DCPP VS. R.W., AND T.R. AND N.W., IN THE MATTER OF N.W. AND N.W. (FN-07-0118-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3877-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
R.W.,
Defendant-Appellant,
and
T.R. and N.W.,
Defendants.
________________________
IN THE MATTER OF N.W.
and N.W., minors.
________________________
Submitted June 7, 2021 – Decided July 12, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0118-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Vonnetta C. Dixon, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (David Valentin, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
In this Title Nine action, 1 defendant R.W., the father of a daughter, N.W. 2
who was born in 2003, appeals from the Family Part's February 19, 2019 order
that was entered after the trial judge, Nora J. Grimbergen, conducted a two-day
factfinding hearing, N.J.S.A. 9:6-8.44. The trial judge concluded that defendant
abused or neglected his child by inflicting excessive corporal punishment, as
contemplated by N.J.S.A. 9.6-8.21. On appeal, defendant contends that the
1
N.J.S.A. 9:6-8.21 to -8.73. Title Nine is designed to protect children who
suffer "serious injury inflicted by other than accidental means." G.S. v. Dep't
of Hum. Servs., 157 N.J. 161, 171 (1999) (quoting N.J.S.A. 9:6-8.8).
2
We identify defendant, his child, and the other parties by initials to protect
confidential information in the record. R. 1:38-3(d)(12).
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judge's conclusion was unsupported by the evidence because although he
intentionally employed corporal punishment, his daughter's injuries were
accidental. He also argues that the judge improperly admitted into evidence an
expert's opinion that addressed the ultimate issue in this case. Plaintiff, the New
Jersey Division of Child Placement and Permanency (Division), and N.W.'s Law
Guardian urge us to affirm.
We conclude Judge Grimbergen correctly determined that N.W. was an
abused or neglected child under Title Nine. We affirm substantially for the
reasons stated by the judge in her oral decision placed on the record the same
date she entered the challenged order.
The facts derived from the record are summarized as follows. The
Division's first contact with the family occurred on June 4, 2017, after the police
found N.W. at 5:00 a.m., wandering the streets barefoot, approximately five
miles from her home. N.W. informed the officers that she had left her home
because she was "scared for her life." According to N.W., defendant was upset
because she had stayed up all night. She explained that in response to defendant
bursting open her bedroom door, she left the house "because she knew he would
beat her."
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The police took N.W. to the station and called defendant who told them
they "can keep her" and that he "could [not] care less about picking up his
daughter." The police referred the matter to the Division, which sent Special
Response Unit (SPRU) workers to speak to N.W. and to defendant.
N.W. told SPRU workers that defendant had previously beaten her with a
broom "when she wore shorts to school with holes in them that showed her skin."
The SPRU workers brought N.W. home and told defendant that "he [could not]
use corporal punishment, excess[ive] force[,] or use objects." Defendant stated
that "he [would] not punch [N.W.] with his fist but he [would] use whatever he
sees fit to beat her." After several more admonishments from the SPRU workers,
defendant "agreed he would not beat [N.W.]," although she would instead be
"put on punishment."
On October 2, 2018, the Division received another referral, this time from
a social worker at a hospital, who had observed N.W. come in with her paternal
grandmother for medical treatment. N.W. had "bruises and lacerations on both
arms and on her butt[ocks]." In an ensuing conversation between investigating
Division workers and defendant, he stated that a family friend had overheard
N.W. discussing over the phone with a friend times that she had smoked
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marijuana and had been touched sexually, which led defendant to disciplining
N.W. for her illicit drug use and failure to report the sexual abuse. 3
The disciplinary measure used by defendant consisted of defendant
directing N.W. and the other household members 4 to the living room to observe
as he beat N.W. on the buttocks fifteen times with an aluminum curtain rod,
once for each year of her then-current age. As defendant attempted to inflict
that punishment, N.W. protested throughout and tried to block the blows with
her hands and arms. Partway through the beating, the rod broke, but defendant
continued to beat N.W. with the broken rod despite the rod's now jagged edges.
