RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1312-16T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.D.,
Defendant-Appellant,
and
M.A.,
Defendant.
_______________________________
IN THE MATTER OF S.A., Minor.
_______________________________
Argued June 4, 2018 – Decided June 20, 2018
Before Judges Ostrer and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland
County, Docket No. FN-06-0092-16.
Clara S. Licata, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Clara S. Licata,
on the briefs).
Jennifer Krabill, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Jennifer Krabill, on the brief).
Melissa R. Vance, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Melissa R. Vance, on the brief).
PER CURIAM
Defendant L.D. ("mother") appeals from an August 2, 2016
Family Part order, finding that she abused her son S.A.,1 by
exposing him to substantial risk of harm and imminent danger by
inflicting excessive corporal punishment by whipping him with an
extension cord, leaving bruises on his body. The fact-finding
order was perfected for appeal by an October 25, 2016 order
terminating the litigation. We affirm.
I.
We derive the salient facts from the record developed at the
fact-finding hearing. Defendant L.D. is the biological mother of
S.A., born in February 2006. The child has not seen his biological
father, M.A., since he was four years old. Defendant's history
with plaintiff Division of Child Protection and Permanency
("Division"), relative to this appeal, began on December 8, 2015,
1
We use initials to protect the identity of those involved and to
preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
2 A-1312-16T2
following a referral for physical abuse after S.A. complained of
pain after being beaten with an extension cord by his mother.
Following interrogation by the police, a detective from the
Cumberland County Prosecutor's Office interviewed the child and
mother in the presence of a Division caseworker at the Bridgeton
police station. S.A. told the police that he recently attended a
party at the home of a relative and his older female cousin pushed
him into a fence, making a hole in his jacket. He did not want
to fight back because she was a girl. When L.D. saw the hole, she
cursed at him and pushed him out of the relative's house. During
the ride home, L.D. told S.A. that he was going to get a beating
when he got home.
After arriving home, L.D. directed S.A. to find a belt and
when he could not, she grabbed a black extension cord and hit him
with it while he leaned across a baby table in the living room.
S.D. told the detective that L.D. wanted to know why he did not
fight back when his cousin pushed him. According to S.A., she
made him remove his pants. Following the beating, L.D. forced
S.A. to do push-ups and "planks" as further punishment.
L.D. told the investigators initially that she beat S.D. with
a belt five or six times with his pants on. This admission was
witnessed by the caseworker. L.D. stated that she could not "hit
3 A-1312-16T2
him anymore" because she was pregnant and suffered from back
spasms. She denied forcing him to do push-ups and planks.
L.D. corroborated S.A.'s statement that she directed him to
find a belt. The detective confronted L.D. with a photograph of
an extension cord S.A. selected out of a photo "lineup." After
several hours of questioning, L.D. recanted her story and admitted
to hitting S.A. with an extension cord after viewing the
photograph. She later claimed that she was coerced into doing so
because of duress. L.D. described S.A. as having behavioral
issues, and that he was classified as "other health impaired."
She claimed S.A. was untruthful. Essentially, L.D. believed she
was justified in her actions based on his behavior. S.A. showed
the caseworker marks on his arms, upper thigh, and a bruise behind
his knee, which caused him great pain.
Following her interview, L.D. was advised that she was going
to be arrested. She started to hyperventilate and was transported
to an emergency room for evaluation. The Division removed S.A.
from defendant's care and placed him with a foster family. 2
Following a hearing on December 10, 2015, Judge Harold U. Johnson,
Jr. upheld the Division's emergent removal of S.A., which L.D.
2
A Dodd removal is an emergent removal of a minor without a court
order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,
26 n.11 (2011).
4 A-1312-16T2
consented to. On the return date held on December 21, 2015, the
judge ordered S.A. to remain in foster care. L.D. was allowed
supervised parenting time and ordered to undergo a psychological
evaluation. S.A. lived with his foster family until the end of
January 2016, at which time he was returned to L.D. At the
compliance hearing held on February 18, 2016, L.D. was ordered to
participate in family therapy with S.A. and to commence trauma
focused therapy for him.
At the August 2, 2016 fact-finding hearing, the Division
introduced its investigation summary (with hearsay redacted), and
police photographs. L.D. testified in her defense. No other
witnesses testified.
