Dcpp v. H.A. and T.S., in the Matter of S.S., S.S., H.S., S.S. and M.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-0452-23
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
H.A.,1
Defendant,
and
T.S.,
Defendant-Appellant.
________________________
IN THE MATTER OF S.S.,
S.S., S.S., H.S., S.S., and
M.A., minors.
________________________
Submitted October 16, 2024 – Decided October 28, 2024
1
We use initials and pseudonyms to protect the identities of the children and
parties and to preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
Before Judges Gilson and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FN-16-0079-23.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Adrienne Kalosieh, Assistant Deputy Public
Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Renee Greenberg, Deputy
Attorney General, on the brief).
PER CURIAM
Defendant T.S. (Theo) appeals from a June 30, 2023 Family Part order
determining that he abused or neglected his then ten-year-old son S.S. (Sean) by
hitting him multiple times with a belt and causing serious injuries, within the
meaning of Title 9, N.J.S.A. 9:6-8.21(c)(4)(b). The Law Guardian seeks
affirmance. Having reviewed the record, we conclude that the judge's fact -
finding decision was supported by sufficient credible evidence and is consistent
with the applicable law. Therefore, we affirm the order.2
I.
2
Defendant H.A. (Helen) was dismissed from the matter prior to the fact -
finding hearing with no findings made against her. H.A. is not a party to this
appeal.
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We discern the following facts from evidence adduced at the fact-finding
hearing. Theo and Helen are the biological parents of five children: S.S. (Sage);
Sean; S.S (Susie); H.S. (Hunter); and S.S. (Sofia). Helen is also the biological
mother of M.A. (Michael). Theo is Michael's stepfather. On June 8, 2022, the
Division of Child Protection and Permanency (the Division) received a referral
expressing concern Theo had beaten Sean earlier that day, and Sean had bruises
all over his back, legs, and buttocks. The referent knew the family and was told
by "the oldest" child that Theo beat Sean and noted domestic violence concerns
between Theo and Helen. That night, a Division Special Response Unit worker,
Krystal Royal, visited the family's home with a co-worker.
Theo was working as an Uber driver that evening, and Helen was home
with the six children. Helen would not open the door. When the Division
workers returned at 2:00 a.m., Royal discussed the allegations with Helen, who
denied there was any physical abuse or domestic violence in the home. Royal
requested to speak with Sean, who was sleeping but awakened to be interviewed.
Sean denied being physically disciplined by Theo with a belt. However, Royal
observed bruises and marks on Sean's back and arms and photographed his
injuries. Sean claimed he was bruised because he fell. At first, Sean stated he
fell down in the house. He then changed his story and claimed he fell down at
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school, but there were no witnesses. Helen also denied the allegations and did
not seek medical treatment for Sean because he was not in pain.
Royal interviewed then seven-year-old Hunter who said, "[Sean] had
gotten hit with a belt because [Sean] had punched their little sister [Susie]. Theo
got upset and hit [Sean] in the living room because he was in the living room
with Sean when Theo came with the belt to hit [Sean]." Hunter added that Theo
does not use physical punishment on him and has only hit Sean with an open
hand in the past.
Royal also interviewed Susie, who explained that Theo hit Sean because
she had been playing a game with Sean, and he hit her too hard. Susie said Theo
got upset and hit Sean with a belt. Susie mentioned that was the first time Theo
hit anyone with a belt and that he "usually yells." Susie denied any of the other
children were physically disciplined. Royal also interviewed Michael; he denied
witnessing any physical abuse and noted he had a "nonexistent" relationship
with Theo. Sofia was not awakened, and Sage declined to be interviewed at that
time.
While Royal was interviewing the children, Theo returned home from
work in the early morning hours, around 5:25 a.m. Royal discussed the
allegations with Theo and showed him photographs of Sean's injuries. Theo
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responded that "he is not a bad parent" and "immediately admitted to hitting
[Sean] with a belt because [Sean] was hitting [Susie] and had been disrespectful
by sticking up his middle finger at [Theo]." According to Theo, "he lost
control[,] and his intent was not to hurt . . . [Sean.]" Theo explained "what he
did was accidental[,] and [he] would never do it again."
Theo agreed to meet with the Passaic County Prosecutor's Office and
comply with the Division's safety protection plan, which required him to leave
the home. Theo left that evening and stayed with the children's uncle, who
agreed to be part of the safety protection plan. Helen also agreed to immediately
take Sean to the emergency room for a medical evaluation.
