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NOT FOR PUBLICATION WITHOUT THE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-5543-18T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
R.A.1,
Defendant-Appellant,
and
O.R. and J.T.,
Defendants.
________________________
IN THE MATTER OF H.A.,
Z.R., and A.A.-T.,
Minors.
________________________
1
We use initials and pseudonyms to refer to the parties and children to protect
their privacy and preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
Argued telephonically 2 May 28, 2020 –
Decided July 14, 2020
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0144-17.
David A. Gies, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Robyn A. Veasey, Deputy Public Defender,
of counsel; David A. Gies, on the briefs).
Sara M. Gregory, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Sara M. Gregory, on the
brief).
James J. Gross, Designated Counsel, argued the cause
for minor H.A. (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Meredith Alexis Pollock,
Deputy Public Defender, of counsel; James J. Gross, on
the brief).
Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minors M.R., Z.R., and
A.A.-T. (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Noel Christian Devlin, on
the brief).
2
As ordered by the Supreme Court, all oral arguments heard by the Appellate
Division during the Covid-19 public health emergency were conducted
telephonically. https://www.njcourts.gov/notices/2020/n200315a.pdf
A-5543-18T1
2
PER CURIAM
The Chancery Division, Family Part found defendant R.A. abused and
neglected her then twelve-year-old biological son H.A. (Harry), when she struck
him multiple times on the head, face and body with "a miniature bat"
approximately twelve inches in length, causing multiple bruises in different
areas of the child's body and a laceration on his head that required medical
intervention in the form of two surgical staples to his scalp. In this appeal,
defendant argues her actions were merely a form of parental discipline through
corporal punishment, which were not unreasonable, excessive, or legally
abusive.
After considering the evidence presented by the Division of Child
Protection and Permanency (Division) at a fact-finding hearing conducted
pursuant to N.J.S.A. 9:6-8.44, and mindful of our standard of review, we reject
defendant's arguments and affirm substantially for the reasons expressed by
Judge Bernadette N. DeCastro in her memorandum of opinion dated January 6,
2017.
I
In addition to Harry, defendant has three biological daughters. All but
two of the children have different biological fathers. S.C. is Harry's biological
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3
father; J.T. is thirteen-year-old A.A.-T.'s (Amy's) biological father; and O.R. is
the biological father of eleven-year-old M.R. (Michelle) and eight-year-old Z.R.
(Zoey). These men were not named as parties in the complaint filed by the
Division and are not part of this appeal.
On September 9, 2016, the Division received a referral from the Jersey
City Medical Center (JCMC) after Harry was treated in the emergency room for
multiple bruises and a laceration on his scalp. The Division dispatched two
caseworkers to investigate. The Screening Summary documented that Harry
lived with defendant and his three younger sisters. The incident that caused
Harry's injuries occurred the previous day, on September 8, 2016. Defendant
overheard her three daughters talking about an alleged incident involving
inappropriate sexual acts by Harry with Amy and Zoey. Defendant became
enraged when she learned of these allegations and "hit [Harry] with a bat on the
leg, back, wrist, arm and head."
The JCMC medical staff treated Harry for blunt force trauma and
contusions to his face, arms, and legs. Diagnostic procedures, such as x-rays of
his forearm and wrist and a CT Scan of his cranium, did not reveal any internal
injuries. Harry received two surgical sutures to close the laceration on top of
A-5543-18T1
4
his head. The hospital discharged Harry, gave him Motrin for pain, and
suggested he follow-up with his pediatrician.
Division caseworkers Melissa Stark and Jennifer Wisely interviewed
Harry's sisters, O.R., and defendant. Stark and Wisely were also present when
the children, O.R., and defendant were interrogated by detectives from the
Hudson County Prosecutor's Office (HCPO). At Wisely's request, Michelle
described the living arrangement at her home and defendant's strict disciplinary
rules. Michelle said defendant did not allow "jumping, screaming or yelling
. . . [and] no fighting, arguments or hitting each other." If she broke any of these
rules, defendant hits her "with a belt."
Wisely did not prepare a verbatim account of her interview with Michelle.
However, the following statement is taken directly from the report Wisely filed
with the Division. Michelle told Wisely that she saw her mother "hit her brother
with a bat" because she told her mother that Harry "made her sister[s,] [Amy]
and [Zoey] suck his penis while [defendant] was at work. [Michelle] said that
[Zoey] did it more than one time and [Amy] did it one time. [Michelle] stated
that she has never sucked [Harry's] penis." Division records indicate that
Michelle witnessed defendant strike Harry on the head with the wooden bat on
his wrist, knee, arm, and face.
