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NOT FOR PUBLICATION WITHOUT THE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-3721-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.H., SR.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF N.H., JR.,
Minor.
_________________________________
Submitted May 24, 2017 – Decided July 17, 2017
Before Judges Fuentes and Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FN-09-0368-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Z.H. Abbasi, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Alaina
M. Antonucci, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Todd S. Wilson,
Designated Counsel, on the brief).
PER CURIAM
Defendant N.H., Sr. is the biological father of N.H., Jr.,
(Neil),1 a child under the age of eighteen. He appeals from the
order of the Family Part finding he abused and neglected Neil
within the meaning of N.J.S.A. 9:6-8.21c(4)(b). After conducting
a fact-finding hearing, the court concluded defendant "created or
allowed to be created a substantial physical injury to [Neil] by
other than accidental means and caused protracted loss or
disfigurement[.]" Defendant argues the Family Part's findings
were not supported by sufficient competent evidence in the record.
We disagree and affirm.
On November 21, 2013, the Division of Child Protection and
Permanency (Division) received a referral from a staff member at
Neil's after-school program that defendant had physically
assaulted his son three days earlier because the boy was wearing
makeup. Neil was fifteen years old at the time. After
investigating the matter, the Division filed a verified complaint
and order to show cause (OTSC) on November 25, 2013, alleging that
1
Pursuant to Rule 1:38-3(d)(12), we use the pseudonym "Neil" to
protect the child's privacy.
2 A-3721-15T2
on November 18, 2013, defendant had assaulted Neil by "punching
him hard in his mouth with a closed fist." The force of the blow
was so severe that it left the child momentarily unconscious and
knocked loose one of his front teeth. Neil told the Division
investigator2 that his father attacked him because he was wearing
makeup as an expression of his sexual orientation. Neil also told
the investigator that his father called him homophobic slurs and
"use[d] to beat me a lot."
The Family Part conducted an initial evidentiary hearing
during which principal investigator Roger Broyles and Division
Special Response Unit (SPRU) Worker Mauricio Diaz testified.
Defendant was present and represented by counsel. After hearing
from these two witnesses and considering the arguments of counsel,
the judge found the Division had presented sufficient evidence to
warrant the emergent removal of the child. The judge placed Neil
in the custody of the Division.
After several status conferences, the court conducted a fact-
finding hearing on March 13, 2014. Investigator Broyles and
Division SPRU Worker Diaz testified for the Division. Defendant
testified in his own defense. Broyles testified that Neil told
2
The investigator was employed by the Public Defender's Office.
The Conflict of Interest Unit assigned him to serve as the
Principal Investigator in this case because Neil's stepmother is
employed by the Division.
3 A-3721-15T2
him that at approximately 8:45 p.m. on November 18, 2013, his
father was upset with him because he forgot to take out the trash.
When defendant came into the boy's bedroom to chastise him for not
doing the chore, defendant noticed that Neil had mascara and makeup
on. Defendant became irate and started yelling. When Neil "made
a smart remark," defendant "punched him in the face, . . . knocking
[Neil] to the floor." Neil briefly lost consciousness, started
"coughing up blood" and noticed one of his front teeth was loose.
Neil told Broyles that his father apologized and attempted to calm
him down. Based on his own observations, Broyles testified that
Neil had a missing front tooth and the inside and outside of his
lower lip was injured. Although his stepmother was present at the
time of this incident, no one called the police.
Neil also alleged that he had suffered physical abuse at his
father's hands for approximately a year and a half. He alleged
defendant called him homophobic slurs, such as "fairy" and
"faggot." He also alleged that defendant punched him and left
bruises on several other occasions. Broyles's report states that
Neil praised his stepmother for regularly standing up for him; she
4 A-3721-15T2
attempted to stop the abuse, but was afraid to report defendant's
violent acts to the Division.3
Broyles spoke with defendant twice that same day. According
to Broyles, defendant stated that he received a call from Neil's
school about his son's use of makeup. When he confronted Neil in
his bedroom to chastise him, he "observed a black handle in his
[son's] pocket[.]" This turned out to be the handle of a knife.
Defendant told Broyles he believed his son's tooth fell out when
he grabbed his son to prevent him from doing anything drastic.
They then struggled and fell to the floor. When Broyles questioned
Neil about the knife, he denied threatening his father with it.
Broyles testified defendant took Neil to the dentist on
November 20, 2013, which coincided with a prescheduled appointment
for a filling. The dentist postponed the filling and checked
Neil's mouth to make sure it was not infected. According to
Broyles, the dentist told Neil that the original tooth could not
be reinserted and he would need an implant. Defendant did not
take Neil to any other medical professional to determine if the
child had sustained any neurological injuries arising from his
3
Neil told Broyles that the Division's response unit came to his
home in 2012. The investigator did not take any action because
the "bruises" were "not that bad." Neil also told Broyles he was
afraid because his stepmother works for the Division. The record
shows the case under review here is the only incident of abuse and
neglect that the Division has substantiated against defendant.