On June 9, 2022, Sean was evaluated at a hospital emergency room. The
Division received a related referral from hospital staff, expressing concerns for
Sean. The hospital staff reported that Helen told staff Sean's visible "injuries
and bruising" were the result of playing with his siblings and hitting himself
with a belt. Helen claimed that Theo tried to intervene but ended up hitting Sean
once with the belt, causing him to fall down the stairs.
The hospital's referral to the Division indicated that Sean had "multiple
linear bruises and welts on his back"; "one vertical and very pronounced mark
over his spine, one large hematoma on the right flank area, and two linear marks
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on his right arm over his elbow." The hospital report noted that the bruises
ranged in color and Sean felt "pain to the touch."
The next day, June 10, 2022, Division intake worker Crismely Moya
followed up with the family at the home and met with the children privately .
Sean told Moya that Helen took him to the doctor because he had been hit by a
belt, but was not in pain, and not afraid of Theo or anyone in the home. Moya
interviewed Sage for the first time. On the day of the incident, Sage reported
that she arrived home from school and witnessed Sean and Susie arguing. Sage
also reported that Theo called for Sean and then she observed Theo hitting Sean
with a belt. Sage recalled hearing Helen attempt to stop Theo from hitting Sean,
but to no avail.
Moya also interviewed four-year-old Sofia, but she denied knowing
anything about the incident. Sofia said that she has never been hit by a belt or
seen her brothers get hit by a belt. Sofia denied knowing anything about the
incident involving Sean.
Moya also met with Helen. Helen asserted that Theo had never physically
disciplined the children before and that this was a "one[-]time" incident. Helen
reported trying to intervene as Theo was hitting Sean with the belt, but she was
unable to stop him. Helen told Moya she had never seen Theo as upset as he
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was that evening, and that he had just returned from a long shift as an Uber
driver.
Theo was remorseful during his interview and reported that he was willing
to do whatever the Division asked to return to his family. After working an
eighteen-hour shift, Theo reported arriving home to "chaos," indicated the
children were not getting along and running around all over the house. Theo
tried to rest, but Susie came to him crying and complaining about Sean because
he had been "hitting" and "bothering" her. Theo reported that Sean had been
given "verbal warnings" about his recent defiant behavior, and Theo used a
"twenty-five" inch belt to discipline him.
Theo "left the home to cool down" after realizing how badly he disciplined
Sean. Theo felt he "overreacted" and "took out his frustration" on Sean, causing
more injury than intended. Theo claimed this was the first time he ever
physically disciplined Sean, and Theo "regrett[ed] his actions."
On June 14, 2022, Sean was evaluated again at the hospital. The clinical
team at the hospital's Child Protection and Safety Center (the Center)
interviewed Sean and Helen separately. Both of them continued to give
"conflicting and inconsistent histories" about how Sean's injuries were
sustained, with Sean telling Dr. Emilola Ogunbameru, a pediatric emergency
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medicine doctor, that the injuries were "self-inflicted." Following her
examination of Sean, Dr. Ogunbameru and the team at the Center concluded
that the "location and severity of the bruising [was] not consistent with self -
inflicted injuries."
The Division obtained collateral reports from the children's schools. All
were reported to have good attendance and grades and had no behavioral
problems. The home was found to be safe and background checks were
performed on family members who were part of the safety protection plan.
There were no allegations of alcohol or substance abuse.
On June 16, 2022, Theo made an unannounced visit to the Division's
office. He again admitted to "losing control" and using a belt to discipline Sean.
Theo described the belt as being "brown in color" and "approximately twenty-
five inches in length." Theo denied physically disciplining any of the children
in the past. Following its investigation, the Division determined that physical
abuse was "established" as defined in N.J.S.A. 3A:10-7.3, and Sean was an
abused or neglected child, as defined in N.J.S.A. 9:6-8.21.
After concluding its investigation, on September 19, 2022, the Division
filed an order to show cause (OTSC) and verified complaint seeking care and
supervision of the children under N.J.S.A. 9:6-8.21 and 30:4C-12. At the OTSC
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hearing, the judge granted the Division's request to remove Theo from the home
and ordered liberal, supervised contact with a family member. Theo was also
permitted to have phone, text, and social media communication with the children
as long as it was supervised.
On October 17, 2022, the Division maintained its intention was to
ultimately return Theo to the home with education about physical discipline.