After the beating, N.W. was taken by her paternal grandmother to the
hospital, where she was treated for multiple bruises and lacerations to her
buttocks and arms. N.W. required ten stitches or sutures to her right forearm.
In response to the hospital's referral, a Division case worker spoke to
defendant who attempted to justify his actions and showed no remorse.
Defendant claimed he did not know N.W. was bleeding as a result of the beating,
and that he found out about it only through the SPRU workers who followed up
3
During her psychosocial evaluation, N.W. denied any history of sexual abuse.
4
At the time, the household consisted of defendant, N.W.'s stepmother, N.W.'s
half-brother, and N.W.
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at his home later that night. According to N.W., defendant was aware she was
bleeding "because he told her to clean up the blood from the pillows and the
shirt prior to him leaving."
After this incident, N.W. began residing with her paternal grandmother.
Defendant did not oppose this arrangement and agreed to a Safety Protection
Plan until the matter was resolved.
The Division filed its complaint on October 9, 2018, based on the events
of October 2, 2018. Judge Grimbergen held a two-day factfinding hearing,
where the Division's investigator and its expert, Dr. Shaina Groisberg, whom all
parties stipulated was qualified as a pediatric specialist in the field of child abuse
and neglect, testified on behalf of the Division. Photographs of N.W.'s injuries
were also admitted into evidence. Defendant did not present any evidence.
After considering counsels' closing arguments, Judge Grimbergen concluded
that N.W. was an abused or neglected child under N.J.S.A. 9:6-8.21, as a result
of defendant's excessive corporal punishment. This appeal followed.
Our review of a family court judge's abuse or neglect finding is limited.
N.J. Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super. 137, 144 (App. Div.
2015). We must determine whether the decision "is supported by 'substantial
and credible evidence.'" N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
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420, 448 (2012) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.
261, 279 (2007)). We defer to the Family Part's factual findings because it has
"the superior ability to gauge the credibility of the witnesses . . . and because it
possesses special expertise in matters related to the family." Ibid. A family
judge's decision should not be overturned unless it went "so 'wide of the mark'"
that reversal is needed "to correct an injustice." Ibid. (quoting N.J. Div. of
Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). However, the judge's
interpretation of the law or her legal conclusions are reviewed de novo. State in
the Interest of A.B., 219 N.J. 542, 554-55 (2014); Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The purpose animating Title Nine 'is to provide for the protection of
children . . . who have had serious injury inflicted upon them.'" N.J. Div. of
Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-
8.8(a)). Under N.J.S.A. 9:6-8.21(c), an abused or neglected child is
a child less than [eighteen] years of age whose
parent . . . (2) creates or allows to be created a
substantial or ongoing risk of physical injury to such
child by other than accidental means which would be
likely to cause death or serious or protracted
disfigurement, or protracted loss or impairment of the
function of any bodily organ; (3) commits or allows to
be committed an act of sexual abuse against the child;
(4) or a child whose physical, mental, or emotional
condition has been impaired or is in imminent danger
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of becoming impaired as the result of the failure of his
parent . . . to exercise a minimum degree of care . . . (b)
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).
The Division "must prove that the child is 'abused or neglected' by a
preponderance of the evidence, and only through the admission of 'competent,
material and relevant evidence.'" P.W.R., 205 N.J. at 32 (quoting N.J.S.A. 9:6-
8.46(b)). Each case of alleged abuse "requires careful, individual scrutiny" and
is "generally fact sensitive." Id. at 33. The proofs must be evaluated based on
the totality of the circumstances "because the evidence can be synergistically
related." Id. at 39. As a general matter, the determination of whether a child
has been abused or neglected "is a conclusion of law to which we are not
required to defer." N.J. Div. of Youth & Fam. Servs. v. A.R., 419 N.J. Super.
538, 543 (App. Div. 2011).
Applying that standard, we conclude defendants' arguments are without
merit. Judge Grimbergen determined that N.W. was an abused and neglected
child, N.J.S.A. 9.6-8.21(c), and her finding was supported by substantial and
credible evidence in the record, primarily through defendant's admissions and
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the photographs of N.W.'s injuries. The evidence established that, in the context
of an argument over N.W.'s behavior, defendant employed impermissible,
excessive corporal punishment.