A-5543-18T1
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Michelle saw Harry's blood on the floor of the kitchen, bathroom, and
inside the bathroom sink. She also saw Harry go to the bathroom to attend to
his injuries. She claimed that at Harry's request, she told defendant that his head
was still bleeding. According to Michelle, defendant merely responded: "okay."
Before her daughters left the house to attend school the next day, defendant
instructed them not to tell anyone about the incident. Michelle told Wisely that
Harry did not go to school the next day "because his head was split open and
because his face and wrists were swollen from being hit with the bat. "
After completing this preliminary investigation, the Division executed an
emergent removal of the children from defendant's custody and care without
judicial authorization pursuant to N.J.S.A. 9:6-8.29. On that same day, the
Division filed an Order to Show Cause (OTSC) and verified complaint against
defendant predicated on allegations of physical abuse and neglect by inflicting
excessive corporal punishment. The Family Part granted the Division's OTSC
and scheduled the return date on September 13, 2016.
The Division's specific allegations against defendant were briefly
summarized by the Deputy Attorney General (DAG), who appeared before
Judge DeCastro on the return date of the OTSC. The DAG informed Judge
DeCastro that the HCPO had arrested defendant based on the children's account
A-5543-18T1
6
of defendant's use of excessive, physically abusive corporal punishment as a
form of parental discipline. The charge of abuse and neglect was also predicated
on defendant's failure to seek prompt medical attention for the injuries she
inflicted on her twelve-year-old son when she struck him repeatedly with a small
wooden bat. These injuries included a laceration to the boy's head that caused
him to bleed profusely.
Division caseworker Melissa Stark testified at the OTSC hearing and
described her personal observations of the injuries defendant inflicted upon
Harry: "He had received a scalp laceration and he received two staples to his
head. And there were contusions to his face, his arm, and I believe his leg. But
there were no fractures and the CT Scan was negative." Stark also corroborated
the girls' account of the events that caused their mother to strike Harry with the
wooden bat. Stark also interviewed defendant and was present when Special
Victims Unit detectives from the HCPO interrogated defendant.
Stark also testified that after his mother struck him with a bat, Harry
stayed home the next day to conceal his injuries from his peers and his teachers.
At some point that day, defendant called O.R. and asked him to pick up Harry
and the girls. When O.R. saw Harry's injuries, he immediately drove him to the
JCMC. Division intake-worker Jennifer Wisely also testified at the OTSC
A-5543-18T1
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hearing. She corroborated Stark's account of the events and also confirmed that
Michelle told her that defendant hits her and her siblings with a belt when they
misbehave.
Based on the record developed at the OTSC hearing, Judge DeCastro
found the Division properly took immediate action to remove defendant's four
children from her care and custody pursuant to N.J.S.A. 9:6-8.29. Judge
DeCastro made the following findings in support of her ruling:
Based on the representations of the complaint and the
appendix . . . I do find the Dodd [3] was appropriate since
at the time of the removal the mother had -- took a
baseball bat and beat her son with the baseball bat
causing serious injuries including a concussion and
lacerations. She also hit him with a belt. At the time
the mother was then arrested.
....
As far as contrary to the welfare, I find it's contrary to
the welfare of the children to be returned to the mother,
since she physically abused her son as well as all the
children. There are also concerns that there was sexual
abuse going on between the children while in the
mother's care.
3
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.29. The Act was authored by former Senate President Frank J.
'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super.
593, 609 n.2 (App. Div. 2010).
A-5543-18T1
8
On January 4, 2017, Judge DeCastro conducted a fact-finding hearing to
determine whether the Division could prove, by a preponderance of the
evidence, that defendant abused and/or neglected Harry on September 8, 2016,
by using excessive corporal punishment. The Division again relied on the
testimony of caseworkers Stark and Wisely. Defendant did not call any fact
witnesses4 nor testify in her own defense. Stark and Wisely reiterated the
testimony they provided at the OTSC hearing and elaborated on the facts that
formed the basis for this complaint against defendant.
After considering the arguments of counsel, Judge DeCastro reserved
decision and thereafter entered an order dated January 6, 2017, supported by a
memorandum of opinion, in which she found the Division proved by a
preponderance of the evidence that defendant abused and neglected Harry in the
form of excessive corporal punishment, in violation of N.J.S.A. 9:6-8.21c(4)(b).
After reviewing the cases from the Supreme Court and this court that have
addressed this issue, Judge DeCastro held:
Here, the Division has presented competent, material
and relevant evidence that shows that [defendant's] act
of striking her son in the head with a wooden baseball
bat placed the child at a substantial risk of harm and
4
Without objection from the Division or the Law Guardian, Judge DeCastro
granted defense counsel's request to allow defendant's maternal cousin to briefly
address the court as a character witness. N.J.R.E. 608(a).