However, the Division noted care and supervision was necessary based on the
hospital staff's concern, who reported "a weird dynamic" with the family. On
December 19, 2022, the children underwent psychosocial evaluations at the
Audrey Hepburn Children's House.
Theo actively engaged in anger management services with an in-home
parenting coach. Sean underwent individual therapy. The other children had
family therapy with a family therapist. Theo was permitted to return to the
family home, with Helen supervising his contact with the children. Theo and
Helen were awarded joint legal custody of the children, including Sean. The
Law Guardian reported after Theo's return that "all the children were happy to
have their father back in the home," and "things were going well."
On February 23 and June 14, 2023, the judge conducted a fact-finding
hearing. The judge heard testimony from Royal and Moya. Dr. Ogunbameru
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was called as an expert witness. The doctor testified that Sean's explanation that
he hit himself with a belt after arguing with his sister did not correlate to the
injuries she observed, stating, "It didn't seem plausible that he was able to hit
himself in the back." Dr. Ogunbameru rejected Sean's representation that he fell
down the stairs and that Theo "accidently hit him" because the pattern and
severity of the injuries, which were primarily on Sean's back, could not have
been self-inflicted. Dr. Ogunbameru testified that Sean's injuries were "not life
threatening," and he was discharged without further medical recommendations.
The Law Guardian took no position and did not provide any evidence or
testimony. Theo did not testify and did not call any witnesses or produce any
evidence.
At the conclusion of the hearing, the judge reserved decision. On June
30, 2023, in an oral decision, the judge found, by a preponderance of the credible
evidence, that Theo abused and neglected Sean in violation of N.J.S.A. 9:6-
8.21(c) by inflicting excessive corporal punishment. The judge acknowledged
Theo had no history with the Division; that he cooperated with services; and was
ultimately reunited with Sean and the other children at the family's home during
the intervening hearings. The judge, however, highlighted that the photographs
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admitted into evidence depicted "multiple strikes" on Sean's back from the "use
of a belt, some instrumentality."
The judge found Royal's testimony "credible" and "inherently believable"
as she provided "straight answers in detailed testimony" and "did not avoid
questions on cross-examination." The judge also determined Moya's testimony
was "credible" and "believable," noting she reasonably "made admissions on
cross even when those answers did not support the Division's case." The judge
recounted Dr. Ogunbameru's testimony, specifically her description of Sean's
injuries and her opinion that his injuries could not have been self-inflicted.
The judge distinguished the matter under review from the parent in N.J.
Div. of Youth & Fam. Servs. v. K.A., where we held small bruises caused by a
mother striking her eight-year-old autistic daughter repeatedly on the shoulder
was not found to be abuse because it was a "one-time," "ill-advised impulse,"
which was born "out of sheer frustration," "did not cause permanent harm," "did
not require medical attention of any kind," and was "not part of a pattern of
abuse." 413 N.J. Super. 504, 512 (App. Div. 2010). A memorializing order was
entered that day. On August 28, 2023, an order terminating the litigation was
entered.
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On appeal, Theo challenges the sufficiency of the evidence supporting the
judge's findings. Theo argues: (1) the Division failed to prove by a
preponderance of the evidence that he was excessive in disciplining Sean,
resulting in physical impairment under N.J.S.A. 8:6-8.21(c)(1); (2) the judge
erred by concluding the one-time use of a belt in disciplining then ten-year-old
Sean for hitting his little sister and being disrespectful after verbal warnings,
resulting in bruising, was unlawful "excessive punishment" under N.J.S.A. 9:6-
8.21(c)(4)(b); and (3) while not commendable, Theo's conduct did not cause
Sean to suffer a physical injury that created a substantial risk of death, or serious
or protracted impairment, disfigurement, or protracted impairment of physic al
or emotional health, or protracted loss or impairment of the function of any
bodily organ from the physical discipline to declare him an abused child as
defined by N.J.S.A. 8:6-8.21(c). For the reasons that follow, we disagree and
affirm.
II.
"Title 9 governs acts of abuse and neglect against a child" by providing
"interim relief for children at risk and outlines the standards for abuse and
neglect proceedings against parents and guardians." N.J. Div. of Youth & Fam.
Servs. v. A.L., 213 N.J. 1, 18 (2013).