5 A-3721-15T2
momentary loss of consciousness. Broyles arrived at defendant's
residence during the early morning of November 22, 2013. He
observed an oval-shaped abrasion on the knuckles of defendant's
left hand. Defendant told Broyles he received this injury when
Neil cut him with a knife during their altercation. Defendant
again denied striking Neil and continued to claim the tooth became
loose when Neil fell to the floor during their tussle.
Defendant gave the following testimony with respect to his
son's sexual orientation.
Q. How long have you known [Neil's] sexuality?
A. Since he was in grammar school. He was in
the seventh grade. I knew then.
Q. Has that been a problem for you?
A. No. I still loved him the same.
. . . .
Q. Have you ever been concerned about [Neil]
wearing make-up?
A. Just through his history with the assault,
and I was afraid that another assault would
have took [sic] place. Like, he was raped and
he was very outgoing. He wanted to . . . be,
like, transsexual and I was afraid that he was
already . . . hurt three times to [sic] this
incident, so, of course, as a dad, I'd tell
him, hey, don't go out there wearing that.
[Neil] did never [sic] want to listen.
Q. So your concern was mainly . . . for his
protection?
6 A-3721-15T2
A. Yes. Yes, sir. Definitely.
Q. On November 18th, [2013], . . . you . . .
got into a fight because of his sexuality?
A. No. That had nothing to do with it.
On cross-examination, defendant denied admitting to Broyles
that he struck his son on November 18, 2013. Defendant denied
that a staff member from his son's school had called about his son
wearing make-up. He denied calling the school to report that Neil
would not attend on November 19 and 20, 2013. Defendant also
denied that the injury to his left hand had anything to do with
striking his son in the face. Defendant is left-hand dominant.
The Family Part Judge who presided over the fact-finding
hearing did not find defendant's testimony credible. The judge
expressly rejected defendant's characterization of his son's
demeanor as violent and aggressive. Conversely, the judge accepted
the testimony of the Division's witnesses who described the child
as looking "like a beaten puppy, upset, afraid to go home, meek[,]"
and as if he was in fear. The judge found the Division had proven
by a preponderance of the evidence that defendant physically abused
his fifteen-year-old son on November 18, 2013.
As a condition of regaining custody, the court ordered
defendant to complete anger management counseling and submit to a
psychological evaluation. Defendant did not comply. On June 1,
7 A-3721-15T2
2014, defendant requested the Family Part terminate his parental
rights to Neil. The court denied defendant's request. The
question is now moot because Neil has reached the age of majority.
We are bound to uphold the factual findings of the Family
Part if they are "supported by 'adequate substantial and credible
evidence' [i]n the record." N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of
J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). The Supreme
Court has also recognized that we owe an enhanced deference to the
Family Part when the factual findings are "largely testimonial"
and involve "questions of credibility." Cesare v. Cesare, 154
N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)).
New Jersey law defines an "[a]bused or neglected child" as:
a child less than [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 or guardian . . .
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[.]
[N.J.S.A. 9:6-8.21c(4) (emphasis added).]
8 A-3721-15T2
The Family Part found defendant struck his fifteen-year-old
son in the face with a closed fist with such force that it caused
the child to lose consciousness temporarily. When the child awoke,
his lower lip bled and one of his front teeth had come loose.
This is precisely the type of violence that this court has
identified as "excessive corporal punishment" under N.J.S.A. 9:6-
8.21c(4). N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J.
Super. 504, 512 (App. Div.), certif. granted, 204 N.J. 40 (2010),
certif. dismissed, 208 N.J. 355 (2011).
As we explained in K.A.:
[A] single incident of violence against a
child may be sufficient to constitute
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.]
Here, the Family Part found that when Neil returned home,
defendant confronted him about wearing makeup. The confrontation
quickly escalated into a physical assault when defendant punched
Neil in the mouth. The record includes photographs depicting
Neil's missing tooth and his lacerated lower lip. The photographs
9 A-3721-15T2
also depict defendant's left hand with an oval-shaped abrasion on
the knuckles. Finally, because the Family Part Judge rejected
defendant's testimony as not credible, we conclude the violence
defendant inflicted on his son was motivated, in large part, by
defendant's odious homophobic repudiation of his son's sexual
orientation. This makes defendant's actions particularly
reprehensible.
Affirmed.
10 A-3721-15T2