In an oral decision, Judge Johnson determined the Division
proved "by a clear preponderance of the evidence" that mother
"unreasonably inflict[ed] a substantial risk of harm on this
child," had used excessive corporal punishment by hitting him with
a [cord], and that her "behavior was intentional." After
acknowledging S.A. was misbehaving in his new school and suffering
from Attention Deficit Hyperactivity Disorder, the judge
concluded:
[I] do find that [defendant], on the day in
question, did strike this child a number of
times with a[n] extension cord. To the extent
that [defendant's] testimony differs from what
the [c]ourt has found, all findings to this
5 A-1312-16T2
point by a clear preponderance of the
evidence, I find her testimony to not be
believable based on my observations of her
body language, facial expressions, and
demeanor . . . and I find in this particular
case, [defendant] did unreasonably inflict a
substantial risk of harm on this child by
inflicting . . . excessive corporal
punishment, in violation of N.J.S.A. 9:6-
8.2(1)(c)(4).
The judge also found the child's statements were corroborated
by the documentary evidence, which he found credible.
After reviewing the photographs, Judge Johnson gave L.D. the
"benefit of the doubt" regarding the marks on S.A.'s face. The
judge described in explicit detail what was depicted in the
photographs and found them probative to explain "a doubled-up cord
striking [S.A] at that time." Equally important, the judge
differentiated the bruises in the photographs, some showing "a
deeper black and/or blue bruise and a fresher, red linear bruise"
and another showing "a repetitive type picture". The judge
disregarded "more pictures of that older bruise," and duplicative
photographs as cumulative.
On appeal, defendant does not dispute that she hit S.A., but
that she used a belt and not an extension cord. Notwithstanding,
defendant contends that her conduct does not rise to the level of
excessive corporal punishment, and that S.A. was not exposed to
6 A-1312-16T2
imminent danger or substantial risk of harm. The Division and Law
Guardian urge us to affirm the court's order.
II.
Our task as an appellate court is to determine whether the
decision of the family court is supported by substantial credible
evidence in the record and is consistent with applicable law.
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted).
We owe particular deference to "the family courts' special
jurisdiction and expertise . . . ." Id. at 413. Unless the
judge's factual findings are "so wide of the mark that a mistake
must have been made[,]" they should not be disturbed, even if we
would not have made the same decision had we heard the case in the
first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of
N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is
not our place to second-guess or substitute our judgment for that
of the family court, provided that the record contains substantial
and credible evidence to support" the judge's decision. N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012)
(citation omitted).
7 A-1312-16T2
A.
Through the admission of "competent, material[,] and relevant
evidence," the Division must prove by a preponderance of the
evidence that the child was "abused or neglected." N.J.S.A. 9:6-
8.46(b). In pertinent part, Title 9 defines an "abused or
neglected child" as a child under eighteen years of age:
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 . . . to exercise a minimum
degree of care . . . 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).]
"Excessive corporal punishment" entails physical punishment
that results in "bruises, scars, lacerations, fractures, or any
other medical ailment suffered as a result of [a parent's]
actions." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.
17, 36 (2011); see also Dep't of Children & Families, Div. of
Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App.
Div. 2010) (citing N.J.A.C. 10:129-2.2, listing examples of abuse
or neglect including "[c]uts, bruises, abrasions, [or] welts").
Judge Johnson concluded that "when you're hitting a child with a
belt, I find that the physical, mental, and emotional condition
was in imminent danger of becoming impaired . . . and I find that
8 A-1312-16T2
in this particular case, [L.D.] did unreasonably inflict a
substantial risk of harm on this child . . . ."
Applying these standards, we affirm the trial court's finding
of excessive corporal punishment. Although the judge found that
S.A. did not require medical treatment and he was not "permanently
injured," a court "need not wait to act until a child is actually
irreparably impaired." N.J. Dep't of Children & Families, Div.
of Youth & Families Servs. v. A.L., 213 N.J. 1, 23 (2013) (quoting
In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "In the
absence of actual harm, a finding of abuse and neglect can be
based on proof of imminent danger and substantial risk of harm."