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"In Title [9] proceedings, the Division has the burden of proving by a
preponderance of competent, material, and relevant evidence that a parent
abused or neglected a child." N.J. Div. of Child Prot. & Permanency v. B.P.,
257 N.J. 361, 375 (2024). The Division "need only show that it was more likely
than not that the defendant abused or neglected the child." N.J. Div. of Child
Prot. & Permanency v. B.O., 438 N.J. Super. 373, 380 (App. Div. 2014).
Appellate review of a trial court's finding of abuse or neglect is "limited"
and "should be upheld when supported by adequate, substantial, and credible
evidence." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
Such deference is owed because the trial court "has the opportunity to make
first-hand credibility judgments about the witnesses who appear on the stand; it
has a 'feel of the case' that can never be realized by a review of the cold record."
N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J.
Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)).
"Moreover, by virtue of its specific jurisdiction, the Family Part
'possess[es] special expertise in the field of domestic relations' and thus
'appellate courts should accord deference to [F]amily [Part] factfinding.'" R.G.,
217 N.J. at 553 (alterations in original) (quoting Cesare v. Cesare, 154 N.J. 394,
412-13 (1998)). "Therefore, '[w]e will not overturn a family court's factfindings
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unless they are so "wide of the mark" that our intervention is necessary to correct
an injustice.'" B.P., 257 N.J. at 375 (quoting N.J. Div. of Youth & Fam. Servs.
v. F.M., 211 N.J. 420, 448 (2012)).
We also recognize, however, that "where the focus of the [appeal] is . . .
alleged error in the trial judge's evaluation of the underlying facts and the
implications to be drawn therefrom, the traditional scope of review is expanded."
R.G., 217 N.J. at 552 (quoting In re Guardianship of J.T., 269 N.J. Super. 172,
188-89 (App. Div. 1993)). No deference is owed to a "trial court's interpretation
of the law and the legal consequences that flow from established facts."
Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Our
review of the trial judge's legal conclusions is de novo. N.J. Div. of Youth &
Fam. Servs. v. A.B., 231 N.J. 354, 369 (2017).
As defined in Title 9, "abuse or neglect" may occur when a child's
"physical, mental, or emotional condition has been impaired . . . as the result of"
a parent who fails "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." N.J.S.A. 9:6-8.21(c)(4)(b). A parent or
guardian may fail to exercise the minimum degree of care if "he or she is aware
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of the dangers inherent in a situation and fails adequately to supervise the child
or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Hum.
Servs., 157 N.J. 161, 181 (1999) (citation omitted).
Parental rights include the right to take reasonable measures in
disciplining a child, including corporal punishment. K.A., 413 N.J. Super. at
510 (quoting State v. T.C., 347 N.J. Super. 219, 239-40 (App. Div. 2002)).
"[P]revious statements made by the child relating to any allegations of
abuse or neglect" are admissible, and not considered hearsay, as long as they are
not the sole basis for the court's finding of abuse or neglect. N.J.S.A. 9:6-
8.46(a)(4); see also N.J. Div. of Child Prot. & Perm. v. S.K., 456 N.J. Super.
245, 272 (App. Div. 2018). Proof of any injuries sustained by the child that are
"of such a nature as would ordinarily not . . . exist except by reason of the acts
or omissions of the parent or guardian" is prima facie evidence of abuse or
neglect. N.J.S.A. 9:6-8.46(a)(2). However, "[a] child's statement need only be
corroborated by '[s]ome direct or circumstantial evidence beyond the child's
statement itself.'" N.J. Div. of Child. Prot. & Perm. v. A.D., 455 N.J. Super.
144, 157 (App. Div. 2018) (second alteration in original) (quoting N.J. Div. of
Child Prot. & Perm. v. N.B., 452 N.J. 513, 522 (2017)).
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"'Excessive corporal punishment' is not defined by statute but is
determined on a case-by-case basis." N.J. Div. of Youth & Fam. Servs. v. S.H.,
439 N.J. Super. 137, 145 (App. Div. 2015) (citing K.A., 413 N.J. Super. at 511).
In K.A., we noted "excessive corporal punishment" should be read in light of
the term's common usage and understood meaning. Id. at 511. While the
boundaries of what constitutes "excessive corporal punishment" are undefined
in the statute, we have placed particular weight on the statute's inclusion of the
word "excessive" and have stated that "[t]he term 'excessive' means going
beyond what is proper or reasonable." Ibid. Thus, while "moderate correction"
may be reasonable, "a single incident of violence against a child may be
sufficient to constitute excessive corporal punishment." Id. at 510-11.
