DCPP VS. J.J. IN THE MATTER OF JU.J., JEM.J. AND JER.J.(FN-03-0347-15, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4402-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant.
_________________________________

IN THE MATTER OF Ju.J.,
Jem. J., and Jer.J.,

Minors.
__________________________________

Submitted September 14, 2017 – Decided September 22, 2017

Before Judges Haas and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FN-03-0347-15.

Joseph J. Krakora, Public Defender, attorney
for appellant (Beth Anne Hahn, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Jennifer St. Mary, Deputy Attorney General,
on the brief).
 Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Nancey P.
Fratz, Assistant Deputy Public Defender, on
the brief).

PER CURIAM

Defendant J.J.1 appeals from a December 15, 2015 Family Part

order2 determining that she abused or neglected her two young sons,

by striking six-year-old Jem.J (Jeremy) at least ten times with a

cell phone charging cord and then telling Jeremy and his seven-

year-old brother Ju.J (Justin) to walk to school by themselves

along a busy parkway. Defendant challenges the trial judge's

finding that this conduct constituted abuse or neglect under

N.J.S.A. 9:6-8.21(c)(4)(b). The Law Guardian supports the trial

judge's finding that the Division of Child Protection and

Permanency (Division) met its burden of proving abuse or neglect

by a preponderance of the evidence. Based upon our review of the

record and applicable law, we affirm.

We derive the following facts from the record developed at

the fact-finding hearing. On May 15, 2015, a crossing guard found

Justin and Jeremy walking "alone in tears" along the roadway, and

drove them to school. Once there, Justin told school officials

1
We use initials and fictitious names to protect the privacy of
the family.
2
This order became appealable as of right after the trial court
entered a final order terminating the litigation on May 4, 2016.

2 A-4402-15T4
that his mother had gotten upset at Jeremy and began beating him

with the charging cord. Jeremy had welts on his back and right

shoulder. Justin reported that defendant did not beat him, but

had kicked him and broken his iPad screen.

The school called the Division, which sent caseworkers to

speak to the boys. The workers interviewed the children separately

and they each repeated their previous statements. The children

also stated that defendant usually drove them to school. However,

after defendant struck Jeremy with the cord, she ordered the boys

to walk to school by themselves. Jeremy reported that defendant

had struck both children in the past.

The Division produced photographs of Jeremy's injuries. The

child had red marks on his back, arm, and shoulder. All told,

defendant struck him at least ten times with the cord. Jeremy's

physician saw him on the day of the beating and reported that the

child's injuries were "consistent with being hit with an electrical

cord." The doctor recommended that Jeremy take children's Motrin

for pain and that ice be applied to his injuries.

Defendant admitted she hit Jeremy with the cord multiple

times because he and Justin were fighting and she was afraid they

would wake up their sister. Defendant stated that after striking

her six-year-old son, she went into the bathroom and when she came

out, she found that the boys had left the house. Defendant denied

3 A-4402-15T4
telling Jeremy and Justin to get out of the house. She expressed

regret for her actions and noted that she was participating in all

court-ordered services.

At the conclusion of the hearing, the trial judge rendered

an oral decision, finding that the Division had established by a

preponderance of the evidence that defendant abused or neglected

the children. The judge found that the cord defendant used to

strike Jeremy was a "heavy duty item" that was "almost like a whip

because it's something that's not broken. It's not being hit with

a soft object that would break upon impact but it's something that

will remain intact after repeated and repeated and repeated uses."

The judge noted that defendant did not strike Jeremy one or

two times. Instead, she struck her six-year-old son at least ten

times, leaving marks each time she did. The judge found that

defendant's actions greatly upset the children, who were crying

as they attempted to make their own way to school. In this regard,

the judge found that defendant's claim that the children left the

house on their own accord was not credible. This appeal followed.

On appeal, defendant contends that "the trial court erred in

finding that [she] abused and neglected her children." We

disagree.

Our task as an appellate court is to determine whether the

decision of the family court is supported by substantial credible

4 A-4402-15T4
evidence in the record and is consistent with applicable law.

Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular

deference to a trial judge's credibility determinations and 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 if we

had 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.), certif. denied, 117 N.J. 165 (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).

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, N.J.S.A. 9:6-8.21(c)(4)(b) defines

an "abused or 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 . . .
to exercise a minimum degree of care . . . in

5 A-4402-15T4
 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[.]

"'[E]xcessive' 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, 35-36 (2011); see also Dep't of Children &

Families v. K.A., 413 N.J. Super. 504, 510-11 (App. Div.) (citing

to N.J.A.C. 10:129-2.2, which lists examples of abuse or neglect,

including "[c]uts, bruises, abrasions, [or] welts"), certif.

granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011).

Courts focus on "the harm suffered by the child, rather than

the mental state of the accused abuser," and a single occurrence

of corporal punishment may be deemed excessive. K.A., supra, 413

N.J. Super. at 511. For example, in New Jersey Division of Youth

& Family Services v. M.C. III, 201 N.J. 328, 333-35 (2010), the

defendant chased down his two teenage children, caught and grabbed

them, and all three ended up on the floor. Both children were

injured. Id. at 335. One child sustained a bruised and swollen

hand, while the other had rib tenderness and an abrasion behind

the ear. Ibid. The Supreme Court held that, although the

6 A-4402-15T4
defendant "may not have intended to harm his children, his actions

were deliberate" and constituted abuse because he "intentionally

grabbed the children and disregarded the substantial probability

that injury would result from his conduct." Id. at 345.

Similarly, in Department of Children & Families, Division of

Youth & Family Services. v. C.H., 416 N.J. Super. 414, 416-17

(App. Div. 2010), certif. denied, 207 N.J. 188 (2011), we found

that a mother who struck her five-year old child for telling a

neighbor the family did not have electricity in their home had

inflicted excessive corporal punishment. The mother admitted to

using corporal punishment since the child was three years old, and

she struck the child once or twice a month "as her way to ensure

that [the child] would not 'end up on the streets or doing drugs.'"

Id. at 417. In the incident which led to the Division's

involvement, the child sustained three- to four-inch red marks on

the right side of her face, two-inch dark red scratches on her

elbow and left cheek, and a greenish mark on her back. Id. at

416.

On the other hand, in P.W.R., supra, 205 N.J. at 36, the

Supreme Court concluded 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[.]'" Because abuse

and neglect cases involving corporal punishment are "generally

7 A-4402-15T4
fact sensitive" and "idiosyncratic[,]" the Court held each case

"requires careful, individual scrutiny." Id. at 33.

Here, there was ample evidence to support the trial judge's

conclusion that defendant abused or neglected her two young sons

by striking Jeremy at least ten times with the cord and causing

the child to suffer contusions that required medical attention.

This attack occurred in Justin's presence before defendant ordered

the boys to walk alone to school along a busy parkway. Both

children reported that defendant had struck them in the past.

Unlike the defendant in C.H., supra, defendant did express

remorse for her actions. However, we have long observed that even

"a single incident of violence against a child may be sufficient

to constitute excessive corporal punishment[,]" K.A., supra, 413

N.J. Super. at 511, particularly where, as here, it results in

physical injuries such as bruises. P.W.R., supra, 205 N.J. at 35-

36. Under these circumstances, we discern no basis for disturbing

the judge's determination.

Affirmed.

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