A-5543-18T1
9
caused serious injury requiring medical treatment, for
which she neglected to seek treatment for him.
Moreover, this was not an aberrational response as
alleged by defendant. The statements of all four
children corroborated that she often would beat them
with a belt. Her extreme reaction to her daughters'
surprising claim of sexual abuse at the instigation of
their brother cannot be condoned by this [c]ourt.
Furthermore, she showed absolutely no remorse.
Knowing that her son was bleeding, she failed to get
him medical treatment. Moreover, when one of the
girls' father finally took him to the hospital she did not
even care enough to accompany him and only arrived
at the hospital at the request of the Division.
Judge DeCastro concluded that defendant "failed to exercise a minimum
degree of care" and "willfully" struck her twelve-year-old son with the
functional equivalent of a club. She found defendant's actions were legally
unjustifiable and caused her minor son to suffer a significant physical injury.
The judge also found that defendant failed to seek prompt medical attention
despite being aware of her son's injuries. Judge DeCastro held these material
acts and omissions by defendant constituted excessive corporal punishment and
parental neglect.
II
Defendant argues the Family Part erred when it found she inflicted
excessive corporal punishment against Harry within the meaning of N.J.S.A.
9:6-8.21c(4)(b). She claims her reaction to use a twelve-inch long wooden bat
A-5543-18T1
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to discipline Harry after learning he sexually abused his two younger sisters was
not an unreasonable or disproportionate form of corporal punishment.
Defendant argues that this court's reasoning in N.J. Div. of Youth & Family
Servs. v. K.A., 413 N.J. Super. 504 (App. Div. 2010) supports her position and
should be applied in this appeal. Alternatively, defendant argues the Division
did not prove, by a preponderance of the evidence, that Harry's injuries were
serious or protracted under N.J.S.A. 9:6-8.21c(1).
The Division and the Law Guardian urge us to uphold Judge DeCastro 's
findings because they are supported by substantial credible evidence in the
record. The Division in particular argues the facts here are completely
distinguishable from the facts that supported this court's holding in K.A. The
Law Guardian concurs with the Division's position and emphasizes that in sharp
contrast to the salient facts in K.A., the facts here revealed defendant's use of
excessive physical violence as a form of discipline is a core principle of her
parenting philosophy.
The criteria for sustaining or dismissing a complaint of abuse or neglect
are delineated in N.J.S.A. 9:6-8.50. "The fact-finding hearing is a critical
element of the abuse and neglect process. The judge, as the fact-finder, is there
'to determine whether the child is an abused or neglected child[.]'" N.J. Div. of
A-5543-18T1
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Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002); see
also N.J.S.A. 9:6-8.44. Our scope of review from a fact-finding hearing
conducted by the Family Part is narrow and deferential. "[F]indings by the trial
judge are considered binding on appeal when supported by adequate, substantial
and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v.
Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
We give particular deference to a Family Part judge's fact-findings
"[b]ecause of the Family Part's special jurisdiction and expertise in family
matters[.]" N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453,
463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus,
unless the Family Part's factual findings are "so wide of the mark that a mistake
must have been made[,]" they should not be disturbed. N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007).
Parental rights include the right to take reasonable measures in
disciplining a child, including corporal punishment. K.A., 413 N.J. Super. at
510 (citing State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002)).
However, certain types of discipline, such as excessive corporal punishment,
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can constitute abuse and neglect. N.J.S.A. 9:6-8.21c(4)(b) defines an abused
and neglected child as
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, 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; or by any other acts of
a similarly serious nature requiring the aid of the
court[.]
[(Emphasis added).]
"A determination of abuse must be shown by a preponderance of the evidence
in a fact-finding hearing." K.A., 413 N.J. Super. at 510.
"'Excessive corporal punishment' is not defined by statute, but is
determined on a case-by-case basis." New Jersey Div. of Youth & Family Servs.
v. S.H., 439 N.J. Super. 137, 145 (App. Div. 2015) (quoting K.A., 413 N.J.
Super. at 510). Corporal punishment will be considered excessive when it is
"beyond what is proper or reasonable." K.A., 413 N.J. Super. at 511. Further,
"a single incident of violence against a child may be sufficient to constitute
excessive corporal punishment." Ibid. The court in K.A. noted that certain types
A-5543-18T1
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of injuries inflicted by a parent may be considered per se excessive corporal
punishment:
A situation where the child suffers a fracture of a limb,
or a serious laceration, or any other event where
medical intervention proves to be necessary, may be
sufficient to sustain a finding of excessive corporal
punishment, provided that the parent or caregiver could
have foreseen, under all of the attendant circumstances,
that such harm could result from the punishment
inflicted.