For the purposes of our child neglect statute, a parent or guardian "fails to
exercise a minimum degree of care when he or she is aware of the dangers
inherent in a situation . . . or recklessly creates a risk of serious injury to that
child." G.S., 157 N.J. at 181. The burden is on the Division to prove by a
preponderance of the evidence at a factfinding hearing that the subject child is
being abused or neglected. See N.J.S.A. 9:6-8.44. Proof of a parent's intent to
harm a child is not required. G.S., 157 N.J. at 179-80.
Failure to exercise a minimum degree of care includes "the infliction of
excessive corporal punishment." N.J.S.A. 9:6-8.21(c)(4). Although "[c]orporal
punishment" is not prohibited, and "a parent may inflict moderate correction
such as is reasonable under the circumstances of a case," Title Nine prohibits
"excessive corporal punishment," which is not defined by the statute. N.J. Div.
of Youth & Fam. Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010).
Our case law has come to define "excessive" as "beyond what is proper or
reasonable." Id. at 511. Punishment will be considered excessive where a
parent's intentional act exposes a child to the substantial probability that injury
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would result from the parent's conduct. N.J. Div. of Youth & Fam. Servs. v.
M.C. III, 201 N.J. 328, 345 (2010). This determination must focus on the harm
caused to the child, not the parent's intent. M.C. III, 201 N.J. at 344; K.A., 413
N.J. Super. at 511. Although a parent who engages in corporal punishment may
not intend the actual harm suffered by the child, abuse or neglect will be found
where the parent acted intentionally and "disregarded the substantial probability
that injury would result from his conduct." M.C. III, 201 N.J. at 345.
In determining whether corporal punishment is proper or reasonable,
careful consideration must be given to the "nature and extent of the injuries" and
the "instrumentalities used to inflict them." S.H., 439 N.J. Super. at 146. Courts
also will consider "(1) the reasons underlying [the defendant's] action; (2) the
isolation of the incident; and (3) the trying circumstances under which [the
defendant] was undergoing . . . ." K.A., 413 N.J. Super. at 512. Age is an
additional consideration, and the court will "not assume that what may be
'excessive' corporal punishment for a younger child must also constitute
unreasonable infliction of harm, or excessive corporal punishment in another
setting involving an older child." P.W.R., 205 N.J. at 33. Finally, courts will
consider whether the defendant recognized his or her error, was remorseful, and
was open to receiving help. See S.H., 439 N.J. Super. at 147-48.
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We have previously observed the following about excessive corporal
punishment:
[E]xcessive corporal punishment was found where a
mother used a belt to hit her six-year-old son and left
visible welts. [N.J. Div. of Youth & Fam. Servs. v.
B.H., 391 N.J. Super. 322, 340, (App. Div. 2007)].
Similarly, a mother inflicted excessive corporal
punishment by beating her daughter with a paddle in the
face, arms, and legs. [N.J. Div. of Youth & Fam. Servs.
v. C.H., 414 N.J. Super. 472, 476 (App. Div. 2010)]. In
both B.H. and C.H., our conclusions were based on the
use of an instrument to hit the child with such force that
visible marks were left, the unreasonable and
disproportionate parental response, and the fact that the
incidents were not isolated but part of a pattern of
physical punishment. [See B.H., 391 N.J. Super. at
338-40; C.H., 414 N.J. Super. at 481].
[Id. at 146-47.]
See also P.W.R., 205 N.J. at 36 (finding 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").
Applying these principles, we conclude that striking a child with an
aluminum rod, broomstick, pipe, or similar weapon—even once—causing
bruises or welts, or significant wounds that require stitches, in response to a
disagreement over unacceptable behavior, or any similar prompting, is excessive
corporal punishment supporting a finding of abuse and neglect. Injuries
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sustained during the use of such weapons against children are foreseeable, K.A.,
413 N.J. Super at 511, absent unusual circumstances, and a parent's lack of intent
to cause foreseeable injuries is of no moment. Any arguments to the contrary
by defendant are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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