Ibid.; see N.J.S.A. 9:6-8.21(c)(4)(b). The language in N.J.S.A.
9:6-8.21(c)(4) concerning failure "to exercise a minimum degree
of care" has been interpreted by our Supreme Court as referring
to "conduct that is grossly or wantonly negligent, but not
necessarily intentional" and "reckless disregard for the safety
of others." Dep't of Children & Families, N.J. Div. of Youth &
Family Servs. v. T.B., 207 N.J. 294, 305, 306 (2011).
Although it is clear that the phrase the lack of "minimum
degree of care" implies more than simple negligence, it can apply
to situations ranging from "slight inadvertence to a malicious
purpose to inflict injury. Where an ordinary reasonable person
would understand that a situation poses dangerous risks and acts
9 A-1312-16T2
without regard for the potentially serious consequences, the law
holds him or her responsible for the injuries" caused. G.S. v.
Dep't of Human Servs., 157 N.J. 161, 179 (1999) (citing McLaughlin
v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).
Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result.
McLaughlin, 56 N.J. at 305. 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. Ibid.; see also Egan
v. Erie R.R. Co., 29 N.J. 243, 254-55 (1959). So long as the act
or omission that causes injury is done intentionally, whether the
actor actually recognizes the highly dangerous character of his
or her conduct, is irrelevant. G.S., 157 N.J. 161 at 178;
McLaughlin, 56 N.J. at 305. Knowledge will be imputed to the
actor.
We reject L.D.'s argument that Judge Johnson's decision is
inconsistent insofar as he found S.A. was not "impaired" or
"harmed", yet L.D. inflicted "excessive corporal punishment"
exposing him to "substantial harm." The record reflects that L.D.
was under considerable stress because of her advanced pregnancy,
moving in with her mother, that she pushed S.A. after the party,
10 A-1312-16T2
and threatened to beat him on the ride home, which she ultimately
carried through with. She struck his bare buttocks at least four
times with an extension cord, leaving visible marks. The judge
found L.D.'s "behavior was intentional." Based upon the totality
of the circumstances, the judge found substantial risk of harm to
S.A. L.D. did not present any evidence at the hearing to exonerate
her actions. See G.S., 157 N.J. at 177 (recognizing "Title 9's
primary concern is the protection of children, not the culpability
of parental conduct").
B.
We next address L.D.'s claim that the detective's interviews
contained in the Division's investigation summary constituted
inadmissible hearsay. The applicable statute, N.J.S.A. 9:6-
8.46(4), authorizes admission of S.A.'s statements here because
they were made to, and witnessed by, Division workers.
"[P]revious statements made by the child relating to any
allegations of abuse or neglect shall be admissible in evidence;
provided, however, that no such statement, if uncorroborated,
shall be sufficient to make a fact finding of abuse or neglect."
Ibid. L.D.'s own statements to authorities admitting to whipping
S.A. corroborate the child's account of the events. As such, we
disagree with L.D.'s contention that S.A's statement was
11 A-1312-16T2
uncorroborated. N.J. Div. of Child Protec. and Permanency v.
J.A., 436 N.J. Super. 61, 67 (App. Div. 2014).
L.D. testified to rebut the report. The judge made
credibility determinations based on her testimony. We cannot say,
as L.D. contends, that the court's findings lacked support in the
record.
C.
Turning to the last argument raised by L.D. for the first
time on appeal, we do not find that she was denied due process
during her interview with the police which led to her admission
regarding her use of an extension cord. L.D. concedes that the
caseworker conducted her own interviews following questioning by
the detective thereby curing any hearsay concerns. L.D.'s trial
counsel did not object to the investigation summary being moved
into evidence after extensive redactions were made. A court may
consider factual statements in the report that were made to
Division staff personnel, if the statements were made based upon
first-hand knowledge and made in the usual course of their duties.
N.J. Div. of Child Prot. and Permanency v. N.T., 445 N.J. Super.
478, 487 (App. Div. 2016); see also N.J.R.E. 803(c)(6); N.J.S.A.
9:6-8.46(a)(3); R. 5:12-4(d). Such is the case here. We find no
plain error.
12 A-1312-16T2
L.D.'s remaining due process arguments lack sufficient merit
to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
13 A-1312-16T2