[Id. at 511-12 (emphasis added).]
A finding of abuse requires "looking to the harm suffered by the child,
rather than the mental state of the accused abuser, because '[t]he main goal of
Title 9 is to protect children[.]'" K.A., 413 N.J. Super. at 511 (alterations in
original) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)); see
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010)
(finding that although the defendant "may not have intended to harm his
children, his actions were deliberate" because he "intentionally grabbed the
children and disregarded the substantial probability that injury would result from
his conduct").
In K.A., this court held that the defendant mother, who punched her eight-
-year-old autistic child approximately four to five times in the shoulder after the
child failed to follow directions, had not inflicted excessive corporal
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punishment. 413 N.J. Super. at 513. We particularly noted that the defendant's
actions were isolated and occurred during "the trying circumstances which [the
defendant] was undergoing due to [the child's] psychological disorder." Id. at
512. Finally, the defendant showed remorse and took responsibility for her
actions. Ibid. We also emphasized that
[the defendant] was alone, without support from either
her spouse/co-parent or from other members of her
extended family, such as an experienced mother or
aunt. Out of sheer frustration, or through an ill-advised
impulse, she struck her child five times. These blows,
though undoubtedly painful, did not cause the child any
permanent harm, did not require medical intervention
of any kind, and were not part of a pattern of abuse.
[Ibid. (emphasis added).]
In N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011),
the Supreme Court held that "[a] slap of the face of a teenager as a form of
discipline—with no resulting bruising or marks—does not constitute 'excessive
corporal punishment' within the meaning of N.J.S.A. 9:6-8.21c(4)(b)." In
reaching this decision, the 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." Ibid.
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However, in Dep't of Children & Families, Div. of Youth and Family
Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), we upheld a
finding of abuse and neglect against a defendant who struck her five-year-old
child with a paddle as a means of punishing the child for making a harmless
comment to a neighbor. Furthermore, the Division found the child had visible
facial bruises and red marks approximately three to four inches in length, two-
inch dark red scratches on her elbow and cheek, and a greenish mark on her
back. Id. at 416. We also noted that the defendant did not appreciate the
seriousness of these injuries nor exhibit any remorse for her conduct. Id. at 417.
We applied these same principles in New Jersey Div. of Youth & Family
Servs. v. S.H., 439 N.J. Super. 137, 140 (App. Div. 2015), to reverse the Family
Part's judgment finding that the defendant parent had not abused her fifteen-
year-old son when she was involved in a physical altercation with the child. The
altercation "began with [her] throwing a shoe at him and progressed to hitting
him with her hands, striking him with a golf club, and biting him on his
shoulder." Id. at 140.
The Family Part found that the defendant's actions did not rise to the level
of abuse because the parent's actions were reasonably triggered by her son's use
of disrespectful, vulgar language. Id. at 143. We explained:
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While we do not condone the use of coarse or vulgar
language by a child when directed at a parent, we find
no evidence in the record that [the child's] denial of his
mother's accusation, which included a passing
expletive, was intended to provoke [the defendant's]
actions. Indeed, as the conflict escalated with [the
defendant] throwing a shoe at [the child] he attempted
to defuse it by leaving the room. It was [the defendant]
who fueled the escalation by grabbing [the child] in an
attempt to keep him in the room. The assault with the
golf club and the biting followed.
[Id. at 148]
We thus held that the defendant's actions were unreasonable and
disproportionate to the child's conduct and constituted a form of excessive
corporal punishment. Id. at 147-50. In reaching this conclusion we expressly
distinguished the defendant's conduct from the "occasional slap" in P.W.R. and
the comparatively minor injuries in K.A. Ibid.
Here, the facts are also distinguishable from K.A. and P.W.R. The extent
of the injuries Harry sustained and the instrumentality used to cause these
injuries differ greatly from K.A. and P.W.R. Harry's injuries required prompt
medical attention for the laceration to his head and swelling on other areas of
his body. The use of the wooden bat to strike a twelve-year-old child on the
head with sufficient force to lacerate the scalp can have profound cognitive
and/or neurological negative consequences. As we noted in K.A., a serious
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injury requiring medical intervention is the type of parental discipline that is
considered per se excessive corporal punishment. Finally, similar to the
defendant in C.H., defendant here failed to show any remorse for her actions.
In this light, we affirm substantially for the reasons expressed by Judge
DeCastro in her well-reasoned memorandum of opinion dated January 6, 2017.
Affirmed.
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