Excessive corporal punishment may occur when "the child suffers a
fracture of a limb, or a serious laceration, or any other event where medical
intervention proves to be necessary . . . 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 (citation omitted). The
Administrative Code provides further guidance, listing injuries that may
constitute abuse or neglect, including "[c]uts, bruises, abrasions, welts or oral
injuries." N.J.A.C. 3A:10-2.2(a)(9).
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As stated in K.A., 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, was found to not have inflicted excessive corporal
punishment. Id. at 506, 512. There, 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.]
In light of these standards, we find no basis to disturb the judge's findings of
fact, and those findings support his legal conclusion.
Theo asserts the record lacks evidence establishing his conduct constituted
abuse and neglect under N.J.S.A. 8:6-8.21(c)(1) and 4(b)(1) because the
Division failed to prove by a preponderance of the evidence that he was
excessive in disciplining Sean, resulting in physical impairment. Theo
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maintains the facts are "undisputed" that he admitted losing control "one time"
and struck Sean with a belt "before walking away to calm down." According to
Theo, the Division's evidence failed to show that the "type of bruising caused
by traditional corporal punishment," which he claims was "using a belt on the
backside of a ten-year-old boy," was ever likely to result in "death," or in
"serious or protracted disfigurement," or in "protracted loss or impairment of the
function of any bodily organ," under N.J.S.A. 9:6-8.21(c)(1).
Here, the judge rejected Theo's contention and properly distinguished his
conduct from the defendant mother's conduct in K.A. "primarily due to the
nature and extent of the injuries to [Sean] and the instrumentalities used to inflict
them." (emphasis added). The judge emphasized there was "no weapon used to
implement the punishment in K.A." Rather, the judge focused the facts in this
case were more akin to those in N.J. Div. of Youth & Fam. Servs. v. B.H., 391
N.J. Super. 322, 340 (App. Div 2007) and N.J. Div. of Youth & Fam. Servs. v.
C.H., 414 N.J. Super. 472, 476 (App. Div. 2010), cases where a parent used an
instrumentality on a child and caused injury.
In B.H., excessive corporal punishment was found where a mother used a
belt to hit her six-year-old son and left visible welts. B.H., 391 N.J. Super. at
340. In C.H., corporal punishment was found where a mother beat her daughter
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with a paddle in the face, arms, and legs. C.H., 414 N.J. Super. at 476. In
comparison, especially to B.H., Theo used a belt when he hit Sean and caused
visible bruising on Sean's left leg, right lower back, right hip, right upper chest,
and right upper arm. Thus, here the judge properly found similarities to B.H.
and C.H., where using an instrumentality in disciplining a child and causing
visible injuries constituted abuse, than to K.A., where there was no
instrumentality used.
As to the extent of Sean's injuries, Dr. Ogunbameru confirmed that Sean's
marks would not lead to "a substantial risk of death," "permanent
disfigurement," or "protracted loss or impairment of the function of any bodily
member or organ," that the injury was "superficial," would not last in the "long-
term," and no treatment was needed. Theo's argument that these injuries fail to
qualify for abuse is conflated because he misrepresents N.J.S.A. 9:6-8.21(c) by
focusing only on subsection (c)(1) without considering subsection (c)(2).
N.J.S.A. 9:6-8.21(c)(1) to (2) reads:
"Abused or neglected child" means a child less than
[eighteen] years of age whose parent or guardian, as
herein defined, (1) inflicts or allows to be inflicted upon
such child physical injury by other than accidental
means which causes or creates a substantial risk of
death, or serious or protracted disfigurement, or
protracted impairment of physical or emotional health
or protracted loss or impairment of the function of any
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bodily organ; (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 . . . .
[(emphasis added).]
Under subsection (c)(1), Theo is correct that there is no abuse because
Sean's injury did not rise to such a level of severity. But relevant here is the
definition for abuse under subsection (c)(2): Theo created a substantial risk of
physical injury to Sean by using an instrumentality—a belt— in disciplining
him, which Theo admitted. Therefore, we conclude Theo's argument is
unavailing. Moreover, the judge found abuse was established by Theo's
infliction of excessive corporal punishment under N.J.S.A. 9:6-8.21(c)(4)(b).
Therefore, the judge correctly found the Division met its burden of proof under
N.J.S.A. 9:6-8.21(c)(4).
To the extent we have not already addressed them, any additional
arguments Theo raises on appeal lack sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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