A.3d 1075, and report the abuse, N.J.S.A. 9:6-8.10. He did neither. Affirmed. Footnotes [1] The names used in this opinion are fictitious. [2] The judge also determined that Yvette abused or neglected Mary within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by unreasonably inflicting excessive corporal punishment. Yvette has not appealed that determination and defendant does not challenge it in this appeal. [3] Defendant and Yvette did not testify at the fact-finding hearing or present any documentary evidence.